Bruce Albertson, Jr. v. Nancy Berryhill

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 22, 2018
• Docket: 17-55179
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

BRUCE W. ALBERTSON, Jr., No. 17-55179

Plaintiff-Appellant, D.C. No. 2:12-cv-02508-JPR

v. MEMORANDUM* NANCY A. BERRYHILL, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Jean Rosenbluth, Magistrate Judge, Presiding

Submitted May 18, 2018** Pasadena, California

Before: WARDLAW, NGUYEN, and OWENS, Circuit Judges.

Albertson appeals the denial of his motion for attorneys’ fees pursuant to the

Equal Access to Justice Act, 28 U.S.C. § 2412. We have jurisdiction pursuant to

28 U.S.C. § 1291, review for abuse of discretion, Hardisty v. Astrue, 592 F.3d

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1072, 1080 (9th Cir. 2010), and affirm.

1. There were specific facts in the record here that could be linked to the

administrative law judge’s (ALJ) erroneous adverse credibility finding—namely,

the daily activities Albertson reportedly engaged in. Because the ALJ’s inferences

“had substance in the record” and were “tie[d] . . . to specific evidence,” the

magistrate court did not abuse its discretion in denying fees. See id.; see also Le v.

Astrue, 529 F.3d 1200, 1201–02 (9th Cir. 2008) (upholding denial of fees where

initial error related to a “fact-specific” legal standard and a “nonfrivolous argument

could be made” for the government’s application of the standard to the facts

presented); Lewis v. Barnhart, 281 F.3d 1081, 1083–84 (9th Cir. 2002).

2. “The disagreement within [the] panel regarding the merits of the

government’s appeal” in the prior appeal to this court “further suggests that a

finding of substantial justification is appropriate.” Bay Area Peace Navy v. United

States, 914 F.2d 1224, 1231 (9th Cir. 1990); see also Gonzales v. Free Speech

Coal., 408 F.3d 613, 621 (9th Cir. 2005) (finding that “‘reasonable minds’ could

and did differ” relevant to the substantial justification analysis).1 Indeed, the fact

that the panel was not unanimous in its decision to award benefits distinguishes

1 Pierce v. Underwood, 487 U.S. 552 (1988), does not preclude us from considering the views of other jurists in our substantial justification analysis; it merely discusses the probative value of various courts having already faced an issue. See id. at 569.

2 this case from other cases reversed for lack of substantial evidence.

AFFIRMED.