MEMORANDUM OPINION AND ORDER
GARY FEINERMAN, District Judge.
Having successfully challenged the Social Security Administration's denial of his disability insurance benefit claim, 2013 WL 2589711 (N.D. Ill. June 11, 2013), Paul Murphy moves for an award of attorney fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). Doc. 28. The motion is granted.
This action arises from Murphy's application for disability insurance benefits with the Social Security Administration. Murphy's application was denied, as was his request for reconsideration. An administrative law judge ("ALJ") then conducted a hearing on Murphy's claim and found him not disabled. After the Social Security Appeals Council denied Murphy's request for review of the ALJ's decision, Murphy sought review by this court pursuant to 42 U.S.C. § 405(g). The parties cross-moved for summary judgment, and the court granted summary judgment to Murphy. The court held that the ALJ's opinion erred (1) by failing to adequately explain why the medical opinion of Murphy's treating physician was rejected and (2) by failing to consider Murphy's obesity in combination with his other impairments. 2013 WL 2589711, at *7, 13.
With respect to the first ground, the court held that "[n]one of the ALJ's explanations as to Dr. Duggal [Murphy's treating cardiologist] qualify as good reasons' for rejecting his opinion, " and concluded that "[b]ecause the ALJ did not explicitly address [certain factors it must consider, including the length of the treatment relationship and the frequency of examination] or indicate what weight the treating physician's opinions were given, remand is warranted." Id. at *8, 10. The court found that the ALJ's "reliance on [the state agency doctors' opinions] was inappropriate" because "the ALJ did not adequately address why the state agency doctors' opinions were entitled to greater weight." Id. at *10, 11. In defending the ALJ's opinion on this issue, the Commissioner's summary judgment brief argued "that the ALJ rightly gave less weight to Dr. Duggal's opinion because (1) Dr. Duggal's 2007 and 2008 [Cardiac Functional Capacity Questionnaires] assessments noted increasingly serious physical limitations without showing corresponding deteriorations in Murphy's health, in contravention of Griffith v. Callahan, 138 F.3d 1150, 1155 (7th Cir. 1998); (2) ejection fractions measure the ability of the heart to pump blood, and the more blood a heart can pump, the slight[er]' the physical limitations [and Murphy's ejection fractions in 2008 were approaching the normal range]; and (3) Murphy may have had NYHA [New York Heart Association] Class II symptoms like shortness of breath and fatigue, but those symptoms were not severe because Dr. Duggal had cleared Murphy for light work in March 2006 without a sit-stand option or the need to elevate his legs." Id. at *11. The Commissioner's brief added that "the ALJ gave the state agency doctors' opinions more weight for multiple reasons, ' including the reasons discussed above and that Dr. Duggal's opinion [recommending a sit-stand option and leg elevation] was inconsistent with a Class II finding." Ibid. In holding that "the ALJ's decision cannot be sustained based on [these] new rationales pressed by the Commissioner's brief, " the court reasoned:
These arguments may be good ones, but they were not offered in the ALJ's decision. The court's review is limited to the reasons articulated in the ALJ's decision, not the post-hoc rationale submitted in the Commissioner's brief. See SEC v. Chenery Corp., 318 U.S. 80, 8788 (1943); Roddy [ v. Astrue ], 705 F.3d [631, ] 637 [(7th Cir. 2013)]; Martinez [ v. Astrue ], 630 F.3d [693, ] 694 [(7th Cir. 2011)]; Phillips v. Astrue, 413 F.Appx. 878, 886 (7th Cir. 2010) ("These post-hoc rationalizations not only undermine our confidence in the accuracy of the Commissioner's representations of the record, but we have repeatedly warned that attempts to supplement the ALJ's decision are inappropriate.... [T]he government may not provide the missing justification for an ALJ's decision."); Spiva v. Astrue, 628 F.3d 346, 353 (7th Cir. 2010) (holding that "a persuasive brief [cannot] substitute for" the ALJ's deficient opinion); Larson [ v. Astrue ], 615 F.3d [744, ] 749 [(7th Cir. 2010)].
