Government’s Position on Remand Issue Was Not Justified, Such That Later Litigation Position Rulings Were Irrelevant.
In Tobeler v. Colvin, Case No. 12-16392 (9th Cir. Apr. 18, 2014) (published), Social Security disability claimant had obtained a remand because a Social Security administrative law judge (ALJ) had disregarded competent lay witness on claimant’s symptoms without comment, a “no no” in this area of the law. Ultimately, however, the district court concluded that the ALJ’s error was harmless. Claimant then sought attorney’s fees for obtaining a remand, but the district court denied the request after finding that the government’s position was substantially justified because it prevailed on the remainder of the ALJ’s conclusions except for the lay witness testimony issue.
Machine signs 7,000 social security checks per hour with no writer’s cramp. December 14, 1939. Library of Congress.
The denial of fees was reversed because the district court abused its discretion in concluding the government’s position was substantially justified. The problem was that the government’s underlying position on the witness issue producing a remand was unjustified. Because fees had to be awardable on this point, it did not matter that government’s litigation position was ultimately sustained at later points in the case. Remanded to fix reasonable amount of fees.