                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 14 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TERRENCE J. PECK,                                No. 08-17777

              Plaintiff - Appellant,             D.C. No. 3:04-cv-02283-FJM

  v.
                                                 MEMORANDUM *
SOCIAL SECURITY
ADMINISTRATION, Commissioner
Social Security Administration,

              Defendant - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederick J. Martone, District Judge, Presiding

                             Submitted May 12, 2010 **
                              San Francisco, California

Before: HUG, RYMER and McKEOWN, Circuit Judges.




        *
             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).
      Terrence J. Peck appeals the district court’s denial of his motion for

attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C.

§ 2412(d)(1)(A).1 We affirm.

      The district court’s decision was not based on an erroneous conclusion of

law, or without rational basis in the record, as Peck maintains. The fact that Peck

prevailed raises no presumption that the government’s position was not

substantially justified. Kali v. Bowen, 854 F.2d 329, 334 (9th Cir. 1988). Rather,

for reasons the district court explained, the ALJ’s rejection of Dr. Soscia’s opinion

and discounting of Peck’s subjective complaints, and the government’s defense of

the ALJ’s decision, were based in the record even though this court ultimately

disagreed with the ALJ’s assessment. See Pierce v. Underwood, 487 U.S. 552, 569

(1988). The cases upon which Peck relies are distinguishable in that the ALJ here

did not fail to do anything that he was supposed to do. Cf. Shafer v. Astrue, 518

F.3d 1067, 1072 (9th Cir. 2008); Gutierrez v. Barnhart, 274 F.3d 1255, 1257 (9th

Cir. 2001). The district court did not err in determining that the government’s




      1
         We are concerned about the appellant’s briefing in this case. The first
version of the opening brief that was filed was fatally deficient, as were the next
two. The hard copy of the fourth was the brief filed in a separate case which failed
to track this case at all. Filing non-compliant briefs is unacceptable. Counsel are
admonished to review the Federal Rules of Appellate Procedure, and to adhere
scrupulously to their requirements.
position was substantially justified. Accordingly, it did not abuse its discretion in

denying Peck’s motion for attorney’s fees.

      AFFIRMED.
