                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 20 2014

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



                            FOR THE NINTH CIRCUIT


JAMES Y. HERRON,                                 No. 12-16675

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00623-HG-BMK

  v.
                                                 MEMORANDUM*
CAROLYN W. COLVIN, Commissioner
of Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                            for the District of Hawaii
                 Helen W. Gillmor, Senior District Judge, Presiding

                       Argued and Submitted October 7, 2014
                             San Francisco, California

Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

       Social Security benefits claimant, James Y. Herron, appeals the district

court’s denial of his application for attorney’s fees under the Equal Access to

Justice Act (EAJA), 28 U.S.C. § 2412(a)(1). We reverse and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review a district court’s denial of attorney’s fees under the EAJA for

abuse of discretion. See Pierce v. Underwood, 487 U.S. 552, 559 (1988); Corbin

v. Apfel, 149 F.3d 1051, 1052 (9th Cir. 1998). The district court abuses its

discretion when its “decision is based on an erroneous conclusion of law or when

the record contains no evidence on which it rationally could have based that

decision.” Kali v. Bowen, 854 F.2d 329, 331 (9th Cir. 1988) (internal quotation

marks and alteration omitted).

      Attorney’s fees “shall” be granted under the EAJA to a prevailing plaintiff

“unless” the government meets its burden to demonstrate that both (a) its litigation

position and (b) the agency decision on review were “substantially justified.” 28

U.S.C. § 2412(d)(1)(A); Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir.

2005). There is no dispute that Herron prevailed on the merits of the case.

Therefore, we determine whether the government met its burden with respect to

each procedural issue on which the claimant prevailed, rather than focusing on the

post-remand proceedings concerning the ultimate issue of disability. See Flores v.

Shalala, 49 F.3d 562, 566 (9th Cir. 1995).

      Previously, in the merits decision, we reversed the ALJ’s denial of benefits.

We concluded that substantial evidence did not support the ALJ’s decision with

regard to (1) credibility, (2) medical evidence supporting the ALJ’s residual


                                          2
functional capacity (RFC), and (3) past relevant work. Herron v. Astrue, 407 F.

App’x 139, 140-41 (9th Cir. 2010). Reviewing each issue to determine whether

the Commissioner met its burden, we find the Commissioner did not.

1.    The ALJ failed to articulate his reasoning for his credibility decision.

Where, as here, the ALJ failed to “offer clear and convincing reasons, supported by

substantial evidence, for discounting” Herron’s testimony, then the agency

decision was not substantially justified. See Meier v. Colvin, 727 F.3d 867, 872

(9th Cir. 2013). Given this determination, we need not address whether the

Commissioner’s litigation position was substantially justified. Id.

2.    The ALJ erroneously assessed the medical evidence in the record. The ALJ

erred in disregarding some medical evidence on the sole basis that it was outside of

the disability period. See Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988).

The ALJ erred in giving great weight to the state agency’s medical consultation

report without taking into account the factors identified in 20 C.F.R.

§ 404.1527(e)(2)(ii), including the consultant’s specialty and expertise. Given

these failures to comply with the law and regulations, the ALJ’s decision lacked




                                          3
substantial justification.1 See Gutierrez v. Barnhart, 274 F.3d 1255, 1259-60 (9th

Cir. 2001). Given this determination, we need not address whether the

Commissioner’s litigation position was substantially justified. Meier, 727 F.3d at

872.

3.     The ALJ’s cumulative legal errors regarding Herron’s credibility and

medical evidence precluded the ALJ from properly assessing Herron’s limitations

during the insured period and whether he could perform his past work. Relying on

an inappropriate RFC assessment, the ALJ was unable to accurately present a

hypothetical to the vocational expert in order to determine whether Herron could

perform his past work as set forth in SSR 82-61. Given this determination, we

need not address whether the Commissioner’s litigation position was substantially

justified. Meier, 727 F.3d at 872. On the basis of these errors, we hold that the

government’s position “at [this] stage of the proceedings” was not substantially

justified. Id.

       Thus, we reverse the district court’s denial of attorneys fees under 28 U.S.C.

§ 2412(d)(1)(A).

       REVERSED AND REMANDED.


       1
        Because the ALJ committed legal error in assessing Herron’s RFC, we
need not decide whether the Commissioner was justified in defending the ALJ’s
decision regarding the VA disability rating.
                                          4
