Steven Close v. Kilolo Kijakazi

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN BERTRAND CLOSE, No. 21-35077

Plaintiff-Appellant, D.C. No. 6:19-cv-00557-MK

v. MEMORANDUM* KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the District of Oregon Mustafa T. Kasubhai, Magistrate Judge, Presiding

Submitted June 8, 2023** San Francisco, California

Before: WALLACE, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

Steven Close appeals from the district court’s denial of fees under the Equal

Access to Justice Act (EAJA). We have jurisdiction pursuant to 28 U.S.C. § 1291.

We review a district court’s denial of EAJA attorneys’ fees for an abuse of

* 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). discretion. See Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013). We affirm.

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

government’s litigation position and pre-litigation conduct were substantially

justified. Under 20 C.F.R. § 404.1563(b), an ALJ is not required to make express

findings or to otherwise explain its consideration of a claimant’s borderline age. See

Lockwood v. Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1070, 1073 (9th Cir. 2010).

To the extent that internal agency interpretations of 20 C.F.R. § 404.1563(b) require

more, these interpretations are not binding. See id. at 1072–73; Moore v. Apfel, 216

F.3d 864, 869 & n.2 (9th Cir. 2000). Therefore, the government’s position was

substantially justified. See Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)

(holding that substantial justification is met where “a reasonable person could think

[the government’s position] correct, that is, if it has a reasonable basis in law and

fact”).

AFFIRMED.