Kim Decker v. Carolyn Colvin

Filing

FILED OPINION (RICHARD R. CLIFTON, MARY H. MURGUIA and JACQUELINE H. NGUYEN) AFFIRMED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [10426700]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KIM DANA DECKER,
Plaintiff-Appellant,

No. 14-35373
D.C. No.
6:11-cv-06344-HU

v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.

OPINION

Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Argued and Submitted October 3, 2016
Portland, Oregon
Filed May 9, 2017
Before: Richard R. Clifton, Mary H. Murguia,
and Jacqueline H. Nguyen, Circuit Judges.
Opinion by Judge Clifton

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DECKER V. BERRYHILL
SUMMARY*

Equal Access to Justice Act / Attorney Fees
The panel affirmed the district court’s denial of plaintiff’s
application for attorney fees under the Equal Access to
Justice Act (“EAJA”) based on the determination that the
Commissioner of Social Security’s litigation position was
substantially justified.
Plaintiff successfully challenged the Commissioner’s
denial of plaintiff’s application for disability benefits and
obtained a remand of her claim to the agency for further
consideration.
The panel held that the district court did not abuse its
discretion in determining that the Commissioner’s position
was substantially justified because the Commissioner’s
opposition to remand of the claim on the merits was
reasonable, even though it turned out to be unsuccessful. The
panel noted that plaintiff’s new evidence submitted to the
Appeals Council, though sufficient in the end to persuade the
district court to remand the case, did not make that the only
reasonable result.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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COUNSEL
Jeffrey H. Baird (argued), Dellert Baird Law Office, Seattle,
Washington; Alan Stuart Graf, Alan Stuart Graf PC, Floyd,
Virginia; for Plaintiff-Appellant.
Jeffrey Eric Staples (argued) and Nicole Jabaily, Assistant
Regional Counsel; David Morado, Regional Chief Counsel,
Seattle Region X; Office of the General Counsel, Social
Security Administration, Seattle, Washington; Adrian Lee
Brown, Assistant United States Attorney, United States
Attorney’s Office, Seattle, Washington; for DefendantAppellee.

OPINION
CLIFTON, Circuit Judge:
Kim Dana Decker appeals the district court’s denial of her
application for attorney fees. In earlier proceedings in the
district court, Decker successfully challenged the
Commissioner’s denial of her application for disability
benefits and obtained a remand of her claim to the agency for
further consideration.
The district court denied her
application pursuant to the Equal Access to Justice Act,
28 U.S.C. § 2412(d), for reimbursement of the attorney fees
she incurred in litigating her case, however, because it
determined that the Commissioner’s litigation position was
substantially justified. That conclusion precludes a fee award
under the EAJA. Id. § 2412(d)(1)(A).
This is one of two cases before this panel presenting the
same question arising out of similar procedural histories. In

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each case an Administrative Law Judge (ALJ) denied benefits
to a claimant, the claimant sought review by the Social
Security Appeals Council and submitted new evidence in
support of the claim, the Appeals Council declined to review
the denial of benefits but incorporated the new evidence into
the administrative record, the claimant filed an action in
district court to challenge the denial, and the district court
subsequently remanded the case, over the Commissioner’s
objection, to the ALJ for further proceedings in light of the
new evidence. Each of the two claimants at that point sought
an award of fees under the EAJA. The district court denied
the request for fees in both cases.
In our opinion in the other case, Gardner v. Berryhill, ___
F. 3d ___, No. 14-35164 (9th Cir. May 9, 2017), filed
concurrently with this opinion, we concluded that the
Commissioner’s position was not substantially justified
because our precedent clearly required remand of the merits
claim to the ALJ for further consideration. Even though the
Commissioner’s opposition to Gardner’s disability claim
might, in the end, be justified, the opposition before the
district court to remand for further proceedings was not
substantially justified because remand was “a foregone
conclusion.” Id. at 12. As a result, we reversed the denial of
fees under the EAJA and remanded to the district court for
determination of the appropriate amount of fees.
In contrast, in this case we conclude that the district court
did not abuse its discretion in determining that the
Commissioner’s position was substantially justified because
the Commissioner’s opposition to remand of the claim on the
merits was reasonable, even though it turned out to be
unsuccessful. Accordingly, we affirm the district court’s
denial of Decker’s application for attorney fees.

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I. Background
Decker applied for disability insurance benefits and
supplemental security income under Titles II and XVI of the
Social Security Act, alleging that her ability to work was
limited by a variety of ailments, including arthritis. An ALJ
determined that Decker had the residual functional capacity
to perform light work with certain specifications. The ALJ
also concluded that there were jobs existing in significant
numbers in the national economy that were available to a
person of Decker’s age, education, and experience and that
Decker had the capacity to perform. The ALJ therefore
concluded that she was not disabled and denied her
application for benefits.
Decker then requested that the Appeals Council review
the ALJ’s decision. Decker supplied the Appeals Council
with the results of blood tests that were not available at the
time the ALJ issued his decision. The new evidence,
presented in the form of two pages of a print-out from a
medical laboratory, listed the results of several different tests.
The report identified some results as “abnormal” as compared
to a stated “reference range,” including that Decker’s
rheumatoid factor was 73 IU/ml, as compared to a reference
range of 0–15 IU/ml, her “Sed Rate, Westergren” was
76 mm/hr, as compared to a reference range of 0–25 mm/hr,
her “RDW” was 14.5%, as compared to a reference range of
11.5–14.2%, and her “PLT CT” was 406,000/mm3, as
compared to a reference range of 150,000–400,000/mm3.1

1

While not apparent from the report itself, Decker explains in her
briefing on appeal that “Sed Rate, Westergren” refers to sedimentation
rate (Westergren method), “RDW” refers to red cell distribution width,
and “PLT CT” refers to platelet count.

