IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

EDWARD P.,1

Plaintiff,

v.

KILOLO KIJAKAZI, Acting

Commissioner of Social Security,2

Defendant.

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No. 20 C 2695

Magistrate Judge

Maria Valdez

MEMORANDUM OPINION AND ORDER

This action was brought under 42 U.S.C. § 405(g) to review the final decision 

of the Commissioner of Social Security denying Plaintiff Edward P.’s claim for

Disability Insurance Benefits (“DIB”). The parties have consented to the jurisdiction 

of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the 

reasons that follow, Plaintiff’s motion to reverse or remand the Commissioner’s 

decision [Doc. No. 18] is granted in part and denied in part, and the Commissioner’s 

cross-motion for summary judgment [Doc. No. 25] is denied.

1

 In accordance with Internal Operating Procedure 22 – Privacy in Social Security 

Opinions, the Court refers to Plaintiff only by his first name and the first initial of his last 

name.

2

 Kilolo Kijakazi has been substituted for her predecessor pursuant to Federal Rule of Civil 

Procedure 25(d).

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BACKGROUND

I. PROCEDURAL HISTORY

On September 22, 2015, Plaintiff filed a claim for DIB, alleging disability 

since September 9, 2014. The claim was denied initially and upon reconsideration, 

after which he timely requested a hearing before an Administrative Law Judge 

(“ALJ”). After a hearing, the ALJ denied Plaintiff’s claim for benefits. On April 5, 

2019, as discussed further below, the Social Security Administration Appeals 

Council granted Plaintiff’s request for review under the additional evidence 

provision of the Social Security Regulations.

A second hearing was held on August 16, 2019. Plaintiff personally appeared 

and testified at the hearing and was represented by counsel. A vocational expert 

(“VE”) also testified. On September 12, 2019, the ALJ again denied Plaintiff’s claim

for benefits, finding him not disabled under the Social Security Act. The Appeals 

Council then denied Plaintiff’s request for review, leaving the ALJ’s September 12, 

2019 decision as the final decision of the Commissioner and, therefore, reviewable 

by the District Court under 42 U.S.C. § 405(g). See Haynes v. Barnhart, 416 F.3d 

621, 626 (7th Cir. 2005).

II. ALJ DECISION

Plaintiff’s claim was analyzed in accordance with the five-step sequential 

evaluation process established under the Social Security Act. See 20 C.F.R. § 

404.1520(a)(4). The ALJ found at step one that Plaintiff had not engaged in 

substantial gainful activity since his alleged onset date of September 9. 2014. At 

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step two, the ALJ concluded that Plaintiff had the following severe impairments:

status-post ischemic stroke with headaches; status-post right knee replacement; 

paroxysmal atrial fibrillation/atrial septal defect; emphysema; and lumbar 

degenerative disc disease. The ALJ concluded at step three that Plaintiff’s

impairments, alone or in combination, do not meet or medically equal a Listing.

Before step four, the ALJ determined that Plaintiff retained the residual

functional capacity (“RFC”) to perform medium work with the following additional 

limitations: can lift/carry 50 pounds occasionally and 25 pounds frequently; can 

push/pull as much as lift/carry; can sit for 6 hours, stand for 6 hours, and walk for 6 

hours; can frequently operate foot controls with the right foot and frequently 

operate hand controls with the right hand; can frequently handle items with the 

right hand; can occasionally climb ramps and stairs, but never climb ladders, ropes, 

or scaffolds; can occasionally stoop, kneel, crouch, and crawl; can never work at 

unprotected heights; can occasionally work with moving mechanical parts; can 

occasionally operate a motor vehicle; can occasionally work in environments of 

humidity and wetness, and occasionally in vibration; and is able to perform simple, 

routine repetitive tasks with simple work-related decisions.

At step four, the ALJ concluded that Plaintiff would be unable to perform any

past relevant work. At step five, based upon the VE’s testimony and Plaintiff’s age, 

education, work experience, and RFC, the ALJ found that Plaintiff can perform jobs 

existing in significant numbers in the national economy, leading to a finding that he

is not disabled under the Social Security Act.

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DISCUSSION

I. ALJ LEGAL STANDARD

Under the Social Security Act, a person is disabled if she has an “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.” 42 U.S.C. § 423(d)(1)(a). In order to determine whether a plaintiff is 

disabled, the ALJ considers the following five questions in order: (1) Is the plaintiff

presently unemployed? (2) Does the plaintiff have a severe impairment? (3) Does 

the impairment meet or medically equal one of a list of specific impairments 

enumerated in the regulations? (4) Is the plaintiff unable to perform her former 

occupation? and (5) Is the plaintiff unable to perform any other work? 20 C.F.R. § 

416.920(a)(4). 

