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Gardner v. Berryhill

United States Court of Appeals, Ninth Circuit

May 9, 2017

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 ...


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