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Decker did not supply any doctor’s opinion or other evidence
interpreting these raw results. Decker’s medical record
suggested that she had previously had at different times both
“normal” and “abnormal” results in similar tests. The
Appeals Council incorporated the new test results into the
record but nonetheless denied review, and the ALJ’s decision
became the Commissioner’s final decision.
Decker proceeded to file a complaint in the district court
seeking review of the Commissioner’s decision and arguing
that the new blood test results suggested that she suffered
from rheumatoid arthritis. The magistrate judge issued
Findings and Recommendations (F&R) concluding that, in
light of the new results, the Commissioner’s decision was not
supported by substantial evidence. The F&R explained:
Without knowing [Decker’s doctor’s]
interpretation of these results, the Court is
essentially being . . . asked to rule that
substantial evidence supports the ALJ’s
disability determination, even though the
[new] laboratory results could conceivably
suggest the onset of a far greater degree of
impairment than that which had previously
been contemplated. Certainly there is at least
a possibility that [Decker’s doctor] could
interpret these results in a way that warrants a
departure from the ALJ’s decision. For the
Court to say otherwise would be particularly
misguided given its lack of medical expertise.
The district court agreed, adopted the F&R in its entirety, and
reversed and remanded for further proceedings. The
Commissioner did not appeal that decision to this court.

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Decker then filed an application for fees pursuant to the
EAJA. The magistrate judge issued a new F&R concluding
that the Commissioner’s position was not substantially
justified and recommending that the application for fees be
granted in part and denied in part. Neither party objected to
the F&R.
The district court disagreed with the recommendation by
the magistrate judge, stating that it was unclear under this
court’s decision in Brewes v. Commissioner of Social Security
Administration, 682 F.3d 1157 (9th Cir. 2012), whether the
new evidence considered by the Appeals Council in this case
required remand. In light of the evidence in the record
supporting the ALJ’s decision to deny benefits to Decker, the
district court concluded that the Commissioner was
substantially justified in arguing that the new evidence did
not warrant remand. The district court therefore denied
Decker’s application for attorney fees. Decker filed a timely
notice of appeal.
II. Discussion
We review a denial of an EAJA application for attorney
fees for an abuse of discretion. Meier v. Colvin, 727 F.3d
867, 869 (9th Cir. 2013). This policy supports the “view that
a ‘request for attorney’s fees should not result in a second
major litigation.’” Pierce v. Underwood, 487 U.S. 552, 563
(1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437
(1983)). “A district court abuses its discretion when it fails
to apply the correct legal rule or its application of the correct
legal rule is illogical, implausible or without support in
inferences that may be drawn from the facts in the record.”
Meier, 727 F.3d at 869–70.

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As a preliminary matter, Decker contends that, because no
party objected to the magistrate judge’s F&R regarding her
EAJA application, the district court abused its discretion in
reviewing the F&R. This argument is without merit. A
district court’s authority to review a magistrate judge’s F&R
is not conditioned on a party’s making an objection. Under
28 U.S.C. § 636(b)(1), a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge.” Although a district court is
required to “make a de novo determination of those portions
of the report or specified proposed findings or
recommendations to which objection is made,” id., nothing in
the statute precludes the district court from reviewing other
findings or recommendations de novo if it chooses to do so,
Thomas v. Arn, 474 U.S. 140, 154 (1985) (“[W]hile
[28 U.S.C. § 636] does not require the judge to review an
issue de novo if no objections are filed, it does not preclude
further review by the district judge, sua sponte or at the
request of a party, under a de novo or any other standard.”).
Moving to the primary issue, the EAJA provides, subject
to exceptions not relevant here:
[A] court shall award to a prevailing party
other than the United States fees and other
expenses . . . incurred by that party in any
civil action . . . brought by or against the
United States . . . , unless the court finds that
the position of the United States was
substantially justified or that special
circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A). “Fees and other expenses”
include “reasonable attorney fees.” Id. § 2412(d)(2)(A).

