CHA YANG V. COMMISSIONER OF SOCIAL SECURI, No. 13-15825 (9th Cir. 2014)

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FILED APR 28 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 13-15825 CHA YANG, Plaintiff - Appellant, D.C. No. 1:09-cv-01495-SAB v. MEMORANDUM* COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Stanley Albert Boone, Magistrate Judge, Presiding Submitted December 9, 2013** Before: THOMAS, FISHER and IKUTA, Circuit Judges. Cha Yang appeals the district court s order denying his motion for attorney s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). We affirm. * 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 government s litigating position was the same as the ALJ s decision, so the district court did not err by failing to separately analyze the position of the ALJ. The district court did not abuse its discretion in concluding that the ALJ s decision, though in error, was substantially justified. See Meier v. Colvin, 727 F.3d 867, 869-70 (9th Cir. 2013). The panel was divided as to whether Dr. Mouanoutoua s evaluation should have been discounted based on evidence of malingering or other clear and convincing reasons for finding Yang not credible. See Cha Yang v. Comm r of Soc. Sec. Admin., 488 F. App x 203 (9th Cir. 2012). The majority held that the ALJ s malingering finding was not supported by substantial evidence and that the ALJ s other reasons for discounting Yang s credibility, although potentially legitimate, were not articulated with sufficient specificity to allow for meaningful judicial review. Id. at 205-06; see Benton ex. el. Benton v. Barnhart, 331 F.3d 1030, 1040-41 (9th Cir. 2003). We therefore remanded for further findings evaluating the credibility of Yang s complaints. Yang, 488 F. App x at 206. The district court carefully reviewed this record, and appropriately weighed the disagreement among the panel members, in determining that the government s position was substantially justified. See Meier, 727 F.3d at 873; Gonzales v. Free Speech Coal., 408 F.3d 613, 619 (9th Cir. 2005). 2 Each side shall bear its own costs on appeal. AFFIRMED. 3

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