                                                                              FILED
                             NOT FOR PUBLICATION                               FEB 23 2012

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



                              FOR THE NINTH CIRCUIT


PATRICIA ANN SEXTON,                             No. 10-56464

                Plaintiff - Appellant,           D.C. No. 5:09-cv-01951-E

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

                Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                     Charles F. Eick, 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 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 Patricia Ann Sexton (“Sexton”) appeals the denial of her

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

She contends that the government’s “position” was not “substantially justified.”

See 28 U.S.C. § 2412(d)(1)(A). There is no dispute that Sexton is a “prevailing

party” for purposes of the EAJA.

      “Substantially justified 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) (internal quotation marks omitted). In reviewing a

district court’s denial of EAJA fees in a case where, as here, the district court

reversed the decision of an Administrative Law Judge (“ALJ”) on account of

procedural errors, the relevant question is not whether the government’s position

on the merits of the plaintiff’s claim was substantially justified but, rather,

“whether the government’s decision to defend on appeal the procedural errors

committed by the ALJ was substantially justified.” Shafer v. Astrue, 518 F.3d

1067, 1071 (9th Cir. 2008).

      “To reject the opinion of a treating physician which conflicts with that of an

examining physician, the ALJ must make findings setting forth specific, legitimate

reasons for doing so that are based on substantial evidence in the record.”

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks


                                           2
and citations omitted). In evaluating Sexton’s application for disability benefits,

the ALJ rejected the opinion of a treating physician, Dr. Raval, because the opinion

was “based solely on the claimant’s subjective complaints” and was “not supported

by the objective evidence.” The district court reversed and remanded, concluding

that the ALJ’s stated reasons for rejecting the opinion were insufficiently specific

and that the ALJ should have tried to clarify the basis for Dr. Raval’s opinion.

Nevertheless, the district court concluded that the government was substantially

justified in its decision to defend the ALJ’s action.

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

government’s position in this case was substantially justified. In Embrey v. Bowen,

849 F.2d 418, 421 (9th Cir. 1988), we noted: “[t]o say that medical opinions are

not supported by sufficient objective findings or are contrary to the preponderant

conclusions mandated by the objective findings does not achieve the level of

specificity our prior cases have required.” However, the government could

reasonably have found Embrey distinguishable. Sexton’s other objections to the

district court’s decision are unavailing.

      AFFIRMED.




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