Unpublished Disposition, 936 F.2d 578 (9th Cir. 1983)

The Equal Access to Justice Act (EAJA) provides for an award of attorney's fees to a prevailing party in a civil action against the United States unless the position of the United States was "substantially justified." 28 U.S.C. § 2414(d) (1) (A). The Ninth Circuit applies a reasonableness standard in determining whether the government's position was substantially justified for purposes of the EAJA. Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988). Where the government's position had "a reasonable basis both in law and fact," that is, whether it was justified "to a degree that could satisfy a reasonable person," attorneys' fees should not be awarded. Pierce v. Underwood, 487 U.S. 552, 565 (1988).

We review the district court's denial of an award of attorneys' fees for abuse of discretion. Pierce, 487 U.S. at 562; Kali, 854 F.2d at 331. The district court abuses its discretion when its decision "is based on an erroneous conclusion of law or when the record contains no evidence on which [it] rationally could have based that decision." Id. (quoting In re Hill, 775 F.2d 1037, 1040 (9th Cir. 1985)).

This case initially came to us in 1987 as an appeal from a denial of disability benefits. We remanded it because the administrative law judge did not make adequate findings to justify his rejection of Matteoni's complaints of pain and inertia. In 1989, the Appeals Council ruled Matteoni had been disabled since March 13, 1983. Matteoni's counsel then applied for attorney's fees under the EAJA. In April, 1990, the district court denied that application holding that the Secretary's initial position was substantially justified.

Even though the ALJ may have initially failed to articulate his findings regarding Matteoni's subjective pain testimony, there existed some evidence to support the Secretary's position. Although both the orthopedist and the cardiologist noted functional limitations on Matteoni's ability to perform activities requiring significant physical exertion, such as pushing or pulling, excessive reaching, or heavy lifting, they did not restrict her from sitting for prolonged periods of time or from other sedentary work.

Therefore the Secretary's position, that Matteoni was not disabled, was supported by sufficient evidence as required by Pierce and Kali.

We affirm the district court's denial of attorney's fees under the EAJA.

AFFIRMED.