United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
David Weisman United Magistrate Judge
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.
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.
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.)
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
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,
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
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
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).
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 “plan[ned] to
issue [its] own decision to address [plaintiff's] use of
a walker and to find that ...