                                                                              FILED
                             NOT FOR PUBLICATION                              SEP 11 2014

                                                                          MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


ADALBERTO AGUIRRE AYALA,                         No. 13-55966

                Plaintiff - Appellant,           D.C. No. 5:12-cv-00570-RNB

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

                Defendant - Appellee.


                     Appeal from the United States District Court
                        for the Central District of California
                     Robert N. Block, Magistrate Judge, Presiding

                             Submitted August 18, 2014**

Before:        D.W. Nelson, Leavy, and Thomas, Circuit Judges.

       Adalberto Aguirre Ayala appeals the district court’s order denying his

motion for attorneys’ fees under the Equal Access to Justice Act (“EAJA”). We

have jurisdiction under 28 U.S.C. § 1291. We review the district court’s order


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denying a motion for attorneys’ fees under EAJA for an abuse of discretion.

Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). We affirm.

      A court shall award attorneys’ fees to a prevailing party other than 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); Tobeler, 749 F.3d at 832. In order to be substantially

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

fact.” Tobeler, 749 F.3d at 832 (quotations omitted).

      The district court did not abuse its discretion in concluding that the ALJ’s

decision, though in error, was substantially justified. The ALJ reasonably relied on

the testimony of a vocational expert in finding that Aguirre could perform other

jobs existing in the national economy and was therefore not disabled. See Hardisty

v. Astrue, 592 F.3d 1072, 1080 (9th Cir. 2010) (the ALJ’s flawed credibility

finding was substantially justified because “all of the inferences upon which it

rested had substance in the record”).

      Nor did the district court abuse its discretion in concluding that the

Commissioner’s litigation position was substantially justified. Before the district

court, the Commissioner fairly conceded that the ALJ erred in finding that Aguirre

could perform work as a hand packager and assembler of plastic hospital products.


                                          2
Even so, the Commissioner’s position was reasonable and substantially justified on

the alternate basis that Aguirre could perform the job of mail clerk. The issue of

whether a claimant limited to simple, repetitive tasks can perform a job requiring

Reasoning Level 3 has not been addressed by the Ninth Circuit and involves an

intercircuit conflict. Compare Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir.

2005) (finding apparent conflict between job requiring Reasoning Level 3 and

claimant’s limitation to simple and routine work), with Terry v. Astrue, 580 F.3d

471, 478 (7th Cir. 2009) (per curiam) (finding no conflict); and Renfrow v. Astrue,

496 F.3d 918, 921 (8th Cir. 2007) (no conflict).

      AFFIRMED.




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