Michael McLean v. Carolyn Colvin , 648 F. App'x 621 ( 2016 )

FILED
NOT FOR PUBLICATION
APR 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL D. MCLEAN, No. 14-35204
Plaintiff - Appellant, D.C. No. 3:11-cv-05763-BHS
v.
MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted March 7, 2016**
Before: PREGERSON, LEAVY and OWENS, Circuit Judges.
After an Administrative Law Judge (“ALJ”) issued a partially favorable
decision, Michael McLean filed a complaint for judicial review in federal district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court. The district court entered judgment in favor of McLean, reversing and
remanding for further proceedings. The district court, however, denied McLean’s
motion for attorneys fees under the Equal Access to Justice Act (“EAJA”).
McLean appeals only the district court’s order denying his motion for attorneys
fees under EAJA.
We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s
decision denying attorneys fees for abuse of discretion. Tobeler v. Colvin, 749
F.3d 830, 832 (9th Cir. 2014). We reverse and remand for an award of fees
because the ALJ’s decision that McLean experienced medical improvement on
October 25, 2007, was not substantially justified.
First, the ALJ failed to discuss significant, probative record evidence that
was clearly contrary to her finding that McLean stopped taking his medication due
to an improvement in his symptoms. The ALJ’s mischaracterization of, and failure
to weigh properly, the record evidence cannot be said to be justified to a degree
that could satisfy a reasonable person. Meier v. Colvin, 727 F.3d 867, 870, 872
(9th Cir. 2013); cf. Sampson v. Chater, 103 F.3d 918, 921–22 (9th Cir. 1996).
Second, the ALJ violated the agency’s own regulations in failing to discuss the
side effects of McLean’s medication and failing to address explicitly whether the
side effects supported adequately the decision to temporarily discontinue use of his
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mental health medication. Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir.
2001); SSR 96-7p, 1996 WL 374186 (July 2, 1996); 20 C.F.R. §§
404.1529(c)(3)(iv), 416.929(c)(3)(iv). The ALJ’s failure to credit McLean’s
symptom testimony was not harmless because it affected the ultimate
determination that he experienced medical improvement as of October 25, 2007.
Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).
Where, as here, the ALJ’s decision was not substantially justified, this court
need not reach the issue of whether the Commissioner’s litigation position was
substantially justified. Tobeler, 749 F.3d at 832. We therefore reverse the district
court’s order and remand for an award of EAJA fees.
REVERSED and REMANDED.
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