F OR P UBLICATION

UNITED STATES COURT OF AP P EALS F OR THE NINTH CIRCUIT

J I L L C A M P B E L L , Plaintiff-Appellant
,

v.

M I C H A E L J

. A S T R

U E , Defendant-Appellee

. No. 11-55486

D.C. No. 5:09-cv-00278-J ST-AN

O RDER

F iled November 26, 2013

B efore: Kim McL ane W a rdlaw, Carlos T. B ea, and N. Randy

Smith, Circuit J udg es.

Order; Dissent by

J udg e W a

rdlawC A M P B E L L V

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SUMMARY *

Attorneys’ F ees/Equal Access to Justice Act

The panel denied appellant’ s motion for attorney s’ fees under the Equal Access to J ustice Act a nd g ranted appellant’s

uno p p osed motion for filing c o sts in a n appeal where the panel had previo usly reversed the d enial of social security disability benefits.

The panel held that t h e instant case was one of the “unusual” c ases where attorney s’ fees should not be awarded under the E qual Access to J ustice Act because e ven thoug h there was not enoug h evidence to uphold a de c i s i o n t o deny benefits, there was enoug h to find that the g overnment’s litig ation position was substantially justified.

Dissenting
, J udg e W ard l a w stated that this court’s precedent required that the panel g r ant appellant’s motion for attorney ’s fees and that neither appellan t n o r h er attorney should be made to b ear the burden of the Administrative L aw J udg e ’s eg reg ious error in deny ing benefits, and the
g overnment’s z ealous defense of that error.

* T h is su m m ary co n stitu

tes n o part o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.C A M P B E L L V

. A S T R U E 3

ORDER

The A ppellant’s m o tion for attorney s’ fees is DENIED

. The Appellant’s unopposed motion for filing costs i n the amount of $805.00 is G R ANTED

.

The E qual Access to J ustice Act ( EAJ A) instructs that this
court “shall” g rant attorney s fees to a pr e v ai l i ng p laintiff “unless” the g overnment meets its b urden to demonstrate that both its litig ation position and the ag ency decision on r eview

were “substantially justified.” 28 U.S.C. § 2412(d)(1)(a); Thangaraja v. Gonzales
, 428 F .3d 870 (9th Ci r. 2005). F urther, this court has stated that, it “ will be only a decidedly unusual case in which there is substantial justification under the E AJ A even thoug h the a g ency ’s decision was reversed a s la cking in reasonable, substantial and probative evidence in the record.” Id. at 874 (internal quotation marks omitted).

The dissent asserts that the case Meie r v

. C ovin requires

us to award attorney s’ fees in this case. I n Meier v. Covin
, an AL J denied Meier social security bene f i t s a nd the district
court affirmed the A L J

. 727 F .3d 8 6 7
, 8 6 9 (9th Cir. 2013). This court reversed and remanded for an award of benefits in

an unpublish e d memorandum disposition, holding that the AL J failed to offer specific reasons supported by substantial evidence for rejecting a treatin g p hy sician’s opinion that Meier could not work. Id. Meier then moved for attorney s’ fees and costs, and the district court denied the motion. Id.

This c ourt clarified that in the social security contex t, “the position of the United States includes both the g overnment’s litig ati o n p o s ition and the u nderly ing ag ency action.” Id. at 870 (internal citations omitted). The court then looked at the d e c ision of the AL J to determine w hether the g overnme n t ’sC A M P B E L L V

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position in the underly ing action was s u b s tantially justified. Id. a t 871. The cour t n o t e d that its previous memorandum disposition held that the AL J ’s decision was not supported b y substantial evidence including any specific and leg iti mate

reasons for rejecting th e phy sician’s opinion and Meier’s testimony

. Id. at 872. The court then reiterated that holding

an “ag e ncy ’s decision was unsupport e d by substantial evidence is a strong indication that the position of the United States w as n ot substantially justified.” Id. (internal citations omitted). Be c ause the AL J ’s decision was n ot substantially justified, the court held it n e ed not address whether the
g overnment’s litig a tion position was substantially justified.

W h ile M eier and the instant c ase are similar, in Meier
, the claimant relied on his o w n t estimony
, and a phy sician’s testimony
, that he was presently d isabled. Here, the A L J h ad to determine whether Campbell was disabled in the past . I n this case, the AL J h ad to d etermine whet h e r Campbell’s multiple sclerosis rendered her disable d by J une 30, 1996. The AL J did not have any records from 1996 to ex amine. I nstead, the A L J had medical records from 1 98 9 and 2000. The AL J also had to c onsider c ircumstanti a l evidence that Campbell cared for her children and worked during that time, which justified doubts that Campbell was fully d isable d. W h ile the AL J erred in h e r d e t e r mination, the f act that she

was try ing to ex trapolate w hat Campbell’s injury may have been in 1996 from other evidence reg arding a disease which
may worsen at vary

ing rates leads this court to conclude that the AL J ’s decision was “substantially justified.”

