                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 17 2012

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



                            FOR THE NINTH CIRCUIT


RHONDA L. O’NEAL,                                No. 11-35076

              Plaintiff - Appellant,             D.C. No. 2:08-cv-01696-JLR

  v.
                                                 MEMORANDUM*
MICHAEL J. ASTRUE, Commissioner of
Social Security,

              Defendant - Appellee.


                   Appeal from the United States District Court
                      for the Western District of Washington
                    James L. Robart, District Judge, Presiding

                           Submitted January 11, 2012**
                               Seattle, Washington

Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.

       Appellant Rhonda L. O’Neal (O’Neal) was successful in a previous appeal

to this court, receiving an award of social security benefits. See O’Neal v. Astrue,



        *
             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).
391 Fed. Appx. 614 (9th Cir. 2010) (unpublished decision). O’Neal now

challenges the district court’s denial of her motion for attorneys’ fees pursuant to

the Equal Access to Justice Act, 28 U.S.C. §2412(d). O’Neal argues that the

district court erred in finding that the Commissioner’s position was substantially

justified. We review a district court’s finding that the Commissioner’s position

was substantially justified for abuse of discretion. See Hardisty v. Astrue, 592 F.3d

1072, 1079-80 (9th Cir. 2010), cert. denied, 131 S. Ct. 2443 (2011).

      Where the Commissioner defends “basic and fundamental errors,” his

defense often lacks substantial justification. Corbin v. Apfel, 149 F.3d 1051, 1053

(9th Cir. 1998). Defense of an administrative law judge’s (ALJ’s) failure to

comply with laws or regulations also lacks substantial justification. See Gutierrez

v. Barnhart, 274 F.3d 1255, 1259-60 (9th Cir. 2001). On the other hand, where

resolution of the case turns on the weight and evaluation of the evidence, as in this

case, the Commissioner’s defense of the ALJ’s findings ordinarily is substantially

justified. See Lewis v. Barnhart, 281 F.3d 1081, 1084, 1086 (9th Cir. 2002).

      The prior panel did not conclude that the ALJ had violated governing laws

or regulations in resolving O’Neal’s claim, as in Corbin and Gutierrez. See

O’Neal, 391 Fed. Appx. at 618. The panel simply disagreed with the ALJ’s

reasoning that evidence of O’Neal’s other activities discredited the treating


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physicians’ assessments and the daughter’s testimony. See id. at 617-18. In sum,

the panel held that the ALJ weighed the evidence incorrectly. See id. at 618.

      Additionally, the fact that the panel was divided, while not conclusive,

supports the conclusion that the Commissioner’s position was substantially

justified. See Gonzales v. Free Speech Coalition, 408 F.3d 613, 619 (9th Cir.

2005) (acknowledging the “significance of a split decision” in the reasonableness

analysis) (citation omitted). Thus, because the previous panel reversed the ALJ’s

decision based on a differing interpretation of the evidence, and because the

judicial views on the Commissioner’s position were not unanimous, it was not an

abuse of discretion for the district court to find the Commissioner’s position

substantially justified.

      AFFIRMED.




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