Marlene WILLIAMS, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee

934 F.2d 221 33 Soc.Sec.Rep.Ser. 500, Unempl.Ins.Rep. CCH 16113A Marlene WILLIAMS, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee. Nos. 89-55595, 89-55856. United States Court of Appeals, Ninth Circuit. Submitted Feb. 8, 1991. * Decided May 30, 1991. John Ohanian, Los Angeles, Cal., for plaintiff-appellant. Michael R. Power, Asst. Regional Counsel, Dept. of Health and Human Services, San Francisco, Cal., for defendant-appellee. Appeal from the United States District Court for the Central District of California. Before BOOCHEVER, HALL and RYMER, Circuit Judges. RYMER, Circuit Judge: 1 Marlene Williams appeals the district court's denial of her motion for attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412 (d)(1)(A). She filed applications for disability insurance benefits and supplemental security income benefits in April 1982, claiming that she had been unable to work since March 18, 1982 due to high blood pressure, heart trouble, poor vision, and a past history of mental breakdowns. The Secretary denied her applications. Williams appealed and we remanded in light of Yuckert v. Heckler, 774 F.2d…

Marlene Williams appeals the district court’s denial of her motion for attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (d)(1)(A). She filed applications for disability insurance benefits and supplemental security income benefits in April 1982, claiming that she had been unable to work since March 18, 1982 due to high blood pressure, heart trouble, poor vision, and a past history of mental breakdowns. The Secretary denied her applications. Williams appealed and we remanded in light of Yuckert v. Heckler, 774 F.2d 1365 (9th Cir.1985), 1 which invalidated the severity regulations upon which the Secretary had relied. On remand, the Secretary again denied benefits and the district court remanded again because the Secretary had not properly considered Williams’s mental condition in evaluating whether she could resume work, improperly weighed medical evidence and selectively disregarded her testimony without adequate credibility findings. After considering additional evidence, the Secretary granted benefits for the closed period for which Williams had applied. The district court found that her case should be analyzed in two phases: the first, covering…

dissenting in part:

I agree with the majority’s finding that the Secretary’s position was substantially justified through the initial remand by our court. I believe, however, that the district court abused its discretion in holding that the Secretary was substantially justified when, after the remand, he again denied benefits. The district court remanded this second denial because “the Secretary had not properly considered [Williams’s] mental condition in determining that she could resume work, improperly weighed medical evidence and selectively disregarded [her] testimony without adequate credibility findings.” The majority does not conclude that those findings were clearly erroneous, yet holds that the Secretary’s position was substantially justified.

I do not believe that the Secretary was justified in failing to properly consider Williams’s mental condition. All of the psychiatric evidence indicated an inability to work during the closed period. Specifically, the mental condition evidence referred to by the Magistrate consisted of reports by Williams’s treating psychiatrist, Dr. Toney, and the only other psychiatric examiner, Dr. Baron. Both doctors diagnosed Williams as…