United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-1775

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Christine C. Conklin, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Southern District of Iowa.

Michael J. Astrue, Commissioner *

of Social Security Administration, * [UNPUBLISHED]

*

Appellee. *

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Submitted: November 13, 2007

Filed: June 19, 2008

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Before WOLLMAN, JOHN R. GIBSON, and BENTON, Circuit Judges.

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PER CURIAM.

Following our remand for further proceedings in Christine C. Conklin’s appeal

from the district court’s judgment affirming the denial of her application for social

security benefits, Conklin v. Barnhart, 206 Fed. Appx. 633 (8th Cir. 2006), Conklin’s

counsel filed an application for attorneys fees and costs under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412(d).
1

The Honorable Charles R. Wolle, United States District Judge for the Southern

District of Iowa.

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It is from the district court’s1

 order denying that application on the ground that

the government’s position was substantially justified that Conklin now appeals. We

affirm.

Our reversal of the denial of benefits was grounded on our conclusion that the

administrative law judge (ALJ) had failed to include in the hypothetical question that

he posed to the vocational expert the uncontradicted assessment by Conklin’s treating

physician regarding Conklin’s inability to engage in repetitive bending or climbing.

In all other respects, we found no fault in the ALJ’s assessment and treatment of the

evidence or in the position taken by the government in support of its resistence to the

claim for benefits.

We review for abuse of discretion the district court’s determination whether the

government’s position was substantially justified. See, e.g., Pierce v. Underwood, 487

U.S. 552, 565 (1988); Lauer v. Barnhart, 321 F.3d 762, 764 (2003); Herman v.

Schwent, 177 F.3d 1063, 1065 (8th Cir. 1999).

It is the government’s burden to prove that its position was substantially

justified. Herman, 177 F.3d at 1065. It can accomplish this by showing that the

position was “justified in substance or in the main– that is, justified to a degree that

could satisfy a reasonable person.” Pierce, 487 U.S. at 565 (internal quotation

omitted). To warrant such a characterization, the position must have “reasonable basis

both in law and fact.” Id. See also, Herman, 177 F.3d at 1065.

We conclude that the district court did not abuse its discretion in finding that,

when viewed in the light of the foregoing standard, the government’s position was

substantially justified. In so holding, we note that, unlike the situation that existed in
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Lauer, there was some medical evidence in this case in support of the government’s

argument that Conklin’s physical limitations and the extent of her pain were not so

severe as she claimed. Unlike Gowen v. Bowen, 855 F.2d 613 (8th Cir. 1988), this

is not a case in which the government disregarded overwhelming evidence in support

of the claim for benefits. That we ultimately held that the ALJ was incorrect in not

taking the treating physician’s assessment into account when formulating the

hypothetical question does not necessarily mean that the government’s position to the

contrary was unreasonable in light of the entirety of the evidence in the record. See

Pierce, 487 U.S. at 566 n.2.

The order is affirmed.

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