UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MARY C.,

Plaintiff,

v.

MARTIN O’MALLEY,

COMMISSIONER OF SOCIAL SECURITY,

1

Defendant.

No. 20 CV 3861

Magistrate Judge McShain

MEMORANDUM OPINION AND ORDER

Plaintiff Mary C. brings this action for judicial review of the Social Security 

Administration’s (SSA) decision denying her application for benefits. For the 

following reasons, plaintiff’s request to reverse and remand the SSA’s decision [14]

2

is granted, defendant’s motion for summary judgment [18] is denied, and this case is 

remanded to the agency for further administrative proceedings. 42 U.S.C. § 405(g).

Background

A. Procedural Background

On August 16, 2017, plaintiff filed a Title II application for a period of disability 

and disability insurance benefits and a Title XVI application for supplemental 

security income. [13-1] 14; [13-2] 261–69. In both applications, plaintiff alleged a 

disability onset date of April 15, 2017, based on the following alleged impairments: 

achondroplasia dwarfism, PTSD, depression, panic attacks, arthritis, chronic pain, 

chronic fatigue, and a floating right eye. [13-1] 119, 131, 145, 159. Plaintiff’s claims 

were denied initially on December 1, 2017, and upon reconsideration on March 22, 

2018. [13-2] 178, 189.

Plaintiff requested a hearing, which was held before an administrative law 

judge (ALJ) on March 29, 2019. [13-1] 14, 67–117. In a decision dated April 19, 2019, 

the ALJ found that plaintiff was not disabled and denied her applications. [Id.] 14–

1 Martin J. O’Malley was sworn in as the Commissioner of Social Security Administration on December 

20, 2023.

2 Bracketed numbers refer to entries on the district court docket. Referenced page numbers are taken 

from the CM/ECF header placed at the top of filings, except for citations to the administrative record 

[13], which refer to the page numbers in the bottom right corner of each page.

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29. The Appeals Council denied review on May 4, 2020, rendering the ALJ’s decision 

the final decision of the Commissioner. [Id.] 1–4. See 20 C.F.R. §§ 404.955, 404.981; 

Gedatus v. Saul, 994 F.3d 893, 898 (7th Cir. 2021). Plaintiff timely appealed to this 

Court [1], and the Court has subject-matter jurisdiction to review the Commissioner’s 

decision under 42 U.S.C. § 405(g).3

B. The ALJ’s Decision

The ALJ reviewed plaintiff’s disability claim in accordance with the SSA’s fivestep sequential evaluation process. At step one, the ALJ found that plaintiff had not 

engaged in substantial gainful activity since April 15, 2017, the alleged onset date. 

[13-1] 17. At step two, the ALJ found that plaintiff had the following severe 

impairments: osteoarthritis due to achondroplasia, T-11 vertebral wedging, De 

Quervain’s tenosynovitis of the left wrist, and sphenoid sinusitis. [Id.] The ALJ found 

that plaintiff’s obesity, gastrointestinal reflux disease, leg length discrepancy, 

depressive disorder, and anxiety disorder were non-severe impairments. [Id.] 17–21. 

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 one of the 

listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. [Id.] 22. Before 

turning to step four, the ALJ determined that plaintiff has the residual functional 

capacity (RFC) to perform light work, except plaintiff can only occasionally crouch, 

kneel, crawl, and climb ramps or stairs; never climb ladders, ropes, or scaffolds; can 

frequently reach overhead bilaterally and frequently handle and finger with the left 

upper extremity; and must avoid concentrated exposure to extreme cold, extreme 

heat, wetness, humidity, excessive noise of more than moderate intensity, excessive 

vibration, environmental irritants, fumes, odors, dusts, gases, poorly ventilated 

areas, chemicals, using hazardous machinery, and unprotected heights. [Id.] 22–28. 

At step four, the ALJ concluded that plaintiff can perform her past relevant work as 

a telephone solicitor and customer service clerk, both as generally and actually 

performed. [Id.] 28. The ALJ found that this work does not require the performance 

of work-related activities precluded by plaintiff’s RFC. [Id.] The ALJ therefore ended 

the analysis and did not proceed to step five.

