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

No. 05-1981
ERIC CUNNINGHAM,
                                           Plaintiff-Appellant,
                              v.

JO ANNE B. BARNHART, Commissioner of
Social Security,
                                          Defendant-Appellee.
                        ____________
          Appeal from the United States District Court
               for the Southern District of Illinois.
           No. 02 C 433—Michael J. Reagan, Judge.
                        ____________
   ARGUED DECEMBER 1, 2005—DECIDED MARCH 7, 2006
                   ____________


  Before EASTERBROOK, RIPPLE, and KANNE, Circuit Judges.
  KANNE, Circuit Judge. After a lengthy battle with the
Commissioner of Social Security, Eric Cunningham was
ultimately able to convince the Commissioner that he was
entitled to disability insurance benefits. He was unable,
however, to convince the district court that he should be
awarded attorneys’ fees pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412 (the “EAJA”). Cunningham
appeals that determination. For the reasons set forth below,
we affirm.
2                                              No. 05-1981

                      I. HISTORY
  Cunningham, a former truck driver, became disabled on
January 7, 1998, due to deep vein thrombosis in his right
leg and a ruptured disc in his back. He filed an application
with the Social Security Administration (“SSA”) for disabil-
ity insurance benefits on January 18, 2000. An administra-
tive law judge (“ALJ”) denied benefits on February 12, 2001,
after finding Cunningham’s allegations of pain and related
job limitations not credible. He further discounted the
supporting opinions of Cunningham’s treating physician,
Dr. Ravindranathan, as they relied too much on
Cunningham’s subjective report of symptoms and limita-
tions, as opposed to objective medical evidence. The ALJ
also found the treating physician’s opinions were “out of
proportion” with other medical evidence. The SSA’s appel-
late council declined review.
  Cunningham then proceeded to the district court, where
his claim fared better. The district court reversed the
Commissioner’s final decision and remanded the case for
further proceedings. The court found the ALJ did not
adequately describe the medical evidence leading to the
conclusion that Dr. Ravindranathan’s opinions were indeed
“out of proportion.” The court remanded for “further
articulation of the analysis.” Furthermore, although the
ALJ discounted Cunningham’s credibility regarding his
subjective complaints of pain and related limitations, the
district court found the ALJ did not properly assess
Cunningham’s credibility.
  On February 10, 2005, the district court denied
Cunningham’s motion for attorneys’ fees under the EAJA,
finding that “credible portions of the record supported the
ALJ’s analysis of medical opinions and assessment of lay
testimony.” This appeal followed. In the meantime, on July
1, 2005, a different ALJ reached a benefits determination
fully favorable to Cunningham.
No. 05-1981                                                  3

                      II. ANALYSIS
   The EAJA provides that a successful litigant against the
federal government is entitled to recover his attorneys’ fees
if: 1) he was a “prevailing party”; 2) the government’s
position was not “substantially justified”; 3) there existed no
special circumstances that would make an award unjust;
and 4) he filed a timely application with the district court.
28 U.S.C. § 2412(d)(1)(A), (B); Krecioch v. United States, 316
F.3d 684, 688 (7th Cir. 2003). In the instant case, it is
undisputed the only issue we need address is whether the
government’s position was substantially justified.
  Attorneys’ fees may be awarded if either the Commis-
sioner’s pre-litigation conduct or her litigation position
lacked substantial justification. Golembiewski v. Barnhart,
382 F.3d 721, 724 (7th Cir. 2004). The ALJ’s decision is
considered part of the Commissioner’s pre-litigation
conduct. Id. In order for the Commissioner’s position to be
substantially justified, it must have reasonable factual and
legal bases, and there must exist a reasonable connection
between the facts and her legal theory. See Pierce v.
Underwood, 487 U.S. 552, 565 (1988); Golembiewski, 382
F.3d at 724 (citing United States v. Hallmark Constr. Co.,
200 F.3d 1076, 1080 (7th Cir. 2000)). The Commissioner has
the burden of establishing that her position was substan-
tially justified. Golembiewski, 382 F.3d at 724 (citing
Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994)). We
review the district court’s decision not to award attorneys’
fees for an abuse of discretion. See id. at 723.
  Cunningham argues the ALJ failed to discuss
Cunningham’s credibility and failed to discuss the factors
required by regulation in assessing credibility, such as
Cunningham’s treatment efforts, medications, and daily
activities. See Social Security Ruling 96-7p; see also 20
C.F.R. § 404.1529(c)(3). Cunningham relies almost exclu-
sively on Golembiewski in arguing the Commissioner’s
4                                                No. 05-1981

