                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 11 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


NAOMI FAWN MARSH,                                No.   15-17306

              Plaintiff-Appellant,               D.C. No. 3:11-cv-02096-CRB

 v.
                                                 MEMORANDUM*
NANCY A. BERRYHILL, Acting
Commissioner Social Security,

              Defendant-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Charles R. Breyer, District Judge, Presiding

                    Argued and Submitted September 13, 2017
                            San Francisco, California

Before:      KOZINSKI and FRIEDLAND, Circuit Judges, and ARTERTON,**
             District Judge.

      While the Social Security Administration (SSA) is “responsible for making

the determination or decision about whether [a claimant meets] the statutory

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable Janet Bond Arterton, United States District Judge for
the District of Connecticut, sitting by designation.
                                                                                page 2
definition of disability,” 20 C.F.R. § 404.1527(d)(1), Dr. Betat’s chart note

contained information about Marsh’s condition and capacity that went beyond a

mere statement of disability. These findings informed his assessment that she

“appear[ed] to be disabled.” The ALJ therefore erred by neither considering Dr.

Betat’s opinion nor providing reasons to reject it. “In order to reject an examining

physician’s opinion, the ALJ has to give clear and convincing reasons.” Hill v.

Astrue, 698 F.3d 1153, 1159–60 (9th Cir. 2012) (internal citation and quotation

marks omitted). Accordingly, SSA’s position was not substantially justified. See,

e.g., Tobeler v. Colvin, 749 F.3d 830, 834 (9th Cir. 2014) (“To avoid an award of

EAJA fees . . . the government must show that its position was substantially

justified at each stage of the proceedings.”).


      REVERSED AND REMANDED.
