NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 4 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

GAIL E. CRAIG, No. 16-36052

Plaintiff-Appellant, D.C. No. 3:12-cv-05469-RBL

v.

MEMORANDUM*

NANCY A. BERRYHILL, Acting Commissioner Social Security,

Defendant-Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Argued and Submitted March 21, 2018 San Francisco, California

Before: GRABER, BERZON, and MURGUIA, Circuit Judges.

Gail E. Craig appeals the district court’s order denying his motion for

attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412(d), which he filed after prevailing in his social security appeal. We

previously reversed and remanded the district court’s affirmance of the

administrative law judge’s (“ALJ”) denial of Craig’s application for Supplemental

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Security Income (“SSI”) benefits because substantial evidence in the record did not

support the ALJ’s decision to reject two medical experts’ opinions, and the ALJ

gave no legitimate reasons to distinguish their opinions from a third doctor’s

opinion. In considering Craig’s attorney’s fees motion, the district court found the

Commissioner of Social Security’s (“Commissioner”) position in denying Craig’s

application for SSI benefits substantially justified and denied Craig’s attorney’s

fees motion. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the

district court’s denial of attorney’s fees pursuant to the EAJA for abuse of

discretion, and we reverse and remand for the district court to award attorney’s

fees. See Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013).

The district court abused its discretion in denying Craig’s motion for

attorney’s fees because it misapplied the legal standard used to determine whether

the Commissioner’s position was substantially justified. See id. at 869–70.

Specifically, the district court failed to address on the merits why the

Commissioner’s underlying position—the ALJ’s decision denying Craig’s

application for SSI benefits—was substantially justified, as this court’s precedents

direct. See id. at 870–72 (explaining that this court looks “to decisions of the ALJ

to determine whether the government’s position in the underlying agency action

was substantially justified”). This court’s caselaw makes clear that where

substantial evidence does not support an ALJ’s decision, it is the “decidedly

2 unusual case” in which substantial justification, within the meaning of the EAJA,

exists. See id. at 872 (quoting Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.

2005)).

Here, the district court did not address how or why Craig’s case is the

“decidedly unusual case,” even though we previously determined that substantial

evidence in the record does not support the ALJ’s decision to reject the opinions of

two examining mental health experts. See id.(explaining that where substantial

evidence does not support an ALJ’s decision to discount a medical expert’s

opinion is a “strong indication” that the government’s position is not substantially

justified) (internal quotation marks omitted)). Therefore, because the district court

did not acknowledge that the Commissioner’s position consists of two

components—the ALJ’s underlying decision and the Commissioner’s litigation

position—and failed to explain why it believed Craig’s case constitutes the

“decidedly unusual case,” the district court abused its discretion by failing to

conduct the proper analysis. See id.; see also Tobeler v. Colvin, 749 F.3d 830, 832

(9th Cir. 2014).

Moreover, because we conclude that the Commissioner’s underlying

position was not substantially justified because Craig’s case is not the “decidedly

unusual case,” we need not reach the question whether the government’s litigation

position was justified. Cf. Campbell v. Astrue, 736 F.3d 867, 868–69 (9th Cir.

3 2013) (order) (holding that Campbell constituted the “unusual case” because, while

the ALJ erred in her ultimate disability determination, the ALJ was substantially

justified in relying on medical records from 1989 and 2000 to make a disability

determination about whether Campbell was disabled in 1996 because no medical

records from 1996 existed); Meier, 727 F.3d at 872 (“Because the government’s

underlying position was not substantially justified, we need not address whether

the government’s litigation position was justified”); see also Tobeler, 749 F.3d at

834 (“Because the government’s underlying position was not substantially

justified, we award [attorney’s] fees [pursuant to the EAJA], even if the

government’s litigation position may have been justified.”).

REVERSED AND REMANDED.

4

FILED

Craig v. Berryhill, No. 16-36052

JUN 04 2018

GRABER, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur but write separately to point out an anomaly that has crept into our

social security jurisprudence.

In some EAJA cases, we have cited the Supreme Court’s holding that, in

deciding whether the government’s position is substantially justified (and thereby

deciding whether to award fees to the prevailing plaintiff), we should "treat[] a

case as an inclusive whole, rather than as atomized line items." Comm’r, INS v.

Jean, 496 U.S. 154, 161–62 (1990). We cited and applied that principle, for

example, in Al-Harbi v. INS, 284 F.3d 1080, 1084–85 (9th Cir. 2002) (order), and

in Ibrahim v. U.S. Department of Homeland Security, 835 F.3d 1048, 1054–55

(9th Cir. 2016), in which en banc proceedings are ongoing, reh’g en banc granted,

878 F.3d 703 (9th Cir. Dec. 29, 2017) (argued Mar. 20, 2018).

But in Tobeler v. Colvin, 749 F.3d 830, 834–35 (9th Cir. 2014), we held that

the court may consider only whether the government’s position on the sole issue

that led to remand was substantially justified. In my view, Tobeler and the cases it

cited in support of that proposition are wrongly decided on that point. We should

correct that error. Were we free to apply the Jean standard here, in my view fees

would not be awardable.