Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1979)

MEMORANDUM^* 

This is an appeal from a denial of attorney's fees pursuant to 28 U.S.C. § 2412 (1982 & Supp. IV 1986). The dispositive issue is whether the district court erred in holding that the government was substantially justified in contesting Aitkens' right to disability benefits. We review for abuse of discretion. Pierce v. Underwood, 108 S. Ct. 2541 (1988).

The Secretary originally determined in 1979 that the appellant was no longer entitled to disability benefits. The appellant sought review before the United States District Court, where he argued that the Secretary had failed to apply the material medical improvement standard announced by this court in Finnegan v. Matthews, 641 F.2d 1340 (9th Cir. 1981). He also contended that the Secretary's determination was not supported by substantial evidence. The district court held that the appropriate standard had been followed and that the decision was supported by substantial evidence.

While the matter was pending on appeal, the Secretary requested remand following the enactment of the Social Security Disability Benefits Reform Act of 1984, Pub. L. No. 98-460, 98 Stat. 1794 (1984). The Secretary then determined that appellant was entitled to continued benefits.

The appellant's present application for fees is based on the Secretary's disposition of the case after remand. Because the new statute in part codified the Finnegan holding, with which the Secretary had previously announced a policy of non-acquiescence, and because the Secretary restored Aitkens' benefits after remand, appellant contends that we must hold that the ALJ decision prior to remand did not apply the Finnegan standard.

We do not agree that this conclusion necessarily follows from the premise. The relevant inquiry is whether the ALJ applied the appropriate standard. The ALJ decision on its face did apply the Finnegan standard; it stated that " [Aitkens'] impairment, as viewed by objective medical evidence, is less disabling since July 1, 1979 than it was before 1974." We cannot hold that the government was unreasonable in arguing that the appropriate standard was applied. Nor can we hold that the district court was unreasonable in agreeing with the government.

It is therefore unnecessary for us to decide whether the appellant should be regarded as a "prevailing party" for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (1) (A). The district court did not err in holding that the government's position was reasonable and hence "substantially justified." See Pierce v. Underwood, 108 S. Ct. 2541 (1988).

AFFIRMED.