                           In the

United States Court of Appeals
              For the Seventh Circuit

No. 09-2421

U NITED S TATES OF A MERICA,
                                            Plaintiff-Appellant,
                               v.

T HOUVENOT, W ADE & M OERSCHEN , INC.,

                                           Defendant-Appellee.


            Appeal from the United States District Court
                 for the Southern District of Illinois.
    No. 3:05-cv-306-DRH-DGW—David R. Herndon, Chief Judge.



No. 09-1232

C HRISTINE M. B AUER,
                                            Plaintiff-Appellant,
                               v.

M ICHAEL J. A STRUE, Commissioner of Social Security,

                                           Defendant-Appellee.


            Appeal from the United States District Court
                for the Eastern District of Wisconsin.
       No. 2:06-cv-697-RTR—Rudolph T. Randa, Chief Judge.
2                                Nos. 09-2421, 09-1232, 09-2574

No. 09-2574

R ONALD J. P ARK ,
                                                Plaintiff-Appellant,
                                 v.

M ICHAEL J. A STRUE, Commissioner of Social Security,

                                               Defendant-Appellee.


             Appeal from the United States District Court
                 for the Central District of Illinois.
         No. 2:07-cv-2227-HAB-DGB—Harold A. Baker, Judge.



A RGUED D ECEMBER 1 AND 2, 2009—D ECIDED F EBRUARY 18, 2010




    Before P OSNER, FLAUM, and SYKES, Circuit Judges.
  P OSNER, Circuit Judge. We have consolidated for decis-
ion three appeals, argued before the same panel on con-
secutive days, that require interpretation of the Equal
Access to Justice Act. The Act entitles a party that
prevails in litigation with the United States (including
proceedings for judicial review of agency action) to attor-
neys’ fees “unless the court finds that the position of the
United States was substantially justified.” 28 U.S.C.
§ 2412(d)(1)(A). The issue in each appeal is whether the
government’s position was “substantially justified,” but
in No. 09-2421, with which we begin, there is an addi-
tional issue—whether attorneys’ fees paid to a defendant’s
Nos. 09-2421, 09-1232, 09-2574                            3

liability insurer can be awarded under the Act. The district
judge awarded TWM (Thouvenot, Wade & Moerschen)
some $200,000 in attorneys’ fees; its liability insurer paid
for its defense and so will receive $150,000 because the
policy specified a $50,000 deductible.
  The United States sued the project site engineer of an
apartment complex, charging TWM along with others
(who are not parties to the appeal) with having
designed and built a project that violated the Federal
Housing Act because it wasn’t accessible to persons
having a disability: the ground floor was sunk four feet
below the level of the parking lot and there was no ramp,
just steps. The lack of access to disabled persons was
apparent from plans prepared by TWM. Though they
were marked “for construction,” the company denied
that they had been intended for use in construction and
moved for summary judgment, which was denied. The
case was tried to a jury. At the close of the govern-
ment’s case, and again at the end of the entire trial, the
defendant moved for entry of judgment as a matter of
law. The judge denied the motions. He said “the jury
could believe that throughout this construction, these
plans were used by everyone. We have a jury who could
clearly believe that TWM was involved in both the
design and the construction and given the Fair Housing
Act, could believe that they are culpable.” But the jury
returned a verdict for the defendant.
  In justifying his award of attorneys’ fees despite
having refused to take the case from the jury, the district
judge said that “upon reviewing the evidence, Plaintiff’s
4                            Nos. 09-2421, 09-1232, 09-2574

position was not substantially justified and the jury
ruled accordingly.” This is a mysterious statement
because of course the jury had not been asked to decide
whether the position of the United States had been sub-
stantially justified, and did not offer an opinion on the
issue. The judge later amplified his grounds slightly,
saying that “after reviewing all of the evidence
presented at trial, the Court finds that Defendant TWM
clearly did not belong in this case. As Defendant TWM
points out, the evidence showed that TWM was
only involved in the zoning process and had no role in
designing the complex, nor were its drawings prepared
as building plans.”
   The key statutory term, “substantially justified,” is
neither defined nor self-evident. If it just meant not
frivolous, there would be no problem because usually
it’s pretty easy to distinguish a frivolous from a
nonfrivolous case. But the courts have not taken that
road. Pierce v. Underwood, 487 U.S. 552, 566 (1988); Gerow v.
Rohm & Haas Co., 308 F.3d 721, 726 (7th Cir. 2002);
Halverson v. Slater, 206 F.3d 1205, 1210 (D.C. Cir. 2000). The
title of the statute—Equal Access to Justice Act—and the
fact that eligibility for an award is limited to persons
and organizations of limited financial means (with im-
material refinements and exceptions, the prevailing party
may not have a net worth in excess of $2 million if an
individual and $7 million if an organization, 28 U.S.C.
§ 2412(d)(2)(B)) suggest that Congress’s concern was not
limited to frivolous cases—that it wanted the govern-
ment to take care before deploying its formidable litiga-
tion resources against a weak opponent. See McDonald v.
Nos. 09-2421, 09-1232, 09-2574                                 5

