Tuesday, April 19, 2016

Notes on McLean v. Colvin — and EAJA Case

In an unpublished opinion, the Ninth Circuit decided McLean v. Colvin, reversing the District Court's denial of fees and expenses under the Equal Access to Justice Act.  The case is important because it reinforces in a persuasive manner the proposition that an ALJ decision that lacks the support of substantial evidence or violates the law, the cases, or the rulings will lack safe refuge under the cloak of reasonableness.  Congress passed and Pres. Reagan signed the EAJA to offset the expense and burden of proceeding to court against the United States.  And unduly strict reading of the substantial justification doctrine defeats the purpose and intent of the act to reimburse partially that expense.

One word of caution is in order.  The court cites to Social Security Ruling 96-7p.  the Commissioner superseded that ruling with Social Security Ruling 16-3p on March 28, 2016.  Look for synthesis and comparison of the two rulings on this blog in the near future.

The Legal Kernels Derived from McLean

The court has jurisdiction pursuant to 28 USC § 1291.

The court reviews the decision of the district court for an abuse of discretion.  Tobeler v. Colvin, 749 F.3d 830, 832 (9th Cir. 2014). 

The ALJs mischaracterization of, and failure to weigh properly, the record evidence cannot be said to be justified to a degree that would satisfy a reasonable person.  Meier v.  Colvin, 727 F.3d 867, 870, 872 (9th Cir. 2013); cf. Sampson v.  Colvin, 103 F.3d 918, 921–22 (9th Cir. 1996).

The ALJ violated the Commissioner’s own regulations by failing to discuss side effects of medication and failing to explicitly state whether the side effects had adequately supported the temporary discontinuation of other medication.  Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir. 2001); Social Security Ruling 96-7p; 20 C.F.R. §§ 404.1529(c)(3)(iv); 416.929(c)(3)(iv). 

The ALJ’s failure to credit the testimony was not harmless because it affected the ultimate determination on the issue of medical improvement.  Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).  

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