                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           AUG 25 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
KATHLEEN ALLEN-HOWARD,                           No. 13-35275

              Plaintiff - Appellant,             D.C. No. 3:11-cv-01116-RE

  v.
                                                 MEMORANDUM*
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                 James A. Redden, Senior District Judge, Presiding

                              Submitted July 9, 2015**
                                 Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

       Kathleen Allen-Howard appeals the district court’s order denying her motion

for attorney’s fees made pursuant to the Equal Access to Justice Act (“EAJA”).



        *
             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).
We review “the district court’s denial of attorney’s fees under EAJA for an abuse

of discretion.” Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013). We affirm.

       “[A] court shall award to a prevailing party other than the United States fees

. . . incurred by that party in any civil action . . . unless the court finds that the

position of the United States was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A). The “‘position

of the United States’ means, in addition to the position taken by the United States

in the civil action, the action or failure to act by the agency upon which the civil

action is based.” Id. § 2412(d)(2)(D). In determining whether the position of the

United States was substantially justified, we “focus on two questions: first, whether

the government was substantially justified in taking its original action; and, second,

whether the government was substantially justified in defending the validity of the

action in court.” Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001)

(quoting Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988)) (internal quotation

marks omitted). The United States bears the burden of demonstrating that its

position was substantially justified, meaning “the government’s position must have

a ‘reasonable basis both in law and fact.’” Meier, 727 F.3d at 870 (quoting Pierce

v. Underwood, 487 U.S. 552, 565 (1988)).




                                             2
      In order to determine whether the Commissioner’s position was substantially

justified, we must look to the Administrative Law Judge’s (“ALJ”) initial decision

to deny Allen-Howard social security benefits. Meier, 727 F.3d at 870 (“In the

social security context, we have consistently treated the ALJ’s decision as the

‘action or failure to act by the agency upon which the civil action is based.’”). The

ALJ denied Allen-Howard benefits without determining whether Allen-Howard’s

residual functional capacity (“RFC”) for “1 to 2 step tasks” conflicted with

Reasoning Levels 2 and 3 in the Dictionary of Occupational Titles (“DOT”). The

Commissioner argued before the district court that there was not an apparent

conflict. The district court disagreed, but declined to award attorney’s fees after

finding that the Commissioner’s position was substantially justified.

      In Rounds v. Commissioner of Social Security, No. 13-5505 (9th Cir. August

4, 2015), we recently determined that an RFC for “1 to 2 step tasks” is in apparent

conflict with Reasoning Level 2. Nevertheless, the ALJ’s decision was

substantially justified, because we had not determined whether an RFC for “1 to 2

step tasks” is in apparent conflict with Reasoning Level 2 at the time the ALJ made

its decision. If there were not an apparent conflict, the ALJ was entitled to rely on

the testimony of the Vocational Expert (“VE”) regarding the jobs Allen-Howard

could perform in the national economy. See Massachi v. Astrue, 486 F.3d 1149,


                                          3
1152–53 (9th Cir. 2007). The district courts of this circuit have split on this

question, and there was no controlling authority to guide the ALJ. See Meissl v.

Barnhart, 403 F. Supp. 2d 981 (C.D. Cal. 2005); Skeens v. Astrue, 903 F. Supp. 2d

1200 (W.D. Wash. 2012). It was not clear at the time the ALJ made its decision

that Allen-Howard’s RFC, for “1 to 2 step tasks,” was inconsistent with Reasoning

Level 2. Therefore, there was a reasonable basis in law and fact to support the

ALJ’s decision not to recognize an apparent conflict between the VE’s testimony

regarding what jobs a claimant with Allen-Howard’s RFC could perform and the

DOT.

       The Commissioner’s litigation position in the district court was also

substantially justified. As noted, there was no controlling authority on the question

raised in Allen-Howard’s appeal at the time the Commissioner filed its briefing.

This is not a case like Gutierrez, where the government’s position on an open

question was contrary to the clear and unequivocal language of a regulation. See

Gutierrez, 274 F.3d at 1262. Allen-Howard’s case involved “contested

interpretations of an ambiguous legal rule.” Id. Therefore, the Commissioner’s

litigation position was substantially justified.

       AFFIRMED.




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