FILED

NOT FOR PUBLICATION

JAN 5 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TERRI MARSH-QUINLAN, No. 21-35190

Plaintiff-Appellant, D.C. No. 3:19-cv-06136-MAT

v.

MEMORANDUM*

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Mary Alice Theiler, Magistrate Judge, Presiding

Argued and Submitted December 9, 2021 San Francisco, California

Before: GRABER and COLLINS, Circuit Judges, and CHOE-GROVES,** Judge.

Plaintiff Terri Marsh-Quinlan appeals the district court’s denial of her

motion for attorney’s fees under the Equal Access to Justice Act, 28 U.S.C.

§ 2412(d). Reviewing for abuse of discretion, Tobeler v. Colvin, 749 F.3d 830,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jennifer Choe-Groves, Judge for the United States Court of International Trade, sitting by designation. 832 (9th Cir. 2014), we reverse and remand for calculation and award of fees and

costs.

The district court abused its discretion when it determined that the

government’s opposition to remand was substantially justified. “[W]e 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.” Gardner v. Berryhill, 856 F.3d 652, 658 (9th Cir.

2017).

Here, as in Gardner, 856 F.3d at 655, 657, the new evidence in the

administrative record could not be discounted for the same reasons the ALJ gave

for discounting the evidence that he had considered previously. Dr. Moore’s report

addressed directly the primary insufficiencies that the ALJ identified in Dr.

Brown’s report by providing narrative information that explained and supported

her conclusions. Accordingly, here, as in Gardner, 856 F.3d at 658, “[r]emand was

a foregone conclusion, so the Commissioner’s opposition to remand was therefore

unreasonable.”

REVERSED and REMANDED with instructions.

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