Roe v. Commissioner of Social Security

FILED
NOT FOR PUBLICATION
MAY 31 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GLEN ANTHONY ROE, No. 15-16927
Plaintiff - Appellant, D.C. No. 2:11-cv-02003-CKD
v.
MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Carolyn K. Delaney, Magistrate Judge, Presiding
Submitted May 23, 2016**
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and EZRA,*** District Judge.
*
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).
***
The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
Glen Roe appeals the district court’s denial of his motion for an award of
attorneys’ fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28
U.S.C. § 2412. See Roe v. Comm’r of Soc. Sec., 599 F. App’x 651 (9th Cir. 2015)
(reversing the Commissioner’s denial of benefits). We have jurisdiction under 28
U.S.C. § 1291, and we reverse.
A district court may decline to award EAJA attorneys’ fees and costs to a
prevailing party only if it “finds that the position of the United States was
substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Government’s position is
“substantially justified” within the meaning of the EAJA if it has a reasonable basis
in law and fact at each stage of the underlying proceedings. Shafer v. Astrue, 518
F.3d 1067, 1071 (9th Cir. 2008) (citing Corbin v. Apfel, 149 F.3d 1051, 1052 (9th
Cir. 1998)).
We review for an abuse of discretion the district court’s decision to award or
deny EAJA fees, and its determination that the Government’s litigation position is
substantially justified. United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.
2002). The district court abuses its discretion if it fails to apply the correct legal
rule, or if its application of the correct rule is illogical, implausible, or lacks factual
support. Meier v. Colvin, 727 F.3d 867, 869–70 (9th Cir. 2013) (citing United
States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc)).
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1. The district court abused its discretion when it failed to apply the proper
legal rule in considering whether the Government’s position was substantially
justified within the meaning of the EAJA. In our merits disposition, we held that
the administrative law judge (“ALJ”) committed several procedural errors and
failed to fairly and fully develop the administrative record. Roe, 599 F. App’x at
652. As a result of those errors, substantial evidence did not support the ALJ’s
eligibility and residual functional capacity analyses. Id. We reversed the district
court’s ruling with directions to remand the case to the agency for a new hearing,
and we declined to reach Roe’s other arguments. Id.
When we remand a social security case due to an ALJ’s procedural error, the
district court must evaluate “that procedural error and not the [determination] of
ultimate disability” when considering the claimant’s EAJA fees motion. Flores v.
Shalala, 49 F.3d 562, 569 (9th Cir. 1995); see Shafer, 518 F.3d at 1071. Here, the
district court cited its prior ruling affirming the ALJ’s disability determination to
conclude that the Government’s position was objectively reasonable, and thus,
substantially justified. In focusing on the merits of the underlying disability
determination, the district court applied the incorrect legal rule to Roe’s EAJA
motion and abused its discretion.
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2. Well-established Ninth Circuit precedent provides that an ALJ commits
legal error when it fails to follow the agency’s regulatory procedures, Reed v.
Massanari, 270 F.3d 838, 842–43 (9th Cir. 2001); ask a pro se claimant tailored
questions to develop the administrative record, Widmark v. Barnhart, 454 F.3d
1063, 1069 (9th Cir. 2006); or consider or clarify lay witness testimony, Tobeler v.
Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). In similar cases, we have held that
“the defense of basic and fundamental errors such as the ones in the present case”
lacked substantial justification. Corbin, 149 F.3d at 1053. In Roe’s case, the ALJ
committed fundamental procedural errors similar to those errors identified in prior
cases. See Tobeler, 749 F.3d at 832–34; Shafer, 518 F.3d at 1071; Tonapetyan v.
Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Corbin, 149 F.3d at 1052–53; Flores,
49 F.3d at 569. Neither the ALJ’s procedural errors nor the Government’s defense
of those errors was substantially justified. Accordingly, Roe is entitled to EAJA
attorneys’ fees. See Shafer, 518 F.3d at 1072.
REVERSED AND REMANDED.
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