                              UNPUBLISHED ORDER
                           Not to be cited per Circuit Rule 53



           United States Court of Appeals
                             For the Seventh Circuit
                             Chicago, Illinois 60604

                             Argued February 28, 2006
                               Decided April 4, 2006

                                        Before

                    Hon. JOHN L. COFFEY, Circuit Judge

                    Hon. DIANE P. WOOD, Circuit Judge

                    Hon. TERENCE T. EVANS, Circuit Judge

No. 05-2010
                                                Appeal from the United States
KATHLEEN KUSILEK,                               District Court for the Western
    Plaintiff-Appellant,                        District of Wisconsin

      v.                                        No. 04-C-310-C

JO ANNE B. BARNHART,                            Barbara B. Crabb,
     Defendant-Appellee.                        Chief Judge.


                                        ORDER

        Kathleen Kusilek appeals the district court’s decision denying attorneys’ fees
under the Equal Access to Justice Act (“EAJA”) after she received a favorable
decision from the district court reversing and remanding the Social Security
Administration’s (“SSA”) denial of disability benefits. Because the district court did
not abuse its discretion in finding the Commissioner’s position substantially
justified, we affirm.

       Kusilek applied for disability benefits in 2001, claiming that she had been
disabled in a car accident that caused a compression fracture of her T-12 vertebra
and back pain. In denying Kusilek’s application, an administrative law judge
applied the five-step analysis of 20 C.F.R. § 404.1520(a)(4)(i)--(v) to find that
Kusilek had not engaged in substantial gainful employment since the alleged onset
of her disability (step 1); that she had severe impairments including back pain and
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adjustment disorder with depressed mood (step 2); but that her impairments did
not qualify alone, or in combination, as a listed impairment (step 3). After
determining that Kusilek had the residual functional capacity (“RFC”) “to work only
in a controlled environment; and to perform only unskilled or simple semi-skilled
work,” the ALJ concluded that she could not perform her past relevant work (step
four), but could perform other work in the national economy (step five).

       In determining that Kusilek could perform other work in the national
economy, the ALJ relied on the response given by a vocational expert (“VE”) to a
hypothetical question he posed. When the ALJ asked whether jobs existed in the
economy for an individual with Kusilek’s RFC, given her age, education, and
experience, the VE estimated that such an individual could work as a telemarketer
(3000 jobs), security monitor (1000 jobs), or information clerk (1500 jobs). Based on
this testimony, the ALJ found Kusilek not disabled. The Social Security Appeals
Council denied review. But the district court reversed and remanded the case
because the ALJ’s hypothetical question to the VE failed to adequately account for
Kusilek’s mental limitations—specifically, her “moderate limitations in
concentration, persistence or pace.”

       As the prevailing party on that issue, Kusilek timely petitioned for attorneys’
fees under the EAJA, but the district judge denied her petition because she found
the Commissioner’s position “substantially justified.” Specifically, Chief Judge
Crabb found that it was unsettled within our circuit and among the other circuits
whether an ALJ must phrase his mental RFC determination and corresponding
hypothetical in terms of a plaintiff’s particular limitations or whether it is
acceptable to construct the RFC/hypothetical in terms of the types of work a
plaintiff with such limitations can perform. She concluded that “the commissioner
was substantially justified in arguing that the [ALJ] did not err in failing to include
in his mental functional capacity assessment all of the mental limitations endorsed
by the state agency physician or found by the [ALJ] himself” or “to take the position
that in limiting plaintiff to simple, easy-to-learn jobs, the [ALJ] was de facto
limiting plaintiff to low stress, routine work” (emphasis in original).

       The EAJA provides that a district court may award attorneys’ fees 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. 28
U.S.C. § 2412(d)(1)(A); Krecioch v. United States, 316 F.3d 684, 687 (7th Cir. 2003).
The Commissioner only disputes that Kusilek meets the second prong.

