# Joyce Lewis v. Jo Anne B. Barnhart, Commissioner of Social Security > Court of Appeals for the Ninth Circuit · March 1, 2002 · 281 F.3d 1081 URL: https://www.frixlaw.com/law-library/cases/9494795 ## Case - **Full name:** Joyce LEWIS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 1, 2002 - **Citations:** 281 F.3d 1081; 2002 WL 316857 - **Precedential status:** Published - **Opinion:** Dissent by Browning - **Judges:** Browning, Wallace, Nelson - **Cited by:** 154 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9494795 ## How later opinions describe it (automated extraction) - finding the defense of an ALJ’s erroneous 24 characterization of claimant’s testimony was substantially justified because the decision was 25 supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and 26 may use that testimony to define pa… - finding the defense of an ALJ’s erroneous characterization of claimant’s testimony was substan *1081 tially justified because the decision was supported by a reasonable basis in law, in that the ALJ must assess the claimant’s testimony and may use that testimony to define past… - holding that in determining whether the 15 || Commissioner was substantially justified a district court can consider among other things 16 magistrate judge’s recommendation to uphold the ALJ’s decision - explaining that “[a] claimant must be able to 13 perform her past relevant work either as actually performed or as generally performed in the 14 national economy” - explaining that “[a] claimant must be able to 1 national economy” ## Opinion text JAMES R. BROWNING, Circuit Judge, Dissenting. I dissent. Prior decisions of this Court require reversal. In Flores v. Shalala, 49 F.3d 562 (9th Cir.1995), the Secretary found Flores was not disabled because he could perform a significant number of jobs in the national economy. 1 Flores appealed. The district court remanded because the Secretary had erred by failing to consider a vocational report (the TEAM report) in questioning the vocational expert and in reaching the conclusion that Flores could perform jobs in the national economy. The district court denied Flores’s request for attorneys’ fees because the court concluded the Secretary’s position on the ultimate issue of Flores’s disability was substantially justified. We reversed, holding the district court had committed a material error of law in determining the Secretary’s position was substantially justified. Id. at 572 . We stated we could resolve the question of Flores’s entitlement to attorneys’ fees “by considering only the procedural issues on which the district court reversed.” Id. at 566 . We concluded “[bjecause the remand was based on the failure of the ALJ to ask about or consider the TEAM report, the district court’s inquiry should have been directed to that procedural error and not the question of ultimate disability.” Id. at 569 . We confirmed the Flores holding in Corbin v. Apfel, 149 F.3d 1051 (9th Cir.1998). In Corbin , the district court affirmed the Commissioner’s decision that Corbin was not disabled. We reversed and remanded *1087 because the Commissioner had failed to properly evaluate the evidence presented by Corbin. The district court denied Cor-bin’s motion for attorneys’ fees, holding the Commissioner’s position was substantially justified because there was “some evidence” supporting the Commissioner’s original denial of benefits. We reversed the district court, reiterating that in deciding whether the Commissioner’s position was substantially justified, “the court should look to the government’s decision to defend on appeal the procedural errors committed by the ALJ.” Id. at 1053 . Contrary to the majority, Flores and Corbin require the district court to look to the procedural error which led to the appeal in deciding whether the Commissioner’s position was substantially justified. The majority claims the “nub” of the district court’s remand was the Commissioner’s conclusion Lewis could perform her past relevant work. In fact, the record shows the district court remanded because, exactly as in Flores and Corbin , the Commissioner committed a procedural error by failing to consider and weigh evidence in reaching that conclusion. The Commissioner found Lewis was capable of performing her past relevant job because her position as a gas station attendant required only sedentary work. On appeal, the district court noted the evidence presented by Lewis — her Social Security forms, her testimony at the hearing, and her vocational expert’s statements — were all contrary to the Commissioner’s finding. 2 The court said the Commissioner “badly mischaracterize[d]” Lewis’s testimony regarding the exertional demands of her past job and remanded, holding the Commissioner’s finding could not stand “[i]n the light of ... the clear direct evidence that her job required more than sedentary work ...” Both the district court and the majority direct their substantial justification inquiry to whether it was reasonable for the Commissioner to conclude Lewis could perform her past relevant work. However, as in Flores and Corbin , the proper question is not whether it was reasonable for the Commissioner to conclude Lewis could perform her past relevant work but rather whether it was reasonable for the Commissioner to defend the ALJ’s error — his failure to consider and evaluate “clear direct” evidence on that question. 3 This approach is consistent with the purpose of the Equal Access to Justice Act. *1088 See Gutierrez v. Barnhart, 274 F.3d 1255, 1262 (9th Cir.2001) (“a clearly stated objective [of the EAJA] is to eliminate financial disincentives to. those who would defend against unjustified governmental action and thereby to deter the unreasonable exercise of governmental authority”). If the Commissioner had properly considered and evaluated Lewis’s evidence at the initial hearing, Lewis would not have been required to pay attorneys’ fees in order to successfully challenge the Commissioner’s error in district court. As we said in Flores , “[i]t is hardly inequitable to award attorney’s fees where the Secretary commits procedural errors that are not ‘substantially justified.’ We merely compel the Secretary to abide by her obligation to consider the evidence properly before denying a claim ...” Flores, 49 F.3d at 569 n. 10. . This determination was made by the ALJ but became the Secretary’s when the Appeals Council declined to review it. . The district court quoted Social Security Ruling 82-62 which directs the ALJ to carefully consider the following evidence in making a determination regarding the claimant's ability to perform past relevant work: (1) the individual's statements as to which past work requirements can no longer be met and the reason(s) for his or her inability to meet those requirements; (2) medical evidence establishing how the impairment limits ability to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corroborative information from other sources such as employers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally performed in the economy. The Ruling also requires the ALJ to make "every effort” to "secure evidence that resolves the issue as clearly and explicitly as the circumstances permit.” . If the district court properly focused on the procedural error on which its reversal was based, it undoubtedly would have found the Commissioner's decision to defend the ALJ's failure to consider "clear direct” evidence on that issue was not substantially justified. See Corbin, 149 F.3d at 1053 (Commissioner's position was not justified where the ALJ failed to weigh basic evidence); Sampson v. Chater, 103 F.3d 918 (9th Cir.1996) (Commissioner’s position was not justified where the ALJ failed to take adequate account of claimant's testimony); Yang v. Shalala, 22 F.3d 213 (9th Cir.1994) (Commissioner's position was not justified where the ALJ failed to consider evidence presented at hearing). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9494795. Public record. Not legal advice.