                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                November 7, 2003

                                                            Charles R. Fulbruge III
                                                                    Clerk
                             No. 03-50528
                           Summary Calendar



HENRY L. HERNANDEZ,

                                      Plaintiff-Appellant,

versus

Jo ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                      Defendant-Appellee.

                          --------------------
             Appeal from the United States District Court
                   for the Western District of Texas
                        USDC No. A-02-CV-349-SS
                          --------------------

Before JOLLY, SMITH, and WIENER, Circuit Judges.

PER CURIAM:*

     Henry Lara Hernandez appeals the district court’s denial

of attorney fees in this Social Security case.     See 28 U.S.C.

§ 2412(d).     Hernandez obtained a remand from the district court

for additional administrative proceedings on his claim for

Supplemental Security Income (SSI)under Title XVI of the Social

Security Act because the Administrative Law Judge did not

explicitly find that Hernandez could maintain the employment for

which he was otherwise qualified.     See Watson v. Barnhart,

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                            No. 03-50528
                                 -2-

288 F.3d 212 (5th Cir. 2002) (remanding for finding on ability

to maintain employment).

     The district court did not abuse its discretion by denying

fees.    See Pierce v. Underwood, 487 U.S. 552, 562-63 (1988).

The position taken by the Commissioner of Social Security in

opposition to remand was reasonable and therefore “substantially

justified” so that no fee award is warranted.    See 28 U.S.C.

§ 2412(d)(1)(A); see also Dunbar v. Barnhart, 223 F. Supp. 2d

795, 796 (W.D. Tex. 2002) (reasoning that Watson does not mandate

reversal every time Commissioner fails to make explicit finding

on ability to maintain employment), aff’d, 330 F.3d 670 (5th Cir.

2003).    Hernandez shows no other basis for awarding fees nor for

ordering that fees be withheld from a possible future SSI award.

See 42 U.S.C. § 406; Bowen v. Galbreath, 485 U.S. 74, 76-78

(1988).

     The decision of the district court is AFFIRMED.