Legal Standard

To be entitled to benefits under the Social Security Act, a claimant must be 

“aged, blind, or disabled.” 42 U.S.C. § 1382(a)(1). The Act defines disability as the 

inability “to engage in any substantial gainful activity by reason of any medically 

determinable physical or mental impairment which can be expected to result in death 

or which has lasted or can be expected to last for a continuous period of not less than 

twelve months.” Id. at § 1382c(a)(3)(A). 

3 The parties have consented to the exercise of jurisdiction in this case by a United States Magistrate 

Judge [8]. 

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In evaluating a claim for disability benefits, ALJs follow a five-step, sequential 

process. Apke v. Saul, 817 F. App’x 252, 255 (7th Cir. 2020). The ALJ must evaluate

the following:

(1) whether the claimant is currently [un]employed; (2) whether the 

claimant has a severe impairment; (3) whether the claimant’s 

impairment meets or equals one of the impairments listed by the 

[Commissioner] ...; (4) whether the claimant can perform her past work; 

and (5) whether the claimant is capable of performing work in the 

national economy.

Fetting v. Kijakazi, 62 F.4th 332, 336 (7th Cir. 2023) (alterations in original) (quoting 

Clifford v. Apfel, 227 F.3d 863, 868 (7th Cir. 2000)). See also 20 C.F.R. § 404.1520.

“An affirmative answer leads either to the next step, or, on Steps 3 and 5, to a finding 

that the claimant is disabled. A negative answer at any point, other than Step 3, ends 

the inquiry and leads to a determination that a claimant is not disabled.” Clifford, 

227 F.3d at 868. The claimant bears the burden of proof at steps one through four. 

Fetting, 62 F.4th at 336 (citing Clifford, 227 F.3d at 868). “At step five, the burden 

shifts to the agency to show that ‘there are significant numbers of jobs in the national 

economy for someone with the claimant’s abilities and limitations.’” Id. at 336–37 

(quoting Ruenger v. Kijakazi, 23 F.4th 760, 761 (7th Cir. 2022) (citing 20 C.F.R. §

416.960(c)(2)).

When the Appeals Council denies a plaintiff’s request for review, the ALJ’s 

decision constitutes the final decision of the Commissioner. Gedatus, 994 F.3d at 898. 

Section 405(g) of Title 42 limits the court’s review; the district court must uphold the 

decision if the ALJ applied the correct legal standards and supported the decision 

with substantial evidence. 42 U.S.C. § 405(g); Jelinek v. Astrue, 662 F.3d 805, 811 

(7th Cir. 2011). Failure to follow the Social Security Administration’s rulings and 

regulations in making a determination requires reversal unless the error is harmless. 

See Prochaska v. Barnhart, 454 F.3d 731, 736–37 (7th Cir. 2006). A reviewing court 

does not “reweigh evidence, resolve conflicts, decide questions of credibility, or 

substitute [its] judgment for that of the Commissioner.” Burmester v. Berryhill, 920 

F.3d 507, 510 (7th Cir. 2019) (quoting Lopez ex rel. Lopez v. Barnhart, 336 F.3d 535, 

539 (7th Cir. 2003)). 

Discussion

Plaintiff argues that the ALJ’s decision should be reversed and remanded for 

three reasons. First, plaintiff asserts that the Appeals Council erred in its review of 

plaintiff’s case by declining to remand in light of new and material evidence because 

there was a reasonable probability that this evidence would change the outcome of 

the ALJ’s decision. [15] 9–11. Second, plaintiff asserts that the ALJ erred in his 

subjective symptom analysis and did not properly assess the intensity and limiting 

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effect of plaintiff’s symptoms. [Id.] 11–13. Third, plaintiff argues the ALJ erred in his 

assessment of plaintiff’s mental impairments when crafting the RFC by failing to 

incorporate limitations related to plaintiff’s panic attacks, stress, and concentration. 

[Id.] 13–15. 

