Nary Kheng v. Michael Astrue

Filing 2

Opinion

United States Court of Appeals
For the Seventh Circuit Chicago, Illinois 60604
May 12, 2010 Before WILLIAM J. BAUER, Circuit Judge RICHARD A. POSNER, Circuit Judge MICHAEL S. KANNE, Circuit Judge

No. 092722 NARY KHENG, PlaintiffAppellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, DefendantAppellee.

Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 08 C 3786 Susan E. Cox, Magistrate Judge.

Upon consideration of the governments petition for panel rehearing in this case (which was consolidated with No. 09­2270), the slip opinion issued on March 12, 2010, is amended as follows. The sentence on page 10 of the slip opinion stating (citations omitted) that the admin istrative law judge should have determined whether the plaintiffs ailments are at present to tally disabling, and, if so, he should have retained a medical expert to estimate how grave her condition was in March 2004 is deleted and is replaced with the following sentence: The administrative law judge should either have determined whether the plaintiff's ailments are at present totally disabling, and, if so (see Sam v. Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam)), have retained a medical expert to estimate how grave her condition was in March 2004, the last date before her coverage expired,

Henderson ex rel. Henderson v. Apfel, 179 F.3d 507, 513 (7th Cir. 1999); Grebenick v. Chater, 121 F.3d 1193 (8th Cir. 1997); see also Eichstadt v. Astrue, 534 F.3d 663, 666­67 (7th Cir. 2008); Allord v. Barnhart, 455 F.3d 818, 822 (7th Cir. 2006); or the judge should have determined directly whether the plaintiff was totally disabled by then-- but in making that determination he must (as under the first approach) consider all relevant evidence, including the evidence regarding the plaintiffs condition at pre sent. See, e.g., id.; Anderson v. Sullivan, 925 F.2d 220, 222 (7th Cir. 1991); Ray v. Bowen, 843 F.2d 998, 1005 (7th Cir. 1988). The petition for rehearing is granted to the extent that the panel has made the above change, but is otherwise denied.