Craig Douglas TOBELER, Plaintiff-Appellant, v. Carolyn W. COLVIN, Defendant-Appellee.
No. 12-16392
United States Court of Appeals, Ninth Circuit
April 18, 2014
Argued and Submitted March 14, 2014.
The First Circuit has agreed with us, in a remarkably similar case. In Roberts v. Maine, 48 F.3d 1287 (1st Cir. 1995), our sister circuit found a due process violation where a suspected drunk driver was not informed of a very important criminal consequence of refusing a chemical test: a mandatory two-day jail sentence upon conviction for the underlying DUI offense. Id. at 1289. After being denied a chance to speak with an attorney, the suspect refused the test and was eventually sentenced to two days’ imprisonment for the refusal itself. Id. On these facts, the court weighed the Mathews factors, distinguished Neville for reasons similar to ours, and found that the suspect‘s right to due process had been violated. Id. at 1291-96.
We read Roberts to hold that, if an admonition is given, due process is offended when the warning misleads the DUI suspect as to whether he may be criminally punished for the refusal itself. Harrington, like the suspect in Roberts, was not informed that his refusal would directly, independently, and irrevocably result in criminal liability. Indeed, the due process violation is more flagrant here than in Roberts because the rangers did not simply omit critical information; they read Harrington the wrong information three times. The risk to Harrington‘s liberty interest is also weightier: a maximum of six months’ imprisonment compared to just two days. Finally, the criminal punishment in Roberts was conditioned on the suspect‘s conviction for the underlying DUI offense; Harrington‘s criminal charge, however, was unconditional. Harrington‘s appeal, thus, presents an even more compelling case for reversal.
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We doubt that the Constitution requires any admonition be given to DUI suspects. Cf. Missouri v. McNeely, 133 S. Ct. 1552, 1566, 185 L. Ed. 2d 696 (2013) (noting that “States have a broad range of legal tools to enforce their drunk-driving laws,” with “all 50 States hav[ing] adopted implied consent laws“); Neville, 459 U.S. at 565, 103 S. Ct. 916 (explaining that one‘s “right to refuse” a blood alcohol test is not of constitutional origin; it is “simply a matter of grace bestowed by” state legislatures). However, when an admonition is given, we hold that due process is violated where, as here, the admonition incorrectly informs the suspect that his refusal is not a freestanding crime, when in fact it is.
REVERSED.
Elizabeth Barry (argued), Special Assistant United States Attorney, Daniel G. Bogden, United States Attorney, Donna L. Calvert, Acting Regional Chief Counsel, Social Security Administration, San Francisco, CA, for Defendant-Appellee.
Before: RAYMOND C. FISHER and MARSHA S. BERZON, Circuit Judges, and GORDON J. QUIST, District Judge.*
OPINION
FISHER, Circuit Judge:
Craig Tobeler appeals the district court‘s order denying his motion for attorney‘s fees under the Equal Access to Justice Act (EAJA). We have jurisdiction under
“EAJA provides that ‘a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.‘” Meier, 727 F.3d at 870 (quoting
Here, the underlying agency action lacked a reasonable basis in law because the administrative law judge (ALJ) disregarded competent lay witness evidence on Tobeler‘s symptoms without comment. Under our case law, “[l]ay testimony as to a claimant‘s symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); accord Stout v. Comm‘r, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006). Disregarding competent lay witness testimony without comment, therefore, constitutes “legal er-
Noting that our case law requiring a reasoned explanation for rejecting lay witness evidence applies solely to competent evidence, the government contends that the evidence at issue here was irrelevant, and hence, that the ALJ would have been substantially justified in treating it as incompetent. We disagree.
First, the ALJ would not have been substantially justified in treating the evidence as irrelevant. Tobeler‘s friend and former employer, George Bandy, submitted a letter describing Tobeler‘s inability to handle work as a floor installer during three periods of employment in the early 1980s, 2001 and 2003. Although the government maintains that this evidence was irrelevant to whether Tobeler was capable of working during the relevant period between January 1 and September 30, 1999, it offers no legal support for that contention. Evidence is relevant when it has “any tendency to make a fact more or less probable than it would be without the evidence.”
