FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KIMBERLEY A. GARDNER,

Plaintiff-Appellant,

v.

NANCY A. BERRYHILL, Acting 

Commissioner of Social Security,

Defendant-Appellee.

No. 14-35164

D.C. No.

6:12-cv-00755-JE

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 Nguyen
2 GARDNER V. BERRYHILL

SUMMARY*

Equal Access to Justice Act / Attorney Fees

The panel reversed the district court’s denial of 

plaintiff’s application for attorney’s fees pursuant to the 

Equal Access to Justice Act (“EAJA”) because the 

Commissioner of Social Security’s litigation position was 

not substantially justified; and remanded for the district court 

to determine the appropriate amount of fees to award.

After losing her claim for social security disability 

benefits before the Administrative Law Judge (“ALJ”), 

plaintiff presented new evidence – a final report by 

plaintiff’s treating doctor – to the Appeals Council, and in 

light of this new evidence in the administrative record, the 

district court remanded for further consideration. In denying 

plaintiff’s request for attorney’s fees, the district court 

concluded that the Commissioner was substantially justified 

in arguing that the new evidence did not undermine the 

ALJ’s denial of benefits.

The panel held that the issue before the district court on 

the original merits appeal of the ALJ’s denial of benefits was 

not whether there was other evidence that could support a 

denial of benefits to plaintiff, or whether the 

Commissioner’s denial of benefits might ultimately be 

sustained, but rather whether the actual decision that was 

made by the ALJ could be affirmed at that time by the district 

court in light on the new evidence in the record. The panel 

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

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

further held that it should have been plain that the ALJ’s 

decision could not have been affirmed, because the ALJ 

failed to provide a reason that was still viable for giving the 

treating doctor’s opinion little weight. The panel held that 

the treating doctor’s final report, if credited, would have 

undermined the ALJ’s original finding that plaintiff was not 

disabled. The panel concluded that the Commissioner did 

not have a legitimate basis to oppose remand and to argue 

that the district court should affirm the existing ALJ opinion; 

and the district court, by applying the wrong legal standard 

to evaluate the Commissioner’s litigation position, abused 

its discretion.

COUNSEL

Alan Stuart Graf (argued), Alan Stuart Graf PC, Floyd, 

Virginia, for Plaintiff-Appellant.

Gerald Hill (argued), Assistant Regional Counsel; David 

Morado, Regional Chief Counsel, Seattle Region X; Office 

of the General Counsel, Social Security Administration,

Seattle, Washington; Ronald K. Silver, Assistant United 

States Attorney; Kelly A. Zusman, Appellate Chief; United 

States Attorney’s Office, Seattle, Washington; for 

Defendant-Appellee.
4 GARDNER V. BERRYHILL

OPINION

NGUYEN, Circuit Judge:

Kimberley Gardner appeals the district court’s denial of 

her application for attorney’s fees pursuant to the Equal 

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A). 

We reverse and remand.

After losing her claim for social security disability 

benefits before the Administrative Law Judge (“ALJ”), 

Gardner presented new evidence—a final report by her 

treating doctor, Dr. Rory Richardson—to the Appeals 

Council. In light of this new evidence in the administrative 

record before the Appeals Council, the district court 

remanded for further consideration. The Commissioner did 

not appeal this decision. But the district court denied 

Gardner’s request for attorney’s fees, concluding that the 

Commissioner was substantially justified in arguing that the 

new evidence did not undermine the ALJ’s denial of 

benefits. Implicit in the Commissioner’s litigation position, 

however, was an assumption that the ALJ on remand either 

would reject or give little weight to the treating doctor’s 

opinion. There is simply no support for this assumption. 

The ALJ had not previously considered the merits of Dr. 

Richardson’s opinion and, if credited, that opinion would 

undoubtedly bolster Gardner’s claim that she is disabled. On 

this record, the Commissioner was not substantially justified 

in arguing otherwise.

I.

Gardner applied for disability insurance benefits and 

supplemental security income based on her adult attention 

deficit hyperactivity disorder (“ADHD”) and anxiety. The 
GARDNER V. BERRYHILL 5

Commissioner denied her claims initially and upon 

reconsideration.

