                             NOT FOR PUBLICATION                          FILED
                      UNITED STATES COURT OF APPEALS                        JAN 9 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 LEONARD CARTER,                                   No.    15-35090

                    Plaintiff-Appellant,           D.C. No. 2:14-cv-00158-TSZ

    v.
                                                   MEMORANDUM*
 CAROLYN W. COLVIN, Acting
 Commissioner, Social Security
 Administration,

                    Defendant-Appellee.

                      Appeal from the United States District Court
                        for the Western District of Washington
                       Thomas S. Zilly, District Judge, Presiding

                              Submitted January 4, 2017**


Before:        GOODWIN, LEAVY, and SILVERMAN, Circuit Judges.

         Leonard Carter appeals the district court’s order denying his motion for

attorneys’ fees under the Equal Access to Justice Act (“EAJA”) in his action for


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
         **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
judicial review of the Commissioner of Social Security’s denial of his application

for supplemental security income under Titles II and XVI of the Social Security

Act. Carter sought attorneys’ fees after the district court reversed the

Commissioner’s decision and remanded the case for further proceedings. We

have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion.

Meier v. Colvin, 727 F.3d 867, 869 (9th Cir. 2013). We reverse.

      Carter is entitled to attorneys’ fees under the EAJA because the agency

decision on review was not substantially justified. See 28 U.S.C. § 2412(d)(1)(A)

(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”); Meier, 727 F.3d at 870 (“The ‘position of the United States’ includes both

the government’s litigation position and the underlying agency action[.]”; to be

substantially justified, “the government’s position must have a reasonable basis

both in law and fact” (citation and internal quotation marks omitted)). The ALJ’s

decision to reject the opinions of Dr. James Hopfenbeck, Carter’s treating

physician, and Dr. James Czysz, an examining physician, was based on record

evidence tending to show that Carter’s cognitive abilities were intact, but that

                                          2                                    15-35090
evidence is not inconsistent with Drs. Hopfenbeck’s and Czysz’s opinions that

Carter’s ability to work is severely limited by paranoid delusions arising from a

personality disorder. See id. at 872 (attorneys’ fees were appropriate where the

ALJ failed to offer specific and legitimate reasons, supported by substantial

evidence, for rejecting a treating physician’s opinion that the claimant was

incapable of working). Although the Commissioner argues that Carter’s

community college grades demonstrate Carter’s ability to work with others, the

ALJ discussed Carter’s grades only in the context of his cognitive abilities. See

Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1225 (9th Cir. 2009) (we

review the ALJ’s decision “based on the reasoning and findings offered by the

ALJ—not post hoc rationalizations that attempt to intuit what the adjudicator may

have been thinking.”).

         REVERSED.




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