Kimberley A. Gardner, Plaintiff-Appellant,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant-Appellee.
Argued
and Submitted October 3, 2016 Portland, Oregon
Appeal
from the United States District Court No. 6:12-cv-00755-JE
for the District of Oregon Michael W. Mosman, Chief Judge,
Presiding
Alan
Stuart Graf (argued), Alan Stuart Graf PC, Floyd, Virginia,
for Plaintiff-Appellant.
Gerald
Hill (argued), Assistant Regional Counsel; David Morado,
Regional Chief Counsel, Seattle Region X; Office of the
General Counsel, Social Security Administration, Seattle,
Washington; Ronald K. Silver, Assistant United States
Attorney; Kelly A. Zusman, Appellate Chief; United States
Attorney's Office, Seattle, Washington; for
Defendant-Appellee.
Before: Richard R. Clifton, Mary H. Murguia, and Jacqueline
H. Nguyen, Circuit Judges.
SUMMARY[*]
Equal
Access to Justice Act / Attorney Fees
The
panel reversed the district court's denial of
plaintiff's application for attorney's fees pursuant
to the Equal Access to Justice Act ("EAJA") because
the Commissioner of Social Security's litigation position
was not substantially justified; and remanded for the
district court to determine the appropriate amount of fees to
award.
After
losing her claim for social security disability benefits
before the Administrative Law Judge ("ALJ"),
plaintiff presented new evidence - a final report by
plaintiff's treating doctor - to the Appeals Council, and
in light of this new evidence in the administrative record,
the district court remanded for further consideration. In
denying plaintiff's request for attorney's fees, the
district court concluded that the Commissioner was
substantially justified in arguing that the new evidence did
not undermine the ALJ's denial of benefits.
The
panel held that the issue before the district court on the
original merits appeal of the ALJ's denial of benefits
was not whether there was other evidence that could support a
denial of benefits to plaintiff, or whether the
Commissioner's denial of benefits might ultimately be
sustained, but rather whether the actual decision that was
made by the ALJ could be affirmed at that time by the
district court in light on the new evidence in the record.
The panel further held that it should have been plain that
the ALJ's decision could not have been affirmed, because
the ALJ failed to provide a reason that was still viable for
giving the treating doctor's opinion little weight. The
panel held that the treating doctor's final report, if
credited, would have undermined the ALJ's original
finding that plaintiff was not disabled. The panel concluded
that the Commissioner did not have a legitimate basis to
oppose remand and to argue that the district court should
affirm the existing ALJ opinion; and the district court, by
applying the wrong legal standard to evaluate the
Commissioner's litigation position, abused its
discretion.
OPINION
NGUYEN, Circuit Judge.
Kimberley
Gardner appeals the district court's denial of her
application for attorney's fees pursuant to the Equal
Access to Justice Act ("EAJA"), 28 U.S.C. §
2412(d)(1)(A). We reverse and remand.
After
losing her claim for social security disability benefits
before the Administrative Law Judge ("ALJ"),
Gardner presented new evidence-a final report by her treating
doctor, Dr. Rory Richardson-to the Appeals Council. In light
of this new evidence in the administrative record before the
Appeals Council, the district court remanded for further
consideration. The Commissioner did not appeal this decision.
But the district court denied Gardner's request for
attorney's fees, concluding that the Commissioner was
substantially justified in arguing that the new evidence did
not undermine the ALJ's denial of benefits. Implicit in
the Commissioner's litigation position, however, was an
assumption that the ALJ on remand either would reject or give
little weight to the treating doctor's opinion. There is
simply no support for this assumption. The ALJ had not
previously considered ...