An affirmative answer at either step three or step five leads to a finding that 

the plaintiff is disabled. Young v. Sec’y of Health & Human Servs., 957 F.2d 386, 

389 (7th Cir. 1992). A negative answer at any step, other than at step three, 

precludes a finding of disability. Id. The plaintiff bears the burden of proof at steps 

one to four. Id. Once the plaintiff shows an inability to perform past work, the 

burden then shifts to the Commissioner to show the plaintiff’s ability to engage in 

other work existing in significant numbers in the national economy. Id. 

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II. JUDICIAL REVIEW

Section 405(g) provides in relevant part that “[t]he findings of the 

Commissioner of Social Security as to any fact, if supported by substantial evidence, 

shall be conclusive.” 42 U.S.C. § 405(g). Judicial review of the ALJ’s decision is thus 

limited to determining whether the ALJ’s findings are supported by substantial 

evidence or based upon legal error. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 

2000); Stevenson v. Chater, 105 F.3d 1151, 1153 (7th Cir. 1997). Substantial 

evidence is “such relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); Skinner v. 

Astrue, 478 F.3d 836, 841 (7th Cir. 2007). An ALJ’s decision should be affirmed even 

in the absence of overwhelming evidence in support: “whatever the meaning of 

‘substantial’ in other contexts, the threshold for such evidentiary sufficiency is not 

high. Substantial evidence is . . . ‘more than a mere scintilla.’ . . . It means – and 

means only – ‘such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, (2019)

(citations omitted). This Court may not substitute its judgment for that of the 

Commissioner by reevaluating facts, reweighing evidence, resolving conflicts in 

evidence, or deciding questions of credibility. Skinner, 478 F.3d at 841; see also 

Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008) (holding that the ALJ’s decision 

must be affirmed even if “‘reasonable minds could differ’” as long as “the decision is 

adequately supported”) (citation omitted).

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However, even under this relatively lenient standard, an ALJ is not absolved 

of her duty to support the decision with record evidence. See Meuser v. Colvin, 838 

F.3d 905, 910 (7th Cir. 2016) (“We will uphold an ALJ’s decision if it is supported by 

substantial evidence, but that standard is not satisfied unless the ALJ has 

adequately supported his conclusions.”). The ALJ is not required to address “every 

piece of evidence or testimony in the record, [but] the ALJ’s analysis must provide 

some glimpse into the reasoning behind her decision to deny benefits.” Zurawski v. 

Halter, 245 F.3d 881, 889 (7th Cir. 2001). In cases where the ALJ denies benefits to 

a plaintiff, “he must build an accurate and logical bridge from the evidence to his 

conclusion.” Clifford, 227 F.3d at 872. The ALJ must at least minimally articulate 

the “analysis of the evidence with enough detail and clarity to permit meaningful 

appellate review.” Briscoe ex rel. Taylor v. Barnhart, 425 F.3d 345, 351 (7th Cir. 

2005); Murphy v. Astrue, 496 F.3d 630, 634 (7th Cir. 2007) (“An ALJ has a duty to 

fully develop the record before drawing any conclusions . . . and must adequately 

articulate his analysis so that we can follow his reasoning . . . .”); see Boiles v. 

Barnhart, 395 F.3d 421, 425 (7th Cir. 2005). 

Where conflicting evidence would allow reasonable minds to differ, the 

responsibility for determining whether a plaintiff is disabled falls upon the 

Commissioner, not the court. See Herr v. Sullivan, 912 F.2d 178, 181 (7th Cir. 

1990). However, an ALJ may not “select and discuss only that evidence that favors 

his ultimate conclusion,” but must instead consider all relevant evidence. Herron v. 

Shalala, 19 F.3d 329, 333 (7th Cir. 1994). 

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III. ANALYSIS

Plaintiff argues that the ALJ’s decision was in error for several reasons, 

including: (1) an updated medical evidence review was necessary in light of 

additional evidence; (2) the ALJ’s RFC assessment was not supported by any 

medical opinions; and (3) the ALJ inadequately assessed credibility and Plaintiff’s 

subjective symptoms.

