FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JILL CAMPBELL,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Defendant-Appellee.

No. 11-55486

D.C. No.

5:09-cv-00278-JST-AN

ORDER

Filed November 26, 2013

Before: Kim McLane Wardlaw, Carlos T. Bea,

and N. Randy Smith, Circuit Judges.

Order;

Dissent by Judge Wardlaw
2 CAMPBELL V. ASTRUE

SUMMARY*

Attorneys’ Fees/Equal Access to Justice Act

The panel denied appellant’s motion for attorneys’ fees

under the Equal Access to Justice Act and granted appellant’s

unopposed motion for filing costs in an appeal where the

panel had previously reversed the denial of social security

disability benefits. 

The panel held that the instant case was one of the

“unusual” cases where attorneys’ fees should not be awarded

under the Equal Access to Justice Act because even though

there was not enough evidence to uphold a decision to deny

benefits, there was enough to find that the government’s

litigation position was substantially justified.

Dissenting, Judge Wardlaw stated that this court’s

precedent required that the panel grant appellant’s motion for

attorney’s fees and that neither appellant nor her attorney

should be made to bear the burden of the Administrative Law

Judge’s egregious error in denying benefits, and the

government’s zealous defense of that error.

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
CAMPBELL V. ASTRUE 3

ORDER

The Appellant’s motion for attorneys’ fees is DENIED. 

The Appellant’s unopposed motion for filing costs in the

amount of $805.00 is GRANTED.

The Equal Access to Justice Act (EAJA) instructs that this

court “shall” grant attorneys fees to a prevailing plaintiff

“unless” the government meets its burden to demonstrate that

both its litigation position and the agency decision on review

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

Thangaraja v. Gonzales, 428 F.3d 870 (9th Cir. 2005). 

Further, this court has stated that, it “will be only a decidedly

unusual case in which there is substantial justification under

the EAJA even though the agency’s decision was reversed as

lacking in reasonable, substantial and probative evidence in

the record.” Id. at 874 (internal quotation marks omitted).

The dissent asserts that the case Meier v. Covin requires

us to award attorneys’ fees in this case. In Meier v. Covin, an

ALJ denied Meier social security benefits and the district

court affirmed the ALJ. 727 F.3d 867, 869 (9th Cir. 2013). 

This court reversed and remanded for an award of benefits in

an unpublished memorandum disposition, holding that the

ALJ failed to offer specific reasons supported by substantial

evidence for rejecting a treating physician’s opinion that

Meier could not work. Id. Meier then moved for attorneys’

fees and costs, and the district court denied the motion. Id.

This court clarified that in the social security context, “the

position of the United States includes both the government’s

litigation position and the underlying agency action.” Id. at

870 (internal citations omitted). The court then looked at the

decision of the ALJ to determine whether the government’s
4 CAMPBELL V. ASTRUE

position in the underlying action was substantially justified. 

Id. at 871. The court noted that its previous memorandum

disposition held that the ALJ’s decision was not supported by

substantial evidence including any specific and legitimate

reasons for rejecting the physician’s opinion and Meier’s

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

an “agency’s decision was unsupported by substantial

evidence is a strong indication that the position of the United

States was not substantially justified.” Id. (internal citations

omitted). Because the ALJ’s decision was not substantially

justified, the court held it need not address whether the

government’s litigation position was substantially justified.

While Meier and the instant case are similar, in Meier, the

claimant relied on his own testimony, and a physician’s

testimony, that he was presently disabled. Here, the ALJ had

to determine whether Campbell was disabled in the past. In

this case, the ALJ had to determine whether Campbell’s

multiple sclerosis rendered her disabled by June 30, 1996. 

The ALJ did not have any records from 1996 to examine. 

Instead, the ALJ had medical records from 1989 and 2000. 

The ALJ also had to consider circumstantial evidence that

Campbell cared for her children and worked during that time,

which justified doubts that Campbell was fully disabled. 