At the next level of review, the ALJ considered evidence 

including (1) Gardner’s testimony regarding her symptoms 

and inability to work; (2) the interim opinion of thenexamining physician Rory Richardson that Gardner had

depressive disorder with concomitant obsessive-compulsive 

disorder and ADHD that was “likely to prevent her from 

being able to maintain attention span, complete tasks, and 

function in a gainful employment setting” despite 

medications and treatment; (3) the opinion of examining 

physician James Bryan that Gardner exaggerated her 

symptoms and suffered from no condition that would 

significantly impede her employability; and (4) the opinion 

of nonexamining psychological consultant Paul Rethinger 

that Gardner’s mental impairments limit her to work 

involving simple, unrushed tasks and requiring little social 

interaction, but that Gardner’s limitations did not render her 

disabled.

The ALJ, performing the Social Security 

Administration’s usual five-step evaluation process,1

 1 The ALJ performs a “sequential evaluation process” which ends 

when the ALJ finds that the claimant is or is not disabled. 20 C.F.R. 

§ 416.920(a)(4). At the first step, a claimant “doing substantial gainful 

[work] activity” is not disabled. Id. § 416.920(a)(4)(i). At the second 

step, a claimant is not disabled unless she has a “medically determinable 

physical or mental impairment” or combination of impairments that is 

severe and either lasts at least a year or results in death. Id.

§ 416.920(a)(4)(ii). At the third step, a claimant is disabled if the 

severity of her impairments meets or equals one of various impairments 

listed by the Commissioner, 20 C.F.R. pt. 404, subpt. P, app. 1. Id.

§ 416.920(a)(4)(iii). At the fourth step, a claimant is not disabled if her 

residual functional capacity (“RFC”) allows her to perform her past 

relevant work. Id. § 416.920(a)(4)(iv). At the fifth and final step, a 
6 GARDNER V. BERRYHILL

concluded that Gardner was not disabled. He found at steps 

two and three that she had severe impairments of ADHD, 

somatoform disorder, borderline personality features, and 

chondromalacia patella, but that these conditions did not 

meet or equal a listed impairment. The ALJ found at steps 

four and five that Gardner was able to perform both her past 

relevant work as a personal attendant and other jobs that 

exist in the national economy such as retail/wholesale 

marker and garment sorter.

In reaching these findings, the ALJ found Gardner 

“credible to the extent she suffers from some type of 

impairment” but found that her “statements concerning the 

intensity, persistence[,] and limiting effects of these 

symptoms [were] not credible.” He found that her 

“treatment records . . . demonstrate these symptoms are well 

maintained when [she] takes her medications as directed by 

her treatment providers.” The ALJ gave “little weight” to 

Dr. Richardson’s interim report, explaining that “it is only 

an interim report and [Dr. Richardson has] not completed a 

full assessment, indicating a degree of speculation in 

reaching his conclusions.” The ALJ found Dr. Bryan’s 

assessment “persuasive” and gave it “significant weight.” 

The ALJ assigned Dr. Rethinger’s opinion “great weight” 

because he concluded that it was generally consistent with 

the record.

Gardner sought review of the ALJ’s decision by the 

Appeals Council. When subsequent reports by now-treating 

physician Dr. Richardson (collectively, the “final report”) 

 

claimant is disabled if she cannot make an adjustment to other work that 

“exists in significant numbers in the national economy,” id.

§ 416.960(c)(2), given her RFC, age, education, and work experience, 

id. § 416.920(a)(4)(v).
GARDNER V. BERRYHILL 7

became available after he had treated her on several 

occasions, Gardner submitted them to the Appeals Council 

for consideration. As before, Dr. Richardson concluded that 

“[d]espite medications and treatment, she continues to have 

impairment of function which is likely to prevent her from 

being able to maintain attention span, complete tasks, and 

function in a gainful employment setting.” This time, 

however, Dr. Richardson did not qualify his opinion as 

“interim.” He also opined that Gardner “is plagued by 

Obsessive Compulsive patterns which severely delay her 

ability to leave the house and frequently [is] unable to do so 

without the assistance of her partner.” The Appeals Council 

included Dr. Richardson’s final report in the administrative 

record but denied review.

Gardner then filed this action in the district court. She 

argued that the case should be remanded to the ALJ for an 

award of benefits because substantial evidence supported her 

disability in light of Dr. Richardson’s final report. The 

Commissioner argued that even with this additional 

evidence in the record, the ALJ’s decision remained 

supported by substantial evidence and should be affirmed.