For the reasons set forth below, the Court agrees that the Appeals Council 

erred when it ignored the additional evidence presented in the report of Dr. Peter 

Meier, Jr., in its decision to reject plaintiff’s appeal of the ALJ’s decision. Accordingly, 

the Court will remand this case for further administrative proceedings.4

A. The Court Has Jurisdiction to Review the Appeals Council’s 

Rejection of Additional Evidence

Plaintiff asserts that the Appeals Council erred by failing to remand this case 

to the ALJ in light of the “new and material evidence” provided by Dr. Meier’s October 

7, 2019 opinion. [15] 9. As plaintiff summarizes, Dr. Meier determined that due to the 

pain associated with plaintiff’s “widespread severe osteoarthritis with 

achondroplasia,” plaintiff “could combined stand/walk for less than 2 hours in a work 

day, she would require numerous unscheduled breaks, and she would be absent from 

work ‘4+ times per month.’” [Id.] (citing [13-1] 8–10). Plaintiff argues that there is a 

reasonable probability that Dr. Meier’s opinion would change the decision and that 

Dr. Meier’s opinion warrants “considerable weight” in light of his extensive 

specialized and longitudinal treating relationship with plaintiff. [Id.] 10–11. 

The Commissioner argues that the Appeals Council’s decision is not reviewable 

by this Court. [19] 11 (citing Barbara H. v. Saul, No. 19 CV 50011, 2020 WL 3469163, 

at *5 (N.D. Ill. June 25, 2020)). According to the Commissioner, longstanding Seventh 

Circuit precedent establishes that the Appeals Council’s judgment on whether 

additional evidence warrants review is “discretionary and unreviewable.” [Id.] 11–12 

(citing Perkins v. Chater, 107 F.3d 1290 (7th Cir. 1997); Eads v. Sec’y of the Dep’t of 

Health & Human Servs., 983 F.2d 815, 816 (7th Cir. 1993); Damato v. Sullivan, 945 

F.2d 982 (7th Cir. 1991)). Importantly, the Commissioner “concedes that the opinion 

from Dr. Meier was new, material, and related to the period on or before the date of 

the ALJ’s decision.” [Id.] 12. But the Commissioner asserts this “does not matter” 

because the Appeals Council “reviewed the substance of the opinion and concluded 

that it did ‘not show a reasonable probability that it would change the outcome of the 

decision.’” [Id.] (quoting [13-1] 1–2). According to the Commissioner, this “language 

is the death knell for plaintiff’s argument” because it “signals that the Appeals 

Council made a discretionary decision that is not subject to review.” [Id.] 

In her reply brief, plaintiff asserts that the Court does retain jurisdiction to 

review whether the Appeals Council made an error of law in finding the evidence 

nonqualifying under the regulation. [20] 2. Plaintiff provides no further argument on 

4 Because this issue is dispositive, the Court need not address plaintiff’s other arguments for remand. 

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reviewability but relies on and likens her case to Farrell v. Astrue: “In Farrell, the 

Court found the Appeals Council’s determination that Farrell’s evidence was 

nonqualifying to be erroneous because her doctor’s medical records included 

information new to the administrative record and the ALJ’s opinion rested on facts 

contradictory to that included in the new medical records.” [Id.] (citing 692 F.3d 767, 

771 (7th Cir. 2012)).

The Social Security regulation governing this case5 provides that the Appeals 

Council will review a case if it “receives additional evidence that is new, material, 

and relates to the period on or before the date of the hearing decision, and there is a 

reasonable probability that the additional evidence would change the outcome of the 

decision.” 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). See [13-1] 1–2 (“We receive 

additional evidence that you show is new, material, and relates to the period on or 

before the date of the hearing decision. You must also show there is a reasonable

probability that the additional evidence would change the outcome of the decision.”).

The Court’s ability to review the Appeals Council’s decision “is dependent on 

the grounds on which the Council declined to grant plenary review.” Stepp v. Colvin, 

795 F.3d 711, 722 (7th Cir. 2015).6 “If the Council determined [plaintiff’s] newly 

submitted evidence was, for whatever reason, not new and material, and therefore 

deemed the evidence ‘non-qualifying under the regulation,’ [courts] retain jurisdiction 

to review that conclusion for legal error.” Id. (citing Farrell, 692 F.3d at 771; Eads, 

983 F.2d at 817 (explaining that if the Council’s decision not to review a case “rests 

on a mistake of law, such as the determination ... that the evidence newly submitted 

to the Appeals Council was not material to the disability determination, the court can 

reverse”)). “However, if the Appeals Council deemed the evidence new, material, and 

time-relevant but denied plenary review of the ALJ’s decision based on its conclusion 

that the record—as supplemented—d[id] not demonstrate that the ALJ’s decision was 

‘contrary to the weight of the evidence’—the Council’s decision not to engage in 

plenary review is ‘discretionary and unreviewable.’” Id. (quoting Perkins, 107 F.3d at

1294).

