In the

United States Court of Appeals

For the Seventh Circuit

No. 08-1739

JENNIFER STEWART,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE,

Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Central District of Illinois.

No. 2:06-cv-02074-DGB—David G. Bernthal, Magistrate Judge.

ARGUED MARCH 3, 2009—DECIDED APRIL 2, 2009

Before BAUER, KANNE, and WOOD, Circuit Judges.

PER CURIAM. A magistrate judge, presiding by consent,

overturned the denial of Social Security disability

benefits to Jennifer Stewart and remanded her case to the

agency, but then denied her application for attorney’s

fees. The magistrate judge concluded that the Commissioner of Social Security was substantially justified in

opposing Stewart’s suit to overturn the denial of benefits,

and thus Stewart was not entitled to an award of attor-
2 No. 08-1739

ney’s fees. We reverse that determination and remand for

entry of an award of fees.

I. BACKGROUND

In February 2003, Stewart applied for Disability Insurance Benefits and Supplemental Security Income,

claiming that she was disabled by bipolar disorder,

obsessive-compulsive disorder, and fibromyalgia. After her

application was denied administratively, Stewart requested a hearing before an administrative law judge. The

ALJ applied the five-step analysis, see 20 C.F.R.

§ 416.920(a)-(g), and concluded that Stewart was not

disabled. The ALJ first concluded that, although Stewart

had previously worked as a data-entry clerk, waitress,

restaurant manager, payroll clerk, and babysitter, she

had not engaged in substantial gainful employment

since the alleged onset of her disability. The ALJ next

found that Stewart’s bipolar disorder, obsessive-compulsive disorder, and fibromyalgia all constituted severe

impairments, but that these impairments, individually

or collectively, did not meet or equal a listing that

would automatically render Stewart disabled. The ALJ

chose not to credit Stewart’s testimony about her alleged

pain and functional limitations because, according to

the ALJ, the medical record did not corroborate that

testimony. The ALJ also found that the opinions of Stewart’s treating physician and treating psychiatrist, who

both thought that she was not capable of work-related

activities, were inconsistent with other evidence and were

not controlling. According to the ALJ, Stewart retained

the residual functional capacity to perform work in-
No. 08-1739 3

volving simple, routine tasks so long as she was not

required to lift more than twenty pounds at a time or

carry objects weighing over ten pounds or constantly

interact with co-workers. These limitations, the ALJ

concluded, prevented Stewart from performing her past

relevant work but not other jobs in the national economy,

including those of laundry worker, sorter, and punchboard assembler. The ALJ denied Stewart’s claim in

November 2005, and the Appeals Council affirmed the

decision.

Stewart sought review in the district court. She argued

that the ALJ erred in rejecting the opinions of her

treating physician and treating psychiatrist. She also

maintained that the ALJ did not adequately establish

that she could perform other work in the national economy. Finally, Stewart contended that the Appeals

Council erred in failing to give adequate weight to

new evidence submitted after the ALJ’s decision.

The magistrate judge concluded that the new evidence

was immaterial, since it applied to the time period after

the ALJ had denied Stewart’s application for benefits.

In addition, the judge concluded that the ALJ had adequately explained his reasons for declining to give controlling weight to the two treating physicians’ opinions.

The magistrate judge agreed with Stewart, however, that

the ALJ lacked a sufficient basis to conclude that she

could find other work in the national economy. The

judge noted that the ALJ had failed to include all of Stewart’s limitations when he posed a hypothetical question

to a vocational expert. The hypothetical did not mention

Stewart’s moderate difficulties in maintaining concentra-
4 No. 08-1739

tion, persistence, and pace. Furthermore, the magistrate

explained, the ALJ had purportedly relied on “new and

material evidence” to conclude that Stewart’s residual

functional capacity was even more favorable than the

state agency’s doctors believed, and yet in his decision

the ALJ never identified what evidence supported the

change. Lastly, the magistrate judge declined to rule on

Stewart’s assertion that the vocational expert’s testimony

was not consistent with the Dictionary of Occupational

Titles, since additional testimony on remand would

make the issue irrelevant. The magistrate judge therefore granted Stewart’s motion for summary judgment

and remanded the case to the ALJ for further proceedings.

Stewart then filed a petition for attorney’s fees under

the Equal Access to Justice Act (EAJA), which directs a

court to award fees to a prevailing party in a suit against

the United States unless the government’s position was

substantially justified or special circumstances make the

award unjust. See 28 U.S.C. § 2412(d)(1)(A); Sosebee v.

Astrue, 494 F.3d 583, 586-87 (7th Cir. 2007); Muhur v.

