Rocky W. Linge v. Carolyn W. Colvin

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROCKY W. LINGE,
Plaintiff - Appellant,
v.
CAROLYN W. COLVIN,
Defendant - Appellee.
No. 13-35430
D.C. No. 3:12-CV-05304-JPD
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue II, Magistrate Judge, Presiding
Submitted November 3, 2014**
Before: THOMAS, Chief Judge, and D.W. NELSON and LEAVY, Circuit Judges.
Rocky W. Linge appeals the district court’s order denying his motion for
attorneys’ fees under the Equal Access to Justice Act (“EAJA”) in his action for
judicial review of the Commissioner of Social Security’s denial of his application
for supplemental security income under Title XVI of the Social Security Act.
FILED
JAN 16 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Linge sought attorneys’ fees following the district court’s reversal of the
Commissioner’s decision and its remand for further proceedings. We review for
an abuse of discretion, and we affirm. See Tobeler v. Colvin, 749 F.3d 830, 832
(9th Cir. 2014).
EAJA provides that in a Social Security case, a court shall award attorneys’
fees to a prevailing party other than 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); Tobeler, 749
F.3d at 832. The government must demonstrate that both its litigation position and
the agency decision on review were substantially justified. Campbell v. Astrue,
736 F.3d 867, 868 (9th Cir. 2013) (order).
Here, the agency decision was substantially justified. See id. The district
court reversed the Commissioner’s decision because the administrative law judge
had not incorporated into his assessment of Linge’s residual functional capacity a
doctor’s report submitted for the first time to the Appeals Council. See Brewes v.
Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1159-60 (9th Cir. 2012) (holding that
when Appeals Council considers newly submitted evidence in denying review, that
evidence is part of administrative record, which district court must consider in
determining whether Commissioner’s decision is supported by substantial
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evidence). The district court interpreted Brewes as requiring a remand to the
administrative law judge because the newly submitted report suggested that Linge
had a potentially severe impairment of sleep apnea. See id., see also Hill v. Astrue,
698 F.3d 1153, 1161 (9th Cir. 2012) (holding that all medically determinable
impairments must be considered in determining residual functional capacity).
However, as the district court concluded in its order denying attorneys’ fees, the
doctor’s report on Linge’s sleep apnea did not discuss limitations clearly at odds
with the ALJ’s finding that Linge had the residual functional capacity to perform
light work. Accordingly, the agency’s decision had justification in the record. See
Campbell, 736 F.3d at 868; Hardisty v. Astrue, 592 F.3d 1072, 1080 (9th Cir.
2010).
AFFIRMED.
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