DECISION AND ORDER

LYNN ADELMAN, District Judge.

An Administrative Law Judge ("ALJ") denied plaintiff Sandra Musonera's application for social security disability benefits. (Tr. at 252-62.) The ALJ determined that plaintiff suffered from a number of severe impairments, including degenerative disc disease, obesity, and hip dysplasia. However, he concluded that the record contained insufficient evidence that plaintiff's alleged fibromyalgia (see Tr. at 280, 459) constituted a medically determinable impairment (Tr. at 255).1 The ALJ then determined that plaintiff's allegations of disabling pain and other symptoms were inconsistent with the available medical and other evidence of record (Tr. at 258), and that she retained the ability to perform a range of sedentary work (Tr. at 257), consistent with her previous employment as a human resources assistant and collections clerk (Tr. at 260).

Plaintiff sought review by the Appeals Council ("AC"), submitting an article about fibromyalgia (Tr. at 314-26), additional medical records (Tr. at 15-248), and a medical source report from her treating physician indicating that she met the criteria for fibromyalgia (Tr. at 11-14.) The AC denied review, stating: "You submitted reasons that you disagree with the decision. We considered these reasons and exhibited them on the enclosed Order of the Appeals Council. We found that the reasons do not provide a basis for changing the Administrative Law Judge's decision." (Tr. at 1.) Regarding the additional evidence, the Council stated:

(Tr. at 2.) The Order and Exhibits List referenced plaintiff's request for review and her representative's supporting brief but not the additional evidence. (Tr. at 5-6.)

Plaintiff now seeks judicial review, arguing that the ALJ erred in evaluating her fibromyalgia, her statements regarding her symptoms, and the opinion evidence, including reports from Rene Gellings, PAC, her primary treatment provider, suggesting greater limitations. Plaintiff further argues that the AC erred in its consideration of the new medical evidence. Logically, it makes sense to start with plaintiff's final argument, for if the matter is remanded on that ground the agency will be required to reevaluate the existence and severity of plaintiff's fibromyalgia, the credibility of her statements regarding her pain and limitations, and the opinion evidence based on a fortified record (including a new treating source report).

I. REVIEW OF AC ORDERS

Ordinarily, when the AC denies review, the court evaluates the ALJ's decision as the final word of the Commissioner. E.g., Jozefyk v. Berryhill, 923 F.3d 492, 496 (7th Cir. 2019). If, however, the Council denies review despite the submission of additional evidence in support of the application, a claimant may be able to obtain judicial review of the denial, depending on the grounds upon which the Council declined review. See Stepp v. Colvin, 795 F.3d 711, 722 (7th Cir. 2015).

If the AC determined that the claimant's additional evidence was not "new and material," as required by the applicable regulation, see 20 C.F.R. § 404.970, the court retains jurisdiction to review that conclusion for legal error. Stepp, 795 F.3d at 722 (citing Farrell v. Astrue, 692 F.3d 767, 771 (7th Cir. 2012)). If, on the other hand, the AC deemed the evidence new, material, and time-relevant ("qualifying" under the regulation) but then denied review in the exercise of discretion based on its conclusion that the record—as supplemented—did not demonstrate the ALJ's decision was contrary to the weight of the evidence, that decision is unreviewable. Id. (citing Perkins v. Chater, 107 F.3d 1290, 1294 (7th Cir. 1997)).2

