* 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 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
RHONDA L. O’NEAL, Plaintiff - Appellant,

v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant - Appellee. No. 11-35076 D.C. No. 2:08-cv-01696-JLR
MEMORANDUM *

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 , 

# FILED
JAN 17 2012 MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2 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 Appx. 614 (9th Cir. 2010) (unpublished decision).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 a nd 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 thatthe 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 ot her activities discredited the treating3 physicians’ assessments and the daughter’s testimony. See id. at 617-18. In sum, the panel held that the ALJ we ighed 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 interpretati on 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.