Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 841 F.2d 1129 (9th Cir. 1988)

Robert HAYES, Plaintiff-Appellant,v.Otis B. BOWEN M.D.,*  Secretary of Health andHuman Services, Defendant-Appellee.

No. 86-4153.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 2, 1987.Decided March 7, 1988.

Before HUG, FARRIS and CANBY, Circuit Judges.


MEMORANDUM** 

Appellant Robert Hayes appeals the denial of his petition for attorney's fees and expenses under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (1982 & Supp. III 1985).1  Hayes first contends that the district court applied an incorrect legal standard in denying his EAJA petition. Hayes further contends that regardless of the legal standard applied, the record does not contain any evidence showing that the Secretary of Health and Human Services ("Secretary") was substantially justified in resisting Hayes' claim and litigating this case. The district court found that the Secretary's position in this matter was substantially justified as a matter of law and fact and denied appellant's petition. We affirm.

A district court's decision to award or deny attorneys' fees under the EAJA will be reversed only for an abuse of discretion. Petition of Hill, 775 F.2d 1037, 1040 (9th Cir. 1985); Rawlings v. Heckler, 725 F.2d 1192, 1194 (9th Cir. 1984). The EAJA authorizes an award of attorney's fees against the United States Government unless the district court finds that the position of the United States Government is substantially justified or that special circumstances make the award unjust. 28 U.S.C. § 2412(d) (1) (A) (Supp. III 1985). In reviewing the Government's position, the district court should consider the totality of the circumstances present, prior to, and during litigation. Rawlings, 725 F.2d at 1196.

The correct standard to be applied in determining whether the Government's position was substantially justified is one of reasonableness. Foster v. Tourtellotte, 704 F.2d at 1112 (9th Cir. 1983) (per curiam). To meet this standard, the Government must show that its case had a reasonable basis both in law and in fact. Albrecht v. Heckler, 765 F.2d 914, 915 (9th Cir. 1985); Timms v. United States, 742 F.2d 489, 492 (9th Cir. 1984). The fact that the Government lost on the merits or that it cannot show that it had a substantial likelihood of prevailing does not raise a presumption that the Government's position was not substantially justified. United States v. First National Bank of Circle, 732 F.2d 1444, 1447 (9th Cir. 1984). We decline to apply the standard suggested by appellant, that the Secretary is not substantially justified in resisting and litigating a claim if he is unable to produce "substantial evidence" to sustain his ruling. We find that the district court applied the correct legal standard in deciding appellant's EAJA petition.

Hayes further argues that regardless of the legal standard applied by the district court, the record does not support a finding that the Secretary was substantially justified in litigating this case. Hayes contends that the district court did not adequately consider the objective clinical evidence presented at trial, gave insufficient weight to the opinion of appellant's treating physician, neglected the affidavit of a private attorney supplementing appellant's petition, and improperly evaluated appellant's residual work capacity. Finally, appellant argues that the magistrate failed to recognize that existing Ninth Circuit law required reversal of the ALJ's decisions. We disagree.

The objective medical evidence presented at trial showed that Hayes had a full range of motion in both the lumbar and cervical spine. Hayes had normal results in an electromyelogram performed in March 1982. In addition, he could do a full squat and rise. Hayes' motor strength and sensory responses were normal. Neurological testing indicated that Hayes suffered some tenderness and pain, as well as some sensory loss in the legs. However, lateral and forward bending did not worsen the pain and no back surgery was required.

Despite Hayes' assertion that his physician's finding of total disability was ignored by the trial court and uncontradicted at trial, the record indicates otherwise. Appellant's own physician reported that Hayes had normal gait, station, and heel and toe walking. He found that Hayes could hop on one foot, had normal H reflex studies, and suffered no muscle atrophy. Straight leg raising was normal. The magistrate's findings adopted by the district court demonstrate that the evidence presented by appellant's treating physician, and the objective medical evidence presented at trial, were considered.

Hayes argues that the district court abused its discretion in disregarding the affidavit of a private attorney that supplemented Hayes' EAJA petition. In the affidavit, the attorney stated, that in his professional opinion, the Secretary should not have litigated because Hayes' claim was so strong. While the district court was free to consider the affiant's statements, it was not an abuse of discretion to rely on other, more persuasive bases in denying appellant's petition.

Hayes next argues that the district court improperly evaluated the evidence of Hayes' residual ability to work. If no evidence supported the Secretary's finding of residual work capacity, his position would be unreasonable. See Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir. 1984). Although Hayes may not be capable of returning to his former job, the evidence presented at trial did not uniformly show that he was unable to do any job. Thus, the government acted reasonably in presenting the opinion of a vocational expert that Hayes was capable of certain light or sedentary jobs that do not require prolonged sitting, standing or walking. See Hall v. Secretary of HEW, 602 F.2d 1372, 1377 (9th Cir. 1979). We do not find that the district court abused its discretion in concluding that the Secretary's position on appellant's residual work capacity was substantially justified.

Finally, Hayes argues that the district court erred in stating that there had been no clear circuit law requiring rejection of the Secretary's position. Hayes contends that, rather than relying on out-of-circuit authority overturning the Secretary's decision, the magistrate had in fact relied on Rhodes v. Schweiker, 660 F.2d 722 (9th Cir. 1981). Rhodes requires the government to present clear and convincing reasons for rejecting the attending physician's opinion.

Be that as it may, there was room for argument over the proper outcome of this case even under the Rhodes standard. The medical evidence can properly be interpreted as presenting a conflict over the degree of Hayes' disability. Even though the ALJ may have weighed the conflicting medical evidence improperly, the existence of some evidence supporting the Secretary permits a finding that the Secretary's position was reasonable. Albrecht v. Heckler, 765 F.2d 914, 916 (9th Cir. 1985). There was no abuse of discretion by the district court.

AFFIRMED.

 *

Otis B. Bowen M.D., has been substituted for Margaret M. Heckler, Fed. R. App. P. 43(c)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3

 1

This action arises out of Hayes' successful suit for Social Security disability benefits. The district court denied Hayes' original EAJA petition for attorney's fees. On appeal, this court remanded the case for articulation of the district court's reasons for denying the petition. See Hayes v. Heckler, 785 F.2d 1455 (9th Cir. 1986). On remand, the district court again denied Hayes' petition for attorneys' fees. This appeal followed

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