Drawing this distinction can be challenging. New evidence is "material" if there is a reasonable probability that the ALJ would have reached a different conclusion had the evidence been considered. Id. at 725 (citing Perkins, 107 F.3d at 1296); see also Nelson v. Bowen, 855 F.2d 503, 506 (7th Cir. 1988). "To evaluate that standard of materiality, the reviewing court must examine the newly submitted evidence and compare it with the ALJ's rationale for denying benefits." Teresa F. v. Saul, No. 1:18-cv-01967-JRS-MPB, 2019 WL 2949910 at *7, 2019 U.S. Dist. LEXIS 113380 at *21-22 (S.D. Ind. July 9, 2019). In some cases, the court may be able to make a materiality determination without weighing the evidence as would a front-line fact-finder. Id. at *7, 2019 U.S. Dist. LEXIS 113380 at *22. In Farrell, for instance, the ALJ in denying the claim determined "that `there is no evidence that [a fibromyalgia] diagnosis has been confirmed.'" 692 F.3d at 771. The court remanded where the new evidence—a report confirming the claimant's fibromyalgia diagnosis—filled "an evidentiary gap by providing exactly that confirmation." 692 F.3d at 771. Because the ALJ relied on "the absence of a diagnosis and the newly submitted evidence obliterated that rationale, the evidence was material." Teresa F., 2019 WL 2949910, at *7, 2019 U.S. Dist. LEXIS 113380, at *22. In other cases, however, "an evaluation of materiality can involve a rather extensive review of the evidence that includes a rigorous comparison of the newly submitted evidence and the existing evidence, which only falls short of weighing the evidence by not reaching any specific conclusion about the weight that should be given conflicting evidence." Id. at *8, 2019 U.S. Dist. LEXIS 113380 at *22-23 (citing Nelson, 855 F.2d at 507-08 (containing a lengthy discussion of the new evidence)).

Further complicating matters, the AC frequently uses opaque language, which makes it difficult for the court to determine the basis for its decision. See, e.g., Stepp, 795 F.3d at 725 (referring to the AC's "abstruse signals"); Farrell, 692 F.3d at 771 (collecting cases). In Farrell, for instance, the Council stated that it "considered. . . the additional evidence . . . [and] found that this information does not provide a basis for changing the Administrative Law Judge's decision." Id. The Seventh Circuit noted that this language "might indicate that the Appeals Council found the proffered new evidence to be immaterial, but on the other hand it might indicate that the Council accepted the evidence as material but found it insufficient to require a different result." Id.

Finally, the agency recently revised the applicable regulation, which now indicates the AC 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).3 At the time Stepp was decided, the regulation stated:

20 C.F.R. § 404.970(b) (1987); Steven S.A. v. Comm'r of Soc. Sec., No. 17-cv-819-CJP, 2018 WL 3438856 at *6, 2018 U.S. Dist. LEXIS 119178 at *15-16 (S.D. Ill. July 18, 2018); see Stepp, 795 F.3d at 721. As one judge recently noted:

Teresa F., 2019 WL 2949910, at *8, 2019 U.S. Dist. LEXIS 113380, at *25. In other words, to the extent § 404.970(a)(5) seeks to draw a distinction between a legal determination (in the first clause) and a discretionary one (in the second), the language is redundant. The second clause ("there is a reasonable probability that the additional evidence would change the out-come of the decision") basically restates the definition of the term "material" which appears in the first clause. If the Council says, as it did here, that the new "evidence does not show a reasonable probability that it would change the outcome of the decision," is this a legal determination of materiality or a discretionary weighing of the evidence?

District courts within this circuit have differed over whether review is available, under the revised regulation, when the AC uses such language in the denial order. Compare Colleen C. v. Saul, No. 18 C 1838, 2019 WL 3986077 at *2-3, 2019 U.S. Dist. LEXIS 143562 at *6-7 (N.D. Ill. Aug. 23, 2019) (interpreting this language to mean the AC rejected the new evidence as non-qualifying); and Ford v. Berryhill, No. 17-cv-544-wmc, 2019 U.S. Dist. LEXIS 170445, at *29 (W.D. Wis. June 4, 2019) (same); with Jandt v. Saul, No. 18-C-737, 2019 WL 4464763 at *5, 2019 U.S. Dist. LEXIS 158642 at *13 (E.D. Wis. Sept. 18, 2019) (finding denial using this language discretionary and unreviewable); see also Patricia Kay M. v. Comm'r of Soc. Sec., No. 19-cv-065-DGW, 2019 WL 3997087 at *5-6, 2019 U.S. Dist. LEXIS 143843 at *13-14 (S.D. Ill. Aug. 23, 2019) (finding the language ambiguous but declining review where the Council did not state it was rejecting the evidence under § 404.970(c)). In Teresa F., the court found:

2019 WL 2949910, at *9, 2019 U.S. Dist. LEXIS 113380, at *27.

II. DISCUSSION

I will reach the merits on the materiality issue in this case. 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. Third, given the nature of the new evidence, materiality review in this case will not require an extensive appraisal of the overall record.

