                   FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT


JILL CAMPBELL,                       No. 11-55486
          Plaintiff-Appellant,
                                        D.C. No.
              v.                 5:09-cv-00278-JST-AN

MICHAEL J. ASTRUE,
        Defendant-Appellee.              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.
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                            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 testimony about the frequency and 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.
