United States District Court, C.D. Illinois, Peoria Division
ORDER & OPINION
BILLY MCDADE, UNITED STATES SENIOR DISTRICT JUDGE
matter is before the Court on Plaintiff's Motion for
Summary Judgment (Doc. 8) and Defendant's Motion for
Summary Affirmance (Doc. 14). Plaintiff opted not to, or
failed to, file a reply brief within 21 days of
Defendant's motion. This matter is therefore ripe
pursuant to Local Rule 8.1(E). For the reasons stated herein,
Plaintiff's Motion (Doc. 8) is GRANTED and
Defendant's Motion (Doc. 14) is DENIED.
Lynn Gruenwald was diagnosed with chronic lymphocytic
leukemia in September 2009. She underwent chemotherapy in
2011 which caused her leukemia to go into remission; it was
in remission for the remaining time period covered by the
record. Plaintiff worked as a hospital compliance officer
until 2009, when she became the Director of Compliance at a
different hospital. However, she was fired from that position
on September 26, 2014.
2015, Plaintiff applied for disability insurance benefits,
alleging an onset date of September 27, 2014. She claimed the
disability was due to chronic lymphocytic leukemia, chronic
fatigue, anxiety, depression, ADD, and pain and swelling in
her left calf-the latter conditions were partially, but not
entirely, alleged to be secondary effects of Plaintiff's
cancer or chemotherapy treatment. Her application was denied
both initially and on reconsideration. Plaintiff requested a
hearing which was held on September 12, 2017, before
Administrative Law Judge Kathleen Kadlec, who subsequently
denied benefits in a decision dated January 4, 2018. In
February 2018, Plaintiff underwent neuropsychological testing
and evaluation. Then, in May 2018, she requested review of
ALJ Kadlec's decision; the review was denied October 29,
2018. On December 17, 2018, Plaintiff filed this instant
review of final decisions of the commissioner of social
security are governed by 42 U.S.C. § 405(g). An
ALJ's final decision must be upheld “if the correct
legal standards were applied and [it is] supported with
substantial evidence.” Burmester v. Berryhill,
920 F.3d 507, 510 (7th Cir. 2019). Substantial evidence means
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir.
2019) (citations omitted). Courts do not independently weigh
the evidence or substitute their judgment for that of the
ALJ; consequently, the ALJ's decision will be affirmed
even if reasonable minds might differ on the ALJ's
factual determination. L.D.R. ex rel. Wagner v.
Berryhill, 920 F.3d 1146, 1152 (7th Cir. 2019).
argues ALJ Kradec erred in (1) assigning limited or little
weight to the examinations of state psychologists and
Plaintiff's therapist; (2) drawing a negative credibility
inference inconsistent with the record; (3) failing to
address off-task time and absences; and (4) utilizing an
inadequate residual functional capacity assessment (RFC) and
not assessing the medical vocational framework properly.
(Doc. 9 at 10-20). Additionally, she argues the Appeals
Council improperly refused to remand the case to include the
February 2018 neuropsychological evaluations in the record.
(Doc. 9 at 13-15). Defendant argues the ALJ did not commit
any of these errors, but rather based her opinion on
substantial evidence in line with the applicable regulations
and the Appeals Council did not err because the
neuropsychological evaluations did not relate back to the
relevant time period. (Doc. 14-1 at 2-22). The Court finds
the Appeals Council erred in failing to remand in light of
the neuropsychological evaluation, and therefore does not
reach the other arguments.
parties agree, for remand to be appropriate, newly submitted
evidence must relate to the period “on or before the
date of the administrative law judge hearing decision.”
20 C.F.R. 404.970(c); (Docs. 9 at 14, 14-1 at 19). The
Appeals Council found the report here did not so relate and
on that ground alone refused to accept it. (R. at
Plaintiff urges that her case is analogous to Farrell v.
Astrue, 692 F.3d 767 (7th Cir. 2012). (Doc. 9 at 14). In
that case, the plaintiff's physicians had suspected
fibromyalgia but not performed clinical testing resulting in
a diagnosis, leading the ALJ to deny benefits. Id.
at 769-70. The plaintiff underwent clinical testing and
received a definite diagnosis of fibromyalgia, but the
Appeals Council did not accept the new evidence and diagnosis
but instead summarily denied her petition. Id. at
770. The Seventh Circuit held that because the diagnosis
built “on the allusions to possible fibromyalgia”
in previous reports it related to the period on or before the
administrative law judge hearing decision. Id. at
case appears to be on all fours with Farrell. In
Farrell, the diagnosis was confirmed in December
2008, a month after the ALJ hearing decision in November
2008, id.; here the clinical testing occurred in
February 2018, a month after the ALJ hearing decision in
January 2018. As in Farrell, medical professionals
had suspected the cognitive difficulties Plaintiff complained
of during the relevant time period and suggested testing.
(See Doc. 14-1 (construing Plaintiff obtaining the
testing as “Plaintiff finally sought the
neuropsychological testing her psychiatrist initially brought
up in 2016.”)). Just as the ALJ in Farrell
“unequivocally rest[ed] in part on the determination
that” no fibromyalgia diagnosis had been confirmed,
Farrell, 692 F.3d at 771, here the ALJ's
decision clearly rested on a lack of “sufficient
objective medical evidence . . . shown by medically
acceptable clinical and laboratory diagnostic
techniques.” (R. at 48). Therefore, again parallel to
Farrell, the evidentiary gap upon which the ALJ
decision relied was filled in by the subsequent evidence.
does not address Farrell or give the Court any way
to distinguish it. Therefore, the Court finds it is bound by
Seventh Circuit precedent to determine the February 2018
neuropsychological testing relates to the period on or before
the ALJ decision in January 2018.
argues that nonetheless the case should not be remanded
because Plaintiff failed to show prejudice. The argument is
that substantial evidence supported the ALJ's decision;
some of the neuropsychological testing indicated Plaintiff
had average functioning; and the testing does “support
the reliability of the complaints up to four years
earlier.” (Doc. 14-1 at 22). The Court cannot agree.
The ALJ's decision clearly states the lack of
neuropsychological testing was key to the weight given to
Plaintiff's alleged memory and cognitive difficulties.
(R. 48, 50). Assuming, arguendo, substantial
evidence supported the ALJ's decision, that does not make
remand inappropriate in light of new evidence which appears
to undercut an important plank of the ALJ's reasoning.
the testing had mixed results does not make remand
inappropriate either. By filling in the gap the ALJ perceived
in the record, Plaintiff has shown a reasonable probability
the ALJ might find ...