Kimberly Gardner v. Nancy Berryhill, 856 F.3d 652

Background

Kimberley Gardner applied for SSDI and SSI for ADHD and anxiety; ALJ denied benefits after weighing multiple medical opinions and claimant testimony.
ALJ gave little weight to Dr. Rory Richardson’s initial (interim) opinion as speculative, and significant/great weight to Drs. Bryan and Rethinger (examining and nonexamining) who found no disabling limitations.
Gardner submitted a later, “final” treating-physician report from Dr. Richardson to the Appeals Council showing worsening/confirmed functional limitations that would likely preclude gainful employment; Appeals Council included the report but denied review.
The district court remanded to the agency for the ALJ to consider Dr. Richardson’s final treating opinion; the Commissioner did not appeal the remand on the merits.
Gardner sought attorney’s fees under the EAJA; the district court denied fees, finding the Commissioner’s litigation position substantially justified. Gardner appealed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Commissioner’s position was "substantially justified" for EAJA fee denial	Denied fees were improper because remand was required once the Appeals Council added the treating physician’s final report that undermined the ALJ’s sole reason for discounting the earlier report	Commissioner argued that even with the new report the ALJ’s decision remained supported by substantial evidence and remand was not required	Reversed: Commissioner was not substantially justified in opposing remand/fees because the final treating opinion removed the ALJ’s only legitimate basis for discounting Dr. Richardson’s view
Proper legal standard for EAJA analysis after Appeals Council adds new evidence	EAJA asks whether the government’s position was justified on the discrete issue that prompted remand (i.e., whether the ALJ’s decision could be affirmed given the new evidence)	Commissioner evaluated justification by whether other evidence could still support denial of benefits generally	Court held the proper focus is whether the government was justified regarding the specific issue that led to remand, not the ultimate disability outcome
Weight to give a treating physician’s final opinion submitted to the Appeals Council	Final treating opinion must be afforded treating-physician weight and cannot be dismissed as merely "interim"	Commissioner implicitly assumed ALJ would again discount the treating opinion on remand	Court held once final, the opinion could no longer be dismissed for being "interim"; ALJ would have to give specific and legitimate reasons supported by substantial evidence to reject it
Appropriate remedy when critical portions of a treating opinion first appear to Appeals Council	Remand for further proceedings is required when the new treating evidence could change the outcome	Commissioner relied on unpublished decisions and argued remand optional if other evidence supports denial	Court affirmed that remand was required unless the new evidence would not change the outcome; here remand was plainly required

Key Cases Cited

Pierce v. Underwood, 487 U.S. 552 (EAJA "substantially justified" standard)
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157 (Appeals Council evidence must be considered in judicial review)
Harman v. Apfel, 211 F.3d 1172 (remand where critical treating opinion first presented to Appeals Council)
Garrison v. Colvin, 759 F.3d 995 (standards for remand vs. award of benefits)
Burrell v. Colvin, 775 F.3d 1133 (ALJ must give specific and legitimate reasons to reject physician opinions)
Tonapetyan v. Halter, 242 F.3d 1144 (treating physician rule — greater weight ordinarily accorded)
Bayliss v. Barnhart, 427 F.3d 1211 (necessity of specific and legitimate reasons to discount physician opinions)
Orn v. Astrue, 495 F.3d 625 (examining and nonexamining opinions generally carry less weight than treating opinions)
United States v. Hinkson, 585 F.3d 1247 (abuse of discretion review principles)