FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIM DANA DECKER,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting

Commissioner of Social Security,

Defendant-Appellee.

No. 14-35373

D.C. No.

6:11-cv-06344-HU

OPINION

Appeal from the United States District Court

for the District of Oregon

Michael W. Mosman, Chief Judge, Presiding

Argued and Submitted October 3, 2016

Portland, Oregon

Filed May 9, 2017

Before: Richard R. Clifton, Mary H. Murguia,

and Jacqueline H. Nguyen, Circuit Judges.

Opinion by Judge Clifton
2 DECKER V. BERRYHILL

SUMMARY*

Equal Access to Justice Act / Attorney Fees

The panel affirmed the district court’s denial of plaintiff’s

application for attorney fees under the Equal Access to

Justice Act (“EAJA”) based on the determination that the

Commissioner of Social Security’s litigation position was

substantially justified.

Plaintiff successfully challenged the Commissioner’s

denial of plaintiff’s application for disability benefits and

obtained a remand of her claim to the agency for further

consideration.

The panel held that the district court did not abuse its

discretion in determining that the Commissioner’s position

was substantially justified because the Commissioner’s

opposition to remand of the claim on the merits was

reasonable, even though it turned out to be unsuccessful. The

panel noted that plaintiff’s new evidence submitted to the

Appeals Council, though sufficient in the end to persuade the

district court to remand the case, did not make that the only

reasonable result.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
DECKER V. BERRYHILL 3

COUNSEL

Jeffrey H. Baird (argued), Dellert Baird Law Office, Seattle,

Washington; Alan Stuart Graf, Alan Stuart Graf PC, Floyd,

Virginia; for Plaintiff-Appellant.

Jeffrey Eric Staples (argued) and Nicole Jabaily, Assistant

Regional Counsel; David Morado, Regional Chief Counsel,

Seattle Region X; Office of the General Counsel, Social

Security Administration, Seattle, Washington; Adrian Lee

Brown, Assistant United States Attorney, United States

Attorney’s Office, Seattle, Washington; for DefendantAppellee.

OPINION

CLIFTON, Circuit Judge:

Kim Dana Decker appeals the district court’s denial of her

application for attorney fees. In earlier proceedings in the

district court, Decker successfully challenged the

Commissioner’s denial of her application for disability

benefits and obtained a remand of her claim to the agency for

further consideration. The district court denied her

application pursuant to the Equal Access to Justice Act,

28 U.S.C. § 2412(d), for reimbursement of the attorney fees

she incurred in litigating her case, however, because it

determined that the Commissioner’s litigation position was

substantially justified. That conclusion precludes a fee award

under the EAJA. Id. § 2412(d)(1)(A).

This is one of two cases before this panel presenting the

same question arising out of similar procedural histories. In
4 DECKER V. BERRYHILL

each case an Administrative Law Judge (ALJ) denied benefits

to a claimant, the claimant sought review by the Social

Security Appeals Council and submitted new evidence in

support of the claim, the Appeals Council declined to review

the denial of benefits but incorporated the new evidence into

the administrative record, the claimant filed an action in

district court to challenge the denial, and the district court

subsequently remanded the case, over the Commissioner’s

objection, to the ALJ for further proceedings in light of the

new evidence. Each of the two claimants at that point sought

an award of fees under the EAJA. The district court denied

the request for fees in both cases.

In our opinion in the other case, Gardner v. Berryhill, ___

F. 3d ___, No. 14-35164 (9th Cir. May 9, 2017), filed

concurrently with this opinion, we concluded that the

Commissioner’s position was not substantially justified

because our precedent clearly required remand of the merits

claim to the ALJ for further consideration. Even though the

Commissioner’s opposition to Gardner’s disability claim

might, in the end, be justified, the opposition before the

district court to remand for further proceedings was not

substantially justified because remand was “a foregone

conclusion.” Id. at 12. As a result, we reversed the denial of

fees under the EAJA and remanded to the district court for

determination of the appropriate amount of fees.