Schweiker, 726 F.2d 311, 315 (7th Cir. 1983); Dole v. Phoenix
Roofing, Inc., 922 F.2d 1202, 1207 (5th Cir. 1991); Myers v.
Sullivan, 916 F.2d 659, 667-68 (11th Cir. 1990); Feldpausch v.
Heckler, 763 F.2d 229, 231-32 (6th Cir. 1985). The Equal
Access to Justice Act has thus been called an “anti-bully”
law. Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir.
1986), vacated and remanded, 487 U.S. 1229 (1988), for
reconsideration in light of Pierce v. Underwood; Melissa A.
Peters, “The Little Guy Myth: The Fair Act’s Victimization
of Small Business,” 42 Wm. & Mary L. Rev. 1925, 1928-30
(2001).
   Between frivolous and meritorious lie cases that are
“ ’justified in substance or in the main’—that is, justified to
a degree that could satisfy a reasonable person [and
hence has a] ‘reasonable basis both in law and fact.’ ” Pierce
v. Underwood, supra, 487 U.S. at 565; see also Potdar v.
Holder, 585 F.3d 317, 319-20 (7th Cir. 2009); Kolman v.
Shalala, 39 F.3d 173, 177 (7th Cir. 1994); Ericksson v. Com-
missioner of Social Security, 557 F.3d 79, 81-82 (2d Cir.
2009). The case must have sufficient merit to negate an
inference that the government was coming down on its
small opponent in a careless and oppressive fashion.
  But, consistent with this standard, there is a presump-
tion that a government case strong enough to survive
both a motion to dismiss and a motion for summary
judgment is substantially justified. See EEOC v. Liberal R-II
School District, 314 F.3d 920, 926 (8th Cir. 2002). Given the
Supreme Court’s insistence in its recent Bell Atlantic and
Iqbal decisions that a case must be dismissed if the com-
plaint does not appear to have a substantial basis,
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-52 (2009); Bell Atlantic
6                             Nos. 09-2421, 09-1232, 09-2574

Corp. v. Twombly, 550 U.S. 544, 559-63 (2007), and given
that summary judgment resolves cases that though not
frivolous would not persuade a reasonable jury, Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255-56 (1986); Simple
v. Walgreen Co., 511 F.3d 668, 671 (7th Cir. 2007); Boyd
v. Wexler, 275 F.3d 642, 647 (7th Cir. 2001), a case that
is allowed to go all the way to trial is likely to be a toss-up.
  Of course something might emerge at trial that
showed that the government really had no case at all. Or
the district judge might on reflection decide that he had
erred grievously in refusing to grant the defendant’s
motion to dismiss or motion for summary judgment. But
in this case the presumption stands unrebutted. See
Wilfong v. United States, 991 F.2d 359, 367-69 (7th Cir. 1993);
cf. Temp Tech Industries, Inc. v. NLRB, 756 F.2d 586, 590
(7th Cir. 1985); Mester Mfg. Co. v. INS, 900 F.2d 201, 204 (9th
Cir. 1990). Fees were awarded solely because the jury’s
verdict was adverse to the government, and an award of
fees in such a case is error, as we held in the Wilfong case.
  In deciding to award fees the district judge gave no
weight to his rulings denying TWM’s motions for sum-
mary judgment, for judgment as a matter of law at the
close of the government’s evidence, and for judgment as
a matter of law at the close of all the evidence. After
hearing all the evidence he had decided that the gov-
ernment had a substantial case and therefore the jury
would be permitted to decide it, and the only thing
that happened afterward was that the jury rendered a
verdict for TWM. This impelled the judge to review the
evidence after the defendant filed its motion for an
Nos. 09-2421, 09-1232, 09-2574                            7

