                    FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

MINH Q. LE, also known as Le              
Quang Vinh,
                 Plaintiff-Appellant,            No. 06-56804
                 v.
                                                  D.C. No.
                                               CV-05-01322-TJW
MICHAEL J. ASTRUE, Commissioner
of Social Security; SOCIAL                        OPINION
SECURITY ADMINISTRATION,
             Defendants-Appellees.
                                          
         Appeal from the United States District Court
           for the Southern District of California
         Thomas J. Whelan, District Judge, Presiding

                    Submitted May 8, 2008*
                      Pasadena, California

                       Filed June 24, 2008

     Before: William A. Fletcher and Ronald M. Gould,
Circuit Judges, and Louis H. Pollak, Senior District Judge.**

                     Opinion by Judge Gould




   *The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
   **The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.

                                7301
                          LE v. ASTRUE                        7303




                           COUNSEL

Alexandra T. Manbeck, San Diego, California, for the appel-
lant.

Peter D. Keisler, Assistant Attorney General, Shea Lita Bond,
Special Assistant United States Attorney, San Francisco, for
the appellee.


                           OPINION

GOULD, Circuit Judge:

   Appellant Minh Le (“Le”) first applied for Supplemental
Social Security (“SSI”) benefits in September 1994, claiming
an onset of disability of February 1994. His application was
denied by an administrative law judge in October 1997, but
that judgment was reversed by the district court and Le’s
application was remanded to the Commissioner for additional
proceedings. Le then moved in the district court for attorney’s
fees under the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412(d). The district court denied the EAJA motion,
concluding that the government’s position was “substantially
justified.” Le timely appealed the denial of EAJA fees, and
we now affirm.

  [1] We review the district court’s denial of EAJA fees
under an abuse of discretion standard. Lewis v. Barnhart, 281
F.3d 1081, 1083 (9th Cir. 2002). Under EAJA, a prevailing
party1 in a suit against the government is entitled to fees in
  1
   The government properly concedes that Le was a prevailing party
under EAJA. See Flores v. Shalala, 49 F.3d 562, 568 (9th Cir. 1995)
7304                            LE v. ASTRUE
certain circumstances unless the government’s position was
“substantially justified.” United States v. Marolf, 277 F.3d
1156, 1160 (9th Cir. 2002). To meet the “substantially justi-
fied” standard, the government must advance a position that
is “justified in substance or in the main—that is, justified to
a degree that could satisfy a reasonable person.” Id. at 1161
(citation and internal quotation marks omitted). Le’s principal
argument in this appeal is that the Commissioner unreason-
ably argued that Dr. Miller was not a treating doctor. Under
the regulations,2 a treating doctor (or “treating source”),
“means your [i.e. the claimant’s] own physician, psychologist,
or other acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who
has, or has had, an ongoing treatment relationship with you.”
20 C.F.R. § 404.1502.

   Le had seen Dr. Miller only five times in three years for
treatment of severe psychological problems. The Commis-

(“[A]n applicant for benefits becomes the prevailing party upon procuring
a sentence-four remand for further administrative proceedings, regardless
of whether he later succeeds in obtaining the requested benefits.”).
   2
     The regulations continue:
         Generally, we will consider that you have an ongoing treat-
      ment relationship with an acceptable medical source when the
      medical evidence establishes that you see, or have seen, the
      source with a frequency consistent with accepted medical prac-
      tice for the type of treatment and/or evaluation required for your
      medical condition(s). We may consider an acceptable medical
      source who has treated or evaluated you only a few times or only
      after long intervals (e.g., twice a year) to be your treating source
      if the nature and frequency of the treatment or evaluation is typi-
      cal for your condition(s). We will not consider an acceptable
      medical source to be your treating source if your relationship
      with the source is not based on your medical need for treatment
      or evaluation, but solely on your need to obtain a report in sup-
      port of your claim for disability. In such a case, we will consider
      the acceptable medical source to be a nontreating source.
Id.
                         LE v. ASTRUE                       7305
sioner argued in the district court that these few visits did not
qualify Dr. Miller as a treating doctor given the seriousness
of Le’s condition.

   [2] Though incorrect, the commissioner’s position was sub-
stantially justified within the meaning of the fee statute. A
nonfrivolous argument could be made that Le’s five visits
over three years were not enough under the regulatory stan-
dard especially given the severity and complexity of Le’s
alleged mental problems. “It is not necessary, or even practi-
cal, to draw a bright line distinguishing a treating physician
from a non-treating physician. Rather, the relationship is bet-
ter viewed as a series of points on a continuum reflecting the
duration of the treatment relationship and the frequency and
nature of the contact.” Benton v. Barnhart, 331 F.3d 1030,
1038 (9th Cir. 2003) (quoting Ratto v. Sec’y of Health and
Human Servs., 839 F.Supp. 1415, 1425 (D. Or. 1993)). Given
the vagueness and fact-specific nature of the regulatory stan-
dard, the Commissioner’s position was reasonable even
though incorrect. Le’s brief argument that the Commissioner
was not substantially justified in arguing that ALJ Tom’s clas-
sification of Dr. Miller as a non-treating source was harmless
error is also meritless. The District Court did not err in deny-
ing Le’s motion for EAJA fees.

  AFFIRMED.
