Albrecht v. Heckler, 84-3681

• Decision Date: 11 July 1985
• Docket Number: No. 84-3681,84-3681
• Citation: 765 F.2d 914
• Parties: , Unempl.Ins.Rep. CCH 16,183 Gloria T. ALBRECHT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 914

765 F.2d 914

10 Soc.Sec.Rep.Ser. 155, Unempl.Ins.Rep. CCH 16,183

Gloria T. ALBRECHT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Health and Human Services Defendant-Appellee.

No. 84-3681.

United States Court of Appeals Ninth Circuit.

Argued and Submitted May 8, 1985.

Decided July 11, 1985.

Fishman & Smith, Donald B. Fishman, Medford, Or., for plaintiff-appellant.

Patrick E. McBride, Seattle, Wash., for defendant-appellee.

Appeal from the United States District Court for the District of Oregon.

Before KILKENNY, WALLACE, and SNEED, Circuit Judges.

PER CURIAM:

Albrecht secured the reversal of a denial of her social security disability insurance benefits. However, she appeals from the district court's denial of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (Act). We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

The Act provides that attorneys' fees are available to a prevailing party in a civil action against the United States unless "the position of the United States was substantially justified." 28 U.S.C. Sec. 2412(d)(1)(A). To determine whether the Secretary's position was substantially justified, we apply a reasonableness standard--whether the Secretary's position was reasonable in both law and fact. Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam). We review the district court's determination on this issue for an abuse of discretion. See, e.g., Rawlings v. Heckler, 725 F.2d 1192, 1194 (9th Cir.1984); Hoang Ha v. Schweiker, 707 F.2d 1104, 1105 (9th Cir.1983).

The administrative law judge (ALJ) rejected the opinions of four treating physicians, three of whom considered Albrecht disabled, while the fourth drew no conclusions about disability. The ALJ decided to follow the opinions of two nontreating physicians who reviewed Albrecht's record and determined that she had the residual function capacity for sedentary work other than her old job. The district court reversed the ALJ because the ALJ failed to identify clear and convincing reasons for rejecting the treating physicians' reports. See, e.g., Murray v. Heckler, 722 F.2d 499, 501-02 (9th Cir.1983); see also Allen v. Heckler, 749 F.2d 577, 579-80 (9th Cir.1985) (consultative evidence may suffice notwithstanding the "clear and convincing reasons" rule). Thus, the district court concluded that the ALJ's decision was not supported by substantial evidence.

The district court, however, denied Albrecht's request for fees. The court concluded that while the ALJ should not have relied on the nontreating physicians' recommendations in the face of the treating physicians' disability findings without stating clear and convincing reasons, the existence of some evidence supporting the Secretary precluded a finding that the Secretary's position was substantially unjustified. The district court observed that if no evidence had supported the Secretary, her position would be unreasonable. See, e.g., Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984). We cannot say that the district judge abused his discretion when he concluded that the Secretary's position was "substantially justified." When the ALJ is reversed for a failure to weigh conflicting medical evidence properly, an award of fees is inappropriate. Cf. id. (stating that fees were appropriate because "[t]he ALJ was not reversed for...