In contrast, in this case we conclude that the district court

did not abuse its discretion in determining that the

Commissioner’s position was substantially justified because

the Commissioner’s opposition to remand of the claim on the

merits was reasonable, even though it turned out to be

unsuccessful. Accordingly, we affirm the district court’s

denial of Decker’s application for attorney fees.
DECKER V. BERRYHILL 5

I. Background

Decker applied for disability insurance benefits and

supplemental security income under Titles II and XVI of the

Social Security Act, alleging that her ability to work was

limited by a variety of ailments, including arthritis. An ALJ

determined that Decker had the residual functional capacity

to perform light work with certain specifications. The ALJ

also concluded that there were jobs existing in significant

numbers in the national economy that were available to a

person of Decker’s age, education, and experience and that

Decker had the capacity to perform. The ALJ therefore

concluded that she was not disabled and denied her

application for benefits.

Decker then requested that the Appeals Council review

the ALJ’s decision. Decker supplied the Appeals Council

with the results of blood tests that were not available at the

time the ALJ issued his decision. The new evidence,

presented in the form of two pages of a print-out from a

medical laboratory, listed the results of several different tests. 

The report identified some results as “abnormal” as compared

to a stated “reference range,” including that Decker’s

rheumatoid factor was 73 IU/ml, as compared to a reference

range of 0–15 IU/ml, her “Sed Rate, Westergren” was

76 mm/hr, as compared to a reference range of 0–25 mm/hr,

her “RDW” was 14.5%, as compared to a reference range of

11.5–14.2%, and her “PLT CT” was 406,000/mm3, as

compared to a reference range of 150,000–400,000/mm3

.

1

1 While not apparent from the report itself, Decker explains in her

briefing on appeal that “Sed Rate, Westergren” refers to sedimentation

rate (Westergren method), “RDW” refers to red cell distribution width,

and “PLT CT” refers to platelet count.
6 DECKER V. BERRYHILL

Decker did not supply any doctor’s opinion or other evidence

interpreting these raw results. Decker’s medical record

suggested that she had previously had at different times both

“normal” and “abnormal” results in similar tests. The

Appeals Council incorporated the new test results into the

record but nonetheless denied review, and the ALJ’s decision

became the Commissioner’s final decision.

Decker proceeded to file a complaint in the district court

seeking review of the Commissioner’s decision and arguing

that the new blood test results suggested that she suffered

from rheumatoid arthritis. The magistrate judge issued

Findings and Recommendations (F&R) concluding that, in

light of the new results, the Commissioner’s decision was not

supported by substantial evidence. The F&R explained:

Without knowing [Decker’s doctor’s]

interpretation of these results, the Court is

essentially being . . . asked to rule that

substantial evidence supports the ALJ’s

disability determination, even though the

[new] laboratory results could conceivably

suggest the onset of a far greater degree of

impairment than that which had previously

been contemplated. Certainly there is at least

a possibility that [Decker’s doctor] could

interpret these results in a way that warrants a

departure from the ALJ’s decision. For the

Court to say otherwise would be particularly

misguided given its lack of medical expertise.

The district court agreed, adopted the F&R in its entirety, and

reversed and remanded for further proceedings. The

Commissioner did not appeal that decision to this court.
DECKER V. BERRYHILL 7

Decker then filed an application for fees pursuant to the

EAJA. The magistrate judge issued a new F&R concluding

that the Commissioner’s position was not substantially

justified and recommending that the application for fees be

granted in part and denied in part. Neither party objected to

the F&R.

The district court disagreed with the recommendation by

the magistrate judge, stating that it was unclear under this

court’s decision in Brewes v. Commissioner of Social Security

Administration, 682 F.3d 1157 (9th Cir. 2012), whether the

new evidence considered by the Appeals Council in this case

required remand. In light of the evidence in the record

supporting the ALJ’s decision to deny benefits to Decker, the

district court concluded that the Commissioner was

substantially justified in arguing that the new evidence did

not warrant remand. The district court therefore denied

Decker’s application for attorney fees. Decker filed a timely

notice of appeal.