A. General Principles of AC Review

The Seventh Circuit has suggested that courts "proceed with particular caution in analyzing whether the Appeals Council deemed [additional evidence] `new and material' as [a claimant's] ability to obtain review of this crucial evidence hinges solely on that distinction." Stepp, 795 F.3d at 722 n.3. This is so because, unlike some other circuits, which allow the district court to consider the additional evidence in reviewing the ALJ's decision, the Seventh Circuit holds that evidence the AC "deemed new and material but inadequate to require reversal must be excluded from the record before the district court in its review of the ALJ's decision." Id.; see also Eads v. Sec'y of Health & Human Servs., 983 F.2d 815, 817 (7th Cir. 1993) (noting that the correctness of the ALJ's "decision depends on the evidence that was before him," and he "cannot be faulted for having failed to weigh evidence never presented to him").

Further limiting a claimant's ability to obtain review of such materials, the Seventh Circuit has held that evidence submitted to the AC does not qualify as "new" for purposes of possible remand under 42 U.S.C. § 405(g), sentence six.4 Stepp, 795 F.3d at 726 n.8; see also DeGrazio v. Colvin, 558 Fed. Appx. 649, 652 (7th Cir. 2014) ("The evidence that the Commissioner characterized as `new' in her motion—the audiometric report that confirmed DeGrazio's hearing loss—was not new for purposes of sentence six because it already had been presented to the Appeals Council."). Thus, on a finding that the AC accepted the additional evidence as qualifying, the court could not review that evidence for purposes of a sentence four or a sentence six remand.5

Finally, the Seventh Circuit has suggested that ambiguous statements from the Council should be construed in favor of review. See Farrell, 692 F.3d at 771; see also McFadden v. Berryhill, No. 15-CV-1268, 2017 WL 5749777 at *5-6, 2017 U.S. Dist. LEXIS 217509 at *15 (E.D. Wis. Feb. 22, 2017), aff'd, 721 Fed. Appx. 501 (7th Cir. 2081). This is consistent with another important principle of judicial review—that neither the court nor the Commissioner's lawyers may fill in the gaps of an ambiguous decision. See, e.g., Steele v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002). While the AC is free to deny review without explaining its reasoning, the court should not absent explanation presume that the Council considered the evidence presented to it and dispense with its own review. See Stepp, 795 F.3d at 725 n.7 (reminding the Commissioner that, in all fairness to the party appealing the ALJ's decision, the AC should articulate its reasoning, and indicating that if it did so much of the confusion relating to the identification of evidence that the Council considered might be avoided).6

Significantly, a determination that the AC rejected the evidence as non-qualifying does not necessarily mean the claimant gets a remand. See, e.g., Teresa F., 2019 WL 2949910, at *9, 2019 U.S. Dist. LEXIS 113380, at *27-28 (finding that the AC did not err in finding the evidence non-material, as it was not substantially different from the evidence before the ALJ). It simply means that she receives judicial review of the materiality issue, with a chance at remand if the court finds the evidence sufficiently important.