Id. at *12.
Regarding the second ground for granting summary judgment to Murphy, the court held that the "ALJ's RFC [residual functional capacity] determination is... deficient in failing to sufficiently consider Murphy's extreme obesity, " and that, "even if the ALJ mentions obesity as a severe impairment, as the ALJ did here, if the ALJ's decision did not consider its significance in relation to other medical ailments, remand is warranted." Ibid. (internal quotation marks omitted). Although the Commissioner argued in her summary judgment brief that the ALJ had stated that he "considered all symptoms" and had found that because of Murphy's "obesity and history of heart disease, he should never climb ladders, ropes or scaffolds, work on moving or unstable surfaces, crouch or crawl, and he should only occasionally climb ramps or stairs, stoop or kneel, " the court pointed out that "the ALJ's opinion does not address how Murphy's extreme obesity bears on his ability to sit or stand for at least six hours, or how his extreme obesity interacts with his Class II designation, the ejection fractions, and the fatigue and shortness of breath that already arise from ordinary physical activity." Ibid. Thus, the court ordered that "[o]n remand, the ALJ should engage in a cumulative assessment of Murphy's cardiac impairments and obesity that the court can follow and assess." Id. at *13.
The EAJA states in relevant part that "a court shall award to a prevailing party other than the United States fees and other expenses... incurred by that party in any civil action... brought by or against the United States... unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). Precedent holds that "a district court may award attorney's fees [under the EAJA] 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." Stewart v. Astrue, 561 F.3d 679, 683 (7th Cir. 2009). In opposing Murphy's fee motion, the Commissioner addresses only the second requirement, arguing that that the agency's position was substantially justified.
"To be substantially justified, the Government's position must be justified in substance or in the main' or justified to a degree that could satisfy a reasonable person.'" Kholyavskiy v. Holder, 561 F.3d 689, 691 (7th Cir. 2009) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). Put another way, the Commissioner's position "is substantially justified if her conduct has a reasonable basis in law and fact, that is, if a reasonable person could believe the position was correct." Golembiewski v. Barnhart, 382 F.3d 721, 724 (7th Cir. 2004) (internal quotation marks omitted). "The Commissioner bears the burden of proving that her position was substantially justified." Ibid. The Commissioner can meet her burden if: "(1) [the agency] had a reasonable basis in truth for the facts alleged, (2) [the agency] had a reasonable basis in law for the theory propounded, and (3) there was a reasonable connection between the facts alleged and the theory propounded." Kholyavskiy, 561 F.3d at 691; see Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006). As the Seventh Circuit has explained:
[C]ourts are more likely to conclude that the Government's position is substantially justified if it is supported by our precedent or that of other courts.... Moreover, "uncertainty in the law arising from conflicting authority or the novelty of the question weighs in the government's favor when analyzing the reasonableness of the government's litigation position." Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir. 1994). By contrast, "[s]trong language against the government's position in an opinion assessing the merits of a key issue is evidence in support of an award of EAJA fees, " Golembiewski, 382 F.3d at 724, as is wholesale rejection of the Government's arguments by the merits panel, see id. at 725 (awarding fees and observing that "[w]e did not reject any issue raised by the plaintiff on appeal nor did we adopt or affirm any position taken by the Commissioner").
Kholyavskiy, 561 F.3d at 691-92.
Significant for present purposes, the "position of the United States' includes the underlying agency conduct as well as the agency's litigation position." Marcus, 17 F.3d at 1036; see 28 U.S.C. § 2412(d)(2)(D) ("position of the United States' means, in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based"); Krecioch v. United States, 316 F.3d 684, 689 (7th Cir. 2003) ("This [substantial justification] determination considers the government's position both in its underlying action and the litigation posture it took while defending the validity of that action in court."). Thus, "EAJA fees may be awarded if either the government's prelitigation conduct or its litigation position are not substantially justified, " meaning that fees "may be awarded in cases where the government's prelitigation conduct was not substantially justified even though its litigating position may have been substantially justified and vice versa." Marcus, 17 F.3d at 1036. "In other words, the fact that the ...