                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 09 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBYN TREMAYNE,                                  No. 11-15831

              Plaintiff - Appellant,             D.C. No. 2:08-cv-02795-EFB

  v.
                                                 MEMORANDUM *
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,

              Defendant - Appellee.



                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edmund F. Brennan, Magistrate Judge, Presiding

                          Submitted November 7, 2012 **
                            San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and DUFFY, 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 this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
       Appellant Robyn Tremayne appeals the district court’s denial of her motion

for attorney fees, brought under the Equal Access to Justice Act (EAJA), 28 U.S.C.

§ 2412(d). As the facts and procedural history are familiar to the parties, we do not

recite them here except as necessary to explain our disposition. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

       Under the EAJA, the prevailing party in a suit against the government is

entitled to attorneys’ fees unless the court finds that the government’s position was

“substantially justified.” Le v. Astrue, 529 F.3d 1200, 1201 (9th Cir. 2008).

Substantial justification “does not mean ‘justified to a high degree,’ but simply

entails that the government must show that its position meets the traditional

reasonableness standard—that is, ‘justified . . . to a degree that could satisfy a

reasonable person.’” Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998)

(quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). A position can be

substantially justified “even though it is not correct . . . if it has a reasonable basis

in law and fact.” Pierce, 487 U.S. at 566 n.2.

       The district court did not abuse its discretion in determining that the

Commissioner was substantially justified in defending the findings of the

administrative law judge (ALJ) regarding Tremayne’s examining physician. There

was a reasonable basis for believing that the physician’s assessment, which relied


                                             2
in part on Tremayne’s subjective complaints, could be rejected for lack of

credibility. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); see also

Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004);

Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602–03 (9th Cir. 1999).

      Additionally, the Commissioner was substantially justified in positing that

the ALJ was not required to incorporate the findings of moderate mental

limitations into the hypothetical posed to the vocational expert because this

position is reasonably supported by Stubbs-Danielson v. Astrue, 539 F.3d 1169,

1173–74 (9th Cir. 2008). See also Hoopai v. Astrue, 499 F.3d 1071, 1077–78 (9th

Cir. 2007).

      AFFIRMED.




                                          3