award of attorneys’ fees. But all he found in his review,
judging from his cryptic discussion, was that the jury’s
verdict was justified by the evidence, which no one ques-
tions. He pointed to nothing that suggested that the
trial had revealed profound weaknesses in the govern-
ment’s case that, had he known about them earlier, would
have moved him to grant one of TWM’s dispositive
motions. Nor can we find anything.
  There was evidence that TWM did not think that its
drawings, which depicted sewer lines, water lines and
other subdivision improvements, and were preliminary
and unsigned, would be used to construct the apart-
ment complex—evidence that they were subdivision-
improvement plans rather than building plans and that,
being intended to be used to obtain a building permit and
the Village Planning Commission’s approval for the
project, they merely illustrated the project’s general
conception and contours and omitted technical details.
Yet the plans showed the difference in elevation
between the parking lot and the ground floor; a ramp
had been included but was later deleted; and TWM went
on site to “stake” the first six buildings and did so in a
manner that indicated that the entrances would indeed
be below ground level. Thus there was evidence that
TWM knew that regardless of the original purpose of the
plans, they were being used as building plans, at least
with regard to how the buildings would be entered. So the
government had a substantial though not winning case,
and TWM therefore failed to establish its right to an award.
  But we agree with the district judge that an award of
attorneys’ fees under the Equal Access to Justice Act can
8                            Nos. 09-2421, 09-1232, 09-2574

include fees incurred by the party’s liability insurer. It is
not strictly necessary for us to decide the issue, since we
have just held that TWM was not entitled to an award,
whether to share with its insurer or not. But the issue is
a recurrent one that has divided the circuits to have
considered it: compare United States v. Paisley, 957 F.2d
1161, 1163-64 (4th Cir. 1992), and SEC v. Comserv Corp.,
908 F.2d 1407, 1413-16 (8th Cir. 1990), which hold that
the award cannot include such expenses when the
litigant has been indemnified by his employer (and we
cannot see what difference it makes who the indemnitor
is), with Ed A. Wilson, Inc. v. General Services Administra-
tion, 126 F.3d 1406, 1408-11 (Fed. Cir. 1997); see also
Morrison v. Commissioner, 565 F.3d 658, 662-66 (9th Cir.
2009). Since the issue has been fully briefed and argued,
we might as well take a stand on it for the guidance of
the district courts of this circuit.
   The case for inclusion is compelling. Suppose a party
seeking an award of fees had been uninsured and had
agreed to pay a lawyer’s fee as he had to do in order to
induce the lawyer to take his case; but, being worried
that if he lost he wouldn’t be able to afford the fee, he
borrowed $150,000 from his rich uncle, promising to pay
it back if he won his case and received a fee award. Sup-
pose the rich uncle has a net worth in excess of $2 million
and therefore would not be entitled to an award of attor-
neys’ fees if he were the prevailing party in the case;
and anyway he is not a party. But the award is not to
him, it is to his nephew, who is the party; what the
party does with the money—buy a Rolls Royce or repay
his uncle—is his business.
Nos. 09-2421, 09-1232, 09-2574                             9

   Liability insurance is the same; it is a contingent loan.
The insured pays premiums and in exchange is promised
that the insurance company will bear the cost of the in-
sured’s defense (subject to a deductible) if he is sued on
a claim that the policy covers. But to minimize his premi-
ums the insured agrees to repay that cost to the extent
it is covered by a court award of attorneys’ fees. Nothing
in the Equal Access to Justice Act suggests a purpose to
prevent such a contractual arrangement, or, more
broadly, to discourage the purchase of liability insurance.
  Another way to look at the insurance contract—but
it leads to the same conclusion—is that the insurance
premiums are the fee that the insured pays for the insur-
ance company’s defense of his case. Ed A. Wilson, Inc. v.
General Services Administration, supra, 126 F.3d at 1410-11;
see also Morrison v. Commissioner, supra, 565 F.3d at 663.
The defense costs that the insurance company will end
up paying are probabilistic rather than certain, because
the insurance company may never be called on to
defend the insured—he may not be sued on a claim
covered by the policy. But in an actuarial sense the cost
of the defense, to the extent borne by the insurance com-
pany, is a cost that the insured paid for, just as he
would have paid a lawyer for his defense had he had no
insurance.
  There is a legitimate concern with what has been called
the problem of the “stand-in litigant,” SEC v. Comserv
Corp., supra, 908 F.2d at 1416—where the real party in
interest, being ineligible by reason of its size or affluence
for an award of fees under the Equal Access to Justice
10                          Nos. 09-2421, 09-1232, 09-2574