II. Discussion

We review a denial of an EAJA application for attorney

fees for an abuse of discretion. Meier v. Colvin, 727 F.3d

867, 869 (9th Cir. 2013). This policy supports the “view that

a ‘request for attorney’s fees should not result in a second

major litigation.’” Pierce v. Underwood, 487 U.S. 552, 563

(1988) (quoting Hensley v. Eckerhart, 461 U.S. 424, 437

(1983)). “A district court abuses its discretion when it fails

to apply the correct legal rule or its application of the correct

legal rule is illogical, implausible or without support in

inferences that may be drawn from the facts in the record.” 

Meier, 727 F.3d at 869–70.
8 DECKER V. BERRYHILL

As a preliminarymatter, Decker contends that, because no

party objected to the magistrate judge’s F&R regarding her

EAJA application, the district court abused its discretion in

reviewing the F&R. This argument is without merit. A

district court’s authority to review a magistrate judge’s F&R

is not conditioned on a party’s making an objection. Under

28 U.S.C. § 636(b)(1), a district court “may accept, reject, or

modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” Although a district court is

required to “make a de novo determination of those portions

of the report or specified proposed findings or

recommendations to which objection is made,” id., nothing in

the statute precludes the district court from reviewing other

findings or recommendations de novo if it chooses to do so,

Thomas v. Arn, 474 U.S. 140, 154 (1985) (“[W]hile

[28 U.S.C. § 636] does not require the judge to review an

issue de novo if no objections are filed, it does not preclude

further review by the district judge, sua sponte or at the

request of a party, under a de novo or any other standard.”).

Moving to the primary issue, the EAJA provides, subject

to exceptions not relevant here:

[A] court shall award to a prevailing party

other than the United States fees and other

expenses . . . incurred by that party in any

civil action . . . brought by or against the

United States . . . , unless the court finds that

the position of the United States was

substantially justified or that special

circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). “Fees and other expenses”

include “reasonable attorney fees.” Id. § 2412(d)(2)(A). 
DECKER V. BERRYHILL 9

When the Commissioner seeks to avoid paying attorney fees

for a prevailing party in a Social Security case, it is the

Commissioner’s burden to “show[] that her position with

respect to the issue on which the court based its remand was

‘substantially justified.’” Flores v. Shalala, 49 F.3d 562, 569

(9th Cir. 1995); see also Meier, 727 F.3d at 870. 

“Substantially justified” means “justified to a degree that

could satisfy a reasonable person.” Pierce, 487 U.S. at 565. 

The government’s position is not substantially justified

simply because our precedents have not squarely foreclosed

the position. See id. at 566 (“To be ‘substantially justified’

means, of course, more than merely undeserving of sanctions

for frivolousness . . . .”). Rather, “the government’s position

must have a ‘reasonable basis both in law and fact.’” Meier,

727 F.3d at 870 (quoting Pierce, 487 U.S. at 565).

In Campbell v. Astrue, 736 F.3d 867 (9th Cir. 2013), we

explained:

While this circuit has been clear that when an

agency’s decision is unsupported by

substantial evidence it is a strong indication

that the position of the United States is not

substantially justified, this circuit has never

stated that every time this court reverses and

remands the ALJ’s decision for lack of

substantial evidence the claimant should be

awarded attorney’s fees.

Id. at 869. We are mindful of the fact that Decker succeeded

on the merits, and we consider that success against our

observation that “it ‘will be only a decidedly unusual case in

which there is substantial justification under the EAJA even

though the agency’s decision was reversed as lacking in . . .
10 DECKER V. BERRYHILL

substantial . . . evidence in the record.’” Id. at 868 (quoting

Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005)). 

Nevertheless, success on the merits is not dispositive of an

EAJA application, id. at 869, and we must assess the

justification of the Commissioner’s position based on its

reasonableness before the district court made its decision on

the merits.