B. The AC Order Here

As indicated, the AC rejected the article as "not material because it is not relevant to your claim for disability." (Tr. at 2). Regarding the new medical evidence, the AC stated that "this evidence does not show a reasonable probability that it would change the outcome of the decision." (Tr. at 2.)7 The use of different language for these two categories of evidence might suggest that the article was rejected as non-qualifying, while the treatment records and report were found qualifying but insufficiently weighty to warrant review as a discretionary matter. On the other hand, the language used regarding the medical evidence simply restates the Seventh Circuit's definition of the term "material"; it thus provides little help in discerning the basis for denial. Moreover, in both Stepp and Farrell the court construed similar language to permit review. Stepp, 795 F.3d at 721 ("The Appeals Council summarily denied Stepp's application for review, explaining that the `additional evidence' she presented `d[id] not provide a basis for changing the [ALJ]'s decision.'"); Farrell, 692 F.3d at 771 ("Here, the Appeals Council's decision says that it `considered . . . the additional evidence . . . [and] found that this information does not provide a basis for changing the Administrative Law Judge's decision.'").

Two omissions from the Council's order provide additional support for review. First, unlike in Perkins, where the AC specifically addressed the content and persuasiveness of the additional medical records, Stepp, 795 F.3d at 722-23, here the Council said nothing about the contents of the medical evidence. Second, the AC stated: "We did not exhibit this evidence." (Tr. at 2.) The agency's Hearings, Appeals, and Litigation Law ("HALLEX")8 manual indicates that when the Council finds the additional evidence to be "qualifying," it will exhibit that evidence; non-qualifying evidence, on the other hand, is not exhibited. See Stepp, 795 F.3d at 724 n.6; Brown, 2015 U.S. Dist. LEXIS 81093, at *37-38. This suggests that the additional evidence was rejected as non-qualifying in the present case.

C. The Nature of the New Evidence

Finally, there is little danger that reviewing the Council's order here will place the court in the position of front-line fact-finder. Indeed, this case is indistinguishable from Farrell. In that case, the Seventh Circuit stated:

692 F.3d at 771.

(Tr. at 255, internal record citations omitted.)9

The report from Dr. Wilson submitted to the Council fills the gaps identified by the ALJ. Dr. Wilson is a rheumatologist, a medical doctor and thus an "acceptable medical source" under the applicable regulation, see 20 C.F.R. § 404.1527 ("Evaluating opinion evidence for claims filed before March 27, 2017"),10 in the applicable specialty, see Sarchet, 78 F.3d at 307 ("Fibromyalgia is a rheumatic disease and the relevant specialist is a rheumatologist."). Dr. Wilson indicated that plaintiff meets the American College of Rheumatology criteria for fibromyalgia, with symptoms of multiple tender points, non-restorative sleep, chronic fatigue, morning stiffness, numbness and tingling, Sicca symptoms,11 and depression. (Tr. at 11.) Thus, as in Farrell, the report confirms the diagnosis that had merely been suggested in Dr. Wilson's records before the ALJ. (See Tr. at 577, 581, 609.)12 In the report, Dr. Wilson also endorsed significant limitations in walking, standing, sitting, and lifting (Tr. at 12-13), with "good" and "bad" days resulting in about two absences per month (Tr. at 14). A person with such limitations would almost certainly be unable to perform the jobs upon which the ALJ relied in denying this claim. (See Tr. at 260-62, 308.) Finally, Dr. Wilson indicated that these symptoms and limitations applied since November 2013 (Tr. at 14), prior to the ALJ's decision issued in January 2018 (Tr. at 249), indeed, prior to the alleged onset of disability in June 2015 (Tr. at 254, 414).13

While plaintiff primarily relies on the report from Dr. Wilson, the additional treatment records contain notes from Ms. Gellings (e.g., Tr. at 109-11, 11/10/16 note), which could change the ALJ's analysis of her opinions (see Tr. at 260, noting that the most recent treatment notes from Gellings in the record were from 2015).14 The medical record before the ALJ was rather sparse as these cases go. (Tr. at 554-661.) It appears that the treating medical facility failed to transmit, on plaintiff's pre-hearing request, more than 200 pages of records. (Tr. at 15-248, 550-51.) The ALJ in discounting plaintiff's statements noted a significant gap in her treatment. (Tr. at 258.) That gap, too, may be filled by the additional evidence.