In its review of the ALJ’s decision, the Appeals Council acknowledged that 

plaintiff submitted additional evidence, namely, the treating source statement from 

Dr. Meier dated October 7, 2019.

7 [13-1] 2. The Appeals Council stated that it found 

5 The regulation was amended effective January 17, 2017, and enforceable as of May 1, 2017. As 

plaintiff filed her claims on August 16, 2017, the revised regulation is applicable. 

6 Plaintiff’s argument does not constitute a request for remand under sentence six of 42 U.S.C. § 405(g) 

because evidence that was presented to the Appeals Council is not “new” for purposes of sentence six.

Stepp, 795 F.3d at726 n.8; DeGrazio v. Colvin, 558 F. App’x 649, 652 (7th Cir. 2014); Farrell, 692 F.3d 

at 770. 

7 The Appeals Council also acknowledged that plaintiff submitted records from Cathy “Rank,” PAC, 

dated July 15, 2019, as additional evidence, which the Appeals Council found did “not relate to the 

period at issue.” [13-1] 2. However, aside from briefly referring to findings from PAC Cathy “Renk” in 

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“this evidence [did] not show a reasonable probability that it would change the 

outcome of the decision” and thus “did not exhibit this evidence.” [Id.] This is all the 

Appeals Council wrote on the matter; the Appeals Council provided no additional 

explanation of its reasoning or discussion of the report’s contents. 

The Appeals Council makes use of this vague, boilerplate language quite 

frequently. See, e.g., Cavaricci J. v. Kijakazi, No. 19-cv-0162, 2022 WL 1016406, at 

*3 (N.D. Ill. Apr. 5, 2022); Barbara H., 2020 WL 3469163, at *5; Colleen C. o/b/o 

Daniel I. v. Saul, No. 18 C 1838, 2019 WL 3986077, at *2 (N.D. Ill. Aug. 23, 2019).

8

Such language can make it difficult to evaluate the Appeals Council’s reasoning in 

rejecting additional evidence. See Stepp, 795 F.3d at 725 (referring to the “minimal 

information provided by the Appeals Council” and its “abstruse signals”); Farrell, 692 

F.3d at 771 (noting the Appeals Council’s decision was “not as clear as it might be” 

and collecting cases reflecting the ambiguity of the Appeals Council’s decisions); 

Musonera v. Saul, 410 F. Supp. 3d 1055, 1059 (E.D. Wis. 2019) (“Further complicating 

matters, the AC frequently uses opaque language, which makes it difficult for the 

court to determine the basis for its decision.”). And as other courts have observed, at 

the time that cases like Stepp and Farrell were decided, the regulation did not include 

the “reasonable probability” provision, which has created some confusion and 

disagreement over whether such a finding is a legal determination that the evidence 

is “non-qualifying under the regulation” or a discretionary weighing of the evidence.

See, e.g., Rita Mary K. v. Kijakazi, 2022 WL 17583780, at *4 n.4 (N.D. Ill. Dec. 12, 

2022); Barbara H., 2020 WL 3469163, at *5; Davis v. Comm’r of Soc. Sec., No. 3:20-

CV-303, 2021 WL 2451908, at *2 (N.D. Ind. June 16, 2021); Musonera, 410 F. Supp. 

3d at 1059–61; Steven D. A. v. Comm’r of Soc. Sec., No. 17-cv-819, 2018 WL 3438856, 

at *6–7 (S.D. Ill. July 17, 2018). See also [19] 13 n.6 (Commissioner’s brief pointing 

out that the Agency revised the regulation in 2017 and earlier decisions “such as 

Stepp address the rule when it had slightly different language”). A legal 

determination of materiality is reviewable by this Court; a discretionary weighing of 

the evidence is not. Stepp, 795 F.3d at 722. 

Plaintiff argues that cases discussing the previous version of § 404.970 “appear 

to still be applicable under the current version of the regulation.” [20] 2 (quoting 

Steven D. A., 2018 WL 3438856, at *7). “The new regulation does not make a 

substantive change, but simply incorporates the Seventh Circuit’s understanding of 

her statement of facts, [13-1] 5–6, plaintiff does not challenge the Appeals Council’s rejection of this 

evidence. 