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When the Commissioner seeks to avoid paying attorney fees
for a prevailing party in a Social Security case, it is the
Commissioner’s burden to “show[] that her position with
respect to the issue on which the court based its remand was
‘substantially justified.’” Flores v. Shalala, 49 F.3d 562, 569
(9th Cir. 1995); see also Meier, 727 F.3d at 870.
“Substantially justified” means “justified to a degree that
could satisfy a reasonable person.” Pierce, 487 U.S. at 565.
The government’s position is not substantially justified
simply because our precedents have not squarely foreclosed
the position. See id. at 566 (“To be ‘substantially justified’
means, of course, more than merely undeserving of sanctions
for frivolousness . . . .”). Rather, “the government’s position
must have a ‘reasonable basis both in law and fact.’” Meier,
727 F.3d at 870 (quoting Pierce, 487 U.S. at 565).
In Campbell v. Astrue, 736 F.3d 867 (9th Cir. 2013), we
explained:
While this circuit has been clear that when an
agency’s decision is unsupported by
substantial evidence it is a strong indication
that the position of the United States is not
substantially justified, this circuit has never
stated that every time this court reverses and
remands the ALJ’s decision for lack of
substantial evidence the claimant should be
awarded attorney’s fees.
Id. at 869. We are mindful of the fact that Decker succeeded
on the merits, and we consider that success against our
observation that “it ‘will be only a decidedly unusual case in
which there is substantial justification under the EAJA even
though the agency’s decision was reversed as lacking in . . .

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substantial . . . evidence in the record.’” Id. at 868 (quoting
Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)).
Nevertheless, success on the merits is not dispositive of an
EAJA application, id. at 869, and we must assess the
justification of the Commissioner’s position based on its
reasonableness before the district court made its decision on
the merits.
The issue presented to the district court by Decker’s
appeal of the denial of benefits was the question of whether
the new evidence Decker submitted to the Appeals Council
required remand to the ALJ for consideration of how the new
data might impact Decker’s disability determination. The
district court determined that remand was appropriate based
on our opinion in Brewes v. Commissioner of Social Security
Administration, 682 F.3d 1157 (9th Cir. 2012), regarding the
treatment of additional evidence not before the ALJ but added
to the record when the case was presented to the Appeals
Council. We held “that when the Appeals Council considers
new evidence in deciding whether to review a decision of the
ALJ, that evidence becomes part of the administrative record,
which the district court must consider when reviewing the
Commissioner’s final decision for substantial evidence.” Id.
at 1163.
In Brewes the ALJ had determined that the claimant was
not disabled because she could perform jobs existing in
significant numbers in the national economy. Id. at 1163.
The vocational expert who testified before the ALJ
acknowledged, however, “that if a person with Brewes’[s]
characteristics were to miss two or more days of work per
month, . . . she would be unemployable.” Id. After the ALJ’s
decision was issued, Brewes submitted new evidence to the
Appeals Council: a letter in which her treating psychologist

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and her mental health nurse practitioner “opined that ‘it is
likely Brewes would miss quite a few days a month from
even a simple job.’” Id. (brackets omitted). Because
Brewes’s new evidence directly undermined the basis of the
ALJ’s analysis, we concluded that the Commissioner’s
decision was “not supported by substantial evidence.” Id. at
1164.
Gardner, the companion to this case, is similar to Brewes.
The ALJ in Gardner reviewed an examining physician’s
interim report that, if fully credited, would have required a
finding of disability. The ALJ discredited the report purely
because it was an interim, not final, report. Gardner
submitted the physician’s final report to the Appeals Council,
which declined review. The physician’s final report stated a
conclusion similar to that of the interim report, supporting
Gardner’s disability claim. Gardner at 7. Just as in Brewes,
the new evidence directly undermined the basis for the ALJ’s
decision: since the report had been finalized, the physician’s
opinion could no longer be disregarded on the grounds that it
was only interim. With nothing left to support the ALJ’s
rejection of the physician’s opinion, remand was “a foregone
conclusion.” Id. at 12. Because the Commissioner lacked
substantial justification to oppose the remand, Gardner was
entitled to fees pursuant to the EAJA.
It was not so obvious, though, whether Decker’s case
required remand. Decker’s new evidence consisted of two
pages of blood test results, without further explanation. A
medical laboratory report that identifies certain test results as
“abnormal” when compared to stated reference ranges is not
very meaningful by itself. A report of one or more
“abnormal” test results might be evidence that supports a
finding of long-term disability, but it does not on its face

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compel it. Decker failed to submit evidence interpreting the
added test results that would have made them more
meaningful to the district court and to us. She also failed to
explain why her new results meaningfully differed from her
previous results, some of which were also abnormal. Noting
that the new test results were not accompanied by anything
stating how they were interpreted by Decker’s physician, the
district court explained the decision to remand the merits case
to the agency by observing that there was “a possibility” that
the results could be interpreted by Decker’s doctor to support
a result different from that reached by the ALJ. That result
was not inevitable, however.
Judges are not physicians, though too many lawyers who
practice in the Social Security disability benefits field seem
to think otherwise. The district court was not required to
interpret for itself test results in the way that Decker wanted.
Decker’s new evidence, though sufficient in the end to
persuade the district court to remand the case, did not make
that the only reasonable result. We cannot say, in that
circumstance, that the district court abused its discretion in
reaching the conclusion that the Commissioner’s position in
opposing remand was substantially justified.
III.

Conclusion

Because the district court did not abuse its discretion in
concluding that the Commissioner’s position was
substantially justified, we affirm the district court’s denial of
Decker’s application for attorney fees under the EAJA.
AFFIRMED.