The d i s sent acknowledg es that “in Meier
, the question

was w hether the applicant was presently disabled, whereas here, the question was whether Campbell was disabled on the last date insured.” Dissent at 8

. W h i l e this circuit has beenC A M P B E L L V

. A S T R U E 5

clear that when a

n ag ency ’s d e c i s i on is unsupported b y substantial evidence it is a strong indication that the position of the U nited States is not substantially justified, this circuit has never stated that every time this court r everses a nd remands the AL J ’s decisio n for lack of substantial evidence the claimant should be awarded attorney ’s fees.

The d ifference between ex a mining current medical records to make a decision about a present condition a nd

ex trapolating from medical records to make a decision about

a past condition disting uishes t h i s case from Meier

. The inst ant case is one of the “ unusual” cases where attorney s’ fees should not be aw a rded under the EAJ A. I n this case there was not eno u gh e v idence to uphold a decision, but
enoug h to find the g overnment’s position was substantially justified.

W A RDL AW , Circuit J udg e, dissenting :

I dissent from the majority ’s denial of attorney ’ s f e e s to the prevailing party in this social security disab ility benefits

case. The Equal Access to J u stice Act ( EAJ A) instructs that

we “shall” g rant attorney ’s f ees to a prevailing p l ai n tiff “unless” the g o vernment meets its b urden to demonstrate that both its litig a tion position and the ag ency decision on r eview

were “substantially justified.” 28 U.S.C. § 2412(d)(1)(a); Thanga r a j a v

. Gonzales
, 4 28 F .3d 870 (9th Cir. 2005). A s th e Supreme Court has ex p lained, “Cong ress enacted EAJ A in 1980 ‘ to eliminate the barriers that prohibit

. . . individuals from securing vindication of their rig hts in civil actions a nd administrative proceeding s broug ht by or ag ainst the F ederal Government.’” Scarborough v. Principi , 541 U.S. 401, 406C A M P B E L L V

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(2004) (quoting H.R. Rep. No. 96-1005, p. 9) (citation omitted); se e also Cong ressional F inding s and Purposes, 94 Stat. 2325, note following 5 U.S.C. § 504 (“ I t i s the
purpose of this title

. . . to diminish the deterr e n t effect o f seeking review of, or defending ag ainst, g overnmental action . . . .”) (discussing earlier iteration of the EAJA).

Here, we h eld that the Administrative L aw J udg e’s ( AL J ) conclusion that Campbell had failed to demonstrate that she

was disabled as of J une 30, 1996, the last date she w a s insured, failed to survive t h e ex tremely deferential “substantial evidence” standard of review. That the ag e ncy ’s decision was not supported by substantial evidence is a “strong indication” that the g overnment’s po s i t i o n was not “substantially justifi ed” for purposes of the E A J A

. Thangaraja
, 42 8 F .3d a t 874. A s we ex plained in Thangaraja
, it “ will be only a de cidedly u nusual case in which there is substantial justification under the EAJ A even thoug h the ag ency ’s decision was reversed a s lacking in reasonable, substantial and probative evidence in the record.” Id. (internal quotation and citation omitted) ; c f

. Al-Harbi v

. INS
, 2 8 4 F

. 3d 1080, 1085 (9th Cir. 2002) (deny ing attorney ’s fees under the E AJ A in ag e ncy action because we upheld “the
g overnment’s c entral positions,” even thoug h we reversed the
ag ency decision on review).

This i s n o t such an unusual case. I n the circumstances here, where Campbell undisputedly h ad multiple sclerosis, which was undisputedly capable of p roducing the sy mptoms she repor ted, the law required the AL J to credit Campbell’s testimony a

bout those sy

mptoms unless t here was some evidence of “maling ering ” or clear and convincing evidence contradicting h er stateme n ts. S molen v. Chater
, 80 F .3d 1273, 1281 (9th Cir. 1996). This law w as clearly e stablishedC A M P B E L L V

. A S T R U E 7

well before Campbell’s proceeding s beg an, an d i t is straig htforwardly applicable here. As even the state’s doctor
ag reed, there is no evidence that Campbell was a maling erer, and the AL J did not so find. According ly
, the AL J should have c redited Campbell’s t estimony u nless there was clear and convincing evidence to the contrary

. As we unanimously concluded, there was none.