8 See also Lisa F. v. Comm’r of Soc. Sec., No. 4:21-cv-04005, 2022 WL 20689734, at *3 (C.D. Ill. Sept. 

15, 2022); Davis v. Comm’r of Soc. Sec., No. 3:20-CV-303, 2021 WL 2451908, at *2 (N.D. Ind. June 16, 

2021); Tina C. v. Saul, No. 3:20-cv-308, 2021 WL 1851655, at *4 (N.D. Ind. May 10, 2021); Musonera 

v. Saul, 410 F.Supp.3d 1055, 1058 (E.D. Wis. 2019); Jandt v. Saul, No. 18-C-737, 2019 WL 4464763, 

at *5 (E.D. Wis. Sept. 18, 2019); Teresa F. v. Saul, No. 1:18-cv-01967, 2019 WL 2949910, at *6 (S.D. 

Ind. July 9, 2019); Ford v. Berryhill, 17-cv-544-wmc, 2019 WL 11594537, at *6 (W.D. Wis. June 4, 

2019); Steven D. A. v. Comm’r of Soc. Sec., No. 17-cv-819, 2018 WL 3438856, at *7 (S.D. Ill. July 17, 

2018).

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materiality, i.e., the additional evidence would be likely to change the outcome of the 

decision.” Steven D. A., 2018 WL 3438856, at *7. In other words, “[t]he second clause 

(‘there is a reasonable probability that the additional evidence would change the 

outcome of the decision’) basically restates the definition of the term ‘material’ which 

appears in the first clause.” Musonera, 410 F. Supp. 3d at 1060. “As applied, there is 

no substantive difference between those separate requirements.” Teresa F. v. Saul, 

No. 1:18-cv-01967, 2019 WL 2949910, at *9 (S.D. Ind. July 9, 2019).

9

The majority of district courts in this circuit have concluded that the exact 

language used by the Appeals Council in the instant case “amounted to a rejection of 

the additional evidence as non-qualifying.” Cavaricci J., 2022 WL 1016406, at *3

(collecting cases). See also Lisa F., 2022 WL 20689734, at *3 (“In other words, the AC 

deemed that evidence non-qualifying under 20 C.F.R. § 404.970(a)(5), and so this 

Court may review that conclusion for legal error.”); Davis, 2021 WL 2451908, at *2, 5 

(“In light of the ambiguity and consistent with Stepp and Farrell, the Court interprets 

the denial notice as meaning that the Appeals Council found the additional evidence 

to be non-qualifying under the regulations, and as such the Appeals Council did not 

adequately assess whether it was sufficient to require a different result.”); Tina C. v. 

Saul, No. 3:20-CV-308, 2021 WL 1851655, at *4 (N.D. Ind. May 10, 2021) (“Here, the 

Council used the same boilerplate language that the Seventh Circuit found 

insufficient. . . . Therefore, this court will interpret the boilerplate language as a 

rejection of the additional evidence as non-qualifying under the regulation.”); Colleen 

C. o/b/o Daniel I., 2019 WL 3986077, at *2–3 (involving identical boilerplate 

language and reviewing whether the Appeals Council’s decision was erroneous); 

Potocki o/b/o Potocki v. Berryhill, No. 16 C 7264, 2017 WL 3995816, at *6–7 (N.D. 

Ill. Sept. 11, 2017) (reviewing the Appeals Council’s finding for legal error where the 

Appeals Council used boilerplate language and “did not evaluate or provide an 

analysis of the content of the new records”). 

Other judges have disagreed, finding that such language does not allow courts

to review the Appeals Council’s decision. Barbara H., 2020 WL 3469163, at *6; Jandt 

v. Saul, No. 18-C-737, 2019 WL 4464763, at *4–5 (E.D. Wis. Sept. 18, 2019). But the 

Court agrees with the majority of district courts in this circuit and concludes that the 

Appeals Council’s finding that additional evidence did “not show a reasonable 

probability that it would change the outcome of the decision” constitutes a rejection 

of the evidence as non-qualifying under the regulation. Therefore, the Court has 

jurisdiction to review the Appeals Council’s conclusion for legal error. 

