Terri Marsh-Quinlan v. KILOLO KIJAKAZI, Acting Commissioner of Social Security

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRI MARSH-QUINLAN,
Plaintiff-Appellant,
v.
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee.
No. 21-35190
D.C. No. 3:19-cv-06136-MAT
MEMORANDUM*
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,
FILED
JAN 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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.
2

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