      In order for the Commissioner’s position to be substantially justified, it must
have reasonable factual and legal bases, and a reasonable connection must exist
between the facts and her legal theory. See Pierce v. Underwood, 487 U.S. 552, 565
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(1988); Conrad v. Barnhart, 434 F.3d 987, 990 (7th Cir. 2006); Golembiewski v.
Barnhart, 382 F.3d 721, 724 (7th Cir. 2004). We consider the reasonableness of
both the Commissioner’s prelitigation and litigation conduct, making one
determination for the whole case. See Conrad, 434 F.3d at 990. The Commissioner
bears the burden of proving that her position was substantially justified. See
Golembiewski, 382 F.3d at 724. The district court here determined that the
Commissioner met her burden, and we review that decision for an abuse of
discretion. See Pierce, 487 U.S. at 559; Golembiewski, 382 F.3d at 723.

       Kusilek argues that the district court abused its discretion in finding the
Commissioner’s position substantially justified. Specifically, she argues that the
ALJ’s hypothetical, which limited her to unskilled or simple semi-skilled work,
failed to adequately account for her moderate mental limitations in concentration,
persistence or pace—limitations that the ALJ credited. These limitations should
have been incorporated into the hypothetical, Kusilek argues, because “a
hypothetical question to the vocational expert must include all limitations
supported by medical evidence in the record.” Young v. Barnhart, 362 F.3d 995,
1003 (7th Cir. 2004); see Kasarsky v. Barnhart, 335 F.3d 539, 543 (7th Cir. 2003).
Kusilek further points out that this court has reversed and remanded cases where
an ALJ framed a plaintiff’s mental limitations in terms of the type of work she
could perform (e.g., semi-skilled, routine work) instead of in terms of her specific
limitations (e.g., deficiencies in concentration). See Young, 362 F.3d at 1002 (ALJ’s
hypothetical limiting plaintiff to “simple, routine, repetitive, low stress work with
limited contact with coworkers and public” was flawed because it did not account for
medical opinion suggesting that plaintiff had difficulty taking instructions and
responding appropriately to criticism); Kasarsky, 335 F.3d at 544 (ALJ’s
hypothetical inquiring about available work for a plaintiff who “[b]ecause of
borderline intelligence . . . is seriously limited, but not precluded from
understanding, remembering, and carrying out detailed instructions” was flawed
because it failed to account for plaintiff’s “frequent deficiencies of concentration,
persistence, or pace”) (emphasis in original).

       “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 [Commissioner’s] litigation position.” Marcus v. Shalala, 17 F.3d 1033, 1037
(7th Cir. 1994); see also Golembiewski, 382 F.3d at 724 (Commissioner’s defense of
ALJ’s decision containing no credibility discussion “violated clear and long judicial
precedent” and therefore was not substantially justified). Here there is uncertainty
in the law regarding the formulation of hypothetical questions accounting for
mental limitations. Although Judge Crabb acknowledged the legal authority cited
by Kusilek, she went on to note that countervailing authority also existed in this
and our sister circuits. Indeed, we have upheld ALJs’ findings that plaintiffs with
mental limitations can perform “simple” or “semiskilled” work. See Jens v.
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Barnhart, 347 F.3d 209, 212-13 (7th Cir. 2003) (plaintiff capable of semiskilled work
even though he “often” had “deficiencies of concentration, persistence or pace”);
Sims v. Barnhart, 309 F.3d 424, 431 (7th Cir. 2002) (court approved ALJ’s finding
that plaintiff retained RFC to perform “simple and repetitive light work” even
though ALJ found plaintiff “mildly to moderately limited” in her ability to maintain
“concentration, persistence, and pace”); Johansen v. Barnhart, 314 F.3d 283, 288-89
(7th Cir. 2002) (deeming acceptable RFC assessment finding that plaintiff could
perform “repetitive, low-stress work” although he had “moderate” mental
limitations). Other circuits have done the same. See Howard v. Massanari, 255
F.3d 577, 582 (8th Cir. 2001) (“ALJ’s hypothetical concerning someone who is
capable of doing simple, repetitive, routine tasks adequately captures [plaintiff’s]
deficiencies in concentration, persistence or pace”); Smith v. Halter, 307 F.3d 377,
378-79 (6th Cir. 2001) (hypothetical limiting plaintiff to jobs that are “routine and
low stress” adequately accounted for plaintiff’s “‘often’...deficiencies in
concentration, persistence, or pace”). In light of these cases, the court correctly
concluded that the Commissioner’s position was substantially justified.

      The judgment of the district court is AFFIRMED.