In findings and recommendations adopted in whole by 

the district court, the magistrate judge opined that the ALJ 

properly rejected Dr. Richardson’s opinion based on the 

record as it stood at the time of the ALJ’s decision, i.e., the 

interim report. The magistrate judge reasoned that Dr. 

Richardson was at the time of the interim report only an 

examining physician and the ALJ provided a specific and 

legitimate reason for rejecting his opinion—its preliminary 

nature—that was supported by the record.

The magistrate judge concluded that the Commissioner’s 

decision should be reversed, however, because “further 

administrative proceedings are generally appropriate if the 
8 GARDNER V. BERRYHILL

ALJ has not had the opportunity to consider significant 

additional evidence.” Pointing to Dr. Richardson’s opinion 

in the final report “that [Gardner’s] impairments would 

likely prevent her from functioning in a competitive 

employment setting,” the magistrate judge had “little doubt 

that a finding of disability would be required if [Dr. 

Richardson’s] opinion were fully credited.”

The district court entered judgment remanding the case 

to the ALJ to address Dr. Richardson’s final report as 

Gardner’s treating physician. The Commissioner did not 

appeal the decision. Gardner moved for attorney’s fees 

pursuant to EAJA, which the Commissioner opposed. The 

magistrate judge recommended awarding $6,713.06 in fees. 

The district court rejected this recommendation and denied 

EAJA fees, finding that the Commissioner’s litigation 

position was substantially justified. Gardner appeals this 

ruling.

II.

The district court had jurisdiction pursuant to 42 U.S.C. 

§ 405(g). We have jurisdiction pursuant to 42 U.S.C. 

§ 405(g) and 28 U.S.C. § 1291. See Tobeler v. Colvin, 

749 F.3d 830, 832 (9th Cir. 2014). We review the district 

court’s order denying EAJA fees for abuse of discretion. Id.

EAJA provides that “a court shall award to a prevailing 

party other than the United States fees and other expenses 

. . . 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). The government has the burden of 

showing that its position was substantially justified. Meier 

v. Colvin, 727 F.3d 867, 870 (9th Cir. 2013) (citing Gutierrez 

v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001)).
GARDNER V. BERRYHILL 9

“Substantial justification means ‘justified in substance or 

in the main—that is, justified to a degree that could satisfy a 

reasonable person.’” Id. (quoting Pierce v. Underwood, 

487 U.S. 552, 565 (1988)). “Put differently, the 

government’s position must have a ‘reasonable basis both in 

law and fact.’” Id. (quoting Pierce, 487 U.S. at 565). The 

“position of the United States” includes both “the position 

taken by the United States in the civil action” as well as the 

agency’s action or inaction “upon which the civil action is 

based.” 28 U.S.C. § 2412(d)(2)(D).

III.

The ALJ gave “specific and legitimate reasons supported 

by substantial evidence,” for rejecting Dr. Richardson’s 

original opinion as an examining physician. Burrell v. 

Colvin, 775 F.3d 1133, 1141 (9th Cir. 2014). As the district 

court observed, the interim nature of Dr. Richardson’s 

opinion was a legitimate reason for the ALJ to discredit it. 

But the district court recognized that this observation was 

ultimately irrelevant to its analysis, because it had to 

determine whether the ALJ’s finding of nondisability was 

supported by substantial evidence in the entire record—

including any new evidence in the administrative record that 

the Appeals Council considered—not just the evidence 

before the ALJ. Brewes v. Comm’r of Soc. Sec. Admin., 

682 F.3d 1157, 1163 (9th Cir. 2012).

The Commissioner’s position before the district court 

was that Dr. Bryan’s opinion and other record evidence that 

the ALJ considered provided substantial evidence that 

Gardner was not disabled and that Dr. Richardson’s final 

report as a treating physician “does not render the ALJ’s 

decision unsupported by substantial evidence.” The 

Commissioner has not identified the right question, 

however. In determining whether a party is eligible for fees 
10 GARDNER V. BERRYHILL

under EAJA, the district court must determine whether the 

government’s position regarding the specific issue on which 

the district court based its remand was “substantially 

justified”—not whether the ALJ would ultimately deny 

disability benefits. See Corbin v. Apfel, 149 F.3d 1051, 1053 

(9th Cir. 1998) (stating that, after Shalala v. Schaefer, 

509 U.S. 292 (1993), there was “a logical shift in focus 

within the circuit . . . from considering only the ultimate 

issue of disability to considering the justification of the 

government’s position at the discrete stage in question”); see 

also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) 

(“Under the Act, attorneys’ fees are to be awarded to a party 

winning a . . . remand unless the Commissioner shows that 

his position with respect to the issue on which the district 

court based its remand was ‘substantially justified.’” 