Pertinent to Plaintiff’s first argument, the Seventh Circuit has stated 

repeatedly that an ALJ may not “play[] doctor and interpret new and potentially 

decisive medical evidence without medical scrutiny.” McHenry v. Berryhill, 911 F.3d 

866, 871 (7th Cir. 2018) (internal quotations omitted). Consistent with that rule, 

“[a]n ALJ should not rely on an outdated assessment if later evidence containing 

new, significant medical diagnoses reasonably could have changed the reviewing 

physician’s opinion.” Moreno v. Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) 

(citations omitted). With resect to Plaintiff’s argument that an updated medical 

assessment was necessary in light of additional evidence, the issue comes down to 

whether new information “changed the picture” to an extent that the ALJ erred by 

continuing to rely on an outdated assessment by a non-examining physician and by 

evaluating herself the significance of the new medical information. See Stage v. 

Colvin, 812 F.3d 1121, 1125 (7th Cir. 2016); see also Massaglia v. Saul, 805 F. App’x 

406, 410 (7th Cir. 2020) (“An ALJ may rely on a reviewing physician’s assessment 

unless later evidence containing new, significant medical diagnoses ‘changed the 

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picture so much’ that it reasonably could have changed the reviewing physician’s 

opinion.”) (citation omitted).

In this case, following the ALJ’s first decision denying benefits, the Appeals 

Council remanded the matter based on new and material evidence. In doing so, the 

Appeals Council stated as follows:

The Appeals Council received additional evidence. This evidence is new, 

material, and relates to the period at issue. There is a reasonable 

probability that the additional evidence would change the outcome of 

the decision. The Appeals Council received reports from Pamela Cook, 

Psy.D., dated March 8, 2018, and September 17, 2018, with limitations 

that are more restrictive than those provided in her prior exam dated 

July 24, 2017. The March 8, 2018, report is based on testing from July 

24, 2017 (Exhibit 15F). The reports indicate that the stated limitations 

relate back to the claimant’s stroke in September 2015. Further 

consideration of this evidence is warranted.

(R. 221.) So, the Appeals Council determined that the referenced additional 

evidence “changed the picture” so much that the ALJ would need to render a new 

decision. Further, the Appeals Council believed that the additional evidence would

likely change the outcome of the ALJ’s decision. Nonetheless, the ALJ did not seek a 

new medical assessment by a state agency consultant.

Rather, it appears that the last review by state agency consultants occurred 

in May 2016. (See R. 92.) Since that time, substantial additional medical evidence 

has been amassed, including, but not limited to, the reports of Dr. Cook referenced 

by the Appeals Council. The ALJ took it upon herself to assess that medical 

evidence without the aid of medical experts. (See, e.g., id. at 84 (“While the 

undersigned notes vague reference to ‘subcortical dementia, likely of the vascular 

type’ by Dr. Cook in July 2017, this is not specifically diagnosed and there is no 

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indication for subsequent reference or diagnosis of same in the record.”); id. at 87 

(“[C]laimant was described as presenting with a slowed gait and unsteady balance 

upon standing during neuropsychological testing on July 24, 2017 . . . and a 

November 8, 2017 general clinic report references musculoskeletal review of 

systems positive for ‘gait problem.’”); id. at 88-89 (“Dr. Cook concluded [in June 

2016] that claimant’s profile appeared to be consistent with a subcortical dementia, 

of the vascular type.”); id. at 89 (“Upon examination [in January 2017], there was 

some asymmetry of his face, with narrowed palpebral fissure on the right side.”); id.

at 90 (“Noteworthy, related imaging just 4 months prior, a CT angiogram of head 

and neck on May 22, 2018, was normal without evidence for significant stenosis, 

aneurysm, or vascular malformation.”); id. at 91 (“Regarding paroxysmal atrial 

fibrillation/atrial septic defect, a December 10, 2018 clinic report describes this as 

‘new onset’ and claimant was started on Eliquis and metoprolol.”).)

