                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 7 2017
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

HEATHER ROUNDS,                                 No.   16-35588

                Plaintiff-Appellant,            D.C. No. 3:12-cv-00342-MA

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

                Defendant-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Malcolm F. Marsh, District Judge, Presiding

                            Submitted April 11, 2017**


Before: W. FLETCHER and HURWITZ, Circuit Judges, and BAYLSON,***
District Judge.

      We previously affirmed in part and vacated in part the decision of an



      *
             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. Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Michael M. Baylson, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
Administrative Law Judge (“ALJ”) denying Heather Rounds’s application for

Supplemental Security Income benefits, and remanded for the ALJ to resolve an

apparent conflict between the testimony of a vocational expert (“VE”) and the

Dictionary of Occupational Titles (“DOT”). Rounds v. Comm’r of Soc. Sec., 807

F.3d 996, 999 (9th Cir. 2015). On remand, Rounds applied for attorneys’ fees under

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). The district

court denied the fee application, and this appeal followed.

      Fees are not available under the EAJA if the Commissioner’s position was

“substantially justified.” Id. “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).

“Thus we must 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) (internal

quotation marks and citations omitted).

      We review a district court’s denial of fees under the EAJA for abuse of

discretion. Corbin v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). The district court

did not abuse its discretion in concluding that the Commissioner’s position was

substantially justified both before the ALJ and during the subsequent litigation.

                                          2
Prior to Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015), district courts in our circuit

were divided as to whether the ALJ was required to reconcile conflicts between the

VE’s testimony and one of the DOT GED Reasoning Level 3 at Step Five of the

five-step sequential evaluation process. See id. at 846-47 (“District courts in our

circuit that have confronted this issue are also divided.”).            Therefore, the

Commissioner’s position before the ALJ in this case, which involved an analogous

situation of conflicts between a VE’s testimony and DOT’s GED Reasoning Level

2 at Step Five, was not unreasonable under then-existing law. See Rounds, 807 F.3d

at 1002-04. And, because Zavalin was not issued until after the briefing on appeal

in this case closed, the Commissioner’s litigation position was also not unreasonable.

      AFFIRMED.




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