Ashcroft, 382 F.3d 653, 654 (7th Cir. 2004). The magistrate

judge denied the petition; the pertinent part of the

court’s opinion reads in full:

The Court has carefully reviewed the record, including

its own Order. While the Court did order remand, it

did not make any finding in the Order that the position of the United States was not substantially justified. In fact, a review of that Order confirms Defendant’s assertion that the Court rejected several of the

Plaintiff’s claims of error. Even as to the point argued

successfully by Plaintiff, the Court did not and does
No. 08-1739 5

not now feel that the position taken by the Defendant

Commission of Social Security was not substantially

justified, especially when the entirety of Defendant’s

position is considered. Accordingly, despite the reasonableness of the fees and the fact that Plaintiff was the

prevailing party, Plaintiff is not entitled to fees and

expenses under the Act.

II. DISCUSSION

The EAJA provides that a district court may award

attorney’s fees where (1) the claimant was a “prevailing

party,” (2) the government’s position was not “substantially justified,” (3) no special circumstances make an

award unjust, and (4) the claimant filed a timely and

complete application with the district court. 28 U.S.C.

§ 2412(d)(1)(A); Tchemkou v. Mukasey, 517 F.3d 506, 509

(7th Cir. 2008); Krecioch v. United States, 316 F.3d 684, 687

(7th Cir. 2003). The Commissioner disputes only that the

second prong is satisfied. A position taken by the Commissioner is substantially justified if it has a reasonable

basis in fact and law, and if there is a reasonable connection between the facts and the legal theory. See Pierce

v. Underwood, 487 U.S. 552, 565 (1988); Conrad v. Barnhart,

434 F.3d 987, 990 (7th Cir. 2006). The Commissioner

bears the burden of proving that both his pre-litigation

conduct, including the ALJ’s decision itself, and his

litigation position were substantially justified. See Conrad,

434 F.3d at 990; Golembiewski v. Barnhart, 382 F.3d 721, 724

(7th Cir. 2004). We review a district court’s denial of fees

under the EAJA for abuse of discretion. Underwood, 487
6 No. 08-1739

U.S. at 562; Cunningham v. Barnhart, 440 F.3d 862, 864

(7th Cir. 2006).

In arguing that the magistrate judge abused his discretion, Stewart first contends that the magistrate judge

denied an award of fees based in part on the fact that

she did not prevail on every challenge she made to the

ALJ’s decision. She argues that the judge unfairly penalized her for raising multiple arguments and cites Hensley

v. Eckerhart, 461 U.S. 424, 435 (1983), for the proposition

that she is entitled to fees for efforts expended on all

arguments, even ones that did not prevail. We disagree.

It is true that EAJA fees are not determined by the

number of successful arguments, but a party’s success on

a single claim will rarely be dispositive of whether

the government’s overall position was substantially

justified. See Underwood, 487 U.S. at 569; Bricks, Inc. v. EPA,

426 F.3d 918, 922 (7th Cir. 2005); United States v. Hallmark

Constr. Co., 200 F.3d 1076, 1080 (7th Cir. 2000). EAJA

fees are appropriate when the government’s litigation

positions and overall pre-litigation conduct, including

the ALJ’s decision itself, lacked a reasonable basis in

law and fact. See Conrad, 434 F.3d at 990; Golembiewski, 382

F.3d at 724. In this case, the magistrate judge—simply

by properly assessing the government’s conduct as a

whole—did not ignore or lessen the force of its earlier

remand order and thereby engage in “argument counting.”

Regardless of the basis of the remand order, the judge was

required to look at the government’s overall conduct. In

other words, Stewart is incorrect in assuming that the

district court could consider in its substantial-justification

determination only the one successful issue discussed in
No. 08-1739 7

the remand order, and that its consideration of other

contentions constitutes “argument counting.” See Hallmark

Constr. Co., 200 F.3d at 1081.

Stewart’s second contention, however, has traction. She

argues that fees should have been awarded because the

ALJ contravened longstanding agency regulations, as

well as judicial precedent, both in determining her

residual functional capacity and in formulating the hypothetical given to the vocational expert. We agree with

Stewart on each point. As to the former, an ALJ must

articulate in a rational manner the reasons for his assessment of a claimant’s residual functional capacity, and in

reviewing that determination a court must confine itself

to the reasons supplied by the ALJ. Getch v. Astrue, 539

F.3d 473, 481-82 (7th Cir. 2008); Blakes ex rel. Wolfe v.

Barnhart, 331 F.3d 565, 569 (7th Cir. 2003); Steele v. Barnhart,

290 F.3d 936, 941 (7th Cir. 2002). Therefore the ALJ

himself must connect the evidence to the conclusion

through an “accurate and logical bridge.” Berger v. Astrue,

516 F.3d 539, 544 (7th Cir. 2008); Giles ex rel. Giles v. Astrue,

483 F.3d 483, 487-88 (7th Cir. 2007); Ribaudo v. Barnhart, 458

F.3d 580, 584 (7th Cir. 2006); Dixon v. Massanari, 270 F.3d

1171, 1176 (7th Cir. 2001). In this instance, although the

ALJ did discuss the evidence that was developed after

the state-agency physicians had last reviewed Stewart’s

medical records, the ALJ failed to specify what “new and

material evidence” led him to substitute his own, more

favorable assessment of Stewart’s residual functional

capacity for that of those physicians. For example, the ALJ

mentions Stewart’s ability to cook, clean, do laundry, and

vacuum at her home, but those activities do not necessarily
8 No. 08-1739

establish that a person is capable of engaging in substantial physical activity. Diaz v. Prudential Ins. Co. of Am., 499

