                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAR 07 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


KATHLEEN M. BURKE,                               No.   16-35764

              Plaintiff-Appellant,               D.C. No. 3:13-cv-05548-BHS

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                            Submitted March 6, 2018 **


Before: THOMAS, Chief Circuit Judge, and TROTT and SILVERMAN, Circuit
Judges

      Kathleen Burke appeals the district court’s denial of her application for fees

pursuant to the Equal Access to Justice Act following our remand of her previous


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Social Security disability benefits appeal. We review the district court’s order for

an abuse of discretion. Decker v. Berryhill, 856 F.3d 659, 663 (9th Cir. 2017). We

affirm.

      The district court did not improperly reconsider the merits of Burke’s

disability claim. It properly focused on the nature and scope of our remand to

determine whether both the government’s litigation position and ALJ’s position

had a reasonable basis in fact and law. Id. at 664; Gardner v. Berryhill, 856 F.3d

652, 656 (9th Cir. 2017); Sampson v. Chater, 103 F.3d 918, 922 (9th Cir. 1996). It

reasonably concluded that it did.

      Nor did the district court ignore an independent reason for remand. Our

holding that the ALJ failed to develop the record to support three of the adverse

credibility findings was intertwined with and dependent upon our holding that the

adverse credibility findings were unsupported by the record. We specifically

rejected Burke’s argument that the ALJ otherwise failed to develop the record.

      The district court did not abuse its discretion by holding that both the ALJ’s

decision and the government’s litigation position had a reasonable basis in fact and

law. Burke never disputed that she made inconsistent statements about her medical

condition and why she stopped working. As a matter of law, inconsistent

statements may support adverse credibility determinations. Tommasetti v. Astrue,


                                          2
533 F.3d 1035, 1039 (9th Cir. 2008). Finally, the district court could consider

disagreement among the federal judges in deciding substantial justification. Meier

v. Colvin, 727 F.3d 867, 873 (9th Cir. 2013); Lewis v. Barnhart, 281 F.3d 1081,

1084 (9th Cir. 2002).

      AFFIRMED.




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