In the
United States Court of Appeals
For the Seventh Circuit
No. 10-3454
R ODGER D EAN B ASSETT,
Plaintiff-Appellant,
v.
M ICHAEL J. A STRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of Illinois.
No. 09-3231—Michael P. McCuskey, Chief Judge.
A RGUED F EBRUARY 15, 2011—D ECIDED M AY 27, 2011
Before R OVNER, W OOD , and E VANS, Circuit Judges.
R OVNER, Circuit Judge. We must determine whether
the district court abused its discretion in denying
Rodger Bassett’s petition for attorneys’ fees under the
Equal Access to Justice Act. The act entitles a prevailing
party to fees only if the position of the United States
was not substantially justified. And the district court
concluded that a reasonable person could think that the
2 No. 10-3454
commissioner of Social Security acted with a rational
basis in fact and law, not only in denying Bassett’s ap-
plication for disability benefits in part, but also in unsuc-
cessfully defending that portion of the decision in
federal court. We see no abuse of discretion in this con-
clusion, so we affirm the district court’s order denying
Bassett’s petition.
An administrative law judge concluded that Bassett
became disabled on his 55th birthday. Before that day,
the ALJ explained, Bassett’s severe back pain permitted
him to perform light work, and so a significant number
of jobs were available to him in the national economy.
But once Bassett turned 55, the ALJ continued, he was
capable of performing just sedentary work, which meant
that his age, education, work experience, and exertional
limitations now directed a finding of disabled under
Medical-Vocational Rule 201.06. What the ALJ neglected
to mention was how she arrived at her conclusion
that Bassett’s residual functional capacity deteriorated
only in December 2007, on the day he turned 55—and
not, as Bassett had urged, two-and-a-half years earlier
in April 2005. Bassett asked the district court to review
the unfavorable portion of the ALJ’s decision, and
Judge Scott agreed that the ALJ’s omission required a
remand for a better explanation. Aside from this gap,
though, Judge Scott found that the ALJ’s discussion of
the evidence was more than adequate. And Judge
Scott also rejected Bassett’s contention that the ALJ
had erred when she refused to give controlling weight
to a treating source’s opinion.
No. 10-3454 3
Judge Scott’s remand pursuant to sentence four of 42
U.S.C. § 405(g) made Bassett a “prevailing party,” see
Shalala v. Schaefer, 509 U.S. 292, 300-02 (1993), entitled to
attorneys’ fees unless “the position of the United States
was substantially justified,” see 28 U.S.C. § 2412(d)(1)(A).
By the time Bassett filed his petition, however, the case
had been reassigned to Chief Judge McCuskey. And the
chief judge was not convinced by Bassett’s argument
that both the ALJ’s opinion and the commissioner’s
defense of the opinion were so beyond the pale that no
reasonable person could think them well-founded in fact
or law. To the contrary, Chief Judge McCuskey con-
cluded, the commissioner’s position had been sub-
stantially justified throughout the proceedings and,
accordingly, Bassett was not entitled to attorneys’ fees.
Bassett has appealed Chief Judge McCuskey’s order,
but he faces an uphill challenge. The commissioner’s
position is substantially justified if a reasonable person
could conclude that the ALJ’s opinion and the commis-
sioner’s defense of the opinion had a rational basis in
fact and law. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th
Cir. 1994). And the Supreme Court has entrusted the
question whether the commissioner’s position is sub-
stantially justified to the discretion of the district court,
in no small part because the analysis is not susceptible
to a firm rule or even a “useful generalization.”
See Pierce v. Underwood, 487 U.S. 552, 561-62 (1988).
Over the years, though, some helpful benchmarks have
emerged. The commissioner’s position may be substan-
tially justified even if it turns out to be completely wrong.
4 No. 10-3454
Jackson v. Chater, 94 F.3d 274, 278 (7th Cir. 1996). For
example, the ALJ’s opinion might offer merely a “cursory
and inadequate” analysis of an important point, but that
shortcoming alone usually will not be enough to poison
the opinion—or the commissioner’s defense of the opin-
ion. See United States v. Thouvenot, Wade & Moerschen, Inc.,
596 F.3d 378, 387 (7th Cir. 2010). That is because
the requirement that the ALJ must articulate an assess-
ment of the evidence is “deliberately flexible,” Stein v.
Sullivan, 966 F.2d 317, 319-20 (7th Cir. 1992), so the ALJ’s
failure to “connect all the dots” in the analysis—and the
commissioner’s defense of those gaps in the ALJ’s rea-
soning—is likely to be grounded in a reasonable, albeit
erroneous, interpretation of the facts and law,
see Cunningham v. Barnhart, 440 F.3d 862, 864-65 (7th
Cir. 2006). Indeed it typically takes something more
egregious than just a run-of-the-mill error in articulation
to make the commissioner’s position unjustified—some-
thing like the ALJ’s ignoring or mischaracterizing a
significant body of evidence, or the commissioner’s
defending the ALJ’s opinion on a forbidden basis.
See Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir.
2004).
We do not think that Chief Judge McCuskey abused his
discretion when he decided that the commissioner’s
position in Bassett’s case was substantially justified.
There is no dispute that, at some point between
April 2005 and December 2007, Bassett’s ability to
perform light work took a hit, leaving him able to take
on only sedentary work; the question merely is when.
True, the ALJ’s opinion pinpointed a precise date with-
No. 10-3454 5
out offering an explanation. But in making this mistake
the ALJ did not ignore, mischaracterize, selectively cite,
or otherwise bungle a significant body of relevant evi-
dence; in fact, Judge Scott found that the ALJ’s discussion
of the evidence was beyond reproach. Rather the ALJ
committed the very sort of articulation error that, we
have held, ordinarily does not taint the commissioner’s
position. No doubt it is difficult to determine, on this
record, the exact day when Bassett’s gradually deterio-
rating back prevented him from performing light work.
And although the difficulty of drawing this line does
not excuse the ALJ’s error, we think it does show that
a reasonable person could conclude that both the
ALJ’s opinion and the commissioner’s defense of the
opinion had a rational basis in fact and law.
In closing we reject the contention that Chief Judge
McCuskey abused his discretion by neglecting to recon-
sider Bassett’s remaining attacks on the ALJ’s opinion,
arguments that Judge Scott earlier had turned down on
the merits. Of course the district court must consider
the commissioner’s prelitigation conduct, including the
ALJ’s opinion, Conrad v. Barnhart, 434 F.3d 987, 990 (7th
Cir. 2006), in assessing whether the commissioner’s
position as a whole was substantially justified, 28 U.S.C.
§ 2412(d)(2)(D); United States v. Hallmark Const. Co., 200
F.3d 1076, 1080-81 (7th Cir. 2000). But the district court
need not reopen any issues that it already has decided
in favor of the commissioner. To the contrary, we have
held that a district court ought to keep in mind that
some of the claimant’s attacks on the ALJ’s opinion
6 No. 10-3454
did not hold any water. Stewart v. Astrue, 561 F.3d 679, 683-
84 (7th Cir. 2009).
A FFIRMED.
5-27-11