in either court and i have had mixed results in both i know at one point i i filed in the ninth circuit it went through very quickly and easily so the next case i filed i filed with the ninth circuit and it was denied in a one word first thing that as you point out we are almost always going to be reversing the just record and then to go as to just record where there were substantially justifies whether in that the government was substantially justified when he ruled in their favor seems like a hard thing to ask to just you just you do not impossible but unusual it feels like a slight leap of faith but we actually have fairly good faith in the integrity of our judges i  overarching concern that you may not be able to help with we have at least one each a case in the asylum context in which we have said that the case should be treated as a whole not look at each particular issue yet in the social security context we have cases that say that you're only supposed to look at the issue that when that resulted in the reversal and in this case there were two major issues conflicting lines of authority i mean the fact that one arises him asylum and one arises in social security is a difference but i'm not sure why why it should matter to that question of so either looking at the case a whole or not well in the social security spear the views are very fact intensive cases and getting more so the files just keep getting bigger and  the issues tend to be the same and yet there was variance they there they get broader and broader very often almost every case is going to have an issue of of the defending the and not credibility anymore but defending the integrity of their testimony and and you have to raise that as an issue because if you don't raise it as an issue in district court i have seen district court judges say well you're not even defending their with their testimony so it may be so i guess the conceptual problem that i'm having is suppose you phrase ten issues and nine of them the government is for correct and the decision originally was correct and the district court was correct about nine out of ten things and yet our case the seem to say that that tenth thing even if it doesn't result in an outright gra benefits results in fees and i guess that seems unusual to me as a way to think about substantial justification well i think that it's rooted in the in hand sleeves  it's basically one case one claim with many issues and you don't have to prevail on every issue to prevail and in the same but at the same token go ahead but the gene case which is in each case about substantial justification and then there is a suspect brief in this case but it does say that there is one determination of substantial justification for the entire case that's correct and the river the reason it makes sense in social security is if you were to do it the other way around there's probably eighty percent of the cases that are brought in court the claimant only prevails on one issue they don't prevail on the and what you won on might not end up mattering to whether you can benefits right well it doesn't automatically lead to benefits but it gives you a chance to get benefit was that it's a particularly peculiar situation in which you're being to parse through the various issues in every case i think that would just create a nightmare of never being able to have any kind of clear or clean line on why whether or not the government substantially justified it we don't  and they were very strong there was some very strong language in those evaluations that showed that and one of the psychologist saying this was the most depressed person i think i've ever seen it was very powerful language  own there were factual mistakes with both of them but the the overall every there were many reasons provided and none of them could withstand careful scrutiny and that's why this case was reversed so i just want to understand how we're in your view how we're supposed to look at this and why that you claim the district court abused its discretion here here the case is really heard by this panel still substantial evidence to support its decision regarding these two experts in question which later tainted the vocational expert is that correct as so goes back for attorneys fees  looking at our case law meyer campbell there's a bunch of them that thing and it says we're supposed to look at whether the government's underlying position is not substantially justified we look at that first and then we get to the government's litigating position is that correct that is correct and so do we look at it would just looking at the expert decision or do we look at it as a whole including the adverse credibility determination and either way does that matter here for your client and well it does matter here for my client i think that under of ninth circuit law and i think it makes sense we look at the issues that were the reason for the three men for the remaining and and in this case that issue is was clearly a huge mistake no substantial evidence to support the l g s decision so i guess in your view do we get good afternoon may i please the court jeff staples here on behalf of the commissioner we ask that you affirm the district court's order denying fees because there was no abuse of discretion here and well history court essentially said there was no abuse of discretion because think found that there the there was substantial evidence and so i am a reasonable person and therefore there were there was substantial justification is that basically what he said yes the core relied on its own finding of substantial evidence which at this court has repeatedly found to be a reasonable consideration when we have your conduct where's the i guess what's the authority of because i don't see that the court cited any authority after it's sort of i thought they disagreed with me but i thought there was so therefore i'm reasonable so therefore it's reasonable he didn't cite any case law at that point and i'm just trying to figure out how is that not an abus discretion and you know what's your authority on that's all he did seems like he went right to the litigating position without reviewing the first prong and or meyer and some of our other cases so i'm trying to figure out what's your theory well i think it's important to realize that when the district court affirms the ael j s decision that says something about both ok my case you're talking about that says that he can say because i am a reasonable person there so for there is a  it's the ale j s decision in this case even if you may not even get to the government's litigating position which then goes into a reasonable determination so how do you deal with that first prong and what's your best argument as to why you know the district court didn't abuse its discretion when he didn't even discuss that so when a district court affirmed so this is the district court's merits a firm and that is an affirmative of both  j s decision that being the government's underlying action that's the first prong but it also says that the commissioners litigation position that being the second prong is also that's not what the district court said but i'm trying to understand if you are tracking you know what our cases say at least from my view of my or in some of these other cases looks like it's sort of a two prong approach and we don't even get to the government's reasonable litigating position if we determine that the decision of the government's position is not substantially just hide and then from looking at it says that's supposed to be the unusual case when that happened so give me your best response to that so let me back up on meyer for a little bit meyer the district court had abused its discretion because it treated the sale jay's decision as in di how is the district court's determination relevant so you are looking at the underlying agency content and sustaining  justified we need not to address whether the government's litigation position was justified then they go on and they say just that the government's position was substantially justified because the