Kimberli Tobeler, Tobeler‘s wife, submitted a detailed statement describing Tobeler‘s problems with depression, anxiety and anger and contrasting Tobeler‘s condition before and after the onset of his disability. The government argues that Mrs. Tobeler‘s statements are irrelevant because she completed the questionnaire in 2006, not in 1999. There is no reason to assume, however, that Mrs. Tobeler was describing Tobeler‘s limitations solely in 2006, rather than throughout his period of disability. Furthermore, in the absence of any indication that Tobeler‘s condition worsened between 1999 and 2006, we do not see why his condition in 2006 would not be at least minimally relevant to his condition in 1999. Finally, to the extent that Mrs. Tobeler‘s statement was vague as to time, it was within the power of the ALJ to clarify the record. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). We note that Mrs. Tobeler provided her information by completing a form created by the Social Security Administration—Form SSA-3380-BK. Mrs. Tobeler should not be faulted for failing to provide details as to time that the form did not ask her to provide.
Second, even if the lay witness evidence could be considered irrelevant, the ALJ was not substantially justified in disregarding it without comment. Our case law is clear that the ALJ must provide germane reasons for rejecting competent lay witness evidence, and relevance and competence are not the same thing. Under our case law, lay witness testimony is “incompetent” when it consists of a medical diagnosis, because “medical diagnoses are beyond the competence of lay witnesses” to make. Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). But
The government‘s reliance on Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam), is misplaced. Although we held in Vincent that the ALJ did not err by ignoring lay witness evidence without comment, the lay witnesses at issue there had made medical diagnoses—diagnoses that they were not competent to make. See Nguyen, 100 F.3d at 1467. We explicitly limited Vincent in Nguyen, where we made clear that lay witness testimony as to a claimant‘s symptoms or how an impairment affects ability to work is competent evidence that cannot be disregarded without comment. See id.
Because the ALJ disregarded competent lay witness evidence without comment, the position of the United States in the underlying action was not substantially justified. See Li, 505 F.3d at 920-21; Sampson, 103 F.3d at 922. Tobeler is therefore entitled to an award of attorney‘s fees.
The government points out that its litigation position was substantially justified because it reasonably argued in the district court that the ALJ‘s error was harmless under Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012). To avoid an award of EAJA fees, however, the government must show that its position was substantially justified at each stage of the proceedings. See Meier, 727 F.3d at 872; Li, 505 F.3d at 919 (“[W]e have consistently held that regardless of the government‘s conduct in the federal court proceedings, unreasonable agency action at any level entitles the litigant to EAJA fees.“). Because the government‘s underlying position was not substantially justified, we award fees, even if the government‘s litigation position may have been justified.
The district court concluded that the government‘s position was substantially justified because, “[w]hile Plaintiff prevailed on the issue of lay witness testimony, the remainder of the ALJ‘s conclusions were affirmed.” This rationale conflicts with our case law, which requires us to award fees when “the Secretary‘s position on the . . . issues that led to remand was not substantially justified.” Flores v. Shalala, 49 F.3d 562, 564 (9th Cir. 1995) (emphasis added). As we explained in Flores:
We conclude that we may resolve the question of Flores’ entitlement to attorney‘s fees by considering only the procedural issues on which the district court reversed—specifically, the Secretary‘s failure to take into account the vocational report discussing the claimant‘s cognitive limitations. In this case, we need not consider the Secretary‘s position on any other questions, including the ultimate issue of disability.
Id. at 566; see also Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002) (“Under the Act, attorneys’ fees are to be awarded to a party winning a . . . remand unless the Commissioner shows that his position with
We conclude that the district court abused its discretion by finding the position of the United States substantially justified. We therefore reverse the order denying Tobeler‘s motion for EAJA fees. Because the parties dispute the amount of the award, we remand for an award of fees to be determined by the district court.
REVERSED AND REMANDED.