9 See Lisa F., 2022 WL 20689734, at *3 (“Here, the AC clearly stated, albeit with different wording, 

that Dr. Pla’s and Dr. Jager’s narrative statements were not material.”); Musonera, 410 F. Supp. 3d 

at 1061 (“First, allowing review in close cases, such as this one, is consistent with the general principles 

set forth by the Seventh Circuit. Second, the language of the order at issue here, while ambiguous, 

supports review.”); Teresa F., 2019 WL 2949910, at *9 (“Accordingly, the Court declines to avoid—

based on a lack of jurisdiction—an evaluation of whether the newly submitted evidence would have 

had a reasonable probability of changing the outcome of the decision.”).

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B. The Appeals Council Erred in Rejecting Dr. Meier’s Report

As noted, the Commissioner relies only on the argument that the Court does 

not have discretion to review the Appeals Council’s decision, conceding that Dr. 

Meier’s opinion “was new, material, and related to the period on or before the date of 

the ALJ’s decision.” [19] 12. Now that the Court has concluded that the Appeals 

Council’s decision is reviewable, this concession could end the decision here. 

Nevertheless, in the interest of completeness, the Court provides a brief analysis of 

Dr. Meier’s report under the regulation. 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5).

The Court reviews the Appeals Council’s rejection of the additional evidence de novo. 

See Stepp, 795 F.3d at 725; Farrell, 692 F.3d at 771; Rita Mary K., 2022 WL 17583780, 

at *5; Tina C., 2021 WL 1851655, at *4. See also Perkins, 107 F.3d at 1294 (holding 

that “review of the question whether the [Appeals] Council made an error of law in 

applying this regulation is de novo”); Davis, 2021 WL 2451908, at *4 (“If the Appeals 

Council denies review because new evidence is ‘non-qualifying under the regulation,’

the Court conducts a de novo review of whether the evidence was relevant under the 

regulations.”). 

The Court finds that Dr. Meier’s report is clearly “new” within the meaning of 

the regulation. “Records are ‘new’ if they were ‘not in existence or available to the 

claimant at the time of the administrative proceeding.’” Potocki o/b/o Potocki, 2017 

WL 3995816, at *7 (quoting Stepp, 795 F.3d at 275). Dr. Meier’s “General Medical 

Source Statement” is dated October 7, 2019, which places it after the March 29, 2019 

hearing, [13-1] 67, and the ALJ’s April 19, 2019 decision, [id.] 29. Dr. Meier’s 

statement indicates that he last saw plaintiff on July 15, 2019, which also postdates 

the end of the adjudicative period. [Id.] 8.10

“Evidence is ‘material’ if ‘there is a reasonable probability that the ALJ would 

have reached a different conclusion had the evidence been considered.’” Cavaricci J., 

2022 WL 1016406, at *4 (quoting Similia v. Astrue, 573 F.3d 503, 522 (7th Cir. 2009)). 

See also Stepp, 795 F.3d at 275; Perkins, 107 F.3d at 1296. Plaintiff argues that Dr. 

Meier’s report is material because the ALJ’s decision rested on his conclusion that 

plaintiff could meet the demands of light work, which includes the ability to be on her 

feet for six hours11 of the workday. [15] 9 (citing [13-1] 22; SSR 96-8p). Plaintiff 

10 The Court notes that the regulation also states that the Appeals Council will only consider additional 

evidence if the claimant can “show good cause for not informing [the Social Security Administration] 

about or submitting the evidence” earlier. 20 C.F.R. §§ 404.970(b), 416.1470(b). Neither plaintiff nor 

the Commissioner provides any argument (or concession) on this point, and the Appeals Council did 

not mention it in its decision. Although there is not enough information in the record for the Court to 

determine whether plaintiff showed good cause for not submitting the evidence earlier, skipping this 

step would nevertheless constitute another error by the Appeals Council requiring remand. 

11 The ALJ’s decision, including the RFC assessment, did not specifically conclude that plaintiff is 

capable of being on her feet for six hours. Nor does a finding that an individual is capable of performing 

light work equate to the ability to be on his or her feet for six hours of an eight-hour workday. Rather, 

the regulations’ definition of “light work” includes jobs that “require[] a good deal of walking or 

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asserts there is a reasonable probability that Dr. Meier’s report would change the 

decision because Dr. Meier’s opinion that plaintiff’s osteoarthritis prevents her from 

standing/walking for even two hours in an eight-hour workday is in direct opposition 

to the ALJ’s RFC assessment. [Id.] 10. Plaintiff also argues that Dr. Meier’s opinion 

has a reasonable probability of changing the outcome of the ALJ’s decision given Dr. 

