Steven Bertrand Close v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN BERTRAND CLOSE,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant-Appellee.
No. 21-35077
D.C. No. 6:19-cv-00557-MK
MEMORANDUM*
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).
FILED
JUN 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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