NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAIL E. CRAIG,

Plaintiff

- Appellant,

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

Defendant

- Appellee. No. 16

- 36052
D.C. No. 3:12

- cv - 05469

- RBL

MEMORANDUM *

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 app eal. We previously reversed and remanded the district court’s affirmance of the

a dministrative l aw j udge ’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. 

# FILED

JUN 4 2018 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

Security Income (“SSI”) benefits because substantial evidence in the record did not support th e 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 deny ing 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 (9 th 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 i d. at 869

– 70. Specifically, t he 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 d etermine whether the government’ s position in the underlying agency action was substantially justified ”)

. T his court’s caselaw makes clear that where substantial evidence does not support an ALJ’s decision, it is the “dec idedly3

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 w e previously determined that substantial evidence in the record d oes not support the ALJ’s decision to reject the opinions of two examining mental health experts

. S ee 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, b ecause the district court d id not acknowledge tha t 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 constitute s 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. C

f. Campbell v. Astrue , 736 F.3d 867, 868

– 69 (9 th Cir.4

2013) (order) (holding that Campbell constituted the “unusual cas e” 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 li tigation 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

.C ra ig v. B e rry hill, No. 16-36052

GR AB ER , C irc u it Judge , c o n c urring:
I c onc ur but write se p a ra te ly to point out a

n a nom a ly tha t ha s c re pt into our

soc i a l se c urity

jurisprude nc e
. In som e EAJA c a se s, we ha ve c ite d the Supre m e C ourt’ s holding tha t, in
de c iding whe the r the gove rnm e nt’ s position is substa ntia lly justifie d (a nd the re by
de c iding whe the r to a

wa rd fe e s to the pre va iling pla intiff), we should " tre a t[] a

c a se a s a n inc lusive whole , ra the r tha n a s a t om iz e d

line ite m s." C om

m ’ r, INS v.
Je a n , 496 U.S. 154, 161–62 (1990). W e c ite d a nd a pplie d tha t princ i ple , for

e xa m ple , in Al-Ha

rbi v. INS, 284 F.3d 1080, 1084–85 (9th C ir. 2002) (orde r), a nd
in Ibra him v. U.S. De pa

rtm e nt of Hom e la

nd Se c urity , 835 F.3d 1048, 1054–55 (9th C ir. 2016), in whic h e n ba nc proc e e dings a

re ongoing, re h’ g e n ba

nc gra nte d, 878 F.3d 703 (9th C ir. De c . 29, 2017) (a rgue d M a r. 20, 2018).
B ut in Tobe le r v. C olvin, 749 F.3d 830, 834–35 (9th C ir. 2014), we he ld tha t the c ourt m a y

c onside r only

whe the r the gove rnm e nt’ s position on the sole issue
tha t le d to re m a nd wa s substa ntia lly justifie d. In m

y vie w, Tobe le r a nd the c a se s it

c ite d in support of tha

t proposition a

re wrongly

de c ide d on tha

t point. W e should

c orre c t tha

t e rror. W e re we fre e to a pply the Je a n sta n da rd he re , in m

y vie w fe e s would not be

a wa rda ble

. 

# FIL ED

JUN 04 2018
M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS