NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 12 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHELE BELANGER, No. 17-35656

Plaintiff-Appellant, D.C. No. 6:07-cv-01727-AA

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding

Submitted May 9, 2022** Pasadena, California

Before: McKEOWN and OWENS, Circuit Judges, and HELLERSTEIN,*** District Judge.

* 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. 34(a)(2). *** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. Michele Belanger appeals from the district court’s order denying her motion

for attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412. Belanger sought attorneys’ fees under the EAJA after this court reversed

and remanded the 2012 Administrative Law Judge (“ALJ”) decision denying her

application for Social Security disability benefits. See Belanger v. Berryhill, 685

F. App’x 596, 598 (9th Cir. 2017). We review the denial of a motion for attorneys’

fees under the EAJA for an abuse of discretion. Decker v. Berryhill, 856 F.3d 659,

663 (9th Cir. 2017). As the parties are familiar with the facts, we do not recount

them here. We affirm.

The EAJA provides that “a court shall award to a prevailing party other than

the United States fees . . . incurred by that party in any civil action . . . brought by

or against the United States . . . 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). “The government has the burden of

showing that its position was substantially justified.” Gardner v. Berryhill, 856

F.3d 652, 656 (9th Cir. 2017). “Substantial justification means justified in

substance or in the main—that is, justified to a degree that could satisfy a

reasonable person.” Id. (citation and internal quotation marks omitted). “Put

differently, the government’s position must have a reasonable basis both in law and

fact.” Id. (citation and internal quotation marks omitted).

2 The “‘position of the United States’ means, in addition to the position taken

by the United States in the civil action, the action or failure to act by the agency

upon which the civil action is based.” 28 U.S.C. § 2412(d)(2)(D). In other words,

the “‘position of the United States’ includes both the government’s litigation

position and the underlying agency action giving rise to the civil action.” Meier v.

Colvin, 727 F.3d 867, 870 (9th Cir. 2013). “In the social security context, we have

consistently treated the ALJ’s decision as the ‘action or failure to act by the agency

upon which the civil action is based[.]’” Id.

1. Belanger argues that the district court erred because, for purposes of

determining eligibility for EAJA fees, the “position of the United States” should

have also included the earlier 2005 ALJ decision that the district court remanded

for consideration of new evidence under sentence six of 42 U.S.C. § 405(g).

However, Belanger waived this issue by failing to adequately raise it in the district

court. See True Health Chiropractic, Inc. v. McKesson Corp., 896 F.3d 923, 930

(9th Cir. 2018) (“Although no bright line rule exists to determine whether a matter

has been properly raised below, an issue will generally be deemed waived on

appeal if the argument was not raised sufficiently for the trial court to rule on it.”

(citation omitted)).

In her EAJA application, Belanger was only required to “allege that the

position of the United States was not substantially justified,” 28 U.S.C.

3 § 2412(d)(1)(B), and then the burden shifted to the government to establish

otherwise. See Scarborough v. Principi, 541 U.S. 401, 414-16 (2004).

Nonetheless, after the government’s opposition focused on the 2012 ALJ decision,

Belanger should have raised her argument that the 2005 ALJ decision was also

relevant, such as in her reply. Instead, Belanger’s reply likewise focused on the

2012 ALJ decision and made no mention of the 2005 ALJ decision. We are not

persuaded by Belanger’s contention that we should consider this issue for this first

time on appeal because it is purportedly “purely one of law.” Kaass Law v. Wells

Fargo Bank, N.A., 799 F.3d 1290, 1293 (9th Cir. 2015) (citation omitted).

2. The district court did not abuse its discretion by determining that the

government’s position regarding the 2012 ALJ decision was “substantially

justified.” Although this court reversed and remanded the ALJ’s and district

court’s denial of benefits, Belanger’s success on the merits “is not dispositive of an

EAJA application.” Decker, 856 F.3d at 664.

Regarding the vocational expert’s assessment, the district court reasoned that

“the single rationale that united the three-judge panel rested on” our then-recent

decision in Dale v. Colvin, 823 F.3d 941, 945 (9th Cir. 2016), which held that “an

ALJ errs when he discounts an other source’s entire testimony because of

inconsistency with evidence in the record, when the ALJ has divided the testimony

into distinct parts and determined that only one part of the testimony is

4 inconsistent.” Dale explicitly stated that we had “not addressed” this question “in

our past cases.” Id. The district court acted within its discretion in determining

that the government’s position regarding the vocational expert’s assessment, which

occurred prior to Dale, was substantially justified.

Regarding the ALJ’s discounting of two medical opinions, the district court

pointed to Judge O’Scannlain’s partial concurrence in Belanger, 685 F. App’x at

601-02, which, as paraphrased by the district court, explained that the majority’s

identification of error “hinged on nuanced questions of how much deference is

owed to an ALJ under the substantial evidence standard and how clearly an ALJ

must connect the decision to discredit a claimant’s symptom statements to the

decision to discredit a treating physician opinion based largely on those

statements.” The district court also noted that the government persuaded both a

district judge and an appellate judge that its position regarding the medical

opinions “was not only justified, but correct.” The district court acted within its

discretion in determining that the government’s position regarding the medical

opinions was substantially justified.

Accordingly, Belanger has not shown that the district court abused its

discretion by denying her motion for attorneys’ fees under the EAJA.

AFFIRMED.

5