                                                                              FILED
                             NOT FOR PUBLICATION                              MAR 12 2012

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


WAYNE LEE MCGINTY,                               No. 10-56126

                Plaintiff - Appellant,           D.C. No. 5:09-cv-00888-AN

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

                Defendant - Appellee.


                     Appeal from the United States District Court
                         for the Central District of California
                     Arthur Nakazato, Magistrate Judge, Presiding

                            Submitted February 13, 2012**
                                Pasadena, California

Before:         FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
                Senior District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
          ***
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
      Plaintiff-Appellant Wayne Lee McGinty (“McGinty”) appeals the district

court’s denial of his request for attorney’s fees pursuant to the Equal Access to Justice

Act (“EAJA”). He contends that the government’s “position” was not “substantially

justified.” See 28 U.S.C. § 2412(d)(1)(A). It is undisputed that McGinty is the

“prevailing party” for purposes of the EAJA, having secured a reversal of the decision

of the Administrative Law Judge (“ALJ”) and a remand. See Gutierrez v. Barnhart,

274 F.3d 1255, 1257 (9th Cir. 2001).

      “The decision whether to award fees under the EAJA, including the district

court’s conclusion that the government’s position was substantially justified, is

reviewed for abuse of discretion.” Id. at 1258. The government’s position was

substantially justified if it had “a reasonable basis both in law and in fact.” Meinhold

v. United States Dep’t of Def., 123 F.3d 1275, 1277 (9th Cir.), amended by 131 F.3d

842 (9th Cir. 1997). As the Supreme Court has explained, “substantially justified”

does not mean “‘justified to a high degree,’ but rather [means] ‘justified in substance

or in the main’—that is, justified to a degree that could satisfy a reasonable person.”

Pierce v. Underwood, 487 U.S. 552, 565 (1988). And “[t]he term ‘position’ includes

the underlying agency action and the legal position of the United States during

litigation.” Andrew v. Bowen, 837 F.2d 875, 878 (9th Cir. 1988).




                                           2
      Here, the government had the burden of demonstrating that its position was

substantially justified with respect to (1) the ALJ’s adverse credibility determination

regarding McGinty’s subjective symptom testimony and (2) the ALJ’s rejection of the

written statement and hearing testimony of McGinty’s lay witness. The ALJ’s adverse

credibility determination was based on two specific grounds. First, the ALJ found that

there were “very few clinical findings” to support McGinty’s subjective symptom

testimony. Second, the ALJ found that McGinty’s daily activities were inconsistent

with this testimony. Moreover, these two grounds also supported the ALJ’s rejection

of the testimony and statement of McGinty’s lay witness.

      Those grounds have a reasonable basis in law because a lack of medical

evidence and a claimant’s daily activities are both factors that an ALJ can take into

account when making a credibility determination. Burch v. Barnhart, 400 F.3d 676,

681 (9th Cir. 2005); Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc).

And both grounds have a reasonable basis in fact because they find support in the

record. See Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010), cert. denied, 131

S. Ct. 2443 (2011).

      Moreover, because the ALJ rejected the lay witness testimony for the same

reasons he rejected McGinty’s testimony, the finding that the lay witness testimony

was entitled to “little weight” is also substantially justified. See Valentine v. Comm’r


                                           3
Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009) (indicating that third-party

testimony can be rejected for the same reasons provided for rejecting the claimant’s

testimony).

      In sum, the district court did not abuse its discretion in finding that the

government had met its burden of establishing substantial justification and in thus

denying McGinty’s EAJA petition. Because McGinty is not entitled to EAJA fees,

it is not necessary to reach the question McGinty raises of how such fees should be

calculated.

      AFFIRMED.




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