Meier’s “nuanced, longitudinal perspective” of plaintiff’s conditions and the 

“degenerative progression of her impairments.” [Id.] 10–11 (citing [13-1] 35; [13-3] 

715–17, 892–95, 888–89)). And plaintiff asserts that considering Dr. Meier’s report 

may change the ALJ’s conclusion regarding plaintiff’s reliability and her subjective 

complaints of disabling pain. [Id.] 11. 

Dr. Meier is an orthopedic surgeon who performed plaintiff’s hip replacement 

in April 2009. [15] 5 (citing [13-3] 888). Plaintiff returned to Dr. Meier beginning on 

February 21, 2018, for treatment for her osteoarthritis and associated pain. [Id.]; [13-

1] 8, 35–36; [13-3] 715–16, 888–95. More specifically, Dr. Meier’s report listed the 

following conditions for which he was treating plaintiff: achondroplasia, severe right 

hip osteoarthritis, severe right knee osteoarthritis, bilateral shoulder AC

osteoarthritis, and glenohumeral osteoarthritis. [Id.] In the subject report, Dr. Meier 

rated plaintiff’s prognosis “poor.” [Id.] Dr. Meier’s report estimated that plaintiff 

would be likely to miss work over four times per month due to symptoms related to 

her physical impairments. [Id.] 9. Dr. Meier also opined that in an eight-hour 

workday, plaintiff would require breaks or rest periods in addition to the standard 

two breaks and lunch break. [Id.] And Dr. Meier wrote that plaintiff would require 

“numerous” breaks. [Id.] Finally, in opining on plaintiff’s capacity for competitive 

employment on an eight-hour per day, five-day per week basis, Dr. Meier checked the 

option stating that “[s]ymptoms will interfere to the extent that the patient is unable 

to maintain persistence and pace to engage in competitive employment.” [Id.] 8. 

There is a reasonable probability that the ALJ would have reached a different 

conclusion if he had considered Dr. Meier’s report. 

The ALJ’s decision acknowledged that plaintiff’s “own treating providers 

expressed no opinion on [plaintiff’s] work related capacities[.]” [13-1] 27. The ALJ 

therefore considered and relied on the state agency consultants’ opinions limiting 

plaintiff to light work with certain additional limitations (including the ALJ’s added 

manipulative limitations). [Id.] But Dr. Meier’s report opined that plaintiff is 

incapable of light, or even sedentary, work. In stark contrast to the state agency 

consultants’ opinions, Dr. Meier’s report indicated that plaintiff’s symptoms render 

her unable to engage in competitive employment, unable to sit for more than four 

hours, and unable to stand/walk for more than two hours. [Id.] 8–9. This information 

in Dr. Meier’s report may also reasonably change the ALJ’s subjective symptom 

analysis, as the ALJ questioned plaintiff’s testimony and found that plaintiff’s 

standing[.]” 20 C.F.R. §§ 404.1567(b), 416.967(b). Dr. Meier’s opinion is nevertheless directly at odds 

with the ALJ’s finding that plaintiff is capable of performing light work.

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symptoms were not as disabling as she alleged. [Id.] 24–26. However, Dr. Meier’s 

report lends support to plaintiff’s testimony that her pain is constant and severe. 

Furthermore, the ALJ ended the analysis at step four after finding that 

plaintiff was capable of performing past relevant work as a telephone solicitor and 

customer service clerk, which the ALJ based in part on the VE’s hearing testimony. 

[13-1] 28. However, Dr. Meier’s opinions as to the number of days per month that 

plaintiff would be absent and the additional breaks she would require due to 

symptoms related to her physical impairments could reasonably impact this finding. 

As demonstrated by the line of questioning plaintiff’s attorney posed to the VE 

regarding off-task and absenteeism restrictions, presenting a hypothetical individual 

with the limitations Dr. Meier’s report includes would greatly change the VE’s 

testimony: 

Q. Okay. If an individual would be off task, say 16% of an 8-hour 

workday, would any job be available?

A. No. For the jobs I cited, 10% of the time is the maximum allowed 

to be off-task. There would be no jobs.

Q. Okay. So actually, even if a person was off-task 11% of an 8-hour 

workday, there would be no job available?

A. No jobs, counsel. 

Q. Okay. If an individual would have 2 unexcused absences a month 

on average, would any job be available?

