                                                                            FILED
                    UNITED STATES COURT OF APPEALS                             JAN 14 2015

                                                                        MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




JIMMIE LEON MARTIN,                            No. 13-15619

              Plaintiff - Appellant,           D.C. No. 2:09-cv-01017-CMK
                                               Eastern District of California,
  v.                                           Sacramento

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,                       ORDER

              Defendant - Appellee.


Before:      THOMAS, Chief Judge, D. NELSON, and LEAVY, Circuit Judges.

       The memorandum disposition filed on September 5, 2014, is hereby

amended. The attached amended memorandum disposition is filed concurrently

with this order.

       With these amendments, the panel has voted to deny the petition for panel

rehearing.

       The petition for panel rehearing is DENIED. No future petitions shall

be entertained.
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              JAN 14 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JIMMIE LEON MARTIN,                              No. 13-15619

               Plaintiff - Appellant,            D.C. No. 2:09-cv-01017-CMK

  v.
                                                 AMENDED MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Craig Kellison, Magistrate Judge, Presiding

                            Submitted August 18, 2014**

Before:        THOMAS, Chief Judge, D. NELSON, and LEAVY, Circuit Judges.

       Jimmie Leon Martin appeals the district court’s order denying his motion for

attorneys’ fees under the Equal Access to Justice Act (“EAJA”). We have

jurisdiction under 28 U.S.C. § 1291. We review the district court’s order denying


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a motion for attorneys’ fees under EAJA for an abuse of discretion. Tobeler v.

Colvin, 749 F.3d 830, 832 (9th Cir. 2014). We reverse and remand.

      EAJA provides that in a Social Security case, a court shall award attorneys’

fees to a prevailing party other than the United States “unless the court finds that

the position of the United States was substantially justified or that special

circumstances make an award unjust.” 28 U.S.C. § 2412(d)(1)(A); Tobeler, 749

F.3d at 832. The government must demonstrate that both its litigation position and

the agency decision on review (that is, the administrative law judge’s decision)

were substantially justified. Campbell v. Astrue, 736 F.3d 867, 868 (9th Cir. 2013)

(order).

           Martin sought attorneys’ fees after this court issued a memorandum

disposition reversing in part the district court’s summary judgment and remanding

with instructions for the district court to remand to the Commissioner. In Martin’s

prior appeal, we concluded that the ALJ “erred when formulating Martin’s residual

functional capacity (RFC) because the RFC neither incorporated [an examining

physician’s] opinion of Martin’s work limitations nor gave specific and legitimate

reasons for rejecting it.” Martin v. Comm’r of Soc. Sec. Admin., 472 Fed. App’x

580, 580 (9th Cir. 2012). We thus held that the ALJ’s decision was not supported

by substantial evidence. See Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013)

                                           2
(holding that ALJ makes decision not supported by substantial evidence when he

fails to offer specific and legitimate reasons for rejecting a physician’s opinion);

Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009)

(holding that an ALJ makes a decision not supported by substantial evidence when

he formulates RFC that fails to take into account claimant’s limitations). Because

the ALJ failed to provide specific and legitimate reasons for rejecting the

examining physician’s opinion and the RFC failed to incorporate this physician’s

four-hour standing and walking limitation, the ALJ’s decision was not substantially

justified. See Shafer v. Astrue, 518 F.3d 1067, 1069-72 (9th Cir. 2008) (reversing

the district court’s denial of EAJA fees where the ALJ erred in rejecting, without

explanation, a non-examining doctor’s opinion, in contravention of governing

regulations requiring ALJ to evaluate every medical opinion received); see also

Meier, 727 F.3d at 872 (“[A] holding that the agency’s decision was unsupported

by substantial evidence is a strong indication that the position of the United States

was not substantially justified.”) (internal quotation marks, ellipses, and citation

omitted). This case is not one of those “decidedly unusual” cases in which there is

substantial justification under EAJA even though the agency’s decision was

reversed for a lack of substantial evidence. See id. We therefore reverse the

district court’s order and remand for an award of fees and costs.

      REVERSED and REMANDED.

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