Act, finds someone to litigate in its place and pays the
stand-in’s fees. That is not a problem here; the insurance
company has no quarrel with the government.
   We move on to our next two cases, both of which
involve claims by persons who prevailed in litigation
with the Social Security Administration over their claims
for social security disability benefits. The difference
between such cases and TWM’s case is that in an
appeal from the decision of an administrative agency
the court has to decide not whether the government
lacked substantial justification for bringing the case—for
a social security case begins as an application for bene-
fits—but whether the agency had a substantial justi-
fication for turning down the application. Stewart v.
Astrue, 561 F.3d 679, 683 (7th Cir. 2009) (per curiam);
Bricks, Inc. v. EPA, 426 F.3d 918, 922 (7th Cir. 2005); Hill
v. Gould, 555 F.3d 1003, 1006 (D.C. Cir. 2009).
  The appeal in a social security case goes from the agency
to the district court rather than directly to the court of
appeals, but the loser in the district court can appeal to
the court of appeals. In No. 09-1232, the district court
affirmed the denial of Bauer’s application for benefits, but
we reversed, Bauer v. Astrue, 532 F.3d 606 (7th Cir. 2008),
and she then moved in the district court for an award
of fees. As a result of our reversal of the district court
the matter had gone back to the Social Security Adminis-
tration for a redetermination of Bauer’s entitlement to
benefits. The proceedings on remand were not yet com-
pleted (as far as we know they still haven’t been—and in
our other social security case, we know the proceedings
Nos. 09-2421, 09-1232, 09-2574                              11

on remand had not been completed when the appeal
was argued to us) when her motion for fees was con-
sidered. But her success in our court in obtaining the
vacation of the Administration’s denial of benefits (rather
than merely a remand to enable the agency to consider
new evidence), showing that she had incurred additional
legal expenses as a result of the agency’s error, made her
a prevailing party within the meaning of the Equal
Access to Justice Act, whatever the ultimate outcome of
her claim for benefits. Shalala v. Schaefer, 509 U.S. 292, 300-
02 (1993); Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir.
2006); Le v. Astrue, 529 F.3d 1200, 1201 and n. 1 (9th Cir.
2008); see also Muhur v. Ashcroft, 382 F.3d 653, 654-55
(7th Cir. 2004).
   A district judge who has been reversed for ruling
against the party that the court of appeals decides should
have prevailed must be careful not to let his superseded
view of the merits color his determination of whether
there was a substantial justification for the government’s
position. United States v. Real Property at 2659 Roundhill
Drive, 283 F.3d 1146, 1152-53 (9th Cir. 2002); Friends of
Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 885-86
(8th Cir. 1995); Oregon Natural Resources Council v. Madigan,
980 F.2d 1330, 1332 (9th Cir. 1992). He must accept the
appellate court’s view of the merits as the premise for
evaluating the government’s position. Our view might be
that it was a close case—that the government’s position,
though the district judge should in the end have rejected
it, was substantially justified. See United States v. Paisley,
supra, 957 F.2d at 1167-68. But if it is apparent from
our opinion that we think the government lacked a sub-
12                           Nos. 09-2421, 09-1232, 09-2574

stantial justification for its position, though the judge
had thought it not only substantially justified but correct,
he must bow. Golembiewski v. Barnhart, 382 F.3d 721, 724-
25 (7th Cir. 2004); Friends of Boundary Waters Wilderness
v. Thomas, supra, 53 F.3d at 885-86.
   This is such a case; the district court’s evaluation of
substantial justification is inconsistent with our merits
opinion. Bauer based her claim of disability on the fact
that she is afflicted with bipolar disorder; in an older
vocabulary, she is manic-depressive. Our opinion ex-
plained that “a consultant who has a Ph.D. in an unspeci-
fied field examined the plaintiff’s medical records and
concluded that although she indeed has bipolar disorder,
it only moderately limits her ability to work.” 532 F.3d
at 607. His evaluation was contradicted by Bauer’s two
treating physicians. Since they “were both specialists
in psychiatric disorders” and had “examined the plain-
tiff over a period of years,” the administrative law judge
was required by law “to give great weight to their
evidence unless it was seriously flawed. The consultant
did not identify a flaw in the treating physicians’ analysis,
but merely expressed a contrary view after reading the
medical files; and it is not even clear whether he has
relevant expertise for such a task, since we do not know
what his field is.” Id. at 608 (citations omitted).
  We went on to say that “many of the reasons offered
by the administrative law judge for discounting the
evidence of [the two treating physicians] suggest a lack
of acquaintance with bipolar disorder. For example, the
judge noted that the plaintiff dresses appropriately,
Nos. 09-2421, 09-1232, 09-2574                            13

