NOT FOR PUBLICATION FILED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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