(quoting Flores v. Shalala, 49 F.3d 562, 569 (9th Cir. 

1995))).

Here, the issue that was before the district court on the 

original merits appeal of the ALJ’s denial of benefits was not 

whether there was other evidence that could support a denial 

of benefits to Gardner, or whether the Commissioner’s 

denial of benefits might ultimately be sustained. It was 

whether the actual decision that was made by the ALJ could 

be affirmed at that time by the district court in light of the 

new evidence in the record. As we explain below, it should 

have been plain that it could not have been affirmed, because 

the ALJ’s decision failed to provide a reason that was still 

viable for giving the opinion of Dr. Richardson little weight. 

Dr. Richardson’s final report, if credited, would have 

undermined the ALJ’s original finding that Gardner was not 

disabled.

Implicit in the Commissioner’s argument is an 

assumption that the ALJ would not fully credit Dr. 
GARDNER V. BERRYHILL 11

Richardson’s final report. The district court did not, in fact, 

adopt that assumption to affirm the denial of benefits.2 

Instead, the district court properly remanded the merits case 

back to the agency, so that the ALJ could decide in the first 

instance what impact Dr. Richardson’s final report should 

have.

By later concluding, in denying the fee application, that 

the Commissioner’s position had been substantially 

justified, however, the district court appeared to accept the 

Commissioner’s mischaracterization of the relevant legal 

question. Even if the Commissioner might have had a 

legitimate basis for opposing Gardner’s claim, she did not 

have a basis to oppose remand and to argue that the district 

court should affirm the existing ALJ opinion. The district 

court, by applying the wrong legal standard to evaluate the 

Commissioner’s litigation position, abused its discretion. 

See United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 

2009) (en banc).

Once Dr. Richardson’s opinion was “final,” it could no 

longer be given little weight by the ALJ on the ground that 

it was merely “interim.” Indeed, under the Ninth Circuit’s 

“treating physician” rule, the ALJ was required to give the 

opinion of a treating physician like Dr. Richardson its 

“greatest weight.” Tonapetyan v. Halter, 242 F.3d 1144, 

1148 (9th Cir. 2001). The ALJ therefore could have rejected 

Dr. Richardson’s opinion only by providing “specific and 

legitimate reasons . . . supported by substantial evidence” in 

the record. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th 

Cir. 2005). But apart from the interim nature of Dr. 

Richardson’s opinion, the ALJ gave no other “specific and 

 2 Nor could it have adopted such an assumption, which would

contravene our holding in Brewes by ignoring the new evidence.
12 GARDNER V. BERRYHILL

legitimate” reason for disregarding it. Id. The rejection of 

Dr. Richardson’s opinion solely on that basis could not stand 

once Dr. Richardson’s final report became part of the record.

As a general rule, where the “critical portions” of a 

treating physician’s discredited opinion were presented for 

the first time to the Appeals Council, “[t]he appropriate 

remedy . . . is to remand th[e] case to the ALJ” to consider 

the additional evidence. Harman v. Apfel, 211 F.3d 1172, 

1180 (9th Cir. 2000). That is what the district court did here, 

and, as we have explained, that is the only result it could 

properly have reached as the case was presented to it at that 

point in time. Dr. Richardson’s final report as a treating 

physician was critical because the ALJ discredited the 

original report solely due to its preliminary nature, and the 

final report, if credited, would undermine the ALJ’s initial 

decision. Remand was a foregone conclusion, so the 

Commissioner’s opposition to remand was therefore 

unreasonable.

