UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE L. DENNIE, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:14-CV-142-JEM

)

CAROLYN W. COLVIN, ) 

Acting Commissioner of the )

Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Michelle L.

Dennie on April 25, 2014, and a Plaintiff’s Brief in Support of Motion for Summary Judgment

[DE 20], filed on April 3, 2015. Plaintiff requests that the decision of the Administrative Law

Judge be reversed and remanded for further proceedings. On July 7, 2015, the Commissioner

filed a response, and on July 21, 2015, Plaintiff filed a reply. For the following reasons, the

Court grants Plaintiff’s request for remand.

PROCEDURAL BACKGROUND

On April 19, 2011, Plaintiff filed an application for disability insurance benefits and on

June 27, 2011, filed an application for supplemental security income with the U.S. Social

Security Administration alleging that she became disabled on March 7, 2011. Plaintiff’s

application was denied initially and upon reconsideration. On December 17, 2012,

Administrative Law Judge (“ALJ”) Mark Naggi held a hearing at which Plaintiff, with an

attorney, and a vocational expert testified. On January 11, 2013, the ALJ issued a decision

finding that Plaintiff was not disabled. On March 5, 2014, the Appeals Council denied Plaintiff’s

request for review, leaving the ALJ’s decision the final decision of the Commissioner. 
The parties filed forms of consent to have this case assigned to a United States Magistrate

Judge to conduct all further proceedings and to order the entry of a final judgment in this case. 

Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c) and 42

U.S.C. § 405(g).

FACTS

Plaintiff was diagnosed with inflammatory arthritis, bilateral plantar fasciitis, and asthma. 

 She has been treated by her family physician, Dr. Ghoreishi, since at least February 2010, and

he had diagnosed her with fibromyalgia by November 2012. Plaintiff takes medication, has

undergone physical therapy and uses a cane. She also suffers diabetes mellitus, mild obesity,

anemia, and non-medically determinable vertigo. In January 2013, after the ALJ’s opinion, Dr.

Ghoreishi completed a questionnaire evaluating Plaintiff’s functional capacity, including

significantly greater limitations than those found by the ALJ. He specifically addressed

Plaintiff’s limited ability to stand, walk, and sit, and the limitations on her ability to finger,

grasp, and handle caused by her arthritis. He also addressed the side effects from Plaintiff’s

medications and the effect they would have on her ability to work.

STANDARD OF REVIEW

The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported

by substantial evidence. 42 U.S.C. § 405(g). Thus, a court reviewing the findings of an ALJ

will reverse only if the findings are not supported by substantial evidence or if the ALJ has

applied an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005). 

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)

(quoting Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).

A court reviews the entire administrative record but does not reconsider facts, re-weigh

the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its

judgment for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford

v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). 

Thus, the question upon judicial review of an ALJ’s finding that a claimant is not disabled within

the meaning of the Social Security Act is not whether the claimant is, in fact, disabled, but

whether the ALJ “uses the correct legal standards and the decision is supported by substantial

evidence.” Roddy v. Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v.

Astrue, 627 F.3d 614, 618 (7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th

Cir. 2006); Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner

commits an error of law,” the Court may reverse the decision “without regard to the volume of

evidence in support of the factual findings.” White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999)

(citing Binion v. Chater, 108 F.3d 780, 782 (7th Cir. 1997)).

DISABILITY STANDARD

To be eligible for disability benefits, a claimant must establish that she suffers from a

“disability” as defined by the Social Security Act and regulations. To be found disabled, the

claimant’s impairment must not only prevent her from doing her previous work, but considering

her age, education, and work experience, it must also prevent her from engaging in any other

type of substantial gainful activity that exists in significant numbers in the economy. 42 U.S.C.

§§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f), 416.920(e)-(f). When a claimant

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alleges a disability, Social Security regulations provide a five-step inquiry to evaluate whether

the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At steps four

and five, the ALJ must consider an assessment of the claimant’s Residual Functional Capacity

(“RFC”). The RFC “is an administrative assessment of what work-related activities an

individual can perform despite her limitations.” Dixon v. Massanari, 270 F.3d 1171, 1178 (7th

Cir. 2001) (citing SSR 96-8p, 1996 WL 374184 (July 2, 1996); 20 C.F.R. § 404.1545(a)) (other

citations omitted). The RFC should be based on evidence in the record. Craft v. Astrue, 539

F.3d 668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the

burden of proving steps one through four, whereas the burden at step five is on the ALJ. 