W h en the AL J asked Campbell to describe her sy mptoms “between 1995 and 1996,” Campbell testified that in addition
to h er g enerally prog ressive sy mptoms, she ex perienced eig ht
to ten “ex acerbations” per y ear, each lasting up to two weeks, during which her fatig ue and weakness worsened. S he testified that it was difficult to g et o ut o f b ed; that at times,

s h e had to crawl to reach the bathroom; that she was u n a b l e to walk without support and “scooted on her butt” to g o down stairs; that she was unable to p erform tasks like making h er bed, vacuuming
, sweeping
, mopping
, or even h olding a p en; and that she stopped curling her hair because it required “ too much energ y .” The AL J rejected not only this testimony
, but also that of Campbell’s treating a nd ex a m i n ing phy sicians whose medical opinions suppo r ted Campbell’s testimony because a third non-treatin g d o c tor, the state’s witness, said that he was u nsure w hen Campbell b ecame fully disabled, despite his stated o pinion that Campbell w as l i kely f ully disabled as of “sometime between ‘95 and ‘ 9 8
, ” a r ang e which obviously in cludes
, and does not ex clude, the date o f J u ne 30, 1996. I n other words, not a single p hysician contradicted Campbell’s description of her disability as of her last date insured. W hen the AL J presented a v o cational specialist with a hy

pothetical incorporating just six periods o f

ex a c erbation, not the actu a l e i ght to ten periods Campbell

ex p erienced in 1995 and 1 9 9 6
, the specialist unequivocally stated that a p erson e x periencing such sy mptoms would beC A M P B E L L V

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unable to perform wor k i n the national economy

. The Commissioner was not “substantially justified” in failing to apply the clearly established law that compelled the result we reached in this case. 28 U.S.C. § 2412(d)(1)(a). Nor w as the
g overnment justified in defending the ag ency ’s errone o u s decision throug h multiple stag es of litig ation at ta x pay er

ex p ense.

That the AL J ’s decision was not substantially justified is further u nderscored by our recent opinion in Meier v. Colvin
, 727 F .3 d 8 67 (9th Cir. 2013), where we held that a district
court abused its discr e t i o n b y d eny ing attorney ’s fees under the EAJ A in remarkably analog ous c ircumstances. There, a s here, th e panel had previously issued an unpublished disposition reversing the district court’s decision affirming an AL J ’s denial of social securit y b e n efits. There, an AL J improperly rejected a Social Security applicant’ s t estimony
reg arding his subjective pain sy mpto ms without clear a

nd convincing r easons. The main differenc e b e t w een the two

a p p e a l s is that in Meier
, the question was whether the applicant was presently disabled, whereas h ere, the question

was whether Campbell was disabled on the last date insured. I disag ree with my colleag ues that this difference bears on whether the AL J ’s decision was substantially justified, where all the testimonial e vid e n c e , including that of the state’s doctor, w hose testimony was c redited by the AL J
, supported Campbell’s claim o f d isability as of the date last insured. Moreover, the g overnment and Campbell entered into a J oint Stipulation in which the g overnment agreed that Campbell

was “affirmatively

diag nosed with multiple sclerosis (‘MS’) in 1989” after ex periencing sy mptoms for y ears pri o r , and tha t t h e lack of medical records between the y ears 1 989 a nd 2000 w as “due to her lack o f medical i n surance.” That Campbell did n ot have records for 1996, presumably becauseC A M P B E L L V

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she could n o t afford to pay medical bills, does not substantially justify the g overnme n t’s litig ation position; indeed, it turns the safety net intended to be created by the provision of disability benefits on its head. W hen we ruled in Campbell’s favor, we concluded that there were no c lear a nd convincing reasons not to credit Campbell’s testimony
, so the A L J should have credited it. See Smolen
, 80 F .3d a t 1 2 8 1

. W e concluded that the AL J acted improperly by rejecting Campbell’s testimony about the f r equency and duration of her

ex a c erbations. W e found that had the AL J properly credited Campbell’s testimony
, h e would have had to find that her MS rendered her disabled as of J une 30, 1996.

Our precedent requires us to g rant Campbell’s motion for attorney ’s f

e es under these circumstances. Moreover, neither Campbell nor h er attorney should be made to bear the burden of the A L J ’s eg reg ious error, and the g ov e rnment’s z ealous defense of it. Cong ress enacted the EAJ A to prevent precisely such outcomes.