The Commissioner defends the AC's materiality determination on two grounds. First, the Commissioner notes that a diagnosis alone says nothing about the severity of a condition, and that the existence of a fibromyalgia diagnosis here does not mean the condition caused symptoms that affected plaintiff's ability to work. (Def.'s Br. at 17.) As indicated above, however, Dr. Wilson included in her report significant limitations based on the fibromyalgia diagnosis. Fibromyalgia may not usually be disabling, see Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998), but that does not mean it may be overlooked.

Second, the Commissioner notes that the ALJ considered the evidence in the record relating to plaintiff's pain complaints and associated limitations, which he contrasted with exam findings of full strength, mostly normal gait, and normal coordination, and plaintiff's conservative course of treatment. (Tr. at 257-59.) The Commissioner contends that consideration of Dr. Wilson's post-hearing opinion attributing plaintiff's symptoms to fibromyalgia, rather than other impairments, would not change the outcome.15 (Def.'s Br. at 18.) However, the ALJ based this evaluation on a truncated record. Moreover, if on remand the ALJ finds that plaintiff's fibromyalgia is a severe medically determinable impairment, it may change his view of plaintiff's statements regarding her subjective symptoms and resulting limitations. See Brown v. Berryhill, No.: 2:18-CV-64-JEM, 2019 WL 499410 at *4, 2019 U.S. Dist. LEXIS 20423 at *10 (N.D. Ind. Feb. 7, 2019) ("The ALJ has not explained how evidence of normal range of motion, gait, motor strength, and results from neurological examinations are inconsistent with significant limitations due to fibromyalgia[.]"); Austin v. Berryhill, No. 17-cv-3113, 2018 WL 4512183 at *12, 2018 U.S. Dist. LEXIS 152852 at *38 (C.D. Ill. Aug. 9, 2018) ("Persons with fibromyalgia also may only receive conservative treatment because more involved treatment is not available."), adopted, 2018 WL 4275925, 2018 U.S. Dist. LEXIS 152631 (C.D. Ill. Sept. 6, 2018). In sum, I cannot assume that the ALJ would have reached the same result had he considered the additional evidence. See Thomas v. Colvin, 826 F.3d 953, 959 (7th Cir. 2016); see also Farrell, 692 F.3d at 772 (declining to find error regarding fibromyalgia harmless).

III. CONCLUSION

THEREFORE, IT IS ORDERED that the Commissioner's decision is reversed, and the matter is remanded to the agency for further proceedings consistent with this opinion. The clerk shall enter judgment accordingly.

On remand, the agency should reconsider plaintiff's alleged fibromyalgia, based on the entire record, under both the 1990 and 2010 American College of Rheumatology diagnostic criteria. See SSR 12-2p, 2012 SSR LEXIS 1, at *4-9. It appears that the ALJ in his decision focused on the 1990 criteria, which place particular emphasis on tender points. Id. at *5-6. The agency should also reconsider Ms. Gellings's reports based on the entire record. The agency should further reconsider plaintiff's statements regarding the intensity, persistence, and limiting effects of her alleged symptoms based on the entire record and on consideration of the factors set forth in SSR 16-3p, 2016 SSR LEXIS 4, at *18-19, keeping in mind that, in some situations, pain alone can be disabling, e.g., Carradine v. Barnhart, 360 F.3d 751, 753 (7th Cir. 2004), and that a claimant's statements regarding the severity of her symptoms may not be disregarded solely because they are not substantiated by objective medical evidence, e.g., Moore v. Colvin, 743 F.3d 1118, 1125 (7th Cir. 2014). Nor should a claimant's statements be discredited because of her conservative course of treatment absent consideration of any explanations offered for not seeking more aggressive treatments. Akin v. Berryhill, 887 F.3d 314, 318 (7th Cir. 2018). Finally, the aggregate effect of all of plaintiff's impairments, including her obesity, must be taken into account. See, e.g., Goins v. Colvin, 764 F.3d 677, 681 (7th Cir. 2014).