While the ALJ erred in her determination, the fact that she

was trying to extrapolate what Campbell’s injury may have

been in 1996 from other evidence regarding a disease which

may worsen at varying rates leads this court to conclude that

the ALJ’s decision was “substantially justified.”

The dissent acknowledges that “in Meier, the question

was whether the applicant was presently disabled, whereas

here, the question was whether Campbell was disabled on the

last date insured.” Dissent at 8. While this circuit has been
CAMPBELL V. ASTRUE 5

clear that when an agency’s decision is unsupported by

substantial evidence it is a strong indication that the position

of the United States is not substantially justified, this circuit

has never stated that every time this court reverses and

remands the ALJ’s decision for lack of substantial evidence

the claimant should be awarded attorney’s fees.

The difference between examining current medical

records to make a decision about a present condition and

extrapolating from medical records to make a decision about

a past condition distinguishes this case from Meier. The

instant case is one of the “unusual” cases where attorneys’

fees should not be awarded under the EAJA. In this case

there was not enough evidence to uphold a decision, but

enough to find the government’s position was substantially

justified.

WARDLAW, Circuit Judge, dissenting:

I dissent from the majority’s denial of attorney’s fees to

the prevailing party in this social security disability benefits

case. The Equal Access to Justice Act (EAJA) instructs that

we “shall” grant attorney’s fees to a prevailing plaintiff

“unless” the government meets its burden to demonstrate that

both its litigation position and the agency decision on review

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

Thangaraja v. Gonzales, 428 F.3d 870 (9th Cir. 2005). As

the Supreme Court has explained, “Congress enacted EAJA

in 1980 ‘to eliminate the barriers that prohibit . . . individuals

from securing vindication of their rights in civil actions and

administrative proceedings brought by or against the Federal

Government.’” Scarborough v. Principi, 541 U.S. 401, 406
6 CAMPBELL V. ASTRUE

(2004) (quoting H.R. Rep. No. 96-1005, p. 9) (citation

omitted); see also Congressional Findings and Purposes,

94 Stat. 2325, note following 5 U.S.C. § 504 (“It is the

purpose of this title . . . to diminish the deterrent effect of

seeking review of, or defending against, governmental action

. . . .”) (discussing earlier iteration of the EAJA).

Here, we held that the Administrative Law Judge’s (ALJ)

conclusion that Campbell had failed to demonstrate that she

was disabled as of June 30, 1996, the last date she was

insured, failed to survive the extremely deferential

“substantial evidence” standard of review. That the agency’s

decision was not supported by substantial evidence is a

“strong indication” that the government’s position was not

“substantially justified” for purposes of the EAJA. 

Thangaraja, 428 F.3d at 874. As we explained in

Thangaraja, it “will be only a decidedly unusual case in

which there is substantial justification under the EAJA even

though the agency’s decision was reversed as lacking in

reasonable, substantial and probative evidence in the record.” 

Id. (internal quotation and citation omitted); cf. Al-Harbi v.

INS, 284 F.3d 1080, 1085 (9th Cir. 2002) (denying attorney’s

fees under the EAJA in agency action because we upheld “the

government’s central positions,” even though we reversed the

agency decision on review).

This is not such an unusual case. In the circumstances

here, where Campbell undisputedly had multiple sclerosis,

which was undisputedly capable of producing the symptoms

she reported, the law required the ALJ to credit Campbell’s

testimony about those symptoms unless there was some

evidence of “malingering” or clear and convincing evidence

contradicting her statements. Smolen v. Chater, 80 F.3d

1273, 1281 (9th Cir. 1996). This law was clearly established
CAMPBELL V. ASTRUE 7

well before Campbell’s proceedings began, and it is

straightforwardly applicable here. As even the state’s doctor

agreed, there is no evidence that Campbell was a malingerer,

and the ALJ did not so find. Accordingly, the ALJ should

have credited Campbell’s testimony unless there was clear

and convincing evidence to the contrary. As we unanimously

concluded, there was none.