The Commissioner contends that Harman is 

distinguishable because the ALJ there erred—by rejecting 

without explanation a treating physician’s opinion, see id. at 

1174—whereas the ALJ here did not. Harman did not turn 

on the ALJ’s error. The issue was whether the ALJ’s failure 

to consider relevant evidence obligated the district court 

“simply to credit the opinion as true” and remand for 

immediate payment of benefits or whether the district court 

correctly entered an order remanding for further 

development of the administrative record.3

 Id. at 1178. We 

 3 If the ALJ does not give specific and legitimate reasons for 

rejecting a treating physician’s assessment, the district court has two 

options. It can reverse and remand for an award of benefits where 

“(1) the record has been fully developed and further administrative 
GARDNER V. BERRYHILL 13

concluded that remand for further proceedings, as opposed 

to remand for an immediate award of benefits, was the 

appropriate course of action based on “the present state of 

the record,” not the ALJ’s error. Id. at 1180 (stating that we 

could not conclusively determine from the record as a whole 

that the claimant was, in fact, disabled within the meaning of 

the Social Security Act).

The Commissioner cites several unpublished decisions 

that she asserts “serve as objective indicia that [she] was 

substantially justified in interpreting Brewes” to not require 

remand “even though the claimants submitted new evidence 

to the Appeals Council in support of their claims.” These 

cases do not support the proposition that remand is optional 

so long as there is some evidence in the record before the 

ALJ to support the ALJ’s decision. And indeed, this is not 

the standard that has been applied by our court. Rather, we 

have affirmed district court denials of remand 

notwithstanding the existence of new evidence only when 

there would be substantial evidence supporting the ALJ’s 

denial of disability benefits even if the new evidence were 

credited and interpreted as argued by the claimant. See

Wilder v. Comm’r of Soc. Sec. Admin., 545 F. App’x 638, 

640 (9th Cir. 2013) (finding new medical opinion “does not 

merit remand” because it was based on “[o]bjectively 

 

proceedings would serve no useful purpose; (2) the ALJ has failed to 

provide legally sufficient reasons for rejecting evidence . . . ; and (3) if 

the improperly discredited evidence were credited as true, the ALJ would 

be required to find the claimant disabled on remand.” Garrison v. 

Colvin, 759 F.3d 995, 1020 (9th Cir. 2014) (footnote omitted) (citations 

omitted). Alternatively, the district court can “remand on an open record 

for further proceedings ‘when the record as a whole creates serious doubt 

as to whether the claimant is, in fact, disabled within the meaning of the 

Social Security Act.’” Burrell, 775 F.3d at 1141 (quoting Garrison, 

759 F.3d at 1021).
14 GARDNER V. BERRYHILL

verifiable results . . . [that] belie [the] suggestion that [the 

claimant] has a serious ‘impairment . . .’” and “subjective 

reporting” by claimant whom “the ALJ found . . . not 

credible”); Boyd v. Colvin, 524 F. App’x 334, 336 (9th Cir. 

2013) (finding immaterial new evidence that “does not cover 

the period in question”); Coleman v. Colvin, 524 F. App’x 

325, 326 (9th Cir. 2013) (“The [new evidence] does not 

establish any medically determinable mental impairment 

because it is not an acceptable medical source.”); Denham v. 

Astrue, 494 F. App’x 813, 815–16 (9th Cir. 2012) 

(examining “both the evidence before the ALJ and the 

additional evidence submitted only to the Appeals Council” 

and finding claimant “did not present medical evidence 

indicating functional limitations more severe than the RFC 

found by the ALJ”).

Here, there is no basis to assume that on remand the ALJ 

would discredit the new evidence rather than rely on it to 

reach a different conclusion. The only reason given by the 

ALJ for discrediting the interim report was that Dr. 

Richardson had “not completed a full assessment.” Had the 

ALJ considered the final report, which confirmed the interim 

report’s conclusions, the ALJ may well have credited Dr. 

Richardson’s assessment over Dr. Bryan’s or Dr. 

Rethinger’s. By the time Dr. Richardson issued his final 

report, he had treated Gardner several times. In contrast, Dr. 

Bryan assessed Gardner based on a single examination and 

Dr. Rethinger never examined Gardner. In general, “the 

opinions of [nonexamining physicians and] examining nontreating physicians are afforded less weight than those of 

treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th 

Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(1)–(2)).

* * * 
GARDNER V. BERRYHILL 15

We reverse the district court’s decision to deny EAJA 

fees and remand to the district court to determine the 

appropriate amount of fees to award.

REVERSED and REMANDED.