shops for food, prepares meals and performs other house-
hold chores, is an ‘active participator [sic] in group ther-
apy,’ is ‘independent in her personal hygiene,’ and takes
care of her 13-year-old son. This is just to say that the
plaintiff is not a raving maniac who needs to be locked up.
She is heavily medicated, and this enables her to cope
with the challenges of daily living, and would doubtless
enable her to work on some days . . . . What seems to
have made the biggest impression on the administra-
tive law judge, but suggests a lack of understanding of
bipolar disorder, was that [the] treatment notes [of one of
the treating physicians], which back up the report in
which she concludes that the plaintiff cannot work full
time, contain a number of hopeful remarks . . . the plain-
tiff’s memory was ‘ok,’ her sleep fair, she was doing
‘fairly well,’ her ‘reported level of function was found to
have improved,’ she had ‘a brighter affect and increased
energy,’ she ‘was doing quite well.’ On the basis of such
remarks the administrative law judge concluded: ‘little
weight is given the assessment of [that treating physician].’
A person who has a chronic disease, whether physical
or psychiatric, and is under continuous treatment for
it with heavy drugs, is likely to have better days and
worse days; that is true of the plaintiff in this case.” Id.
at 608-09.
  The basis for the district court’s refusal to award fees to
Bauer is found in two sentences in his order: “Despite
the ALJ’s misapprehension of bipolar disorder, there
was evidence in the record that contradicted the reports
of the treating physicians, and the Seventh Circuit ac-
14                           Nos. 09-2421, 09-1232, 09-2574

knowledged as much. [532 F.3d] at 608. Many of the
notes from the treating physicians contained conflicting
evidence regarding Bauer’s conditions and symptoms.”
That is a misreading of this court’s opinion, as should
be apparent from the passages that we quoted from
it. Because the consultant—he of the Ph.D. in an unidenti-
fied subject—disagreed with the two treating physicians,
the administrative law judge could not just rely on those
physicians’ evidence but had to decide how much
weight to give it. 532 F.3d at 608, citing Hofslien v.
Barnhart, 439 F.3d 375, 377 (7th Cir. 2006). And as we
went on to explain, the consultant’s evidence was
entitled to no weight at all; he had not explained the
basis for his evaluation of Bauer’s condition and it was
unclear whether he even had any relevant expertise. As
for “conflicting evidence” in the treatment notes of the
treating physicians, our opinion explained that there
was no conflict. It was merely a matter of noting
that Bauer had good days and bad days, a pattern con-
sistent with bipolar disorder.
  The evidence that she was totally disabled was essen-
tially uncontradicted. The consultant’s evaluation was
entitled to no weight, and the “conflicting evidence” was
consistent with a condition that had convinced the
treating physicians that she could not hold down a full-
time job. (For two very similar cases, see Brownawell v.
Commissioner of Social Security, 554 F.3d 352, 357 (3d Cir.
2008), and Shontos v. Barnhart, 328 F.3d 418, 425-27 (8th Cir.
2003).)
  It could be argued that whatever the deficiencies of the
district court’s ruling on the merits of the agency’s denial
Nos. 09-2421, 09-1232, 09-2574                          15

of benefits, the fact that the government was able to
persuade a federal judge that it had not only a rea-
sonable case, but a winner, should create an irrebuttable
presumption that the government’s position was substan-
tially justified. We disagree. The concept of “abuse of
discretion” recognizes the possibility that a judge will at
times reach a result that persuades the appellate court
that he made an unreasonable ruling, rather than a
ruling that was at least arguably correct. No doubt the
government like other litigants occasionally prevails,
at least at the trial level, when its position is not sub-
stantially justified; and that is what happened in the
Bauer case.
   We come last to No. 09-2574 (Park). Park was denied
disability benefits, like Bauer, and appealed to the
district court, which reversed (and the government did not
appeal the reversal) but denied Park’s application for an
award of fees under the Equal Access to Justice Act. The
reversal of the denial of benefits had been based on two
features of the administrative law judge’s opinion. The
first was his possible mischaracterization of the testi-
mony by a friend of Park’s named Nicholson concerning
Park’s ability to work, and specifically whether Nicholson
had testified that he allowed Park to live rent-free in a
trailer that Nicholson owned in exchange for Park’s
doing odd jobs for him. The administrative law judge
thought so, but the transcript of the hearing provides
only scanty support. In response to his question, “He
[Park] does help out and that’s why you’re so willing to
let him use the trailer, otherwise you could run him out,
right?” Nicholson responded ambiguously, “Well, yeah,
16                            Nos. 09-2421, 09-1232, 09-2574