government prevail at the administrative and district court level so it's in that context that it says that but it doesn't say that i guess i interpret it it's it's that i'm at eight seventy three it's the very last paragraph before their conclusion and to be yes but this is where they conclude that the problem was under a they what they were saying they went into so much detail about why the ale j s decision is the underlying agency conduct because the district court had treated that as a separate in disha of reasonableness and that's where the district court erred in myer but the this court also said that it was reasonable it would be reasonable for a district court to consider or any court reviewing the substantial justification question to consider the when the decision prevails in district court and that comports with this court's holding in barea piece navy united states which says that dissent from a member of a panel can also indicate reasonable ness of the government's position that's that so i thought do we look at whether we think it was a close question and other words if it's if if we thought it was really obvious that there was not substantial evidence or if we struggled with fact as that manner i would say that we'll just stunning yes your honor it does matter these these merits issues are not like math questions where there's one right answer and everything else is flat wrong we're talking about degrees of reasonableness here and when one federal judge comes to one conclusion on the weight of the evidence in another or a panel of judges comes to a different conclusion that says something about  understand that and that's some of you are saying that in just about every case in which there is an opinion or of her cell the government was substantially gesture even though our cases seem to say the opposite they say when even what we found was that there those there was no substantial evidence and there's cases saying that when we find no substantial evidence there has to be an unusual case to prove that there was substantial justification so when we have things going in completely opposite direction i respectfully disagree because i think that the case that you're talking about is a decidedly unusual case it's not decidedly unusual for this court because this court only knows the case that it sees but the cases that this court sees is a small subset of the disability i feel are essentially saying it is correct that in essentially any case in which we have a reversal of a district where the government was substantially justified all i'm saying is that it's reasonable for a district court to consider and affirm it's from a federal justification question well and that's another question whether this panel would make a different call on the substantial justification is not the question that's being asked today so as in today is abuse of discretion did the district court on reasonably  by arguing your position you're saying well then there should be forum shopping in terms of where these petitioners go for their for their attorneys fees just i'm not sure that ma and normally i mean it seems like the prevailing parties and this seems to overlap on who is the prevailing preventing parties and generally prevailing parties when the turning sweeney's and i guess i what's your best case as to why you think you win here today why the district court did not abuse its discretion what's your best case appears to be underwood is the united states supreme court case that says that disagreement among federal court decision it's says something about that's the underlying conduct that the that the court is affirming or reversing it's not just we don't agree with your litigation position it's we don't agree with the decision that you made and that you're now defending it seems like my are to pay stick painstakingly you know concerted effort to say hey so security cases you know seems like people have been just jumping to the rather not the litigation position was reasonable and that's really not what we're supposed to do we're supposed to first look and see what the government's position was or the i guess decision was and term whether that was substantially justified and only in unusual cases will it not be and just that least that's how i'm reading it but i wanted to hear your best you know response because it seems like that's significant to your case so i see i'm out of time may i respond to this so the problem in my or the reason that as i read the case the reason that this court took such pains to explain why the a l j decision is the underlying agency action and why you have to be substantially justified at both points is because the district court in myer had treated the ale j s decision as supportive of the commissioner's litigation position so because the l j found this per person was not entitled to benefits that that is another way of showing that the commissioner's position is substantially justified and that was wrong you can't look at the decision and say oh the l j denied this person's  disability application so the commissioner that supports the commissioner's litigation position you that's why at the very end of myer it distinguishes it says the district court cannot consider the decision when deciding the question of substantial justification but it can consider a district court affirmed this because that isn't part of that's not one of the things that has to be substantially justified i'm sorry if f i o s you're not making this any more clear but then you're saying if there's any more questions i'm happy to answer them i hope i've made it a little clearer thank thank you thank you looking at the l j's decision and whether it was substantially justified which is this first prong that we've been talking about one of the reasons that they gave to discount the opinions of those two doctors was that they had relied on the claimants subjective complaints which were not fully credible and we upheld that everest credibility finding so even though we ultimately quarreled with the ale jay's conclusion about those two doctors opinions why isn't the fact that one of the reasons that the a l j relied on a reason that we blessed why doesn't that make the government's position even there substantially justified well i would point to buck i'm glad i sent that in after all because that makes it does make it clear that psychologists always base their opinions to some extent on a person's subjective complaints but not primarily on that they mostly rely on their clinical findings and the ale j s finding in this case that she had that the  at the psychologist had relied primarily on his complaints was flat out wrong dead wrong did the descriptions in their in their cause of the clinical findings their observations of just how bad he was doing makes it abundantly clear that he that that's the main thing they were lying on with what they saw through their testing their clinical observations not what he told them and that would be the difference if the if they really had relied on most of it was about what he looked like and how he talked and that was i think the the powerful evidence here is of obviously going to be what what what they saw rather than what he said but i did want turn back to what you said before about the  issue on the different when you've got all of these issues that are raised the the pet the court of appeals has to bear in mind that in district court in the tourney must raise every  viable are you issue or you or it's waived and so i have and i will continue to even in a case such as this where there are some admitted least some some credibility issues i don't agree with the analysis on that but there are some issues i would continue to raise that even in such cases because there it's usually used as an excuse to throw the baby out with the bathwater here just just to take everything throw it away and it doesn't really make sense and honestly s s r sixteen three p has discarded that for that reason because it was being used as an excuse the the idea of credibility overall credibility and the idea of being able to find