When the ALJ asked Campbell to describe her symptoms

“between 1995 and 1996,” Campbell testified that in addition

to her generally progressive symptoms, she experienced eight

to ten “exacerbations” per year, each lasting up to two weeks,

during which her fatigue and weakness worsened. She

testified that it was difficult to get out of bed; that at times,

she had to crawl to reach the bathroom; that she was unable

to walk without support and “scooted on her butt” to go down

stairs; that she was unable to perform tasks like making her

bed, vacuuming, sweeping, mopping, or even holding a pen;

and that she stopped curling her hair because it required “too

much energy.” The ALJ rejected not only this testimony, but

also that of Campbell’s treating and examining physicians

whose medical opinions supported Campbell’s testimony

because a third non-treating doctor, the state’s witness, said

that he was unsure when Campbell became fully disabled,

despite his stated opinion that Campbell was likely fully

disabled as of “sometime between ‘95 and ‘98,” a range

which obviously includes, and does not exclude, the date of

June 30, 1996. In other words, not a single physician

contradicted Campbell’s description of her disability as of her

last date insured. When the ALJ presented a vocational

specialist with a hypothetical incorporating just six periods of

exacerbation, not the actual eight to ten periods Campbell

experienced in 1995 and 1996, the specialist unequivocally

stated that a person experiencing such symptoms would be
8 CAMPBELL V. ASTRUE

unable to perform work in 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 was the

government justified in defending the agency’s erroneous

decision through multiple stages of litigation at taxpayer

expense.

That the ALJ’s decision was not substantially justified is

further underscored by our recent opinion in Meier v. Colvin,

727 F.3d 867 (9th Cir. 2013), where we held that a district

court abused its discretion by denying attorney’s fees under

the EAJA in remarkably analogous circumstances. There, as

here, the panel had previously issued an unpublished

disposition reversing the district court’s decision affirming an

ALJ’s denial of social security benefits. There, an ALJ

improperly rejected a Social Security applicant’s testimony

regarding his subjective pain symptoms without clear and

convincing reasons. The main difference between the two

appeals is that in Meier, the question was whether the

applicant was presently disabled, whereas here, the question

was whether Campbell was disabled on the last date insured. 

I disagree with my colleagues that this difference bears on

whether the ALJ’s decision was substantially justified, where

all the testimonial evidence, including that of the state’s

doctor, whose testimony was credited by the ALJ, supported

Campbell’s claim of disability as of the date last insured. 

Moreover, the government and Campbell entered into a Joint

Stipulation in which the government agreed that Campbell

was “affirmatively diagnosed with multiple sclerosis (‘MS’)

in 1989” after experiencing symptoms for years prior, and

that the lack of medical records between the years 1989 and

2000 was “due to her lack of medical insurance.” That

Campbell did not have records for 1996, presumably because
CAMPBELL V. ASTRUE 9

she could not afford to pay medical bills, does not

substantially justify the government’s litigation position;

indeed, it turns the safety net intended to be created by the

provision of disability benefits on its head. When we ruled in

Campbell’s favor, we concluded that there were no clear and

convincing reasons not to credit Campbell’s testimony,so the

ALJ should have credited it. See Smolen, 80 F.3d at 1281. 

We concluded that the ALJ acted improperly by rejecting

Campbell’s testimonyabout the frequencyand duration of her

exacerbations. We found that had the ALJ properly credited

Campbell’s testimony, he would have had to find that her MS

rendered her disabled as of June 30, 1996.

Our precedent requires us to grant Campbell’s motion for

attorney’s fees under these circumstances. Moreover, neither

Campbell nor her attorney should be made to bear the burden

of the ALJ’s egregious error, and the government’s zealous

defense of it. Congress enacted the EAJA to prevent

precisely such outcomes.