                             In the
 United States Court of Appeals
               For the Seventh Circuit
                         ____________

No. 03-3382
MICHAEL E. GOLEMBIEWSKI,
                                             Plaintiff-Appellant,

                                v.

JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
                                             Defendant-Appellee.
                         ____________
            Appeal from the United States District Court
     for the Northern District of Indiana, Fort Wayne Division.
              No. 01 C 104—William C. Lee, Judge.
                         ____________
    ARGUED APRIL 14, 2004—DECIDED AUGUST 31, 2004
                     ____________



 Before BAUER, CUDAHY, and COFFEY, Circuit Judges.
  BAUER, Circuit Judge. Michael Golembiewski appeals
from a judgment of the United States District Court for the
Northern District of Indiana denying his petition for an
award of attorney’s fees and costs pursuant to the Equal
Access to Justice Act (“EAJA”). We reverse; the government
was not substantially justified in supporting the Adminis-
trative Law Judge’s (“ALJ”) ruling and since the govern-
ment did not complain about the computation of fees, we
simply remand for the court to enter the fees requested by
Golembiewski.
2                                                No. 03-3382

                      I. Background
  This case arises from Golembiewski’s application
for disability insurance benefits on April 27, 1999.
Golembiewski claimed he had become disabled because of
problems associated with a spinal cord injury and epileptic
seizures. The ALJ issued a final decision to deny
Golembiewski’s application on July 11, 2000.
  On March 28, 2001, Golembiewski filed for judicial review
of the ALJ’s decision. The district court affirmed the final
decision of the ALJ. Golembiewski then appealed to this
court and we vacated and remanded with instructions to
remand the case to the agency, urging the Commissioner to
assign a new ALJ to handle further proceedings. Specifi-
cally, we remanded the case because: (1) the ALJ improp-
erly discredited Golembiewski’s testimony about pain
without explaining reasons for rejecting testimony; (2) the
ALJ mischaracterized the evidence; and (3) the ALJ was
required to consider the entire constellation of ailments
affecting Golembiewski once the ALJ found that one or
more of his ailments was severe. Golembiewski v. Barnhart,
322 F.3d 912, 913 (7th Cir. 2003). The ALJ found in favor
of Golembiewski in the new proceedings. Thereupon,
Golembiewski filed a petition and supporting memorandum
seeking attorney’s fees under the EAJA on May 7, 2003.
The district court denied the petition, finding that the
government’s position was substantially justified and
attorney’s fees were therefore not appropriate under the
EAJA. This appeal followed.


                        II. Analysis
  Golembiewski asks this court to find that the government
had no substantial justification for its position and that the
district court judge abused his discretion in denying attor-
ney’s fees. We review the district court’s denial of a petition
for attorney’s fees and costs for an abuse of discretion.
No. 03-3382                                                 3

Pierce v. Underwood, 487 U.S. 552, 558 (1988); United
States v. Hallmark Construction Co., 200 F.3d 1076, 1078
(7th Cir. 2000). This “deferential standard does not dilute
our meaningful examination of the district court’s decision.”
Id. (citing Jackson v. Chater, 94 F.3d 274, 278 (7th Cir.
1996)).
   The EAJA provides that a district court may award
attorney’s fees where (1) the claimant is a “prevailing
party”; (2) the government was not substantially justified;
(3) no “special circumstances make an award unjust”; and
(4) the fee application is submitted to the court within 30
days of final judgment and is supported by an itemized
statement. 28 U.S.C. § 241(d)(1)(A), (B); Hallmark
Construction, 200 F.3d at 1079. Golembiewski is the
prevailing party, no “special circumstances” are alleged, and
the fee application was timely. The only question remaining
is whether the district court abused its discretion in finding
that the government’s position was substantially justified.
   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 cor-
rect.” Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994)
(quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).
The Commissioner bears the burden of proving that her
position was substantially justified. Marcus, 17 F.3d at
1036. “EAJA fees may be awarded if either the govern-
ment’s pre-litigation conduct or its litigation position are
not substantially justified. However, the district court is to
make only one determination for the entire civil action.” Id.
A decision by an ALJ constitutes part of the agency’s pre-
litigation conduct. Sutton v. Chater, 944 F.Supp. 638, 639
(N.D. Ill. 1996).
  The Seventh Circuit has set forth a three-part standard
for reviewing EAJA petitions. Hallmark Construction, 200
F.3d at 1080. It requires the government to show that its
position was grounded in: (1) a reasonable basis in truth for
4                                                No. 03-3382

