                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 05 2014

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



                             FOR THE NINTH CIRCUIT


JIMMIE LEON MARTIN,                              No. 13-15619

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

  v.
                                                 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:        D.W. NELSON, LEAVY, and THOMAS, 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. 2012)


                                           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 ALJ makes decision not supported by substantial evidence when he

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

ALJ’s decision was not supported by substantial evidence, it was not substantially

justified. See Meier, 727 F.3d at 869. We therefore reverse the district court’s

order and remand for an award of fees and costs.

      REVERSED and REMANDED.




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