Nary Kheng v. MICHAEL J. ASTRUE, Commissioner of Social Security

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. 09‐2722
NARY KHENG,
Plaintiff‐Appellant,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant‐Appellee.
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 governmentʹs petition for panel rehearing in this case (which
was consolidated with No. 09–2270), 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 ʺthe admin‐
istrative law judge should have determined whether the plaintiffʹs 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 2004ʺ 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,

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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, 666–67
(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 plaintiffʹs 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.

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