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April 20, 2004.

JO ANNE BARNHART Commissioner of Social Security (Remand from Court of Appeals, No. 03-1828) Defendant

The opinion of the court was delivered by: MICHAEL MASON, Magistrate Judge


Plaintiff, Andre Henderson ("Henderson"), was denied disability insurance benefits ("OIB") and Supplemental Security Income benefits ("SSI") by an administrative law judge ("ALJ"). The Commissioner of Social Security Appeals Board upheld the ALJ's denial of benefits. This Court affirmed the Commissioner's decision. Henderson v. Barnhart, 2003 U.S. Dist. LEXIS 1532 (N.D. III. 2003). Henderson appealed and the Seventh Circuit Court of Appeals reversed the decision of this Court and remanded the claim for further proceedings by the Commissioner, Henderson v. Barnhart, 349 F.3d 434 (7th Cir. 2003). Henderson now petitions for attorney's fees and costs pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). For the reasons explained below, we grant plaintiff's petition.


  The facts underlying Henderson's complaint are set out in detail in our previous opinion, Henderson, 2003 U.S. Dist. LEXIS 1532. Therefore, we will only provide a brief recitation here. Henderson applied for disability benefits on June 22, 1999, alleging that he suffered from asthma, hypertension, obesity and mental impairment. After his claim was denied by the Commissioner, Henderson requested a hearing before an ALJ. On September 5, 2000, the ALJ held an administrative disability hearing and issued a written opinion denying Henderson disability benefits. Specifically, the ALJ found that Henderson's asthma, hypertension and borderline intellectual functioning did not prevent him from performing his past relevant work as a school bus driver or as a medical courier. R. 21.

  Henderson filed suit seeking judicial review of the ALJ's decision. On January 31, 2003, this Court found that the ALJ's decision was reasonable and that he had explained his rationale sufficiently to build a logical bridge for later review. Henderson, 2003 U.S. Dist. LEXIS 1532. The Court of Appeals disagreed, finding that the ALJ failed to sufficiently probe Henderson's capacity to be a school bus driver and failed to articulate a reasoned basis for his ruling that Henderson could drive a car. Henderson, 349 F.3d at 436. Therefore, the Seventh Circuit concluded that the ALJ's ruling could not stand. Id.

 Standard of Review

  Under the EAJA, a prevailing party, other than the government, is entitled to attorney's fees if the position of the Commissioner was not "substantially justified" or if special circumstances make an award unjust. 28 U.S.C. § 2412(d)(1)(A). The Commissioner does not dispute that Henderson is a prevailing party and acknowledges that his claim was reversed and remanded by the Court of Appeals pursuant to sentence four of 42 U.S.C. § 405(g). See Shalala v. Schaefer, 509 U.S. 292, 296-297 (1933). Nor does the Commissioner claim any special circumstances that would make an award unjust. In this case, the only issue is whether the Commissioner's position was substantially justified.

  The government has the burden of proving that its position was substantially justified. Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994). The Commissioner's position is substantially justified "if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Id. (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)); see also Corder v. Massanari, No. 00 C 2714 2001 WL 1355986 (N.D.III, Nov. 1, 2001) (citations omitted). Demonstrating substantial justification requires that the government show "that its position was grounded in: 1) a reasonable basis in the truth for the facts alleged; 2) a reasonable basis in law for the theory propounded; and 3) a reasonable connection between the facts alleged and the legal theory advanced." United States v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000)(citing Phil Smidt & Son, Inc. v. NLRB, 810 F.2d 638, 642 (7th Cir. 1987) (internal citations omitted)).

  The burden of demonstrating substantial justification rests with the Commissioner, and there is no presumption that a prevailing party is entitled to fees. Marcus, 17 F.3d at 1036. Moreover, the fact that this Court previously ruled in favor of the Commissioner does not establish that the government's position was substantially justified. See Pierce, 487 U.S. at 565. Where a district court's ruling has been reversed, "the touchstone for the Court's analysis is the Seventh Circuit's evaluation of the ALJ's ruling and not this Court's previous review of the merits." Zurawski v. Massanari, No. 99 C 2819, 2001 U.S. Dist. LEXIS 12725 at *7 (N.D.III. Aug. 21, 2001).


  In the instant case, the Seventh Circuit concluded that "[t]he sole ground on which the administrative law judge denied benefits was that he thought Henderson capable of doing his previous work as a school bus driver and later a medical courier driver." Henderson, 349 F.3d at 435. Both the ALJ and the Commissioner gave great weight to the fact that Henderson, while experiencing some of his claimed impairments, performed the duties of a bus driver for six and a half years and stopped only because his Commercial Drivers License (CDL) expired. The Seventh Circuit noted, however, that "the fact that a person holds down a job doesn't prove that he isn't disabled . . ." Id. Given Henderson's "low IQ, medley of serious health problems, and reading difficulties" the Seventh Circuit considered Henderson unfit for the job of a bus driver and stated that "the ALJ's finding that Henderson is able to return to his previous work as a school bus driver is untenable." Id.

  The government contends that even though the Commissioner's interpretation of the record was different from the evaluation made by the Court of Appeals, it was still reasonable to conclude that Henderson's impairments were not disabling and did not prevent him from driving a school bus. In support of its claim, the government points to evidence in the record that Henderson did not seek treatment for any impairment except for hypertension, that no physician found him to have any limitations on account of either heart disease or obesity, and the fact that Henderson admitted that only one or two aspirin would make his headaches go away. With respect to Henderson's borderline mental functioning, the government argues that Henderson did not seek treatment for his mental functioning problem, nor was he advised to seek such treatment. However, the ALJ did not include any of these factors noted by the government as part of the basis for his decision that Henderson is not disabled. As the reviewing court, we must look at the grounds actually provided by the ALJ in reaching his decision, not grounds on which he could have based his decision. O'Conner v. Sullivan, 938 F.2d 70, 73 (7th Cir. 1991); Banks v. Barnhart, 2003 U.S. Dist. LEXIS 14823 *8 (N.D. III. 2003) (holding that the court's review of an administrative decision is limited to grounds provided by the agency). The Seventh Circuit noted that "the evidence presented by Henderson was not conclusive, but it was sufficient to require the administrative law judge to probe Henderson's capacity to be a school bus driver more deeply." Henderson, 349 F.3d at 436.

  Next, the Seventh Circuit found that making deliveries by car was a less responsible job than driving a school bus, but "the administrative law judge accepted the evidence of one of the medical experts*fn1 that Henderson is incapable of performing (safely) a job that requires the use of hazardous machinery, which seems a fair description of an automobile driven in Chicago, or the making of critical judgments, which driving involves." Id.

  The Commissioner asserts that the ALJ did not accept Dr. Kuester's opinion in its entirety. The ALJ did not mention Dr. Kuester by name, but did state that he had "carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments." R.21. The Commissioner's contention that "the ALJ did not accept Dr. Kuester's opinion in its entirety" is without basis. The ALJ explicitly rejected only two medical findings in his decision. First, the ALJ found that one medical consultant's expectation that Henderson can do more than light exertion was "unjustified" because the consultant's expectation was inconsistent with the rest of the medical evidence. R. 20. The ALJ also rejected a ...

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