For his part, Plaintiff points to considerable evidence that came to light after 

the state agency consultants rendered their opinions: a June 2016 

neuropsychological evaluation by Dr. Cook showing Plaintiff’s Full Scale IQ is 76 

and he has weakness in delayed verbal learning, delayed visual memory, semantic 

and verbal fluency, bilateral fine motor movements, attention, auditory and visual 

perception, shifting attention, and abstract concept formation (Pl.’s Reply at 2, 

citing R. 931-33); clinic notes from treating neurologist Dr. Daniel Orozco on 

January 9, 2017 demonstrating that Plaintiff has headaches and falls on the stairs 

at home (id. at 964); a May 9, 2017 clinic note by Dr. Orozco revealing residual 

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cognitive symptoms and trouble climbing stairs (id. at 966); a neuropsychological 

exam by Dr. Cook in July 2017 showing decline in verbal memory and bilateral fine 

motor movements (id. at 937-39); a normal CT angiogram in May 2018 

demonstrating severe degenerative disc disease of the cervical spine (id. at 1004); 

testing by Dr. Cook in September 2018 revealing a significant decline in nonverbal 

reasoning (id. at 974-79); an ECG from December 2018 showing paroxysmal atrial 

fibrillation (id. at 983); and a July 8, 2019 neurological exam indicating Plaintiff 

had a wide-based gait, absent ankle clonus reflexes, and ataxia.3

Ultimately, the Court agrees with Plaintiff that substantial medical evidence 

post-dating the state agency consultants’ assessments changed the picture to a 

degree that remand is necessary so an updated medical expert review can be 

undertaken. See Stage, 812 F.3d at 1125 (“Dr. Oni’s evaluation contained

significant, new, and potentially decisive findings – the need for a hip replacement 

and evidence of further spinal degeneration. They could reasonably change the 

reviewing physician’s opinions. Instead of consulting a physician, though, the ALJ 

evaluated the MRIs and recommendation himself.”); Kemplen v. Saul, 844 F. App’x 

883, 887 (7th Cir. 2021) (“Although a close question, we conclude that the ALJ erred 

by not soliciting an updated medical opinion interpreting Kemplen’s July and 

September 2017 X-rays.”); Nichole M. S. v. Saul, No. 19 C 7798, 2021 U.S. Dist. 

LEXIS 26993, at *41 (N.D. Ill. Feb. 12, 2021) (“In sum, the ALJ erred in relying on 

3 Defendant argues that only “raw medical evidence” and not opinion evidence may warrant 

an updated medical assessment. (Def.’s Memo at 4.) The Court finds that argument 

unavailing. As pointed out by Plaintiff in rebuttal, Plaintiff cites to considerable raw 

medical evidence in addition to opinion evidence. 

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outdated opinions of the state agency psychological consultants and on his own lay 

interpretation of the subsequent mental health records. A remand is required so the 

ALJ can reevaluate Nichole’s mental RFC based upon opinion evidence from 

psychological experts who have considered the entire record.”).

Though the ALJ here gave the opinions of the state agency consultants little 

weight, the Court concludes that the ALJ could not properly assess (or give or not 

give weight to) any opinions of state agency consultants that were not based on a 

review of the additional medical evidence discussed herein. The ALJ stated that 

“[t]here are no related treatment records in the file as of or prior to the State 

Agency opinions to support the level of restriction indicated.” (R. 92.) That proves

the point, as the state agency consultants in this case did not have the benefit of 

reviewing the additional medical evidence in forming their opinions. On remand, 

the ALJ may decide to give more weight to medical opinions formed based on a 

review of the entire record. Cf. Carlota R.M. v. Saul, No. 18-cv-2873, 2019 U.S. Dist. 

LEXIS 125626, at *23 (N.D. Ill. July 29, 2019) (“[T]he ALJ erred by relying on the 

state agency physicians’ consultive opinions because evidence that became part of 

the record following those assessments could have changed the state agency doctors’ 

medical opinions. It follows that this was not a harmless error.”).

Based on its conclusion that remand is necessary for the above reasons, the 

Court need not explore in detail the remaining errors claimed by Plaintiff. The 

Court emphasizes that the Commissioner should not assume these issues were 

omitted from the opinion because no error was found. Indeed, the Court admonishes 

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the Commissioner that, on remand, special care should be taken to ensure that the 

ALJ’s RFC assessment is supported by medical opinion evidence to the extent 

necessary and Plaintiff’s subjective symptoms are properly evaluated.

CONCLUSION

For the foregoing reasons, Plaintiff’s motion to reverse or remand the 

Commissioner’s decision [Doc. No. 18] is granted in part and denied in part, and the 

Commissioner’s cross-motion for summary judgment [Doc. No. 25] is denied. The 

Court finds that this matter should be remanded to the Commissioner for further 

proceedings consistent with this Order. In keeping with this Order, an updated 

medical expert review must be undertaken before the ALJ renders a new decision.

SO ORDERED. ENTERED:

DATE: December 1, 2021 ___________________________

HON. MARIA VALDEZ

United States Magistrate Judge

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