F.3d 640, 648 (7th Cir. 2007); Zurawski v. Halter, 245 F.3d

881, 887 (7th Cir. 2001); Clifford v. Apfel, 227 F.3d 863, 872

(7th Cir. 2000). The ALJ should have explained any inconsistencies between Stewart’s activities of daily living

and the medical evidence. Carradine v. Barnhart, 360 F.3d

751, 755 (7th Cir. 2004); Zurawski, 245 F.3d at 887. The

Commissioner asserts the ALJ’s discussion of evidence

after the physicians’ last review was reasonable, even

without specifying what evidence factored into his determination. This position is contrary to our repeated

holding that a denial of benefits cannot be sustained

where an ALJ failed to articulate the bases of his assessment of a claimant’s impairment. See Brindisi v. Barnhart,

315 F.3d 783, 786-87 (7th Cir. 2003); Scott v. Barnhart, 297

F.3d 589, 595-96 (7th Cir. 2002); Steele, 290 F.3d at 940-41.

Likewise, the formulation of the hypothetical given to

the vocational expert also contradicts judicial precedent.

When an ALJ poses a hypothetical question to a vocational expert, the question must include all limitations

supported by medical evidence in the record. See Bayliss

v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); Young

v. Barnhart, 362 F.3d 995, 1003 (7th Cir. 2004); Indoranto

v. Barnhart, 374 F.3d 470, 474 (7th Cir. 2004); Steele, 290

F.3d at 942; see also Boyd v. Apfel, 239 F.3d 698, 707 (5th

Cir. 2001); Decker v. Chater, 86 F.3d 953, 955 (10th Cir.

1996). More specifically, the question must account for

documented limitations of “concentration, persistence

or pace.” Ramirez v. Barnhart, 372 F.3d 546, 554 (3d Cir.

2004); Young, 362 F.3d at 1004; Kasarsky v. Barnhart, 335
No. 08-1739 9

F.3d 539, 544 (7th Cir. 2003); Burns v. Barnhart, 312 F.3d 113,

123 (3d Cir. 2002); Thomas v. Barnhart, 278 F.3d 947, 956

(9th Cir. 2002); Newton v. Chater, 92 F.3d 688, 695 (8th Cir.

1996). The Commissioner asserts that the ALJ accounted

for Stewart’s limitations of concentration, persistence,

and pace by restricting the inquiry to simple, routine

tasks that do not require constant interactions with coworkers or the general public. We have rejected the very

same contention before. In Young v. Barnhart, we held that

a hypothetical with exactly those specifications did not

adequately account for the plaintiff’s medical limitations,

including an “impairment in concentration.” 362 F.3d at

1004. The Commissioner continues to defend the ALJ’s

attempt to account for mental impairments by restricting

the hypothetical to “simple” tasks, and we and our sister

courts continue to reject the Commissioner’s position. Craft

v. Astrue, 539 F.3d 668, 677-78 (7th Cir. 2008) (limiting

hypothetical to simple, unskilled work does not account

for claimant’s difficulty with memory, concentration, or

mood swings); Ramirez, 372 F.3d at 554 (hypothetical

restriction to simple one or two-step tasks does not

account for limitations of concentration); Kasarsky, 335

F.3d at 544 (constructing hypothetical question about a

person with borderline intelligence does not account for

deficiencies in concentration); Smith v. Halter, 307 F.3d 377,

380 (6th Cir. 2001) (restricting hypothetical to jobs without quotas, rather than to simple tasks, adequately addresses impairment in concentration). In fact, the Social

Security Administration itself rejects that position. SSR 85-

15. The Commissioner does not acknowledge these authorities or cite any contrary precedent, nor does he
10 No. 08-1739

explain why the hypothetical failed to include restrictions

on, for example, the ability to understand instructions or

respond to work pressures. See 20 C.F.R. § 404.1545(c). As

a consequence, the vocational expert did not address

these limitations when he suggested vocations such as

punch-board assembler, laundry worker, or sorter. In

light of this clear line of precedent, both the ALJ’s hypothetical and the Commissioner’s subsequent defense of

that hypothetical lack substantial justification. Young,

362 F.3d at 1004-05; Steele, 290 F.3d at 942.

III. CONCLUSION

The denial of fees was thus an abuse of discretion. In her

EAJA petition, Stewart requested $6,914.07 in attorney’s

fees and $350 in costs, and the magistrate judge found

those calculations reasonable. Accordingly, we REVERSE the

denial of attorney’s fees and REMAND with instructions to

award the amount requested. We also award appellate

attorney’s fees to Stewart. Stewart’s counsel shall submit a

statement of attorney’s fees incurred on appeal within

fourteen days.

4-2-09