Joyce Lewis v. Jo Anne B. Barnhart, Commissioner of Social Security

281 F.3d 1081 Joyce LEWIS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, * Commissioner of Social Security, Defendant-Appellee. No. 99-35922. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 4, 2001. Filed March 1, 2002. Elie Halpern, Elie Halpern and Associates, Olympia, WA, and Ralph Wilborn, Ralph Wilborn & Etta L. Wilborn, P.C., Tucson, AZ, for the plaintiff-appellant. Vikash Chhagan, Assist. Reg. Counsel, Social Security Administration, Seattle, WA, and Brian C. Kipnis, Seattle, WA, for the defendant-appellee. Appeal from the United States District Court for the Western District of Washington; Franklin D. Burgess, District Judge, Presiding. D.C. No. CV-98-5337-FDB. Before: BROWNING, WALLACE, and T.G. NELSON, Circuit Judges. Opinion by Judge WALLACE; Dissent by Judge JAMES R. BROWNING. WALLACE, Circuit Judge. 1 Lewis appeals from the district court's judgment in this Social Security disability action denying her motion for attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Act). The district court had jurisdiction pursuant to 42 U.S.C. § 405 (g) to review the merits of the underlying case and had jurisdiction under 28…

Opinion by Judge WALLACE; Dissent by Judge JAMES R. BROWNING.

Lewis appeals from the district court’s judgment in this Social Security disability action denying her motion for attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Act). The district court had jurisdiction pursuant to 42 U.S.C. § 405 (g) to review the merits of the underlying case and had jurisdiction under 28 U.S.C. § 2412 to decide the motion for attorneys’ fees. We have jurisdiction pursuant to 28 U.S.C., § 1291 . We affirm.

I

Lewis applied for disability insurance benefits under Title II of the Social Security Act on July 26, 1995, alleging that she had become disabled as a result of a back injury sustained in August 1994. Just pri- or to this injury, Lewis was working at a gas station as a cashier and attendant. In her application for benefits, Lewis reported that her work required her to operate the cash register, take readings on the gasoline pumps, mop floors, and clean bathrooms. She indicated that this job required her to stand six hours per day, bend frequently, lift up to ten pounds frequently, carry boxes of merchandise and cases of soda, and sometime lift items as heavy as twenty…

Dissenting.

I dissent. Prior decisions of this Court require reversal.

In Flores v. Shalala, 49 F.3d 562 (9th Cir.1995), the Secretary found Flores was not disabled because he could perform a significant number of jobs in the national economy. 1 Flores appealed. The district court remanded because the Secretary had erred by failing to consider a vocational report (the TEAM report) in questioning the vocational expert and in reaching the conclusion that Flores could perform jobs in the national economy. The district court denied Flores’s request for attorneys’ fees because the court concluded the Secretary’s position on the ultimate issue of Flores’s disability was substantially justified.

We reversed, holding the district court had committed a material error of law in determining the Secretary’s position was substantially justified. Id. at 572 . We stated we could resolve the question of Flores’s entitlement to attorneys’ fees “by considering only the procedural issues on which the district court reversed.” Id. at 566 . We concluded “[bjecause the remand was based on the failure of the ALJ to ask about or consider the TEAM report, the district court’s inquiry should have been…