                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           APR 15 2016
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


MICHAEL D. MCLEAN,                               No. 14-35204

               Plaintiff - Appellant,            D.C. No. 3:11-cv-05763-BHS

 v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

               Defendant - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                              Submitted March 7, 2016**


Before:        PREGERSON, LEAVY and OWENS, Circuit Judges.

      After an Administrative Law Judge (“ALJ”) issued a partially favorable

decision, Michael McLean filed a complaint for judicial review in federal district


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
court. The district court entered judgment in favor of McLean, reversing and

remanding for further proceedings. The district court, however, denied McLean’s

motion for attorneys fees under the Equal Access to Justice Act (“EAJA”).

McLean appeals only the district court’s order denying his motion for attorneys

fees under EAJA.

      We have jurisdiction under 28 U.S.C. § 1291. We review the district court’s

decision denying attorneys fees for abuse of discretion. Tobeler v. Colvin, 749

F.3d 830, 832 (9th Cir. 2014). We reverse and remand for an award of fees

because the ALJ’s decision that McLean experienced medical improvement on

October 25, 2007, was not substantially justified.

      First, the ALJ failed to discuss significant, probative record evidence that

was clearly contrary to her finding that McLean stopped taking his medication due

to an improvement in his symptoms. The ALJ’s mischaracterization of, and failure

to weigh properly, the record evidence cannot be said to be justified to a degree

that could satisfy a reasonable person. Meier v. Colvin, 727 F.3d 867, 870, 872

(9th Cir. 2013); cf. Sampson v. Chater, 103 F.3d 918, 921–22 (9th Cir. 1996).

Second, the ALJ violated the agency’s own regulations in failing to discuss the

side effects of McLean’s medication and failing to address explicitly whether the

side effects supported adequately the decision to temporarily discontinue use of his


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mental health medication. Gutierrez v. Barnhart, 274 F.3d 1255, 1259 (9th Cir.

2001); SSR 96-7p, 1996 WL 374186 (July 2, 1996); 20 C.F.R. §§

404.1529(c)(3)(iv), 416.929(c)(3)(iv). The ALJ’s failure to credit McLean’s

symptom testimony was not harmless because it affected the ultimate

determination that he experienced medical improvement as of October 25, 2007.

Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012).

      Where, as here, the ALJ’s decision was not substantially justified, this court

need not reach the issue of whether the Commissioner’s litigation position was

substantially justified. Tobeler, 749 F.3d at 832. We therefore reverse the district

court’s order and remand for an award of EAJA fees.

      REVERSED and REMANDED.




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