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 propounded. Id.
  When the Court of Appeals reverses a decision of the
Commissioner, the district court should analyze the actual
merits of the government’s litigating position. Hallmark
Construction, 200 F.3d at 1079. Strong language against the
government’s position in an opinion discussing the merits
of a key issue is evidence in support of an award of EAJA
fees. Marcus, 17 F.3d at 1038. The district court judge
below found that “[a] review of the evidence . . . as well as
a review of both judicial decisions, reveals a rather complex
case.” Br. of the Appellant at 15. Actually, our opinion does
not reveal a complex case, but one in which the ALJ and
Commissioner violated clear and long judicial precedent
and violated the Commissioner’s own Ruling and Regula-
tions. We found that despite the mandate of SSR 96-7p and
court precedent, the body of the ALJ’s decision contained no
discussion of credibility and that he failed to apply the
factors for evaluating symptoms set forth in Social Security
Ruling 96-7p. Golembiewski, 322 F.3d at 915. We found that
the Commissioner’s defense of the ALJ’s decision failed
because she argued that the ALJ’s credibility determination
could be “implied,” contrary to her own ruling, and she
relied upon facts not discussed by the ALJ to try and bolster
his credibility determination. Id. at 916. We went on to find
that the ALJ’s decision was compromised by a
mischaracterization of medical evidence: finding no evi-
dence of herniated discs when there was clear evidence of
herniated discs. Id. at 916-17. We said, “[w]hat is more (not
that more is needed), we also agree with Golembiewski that
the ALJ ignored significant evidence supporting his claim.”
Id. Indeed, the ALJ improperly ignored three distinct lines
of evidence concerning Golembiewski’s bladder and bowel
incontinence, his limitations in bending, and his difficulty
grasping. Id. at 917. We rejected the Commissioner’s
argument that the fact that the record included some
No. 03-3382                                                5

evidence which might have supported a finding that the
bladder/bowel impairment minimally impacted
Golembiewski’s functioning, permitted the ALJ to ignore
this evidence all together. Id.
  Finally, we “close[d] with an additional observation”,
admonishing the ALJ to consider the aggregate of the
plaintiff’s “host of medical conditions,” and urging the
Commissioner to assign the matter to a different ALJ.
Golembiewski, 322 F.3d at 918. We did not reject any issue
raised by the plaintiff on appeal nor did we adopt or affirm
any position taken by the Commissioner. This is exactly the
“strong language against the government’s position” in a
merits opinion which should establish lack of substantial
justification in the ALJ’s decision and in the Commis-
sioner’s defense of that position. Marcus, 17 F.3d at 1038;
accord Friends of Boundary Waters Wilderness v. Thomas,
53 F.3d 881, 885 (8th Cir. 1995).
  Under the circumstances of this case, the district court
judge’s decision was an abuse of discretion. Our opinion in
the underlying merits claim made it clear that the Commis-
sioner’s argument had no reasonable basis in law because
her argument was based upon facts not relied upon by the
ALJ. Golembiewski, 322 F.3d at 916 (“[R]egardless of the
requirements of Social Security Ruling 96-7p, general
principles of administrative law preclude the Commis-
sioner’s lawyers from advancing grounds in support of the
agency’s decision that were not given by the ALJ . . . . So
the Commissioner’s effort to pinpoint parts of the ALJ’s
decision that support the credibility finding is unhelpful.”)
(Citations omitted).
   Regarding our finding that the ALJ mischaracterized the
evidence concerning whether the objective evidence estab-
lished any herniated discs, the district court judge finds
that the ALJ “could have a rational ground for thinking he
had a rational ground for finding no herniations” because
the MRI actually characterized the findings as “a probably
6                                               No. 03-3382

small central right lumbosacral herniation.” Br. of Appel-
lant at 22. It is not reasonable for an ALJ to find that a
condition does not exist at all where the evidence estab-
lishes that it does exist even if it is “small.” The record in
Golembiewski’s claim included numerous opinions by
treating physicians that the MRIs established herniated or
protruding discs. The ALJ’s finding of “no herniations” has
no support in the administrative record. He did not “have a
rational ground for thinking he had a rational ground” to
find no herniations nor did the Commissioner have such a
rational ground for arguing support of the ALJ’s decision.
The district court’s decision constitutes an abuse of discre-
tion.


                     III. Conclusion
  We reverse the district court’s decision and remand with
directions to the court to enter the fees requested by
Golembiewski.
                  REVERSE AND REMAND WITH DIRECTIONS.
A true Copy:
       Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit


                   USCA-02-C-0072—8-31-04