Zurawski v. Halter, 245 F.3d 881, 886 (7th Cir. 2001); see also Knight v. Chater, 55 F.3d 309,

313 (7th Cir. 1995). 

ANALYSIS

Plaintiff argues that she submitted additional medical records to the Appeals Council that

were new and material, and that the Appeals Council erred in denying review of the ALJ’s

decision. The Commissioner argues that the Appeals Council did not make an error of law and

therefore their decision is unreviewable.

“The Social Security Administration regulations require that body [the Appeals Council]

to evaluate ‘new and material evidence’ in determining whether a case qualifies for review.”

Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012) (quoting 20 C.F.R. §§ 404.970(b),

416.1470). “[R]eview of the question whether the [Appeals] Council made an error of law in

applying this regulation is de novo . . . In the absence of any such error, however, the Council’s

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decision whether to review is discretionary and unreviewable.” Id. (quoting Perkins v. Chater,

107 F.3d 1290, 1294 (7th Cir. 1997) (internal quotation marks omitted). 

In this case, Plaintiff argues that the Appeals Council erred in failing to review the ALJ’s

decision. Plaintiff provided additional updated medical records to the Appeals Council,

including a functional capacity questionnaire completed by Dr. Ghoreishi, Plaintiff’s treating

physician since at least 2010. The notice of Appeals Council action is a form letter that states

that it “considered the reasons you [Plaintiff] disagree with the decision and the additional

evidence listed on the enclosed Order of Appeals Council.” AR 1. The exhibit list includes the

evidence that Plaintiff claims is material, but the notice does not state that the Appeals Council

explicitly considered it to be material, nor is there any reference to specific evidence in the

notice.

The Commissioner argues that the Appeals Counsel concluded that the post-decision

evidence was new and material, but not contrary to the weight of the evidence. She analogizes

the situation to that in Perkins v. Chater, in which the Seventh Circuit Court of Appeals

concluded that the Appeals Council had considered and evaluated the additional evidence

because the letter spent a paragraph describing the new evidence. 107 F.3d at 1294. The

Commissioner contends that, as in Perkins, the Appeals Council in this case must have

determined that the evidence was new and material, but did not change the outcome, particularly

since the Agency’s policy requires the Appeals Council to designate evidence as an exhibit only

if it is new, material, and time-relevant. See HALLEX I-3-5-20.

The Seventh Circuit Court of Appeals recently addressed this argument in Stepp v.

Colvin, No. 14-3163, -- F.3d --, 2015 WL 4591886 (7th Cir. July 31, 2015). In that case, the

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Seventh Circuit addressed a situation like this one in which the Appeals Council notice did not

reference the relevant medical records in its text, but only included boilerplate denial language. 

As in this case, “[t]he Commissioner argue[d] that the inclusion of [the treating physician]’s

notes in the list of exhibits conclusively establishes that the Council deemed those notes new and

material,” and referred to the agency procedures as laid out in HALLEX. Id. at *12. However,

the Seventh Circuit was unpersuaded. It found,

The minimal information provided by the Appeals Council in its

denial of [the] request for review is insufficient to allow us to

determine with any confidence that the Council accepted [the

treating physician]’s notes as new and material evidence. While

the Commissioner has pointed to a handful of ambiguous

references in the order and denial notice that suggest that the

Appeals Council may have deemed this evidence qualifying, these

references fall considerably short of the Council’s express analysis

of the newly submitted evidence at issue in Perkins. We therefore

cannot conclude that these abstruse signals, without more,

demonstrate that the Council considered [the treating physician]’s

treatment notes.

Id.