I could.” He may just have been confirming that he could
expel Park at any time because it was Nicholson’s trailer
and Park had no lease, consistent with his testimony
that he let him stay in the trailer for free.
  The district court thought that the administrative
law judge had unfairly hectored Park’s lawyer when he
was questioning Nicholson, and, in reversing, the court
ordered the Social Security Administration to assign the
case to a different administrative law judge. That was
error. Courts can suggest but cannot require a change of
administrative law judges, Sarchet v. Chater, 78 F.3d 305,
309 (7th Cir. 1996); Travis v. Sullivan, 985 F.2d 919, 924 (7th
Cir. 1993), unless the administrative law judge has demon-
strated a degree of bias—which he had not—that would
disqualify him as a matter of due process from further
participation in the litigation, Reed v. Massanari, 270
F.3d 838, 845 (9th Cir. 2001); Miles v. Chater, 84 F.3d 1397,
1400-01 (11th Cir. 1996); Ventura v. Shalala, 55 F.3d 900, 902-
05 (3d Cir. 1995)—in which event the Social Security
Administration’s own regulation would disqualify him.
20 C.F.R. § 404.940.
  Second, the district court faulted the administrative
law judge for failing to explain adequately how Park’s
breathing difficulties affected his ability to work. Park had
been diagnosed with Chronic Obstructive Pulmonary
Disease (COPD), an umbrella term for a group of lung
diseases, principally chronic bronchitis and emphysema.
National Heart, Lung, & Blood Institute, Department
of Health & Human Services, “What is COPD?”, www.
nhlbi.nih.gov/health/dci/Diseases/Copd/Copd_WhatIs.html
Nos. 09-2421, 09-1232, 09-2574                           17

(visited Jan. 31, 2010); Mayo Clinic, “COPD: Defini-
tion”, www.mayoclinic.com/health/copd/ds00916 (visited
Jan. 31, 2010). The record does not reveal which Park
suffers from.
  These deficiencies in the administrative law judge’s
opinion do not establish (or so at least the district court
could find without abusing its discretion, the proper
standard, Pierce v. Underwood, supra, 487 U.S. at 559-
61) either that his decision was not substantially justified
or that the government lacked a substantial basis for
defending the denial of benefits. Nicholson’s testimony
about whether Park did any work for him was ambiguous;
and because social security disability hearings are
nonadversary, the administrative law judge is entitled to
probe a witness’s testimony by questions that would be
inappropriate in an adversary proceeding. Park’s testi-
mony presented a number of credibility issues, and the
district court ruled that the administrative law judge had
not erred in disbelieving his claim that his psychiatric
problems and physical limitations were totally disabling.
  Although the administrative law judge did not name
Park’s breathing problems COPD, she did discuss them;
Park’s lawyer has not indicated what specific disease (for
remember that COPD is a portmanteau term) his
client suffers from. The administrative law judge’s most
serious errors in considering the medical evidence
were a failure to mention that Park takes oxygen for his
breathing problem and, more broadly, to relate those
problems to his ability to work. But there was other
evidence concerning his physical capabilities, and
18                         Nos. 09-2421, 09-1232, 09-2574

without greater specification by Park’s lawyer as to what
exactly his client’s breathing problems were—their
cause and severity—we cannot say that the district court
was wrong to conclude that the administrative law
judge’s analysis, though cursory and inadequate, did not
lack substantial justification.
  The posture of our review is different from what it was
in Bauer’s case. There the district judge had initially
thought the government’s position not only sub-
stantially justified but correct, and we have warned
against allowing such a judgment, if reversed, to infect
the determination of whether to award fees. In Park’s
case, in contrast, the district court, having emphatically
reversed the denial of benefits, nevertheless was
persuaded that the agency’s position had been substan-
tially justified; that decision is entitled to substantial
weight.
  To summarize, the grant of fees is reversed in TWM; the
denial of fees is reversed in Bauer and affirmed in Park.




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