Terrence J. Peck v. SOCIAL SECURITY ADMINISTRATION, Commissioner Social Security Administration

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRENCE J. PECK,
Plaintiff - Appellant,
v.
SOCIAL SECURITY
ADMINISTRATION, Commissioner
Social Security Administration,
Defendant - Appellee.
No. 08-17777
D.C. No. 3:04-cv-02283-FJM
MEMORANDUM*
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.
FILED
MAY 14 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We are concerned about the appellant’s briefing in this case. The first1
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.
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). We affirm.1
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

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position was substantially justified. Accordingly, it did not abuse its discretion in
denying Peck’s motion for attorney’s fees.
AFFIRMED.

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