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Sullivan v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

May 31, 2017

NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          M. David Weisman United Magistrate Judge

         Anne Sullivan brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Social Security Administration Commissioner's decision denying her applications for supplemental security income and disability insurance benefits. For the reasons set forth below, the Court reverses the decision and remands this case to the Commissioner for further proceedings.


         Plaintiff applied for supplemental security income and disability insurance benefits on March 30, 2012, alleging a disability onset date of November 2, 2011. (R. 193-95.) The application was initially denied on June 28, 2012, and again after reconsideration on November 28, 2012. (R. 85, 87.) Plaintiff filed a request for a hearing before an Administrative Law Judge (“ALJ”), which was held on July 10, 2013. (R. 14.)

         On July 25, 2013, the ALJ denied plaintiff's application. (R. 98.) The ALJ used the five-part, sequential test for determining whether plaintiff is disabled, see 20 C.F.R. § 404.1520(a)(4), considering: (1) whether she had performed any substantial gainful activity during the period for which she claims disability; (2) whether she has a severe impairment or combination of impairments; (3) whether her impairment meets or equals any impairment listed in the regulations; (4) whether she retains the residual functional capacity to perform her past relevant work; and (5) whether she is able to perform any other work existing in significant numbers in the national economy. Id.; Zurawski v. Halter, 245 F.3d 881, 885 (7th Cir. 2001). At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date. (R. 94.) At step two, the ALJ found that plaintiff has the severe impairments of “morbid obesity, L3-L4, L5-S1 disc space narrowing, history of hypertension, [and] history of asthma.” (Id.) At step three, the ALJ found that plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of a listed impairment. (Id.) At step four, the ALJ found that plaintiff has the residual functional capacity (“RFC”) “to perform light work as defined in 20 CFR 416.967(b) and 416.967(b) except occasional stooping, crouching, kneeling, and crawling, no ascending ropes, ladders or scaffolds or other exposure to unprotected heights, no requirement to balance on wet or uneven surfaces.” (R. 95.) At step five, the ALJ determined that plaintiff was capable of performing her past relevant work as an office manager because the work does not require performance of activities precluded by her RFC. (R. 97.)

         On September 24, 2014, the Appeals Council granted plaintiff's request for review of the ALJ's decision. (R. 6.) The Appeals Council said the ALJ erred in finding that plaintiff could perform her past relevant work as an office manager because she had not held that job long enough for it to qualify as past relevant work. (R. 7.) The Appeals Council nonetheless affirmed the ALJ's finding that plaintiff was not disabled because it concluded that she had the RFC to perform her past relevant work as an office assistant. (Id.) The Appeals Council's decision is the final decision of the Commissioner, reviewable pursuant to 42 U.S.C. § 405(g). See Sims v. Apfel, 530 U.S. 103, 106-07 (2000) (“[I]f the Appeals Council grants review of a claim, then the decision that the Council issues is the Commissioner's final decision.”).


         The Court reviews the Appeals Council's decision deferentially, affirming if it is supported by “substantial evidence in the record, ” i.e., “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” White v. Sullivan, 965 F.2d 133, 136 (7th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). “Although we review the ALJ's findings as part of the record as a whole . . ., it is the substantial evidence of the Appeals Council's decision that we must consider.” Id. (citing Bauzo v. Bowen, 803 F.2d 917, 921 (1977)).

         The Appeals Council adopted the ALJ's credibility findings, which were that:

[T]he claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible for the reasons explained in this decision.
The claimant has a full range of daily activities. In addition to working part time, the claimant prepares meals, does light housecleaning, shops (she leans on the grocery cart), visits with friends and relatives, surfs the net, attends community meetings and rallies, goes to the library and food pantry. She walks wherever she has to go or takes public transportation.
The claimant alleges persistent back pain, yet the medical record indicates she has received relatively infrequent treatment. She alleges that back pain prevents her from working; however, she has not sought treatment from an orthopedic specialist. Her pain symptomology is inconsistent with imaging and physical examination findings. She has not had injections or physical therapy. Although the claimant may experience some medication side effects from pain medication, those effects have been fully considered in reaching the residual function capacity finding in this decision. . . .

(R. 7-8, 96-97) (citations omitted).

         Plaintiff argues that the Appeals Council erred by adopting the ALJ's credibility finding, instead of performing its own credibility analysis. Certainly, the Appeals Council has the power to review an ALJ's decision in its entirety. See Sims, 530 U.S. at 111 (stating that “the [Appeals] Council's review is plenary unless it states otherwise”). But plaintiff does not cite any authority for the notion that the Council is required to do so, and the regulations state that it is not. See 20 C.F.R. § 404.976(a) (“The Appeals Council may limit the issues it considers if it notifies you and the other parties of the issues it will review.”); (see also R. 167 (stating that the Appeals Council ‚Äúplan[ned] to issue [its] own decision to address [plaintiff's] use of a walker and to find that ...

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