Unpublished Disposition, 909 F.2d 1489 (9th Cir. 1988)

* On July 16, 1982, Surya Sharma filed applications for Social Security benefits, alleging that he had been unable to work since February 1982 because of back and neck injuries, high blood pressure, and allergies. After a hearing on May 6, 1983, an administrative law judge ("ALJ") denied Sharma's applications for benefits because Sharma had failed to show that his alleged disabilities were "severe" within the meaning of the Social Security Act. The Appeals Council denied review.

Sharma then filed a motion for summary judgment and/or remand in federal district court ("Sharma I "), alleging that the ALJ's decision was not supported by substantial evidence. The case was remanded for further administrative proceedings.

On remand, the ALJ again found that Sharma was not disabled within the meaning of the Act. The Appeals Council remanded the case to the ALJ for further proceedings when new evidence regarding Sharma's mental condition was revealed. After further proceedings, the ALJ concluded that Sharma had been disabled since November 1983 as a result of his mental condition. The Appeals Council adopted the ALJ's decision.

Sharma then filed an action in federal district court ("Sharma II "), contending that the ALJ had erred in not finding that he was entitled to benefits prior to November 1983. The district court again remanded to the Secretary. On remand, the Appeals Council, on December 1, 1987, issued a final decision finding that Sharma had been disabled since July 1982.

Sharma subsequently filed a motion in district court on December 21, 1987, seeking $13,635 in attorney fees under the Equal Access to Justice Act ("EAJA"). See 28 U.S.C. § 2412(d). In a thirteen-page report, a magistrate recommended that the district court deny attorney fees for work done related to Sharma I because the government's position was substantially justified; but the magistrate recommended that the district court grant attorney fees for work done related to Sharma II. On December 14, 1988, the district court adopted the magistrate's recommendation and entered an order awarding $2,924.33 in attorney fees for work done in Sharma II. Sharma now appeals from the portion of the district court's order that denied attorney fees related to Sharma I.

II

We first consider the threshold question of whether Sharma prematurely filed his motion for EAJA attorney fees. In order to address this question it is necessary to determine when a "final judgment" was entered.

A "final judgment" under the EAJA means "a judgment that is final and not appealable, and includes an order of settlement." 28 U.S.C. § 2412(d) (2) (G). An application for attorney fees under the EAJA must be filed within thirty days of "final judgment" in the action. 28 U.S.C. § 2412(d) (1) (B). This thirty-day time limitation is jurisdictional. See Papazian v. Bowen, 856 F.2d 1455, 1455-56 (9th Cir. 1988). The specific jurisdictional question raised, in this appeal, is what event triggers the thirty-day period when the district court, as in this case, does not enter a final judgment affirming the Secretary's final administrative decision awarding disability benefits, when the final administrative decision results from a direct remand.

We recently addressed this question in Melkonyan v. Heckler, 895 F.2d 556 (9th Cir. 1990). In Melkonyan, this court observed that ordinarily the thirty-day period will begin sixty-five days after the date of the notice of the Secretary's determination of eligibility for benefits. Id. at 558. But, under the specific facts of Melkonyan, the thirty-day period began to run immediately upon the decision of the Appeals Council because the Secretary's decision, at that moment, was not "appealable" by either the claimant or the government. Id.

In light of Melkonyan, Sharma's EAJA attorney fees motion was not premature. Sharma filed for EAJA attorney fees within thirty days of the Appeals Counsel's "final decision" finding Sharma disabled since July 1982. We, therefore, reach the merits of Sharma's appeal.

III

Sharma argues that the district court abused its discretion in denying his EAJA attorney fees motion for work done related to Sharma I. The EAJA provides in pertinent part:

[A] court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action ... brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d) (1) (A).

As the district court noted, Sharma is the prevailing party. The government does not contend otherwise. The sole issue raised in this appeal, therefore, is whether the district court abused its discretion in determining that the government's position in Sharma I was substantially justified.

"Substantially justified" under the EAJA means "justified to a degree that could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). The government bears the burden of showing that both its litigation position and its underlying administrative action were substantially justified. United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1248-49 (9th Cir. 1988). The fact that the government did not prevail, however, does not raise any presumption that its position was not substantially justified. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988).

The district court determined that the government's position in Sharma I--defending the Secretary's decision that Sharma's disabilities were not "severe" within the meaning of the Act--was substantially justified. First, the district court observed that although Sharma's complaints of dizziness were supported by several physicians who diagnosed dizziness and vertigo, the physicians' conclusions were not supported by any objective medical evidence except an electronystagmogram ("ENG"). The district court noted that while a certain Dr. Goldware concluded that the result of the ENG indicated a very depressed right vestibular labyrinth, another physician, Dr. Friedland, concluded that the ENG results demonstrated only a mildly depressed right vestibular labyrinth.¹ 

Second, the district court noted that a certain Dr. Bendri, in his report, questioned Sharma's credibility regarding the dizziness complaint.²  Given these conflicts in the record, the district court determined that the government was substantially justified in defending the ALJ's determination that Sharma was not entitled to disability benefits in Sharma I.

Sharma contends that the district court (and the ALJ) mischaracterized Dr. Friedland's report. Specifically, he argues that there is no conflict between Dr. Friedland's and Dr. Goldware's reports because Dr. Friedland was only summarizing Dr. Goldware's conclusions of the ENG data.

Even if Sharma's argument that the district court mischaracterized Dr. Friedland's statement is true, the district court, nonetheless, correctly noted that Dr. Bendri personally observed Sharma's apparent exaggeration of dizziness during a physical examination. Prior inconsistent statements made by a claimant may be considered in determining the credibility of the claimant. See Fair v. Bowen, 885 F.2d 597, 604 n. 5 (9th Cir. 1989).

Moreover, the district court abuses its discretion in denying attorney fees under the EAJA only "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." Kali, 854 F.2d at 331 (internal quotation and citation omitted). The reviewing court "may not substitute [its] view of what constitutes substantial justification for that of the district court; [the] review is limited to assuring that the district court's determination has a basis in reason." Pirus v. Bowen, 869 F.2d 536, 540 (9th Cir. 1989). Here, the record contains evidence that supports the district court's conclusion that the government's position was substantially justified. Therefore, the district court did not abuse its discretion in denying Sharma EAJA attorney fees for work related to Sharma I.

AFFIRMED.