position was not substantially justified. His reliance on this
case is misplaced. In Golembiewski, “the ALJ’s decision
contained no discussion of credibility . . . .” Id. at 724
(citation omitted) (emphasis added). Furthermore, in
Golembiewski, the Commissioner argued the ALJ’s credibil-
ity determination could be implied, which was blatantly
contrary to the Commissioner’s own previous ruling. See id.
(citation omitted). Moreover, the ALJ in that case
mischaracterized the medical evidence and also ignored
evidence supporting Golembiewski’s claim. Id. (citation
omitted). All of these issues led us to the conclusion that the
Commissioner’s position was not substantially justified. Id.
at 725.
  The only similarity between Cunningham’s case and
Golembiewski is the alleged failure of the ALJ to discuss
credibility, which is not enough to require the same result.
Cunningham does not argue the Commissioner has taken
the position that the credibility determination could be
implied. Nor has he argued the ALJ mischaracterized
evidence or completely ignored evidence. In short, the ALJ’s
decision in Golembiewski contained several significant flaws
that are not present in Cunningham’s case. The situation in
Golembiewski is too far removed from Cunningham’s to lead
to the same result.
  Besides, the ALJ did engage in a discussion regarding
Cunningham’s credibility. The ALJ found Cunningham’s
testimony regarding the intensity and frequency of pain not
credible. The ALJ based this determination on the fact that
two B-Mode Venous Evaluation Lower Extremities tests
were performed that showed an absence of any acute deep
vein thrombosis in Cunningham’s right leg, findings which
contradicted his mere subjective complaints of pain.
  Although not explicit, the ALJ appears to have discounted
Cunningham’s complaint of severe back pain after having
found his claims of leg pain and related job limitations were
No. 05-1981                                                  5

exaggerated. The district court remanded on this issue, not
because the ALJ failed to engage in a credibility determina-
tion, but because the ALJ failed to consider other evidence
regarding Cunningham’s back problems, such as his
treatment efforts, medications, and daily activities. Further
discussion was indeed warranted because an MRI per-
formed in 1998 showed Cunningham had a herniated disc,
a finding the ALJ did address in his opinion. In other
words, the ALJ failed to fully explain why Cunningham’s
credibility regarding his back pain was discounted where
the medical evidence supported, rather than contradicted,
Cunningham’s testimony. It was not that the ALJ failed to
engage in any credibility determination as in Golembiewski;
rather, the ALJ failed to connect all the dots in his analysis.
  The ALJ did make a generalization of the other objective
medical evidence regarding Cunningham’s subjective
complaints of back pain, which indicate his pain was not as
severe as he testified. Cunningham argues, again relying on
Golembiewski, the Commissioner’s position was based upon
facts not relied upon by the ALJ, as he did not explain or
cite to the other objective evidence. Here again,
Golembiewski is far too different a situation from
Cunningham’s to lend much support. In Golembiewski, the
Commissioner speculated about why the ALJ rejected
Golembiewski’s testimony by relying on facts not discussed
by the ALJ. Id. at 724.
  In Cunningham’s case, the ALJ did generally mention the
objective medical evidence. He also noted the results of the
neurological tests performed on Cunningham were normal.
Also, there was medical evidence in the record to support
the ALJ’s conclusion, even though it was not fully ex-
plained. For example, Drs. Oh and Pardo concluded Dr.
Ravindranathan’s opinion was “not supported by the
objective evidence.” Furthermore, several physicians,
including Dr. Ravindranathan, noted the absence of
abnormal neurological findings, combined with normal
6                                                 No. 05-1981

sensation and reflexes and no muscle atrophy. In effect,
Cunningham is arguing the ALJ should have credited his
own physician’s opinions over the opinions of the state
agency physicians. However, we may not reweigh the
evidence or substitute our judgment for that of the Commis-
sioner. Dixon v. Massanari, 270 F.3d 1171, 1178 (7th Cir.
2001) (“When treating and consulting physicians present
conflicting evidence, the ALJ may decide whom to believe,
so long as substantial evidence supports that decision.”)
(citation omitted); Butera v. Apfel, 173 F.3d 1049, 1055 (7th
Cir. 1999). Even though the ALJ does not cite specifically to
this objective evidence, the evidence is included in the
record, and the ALJ makes a general reference to it. The
medical evidence supports the ALJ’s decision, although he
did fail to adequately explain the connection. Stein v.
Sullivan, 966 F.2d 317, 319-20 (7th Cir. 1992) (“The
requirement that the ALJ articulate his consideration of the
evidence is deliberately flexible . . . . That the ALJ failed to
meet this articulation requirement in no way necessitates
a finding [that] the Secretary’s position was not substan-
tially justified.”) (citations omitted). This is not a case in
which the Commissioner’s position is based on speculation
with no support in the record. We have no trouble conclud-
ing the Commissioner’s position was substantially justified,
even though the ALJ was not as thorough in his analysis as
he could have been.


                    III. CONCLUSION
  For the reasons set forth above, the decision of the district
court is AFFIRMED.
No. 05-1981                                          7

A true Copy:

      Teste:


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




               USCA-02-C-0072—3-7-06