The issue presented to the district court by Decker’s

appeal of the denial of benefits was the question of whether

the new evidence Decker submitted to the Appeals Council

required remand to the ALJ for consideration of how the new

data might impact Decker’s disability determination. The

district court determined that remand was appropriate based

on our opinion in Brewes v. Commissioner of Social Security

Administration, 682 F.3d 1157 (9th Cir. 2012), regarding the

treatment of additional evidence not before the ALJ but added

to the record when the case was presented to the Appeals

Council. We held “that when the Appeals Council considers

new evidence in deciding whether to review a decision of the

ALJ, that evidence becomes part of the administrative record,

which the district court must consider when reviewing the

Commissioner’s final decision for substantial evidence.” Id.

at 1163.

In Brewes the ALJ had determined that the claimant was

not disabled because she could perform jobs existing in

significant numbers in the national economy. Id. at 1163. 

The vocational expert who testified before the ALJ

acknowledged, however, “that if a person with Brewes’[s]

characteristics were to miss two or more days of work per

month, . . . she would be unemployable.” Id. After the ALJ’s

decision was issued, Brewes submitted new evidence to the

Appeals Council: a letter in which her treating psychologist
DECKER V. BERRYHILL 11

and her mental health nurse practitioner “opined that ‘it is

likely Brewes would miss quite a few days a month from

even a simple job.’” Id. (brackets omitted). Because

Brewes’s new evidence directly undermined the basis of the

ALJ’s analysis, we concluded that the Commissioner’s

decision was “not supported by substantial evidence.” Id. at

1164.

Gardner, the companion to this case, is similar to Brewes. 

The ALJ in Gardner reviewed an examining physician’s

interim report that, if fully credited, would have required a

finding of disability. The ALJ discredited the report purely

because it was an interim, not final, report. Gardner

submitted the physician’s final report to the Appeals Council,

which declined review. The physician’s final report stated a

conclusion similar to that of the interim report, supporting

Gardner’s disability claim. Gardner at 7. Just as in Brewes,

the new evidence directly undermined the basis for the ALJ’s

decision: since the report had been finalized, the physician’s

opinion could no longer be disregarded on the grounds that it

was only interim. With nothing left to support the ALJ’s

rejection of the physician’s opinion, remand was “a foregone

conclusion.” Id. at 12. Because the Commissioner lacked

substantial justification to oppose the remand, Gardner was

entitled to fees pursuant to the EAJA.

It was not so obvious, though, whether Decker’s case

required remand. Decker’s new evidence consisted of two

pages of blood test results, without further explanation. A

medical laboratory report that identifies certain test results as

“abnormal” when compared to stated reference ranges is not

very meaningful by itself. A report of one or more

“abnormal” test results might be evidence that supports a

finding of long-term disability, but it does not on its face
12 DECKER V. BERRYHILL

compel it. Decker failed to submit evidence interpreting the

added test results that would have made them more

meaningful to the district court and to us. She also failed to

explain why her new results meaningfully differed from her

previous results, some of which were also abnormal. Noting

that the new test results were not accompanied by anything

stating how they were interpreted by Decker’s physician, the

district court explained the decision to remand the merits case

to the agency by observing that there was “a possibility” that

the results could be interpreted by Decker’s doctor to support

a result different from that reached by the ALJ. That result

was not inevitable, however.

Judges are not physicians, though too many lawyers who

practice in the Social Security disability benefits field seem

to think otherwise. The district court was not required to

interpret for itself test results in the way that Decker wanted. 

Decker’s new evidence, though sufficient in the end to

persuade the district court to remand the case, did not make

that the only reasonable result. We cannot say, in that

circumstance, that the district court abused its discretion in

reaching the conclusion that the Commissioner’s position in

opposing remand was substantially justified.

III. Conclusion

Because the district court did not abuse its discretion in

concluding that the Commissioner’s position was

substantially justified, we affirm the district court’s denial of

Decker’s application for attorney fees under the EAJA.

AFFIRMED.