Naomi Marsh v. Nancy Berryhill , 698 F. App'x 904 ( 2017 )

FILED
NOT FOR PUBLICATION
OCT 11 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NAOMI FAWN MARSH, No. 15-17306
Plaintiff-Appellant, D.C. No. 3:11-cv-02096-CRB
v.
MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted September 13, 2017
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,**
District Judge.
While the Social Security Administration (SSA) is “responsible for making
the determination or decision about whether [a claimant meets] the statutory
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
page 2
definition of disability,” 20 C.F.R. § 404.1527(d)(1), Dr. Betat’s chart note
contained information about Marsh’s condition and capacity that went beyond a
mere statement of disability. These findings informed his assessment that she
“appear[ed] to be disabled.” The ALJ therefore erred by neither considering Dr.
Betat’s opinion nor providing reasons to reject it. “In order to reject an examining
physician’s opinion, the ALJ has to give clear and convincing reasons.” Hill v.
Astrue, 698 F.3d 1153, 1159–60 (9th Cir. 2012) (internal citation and quotation
marks omitted). Accordingly, SSA’s position was not substantially justified. See,
e.g., Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014) (“To avoid an award of
EAJA fees . . . the government must show that its position was substantially
justified at each stage of the proceedings.”).
REVERSED AND REMANDED.