                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 31 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GLEN ANTHONY ROE,                                No. 15-16927

              Plaintiff - Appellant,             D.C. No. 2:11-cv-02003-CKD

 v.
                                                 MEMORANDUM*
COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of California
                 Carolyn K. Delaney, Magistrate Judge, Presiding

                             Submitted May 23, 2016**
                              San Francisco, California

Before: PAEZ and BERZON, Circuit Judges, and EZRA,*** District Judge.




        *
             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).
        ***
             The Honorable David A. Ezra, District Judge for the U.S. District
Court for the Western District of Texas, sitting by designation.
       Glen Roe appeals the district court’s denial of his motion for an award of

attorneys’ fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28

U.S.C. § 2412. See Roe v. Comm’r of Soc. Sec., 599 F. App’x 651 (9th Cir. 2015)

(reversing the Commissioner’s denial of benefits). We have jurisdiction under 28

U.S.C. § 1291, and we reverse.

       A district court may decline to award EAJA attorneys’ fees and costs to a

prevailing party only if it “finds that the position of the United States was

substantially justified.” 28 U.S.C. § 2412(d)(1)(A). The Government’s position is

“substantially justified” within the meaning of the EAJA if it has a reasonable basis

in law and fact at each stage of the underlying proceedings. Shafer v. Astrue, 518

F.3d 1067, 1071 (9th Cir. 2008) (citing Corbin v. Apfel, 149 F.3d 1051, 1052 (9th

Cir. 1998)).

       We review for an abuse of discretion the district court’s decision to award or

deny EAJA fees, and its determination that the Government’s litigation position is

substantially justified. United States v. Marolf, 277 F.3d 1156, 1160 (9th Cir.

2002). The district court abuses its discretion if it fails to apply the correct legal

rule, or if its application of the correct rule is illogical, implausible, or lacks factual

support. Meier v. Colvin, 727 F.3d 867, 869–70 (9th Cir. 2013) (citing United

States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc)).

                                             2
1.    The district court abused its discretion when it failed to apply the proper

legal rule in considering whether the Government’s position was substantially

justified within the meaning of the EAJA. In our merits disposition, we held that

the administrative law judge (“ALJ”) committed several procedural errors and

failed to fairly and fully develop the administrative record. Roe, 599 F. App’x at

652. As a result of those errors, substantial evidence did not support the ALJ’s

eligibility and residual functional capacity analyses. Id. We reversed the district

court’s ruling with directions to remand the case to the agency for a new hearing,

and we declined to reach Roe’s other arguments. Id.

      When we remand a social security case due to an ALJ’s procedural error, the

district court must evaluate “that procedural error and not the [determination] of

ultimate disability” when considering the claimant’s EAJA fees motion. Flores v.

Shalala, 49 F.3d 562, 569 (9th Cir. 1995); see Shafer, 518 F.3d at 1071. Here, the

district court cited its prior ruling affirming the ALJ’s disability determination to

conclude that the Government’s position was objectively reasonable, and thus,

substantially justified. In focusing on the merits of the underlying disability

determination, the district court applied the incorrect legal rule to Roe’s EAJA

motion and abused its discretion.




                                           3
2.    Well-established Ninth Circuit precedent provides that an ALJ commits

legal error when it fails to follow the agency’s regulatory procedures, Reed v.

Massanari, 270 F.3d 838, 842–43 (9th Cir. 2001); ask a pro se claimant tailored

questions to develop the administrative record, Widmark v. Barnhart, 454 F.3d

1063, 1069 (9th Cir. 2006); or consider or clarify lay witness testimony, Tobeler v.

Colvin, 749 F.3d 830, 832–34 (9th Cir. 2014). In similar cases, we have held that

“the defense of basic and fundamental errors such as the ones in the present case”

lacked substantial justification. Corbin, 149 F.3d at 1053. In Roe’s case, the ALJ

committed fundamental procedural errors similar to those errors identified in prior

cases. See Tobeler, 749 F.3d at 832–34; Shafer, 518 F.3d at 1071; Tonapetyan v.

Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Corbin, 149 F.3d at 1052–53; Flores,

49 F.3d at 569. Neither the ALJ’s procedural errors nor the Government’s defense

of those errors was substantially justified. Accordingly, Roe is entitled to EAJA

attorneys’ fees. See Shafer, 518 F.3d at 1072.



REVERSED AND REMANDED.




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