A. No jobs would be available. For the jobs that I cited, 6 to 8 days 

per year is the maximum tolerated by employers for unexcused 

absences. That means coming in late, showing up but leaving 

early, calling off, or not showing up at all. 

[13-1] 116. 

The Court finds that Dr. Meier’s report was new and material and that there 

is a reasonable probability that this evidence could change the outcome of the ALJ’s 

decision. Accordingly, the Court concludes that the Appeals Council committed legal 

error by ignoring Dr. Meier’s report in its decision to reject plaintiff’s appeal. 

“But administrative error may be harmless: [courts] will not remand a case to 

the ALJ for further specification where . . . convinced that the ALJ will reach the 

same result.” McKinzey v. Astrue, 641 F.3d 884, 892 (7th Cir. 2011) (citing Spiva v. 

Astrue, 628 F.3d 346, 353 (7th Cir. 2010)). See Wilder v. Kijakazi, 22 F.4th 644, 654 

Case: 1:20-cv-03861 Document #: 24 Filed: 03/21/24 Page 10 of 12 PageID #:1046
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(7th Cir. 2022) (“We have repeatedly emphasized that ‘the harmless error standard 

applies to judicial review of administrative decisions, and we will not remand a case 

to the ALJ for further specification where we are convinced that the ALJ will reach 

the same result.’”) (quoting Butler v. Kijakazi, 4 F.4th 498, 504 (7th Cir. 2021)).12 “An 

error is harmless if, upon examination of the record, the court can ‘predict with great 

confidence what the result of remand will be.’” Wilder, 22 F.4th at 654 (quoting Butler, 

4 F.4th at 504). 

The Court cannot find that this error was harmless. Specifically, the Court 

cannot predict with great confidence the effect Dr. Meier’s opinions on plaintiff’s 

absenteeism and required breaks would have on the ALJ’s finding that plaintiff is 

capable of performing past relevant work, particularly in light of the VE’s testimony 

that such restrictions would preclude an individual from employment. Furthermore, 

the ALJ acknowledged that plaintiff’s “own treating providers expressed no opinion 

on [plaintiff’s] work related capacities” and thus relied on the opinions of the state 

agency medical consultants. [13-1] 27. The Court cannot assume or predict how the 

ALJ would evaluate additional medical opinion evidence and factor it into his RFC 

assessment, particularly where Dr. Meier’s opinion differs greatly from those of the 

state agency consultants. 

Given that the information in Dr. Meier’s report was not before the ALJ, that 

Dr. Meier’s opinions contradict the state agency consultants’ opinions, and that the 

VE testified that such levels of absenteeism and time off-task would preclude 

employment, the Court cannot “predict with great confidence what the result on 

remand” would be such that any error is harmless.

The Court remands the case to the ALJ to re-evaluate plaintiff’s RFC in light of 

the information presented in Dr. Meier’s October 7, 2019 report. 

12 In evaluating whether the Appeals Council erred, case law is inconsistent on applying the harmless 

error analysis. Some courts considered whether the error was harmless. Farrell, 692 F.3d at 772 (“This 

error was not harmless.”); Rita Mary K., 2022 WL 17583780, at *5 (“Moreover, the error was not 

harmless with regard to the Appeals Council’s rejection of the post-decision opinions.”); Musonera, 410 

F. Supp. 3d at 1065–66 (“I cannot assume that the ALJ would have reached the same result had he 

considered the additional evidence.”); Nobles v. Colvin, 15-cv-1-RLY-WGH, 2015 WL 13741211, at *5 

(S.D. Ind. Oct. 27, 2015). Other courts skipped this step. Stepp, 795 F.3d at 725–26; Lisa F., 2022 WL 

20689734, at *4; Cavaricci J., 2022 WL 1016406, at *4; Potocki o/b/o Potocki, 2017 WL 3995816, at * 

7–8.

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Conclusion

For the foregoing reasons, plaintiff’s request to reverse and remand the SSA’s 

decision [14] is granted and defendant’s motion for summary judgment [18] is denied. 

This case is remanded to the Social Security Administration for further proceedings 

consistent with this opinion. 

_____________________________________

HEATHER K. McSHAIN

United States Magistrate Judge

DATE: March 21, 2024

Case: 1:20-cv-03861 Document #: 24 Filed: 03/21/24 Page 12 of 12 PageID #:1048