This Court also “interpret[s] the Appeals Council decision as stating that it has rejected

[Plaintiff’s] new evidence as non-qualifying under the regulation.” Id. (quoting Farrell, 692

F.3d at 771). The Commissioner does not dispute that the newly-received evidence, including a

questionnaire addressing Plaintiff’s functional capacity completed by her treating physician, is

new, material, and time-relevant. The questionnaire completed by Dr. Ghoreishi was dated

January 22, 2013, after the date of the ALJ’s decision, making it “new;” and it specifically

addresses Plaintiff’s impairment and capacity to work since 2010, filling in an evidentiary gap

that was important to the ALJ’s conclusions about Plaintiff’s credibility and RFC, making it

material. See Farrell, 692 F.3d at 771 (concluding that “new evidence [that] fills in that

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evidentiary gap . . . [and] ‘relates to the period on or before the date of the administrative law

judge hearing decision’ . . . was ‘new and material’ evidence that the Appeals Council

improperly failed to consider”) (quoting 20 C.F.R. § 404.970(b)); see also Stepp, 2015 WL

4591886, at *13 (concluding that treating physician notes created after the hearing that “create[]

a ‘reasonable probability that the Commissioner would have reached a different conclusion had

the evidence been considered’” were new and material) (quoting Perkins, 107 F.3d at 1296)). 

Accordingly, the case must be remanded for consideration of the new and material evidence that

the Appeals Council erred in failing to review.

Plaintiff makes several other arguments about insufficiencies in the ALJ’s opinion. In

particular, Plaintiff argues that the ALJ did not provide a proper evidentiary basis for his

conclusion that Plaintiff could perform sedentary work. The ALJ rejected the only medical

opinion that gave specific limits on Plaintiff’s ability to do work, those of state agency

physicians, as not well-supported by the record, and explicitly noted that the record included no

limitations from any of Plaintiff’s treating providers. 

The RFC is an assessment of what work-related activities the claimant can perform

despite her limitations. Young v. Barnhart, 362 F.3d 995, 1000 (7th Cir. 2004); see also 20

C.F.R. §§ 404.1545(a)(1); 416.1545(a)(1). In evaluating a claimant’s RFC, an ALJ is expected

to take into consideration all of the relevant evidence, including both medical and non-medical

evidence. See 20 C.F.R. §§ 404.1545(a)(3); 416.945(a)(3); SSR 96-8p at *7. Although an ALJ is

not required to discuss every piece of evidence, he must consider all of the evidence that is

relevant to the disability determination and provide enough analysis in his decision to permit

meaningful judicial review. Clifford, 227 F.3d at 870; Young, 362 F.3d at 1002. 

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In this case, the ALJ specifically noted the absence of any notes from Plaintiff’s

physicians indicating her physical limitations, such that the new evidence from Plaintiff’s

treating physician may change the RFC. Likewise, the additional medical information may also

change the credibility assessment, since the ALJ discounted Plaintiff’s statements of pain based

in part on her treatment and the reports of her physicians’ medical findings. See SSR 96-7p,

1996 WL 374186 (Jul. 2, 1996) (stating that to determine credibility, the ALJ must consider the

record as a whole, including objective medical evidence, the claimant’s statement about

symptoms, any statements or other information provided by treating or examining physicians and

other persons about the conditions and how they affect the claimant, and any other relevant

evidence). This matter is being remanded for consideration of the new, material evidence and

thorough evaluation of the Plaintiff’s claim. See, e.g., Rodehan-Hendress v. Colvin, No.

4:14CV17, 2015 WL 773049, at *8 (N.D. Ind. Feb. 24, 2015) (“Thus, it appears that the Appeals

Council failed to properly evaluate the new evidence, or, if it did evaluate the new evidence, it

failed to issue a decision discussing the evidence. For this reason, the court will now remand the

entire case to the ALJ so that all of the evidence may be considered anew.”); Marble v. Colvin,

No. 12 C 3035, 2013 WL 6513788, at *2 (N.D. Ill. Dec. 9, 2013) (“[W]e find that the new

evidence must be evaluated by the Commissioner on remand and that it would be unproductive

at this point to further analyze plaintiff’s second argument regarding the adequacy of the ALJ’s

decision, which did not consider this evidence.”)

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CONCLUSION

For the foregoing reasons, the Court hereby GRANTS the relief requested in Plaintiff’s

Brief in Support of Motion for Summary Judgment [DE 20] and REMANDS this matter for

further proceedings consistent with this opinion.

SO ORDERED this 21st day of August, 2015.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

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