Hernandez v. Barnhart

80 F. App'x 342

• Court: Court of Appeals for the Fifth Circuit
• Decided: November 7, 2003
• Docket: 03-50528
• Status: Unpublished

Opinion

PER CURIAM. *

Henry Lara Hernandez appeals the district court’s denial of attorney fees in this Social Security case. See 28 U.S.C. § 2412(d). Hernandez obtained a remand from the district court for additional administrative proceedings on his claim for Supplemental Security Income (SSI) under Title XVI of the Social Security Act because the Administrative Law Judge did not explicitly find that Hernandez could maintain the employment for which he was otherwise qualified. See Watson v. Barnhart, 288 F.3d 212 (5th Cir.2002) (remanding for finding on ability to maintain employment).

The district court did not abuse its discretion by denying fees. See Pierce v. Underwood, 487 U.S. 552, 562-63, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988). The position taken by the Commissioner of Social Security in opposition to remand was reasonable and therefore “substantially justified” so that no fee award is warranted. See 28 U.S.C. § 2412(d)(1)(A); see also Dunbar v. Barnhart, 223 F.Supp.2d 795, 796 (W.D.Tex.2002) (reasoning that Watson does not mandate reversal every time Commissioner fails to make explicit finding on ability to maintain employment), aff'd, 330 F.3d 670 (5th Cir.2003). Hernandez shows no other basis for awarding fees nor for ordering that fees be withheld from a possible future SSI award. See 42 U.S.C. § 406; Bowen v. Galbreath, 485 U.S. 74, 76-78, 108 S.Ct. 892, 99 L.Ed.2d 68 (1988).

The decision of the district court is AFFIRMED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.