IAIN D. JOHNSTON, Magistrate Judge.
Plaintiff Shamyatta Moore brings this action under 42 U.S.C. § 405(g), seeking reversal of the decision denying her social security benefits. Plaintiff argues that the administrative law judge misconstrued the testimony of the impartial medical expert who opined that she met Listing 7.05 based on her hemoglobin SC disease, a type of sickle cell disease. The matter is remanded.
The Court recognizes that some facts in the administrative record do not place plaintiff in a good light, to say the least. But an ALJ's determination of an applicant's eligibility for disability benefits cannot be based on the ALJ's view of the applicant's likeability.
Plaintiff filed her application in July 2010. She was then 25 years old, and had four children. Her youngest son was born in 2007 and was taken away from her because he had drugs in his system. R. 90. The pregnancy involved severe complications, requiring a 40-day hospital stay, part of it in the intensive care unit. Before and after the hospitalization, plaintiff visited the emergency room frequently reporting severe pain, sometimes in her legs and back, sometimes in her abdomen and other places, all of which she attributed to her sickle cell disease.
This appeal focuses on the medical expert's testimony. It will be helpful first to set out the legal tests, as they framed the ALJ's questioning of the expert. The listing is 7.00, entitled "Hematological Disorders."
R. 15. Section 7.05 sets forth additional qualifications the claimant must show to be disabled:
R. 16. Plaintiff is relying only on subsection (a).
There were two hearings before the administrative law judge ("ALJ"). At the first, on January 31, 2012, plaintiff's counsel announced at the outset that plaintiff was seeking to qualify under subsection (a) of Listing 7.05 and provided three dates in the past five months in which plaintiff had gone to the emergency room and doctors had diagnosed her as having a sickle cell crisis. R. 83. Plaintiff and a vocational expert then testified.
After this hearing, the ALJ concluded that expert testimony was needed, and called a second hearing, held on May 22, 2012. Dr. Ronald Semerdjian testified as the impartial medical expert.
In the second phase, the ALJ asked more pointed questions, ones that plaintiff complains were leading, focusing on specific parts of 7.00(c) and 7.05. Dr. Semerdjian testified that during these emergency room visits, plaintiff was given "supportive treatment" consisting of IV fluids and pain medication (Dilaudid). R. 45. The ALJ asked whether any other treatment is typically given, and Dr. Semerdjian said no, unless there were specific complications, one being aseptic necrosis where the reduced blood supply causes the bone to break down. He stated that there were two studies in the record that plaintiff had aseptic necrosis in her shoulder.
The ALJ asked Dr. Semerdjian to explain phrases in 7.00(c), such as "chronic hemolytic anemia," "homozygous," and "hemoglobin electrophoresis." The latter is a blood test used to diagnose sickle cell disease. Dr. Semerdjian noted that he could not find any evidence in the record that this test was performed, but noted that he assumed it had been done earlier because "[t]his is obviously something you're born with."
The ALJ then asked again about the emergency room visits. Dr. Semerdjian again noted that it looked like "what the emergency room was doing was looking at her record and seeing that she has a history of sickle cell SC disease," and "[s]o each time she appears, they attribute it to sickle cell crises and treat it as such." R. 48-49. However, he also stated that she had blood drawn "numerous times" and blood smears revealed "schistocytes," abnormal blood cells that, although not conclusive, would be "consistent with [hemoglobin SC disease] for sure." R. 49. The ALJ then noted: "In other words, we can confirm that there is a blood disorder." Id.
The ALJ next asked about "vaso-occlusive or aplastic episodes," a phrase from 7.00(c). Dr. Semerdjian explained that these refer to things like clots in the veins and noted that during the 2007 episode, plaintiff had some clotting but that it may have been due to a catheter being "left in for some time." R. 50. He also noted that there was evidence in May 2007 that she had some encephalopathy. He noted that during her extended hospitalization in 2007, she was diagnosed with HELLP (standing for hemolysis (H), elevated liver enzymes (EL), and low platelets (LP)), which is a syndrome in pregnant women that no one knows why it occurs. Both the ALJ and Dr. Semerdjian agreed that plaintiff "was a very ill person" at this time. R. 52.
The ALJ next asked questions about "major visceral episodes," another phrase from 7.00(c). Dr. Semerdjian stated that it did not appear that plaintiff had any of these episodes, although he noted that the 2007 hospitalization would be a "cerebrovascular accident." R. 52-53. Plaintiff's counsel then asked whether a lab report showed kidney failure. After a lengthy back and forth, it was agreed that the lab report did not indicate kidney failure. R. 52-59. The ALJ asked again about cerebrovascular accidents. Dr. Semerdjian noted that there was an MRI on June 15, 2007 that was "consistent with hemosiderin from prior micro-hemorrhaging from the SC disease." R. 61. In other words, she had a mild atrophy of the brain. Id. The ALJ tried to characterize this answer to mean that plaintiff had no cerebrovascular accidents. R. 62. But Dr. Semerdjian again referred to the brain problems in 2007, although he stated that it was not clear it was due to SC disease or the HELLP syndrome. The ALJ asked the doctor to confirm that there were no pulmonary infections and the doctor answered no, but then stated that she had abnormal chest x-rays in May 2007. R. 63.
The ALJ then announced that he was going to ask about the "very specific" requirements of 7.05. He first asked about subsection (a) ("painful (thrombotic) crisis") and asked whether she had any thrombotic crisis. Dr. Semerdjian answered that he did not recall finding any recurrent episodes of thrombosis. The ALJ then asked about the Doppler tests. Dr. Semerdjian noted that there were several negative tests, one in December 2011 that was a venous Doppler finding that there was no DVT (deep vein thrombosis). The ALJ then asked about the other subsections in 7.05, and the doctor indicated that plaintiff would not meet those. The ALJ then attempted to get the doctor to sum up. Here is the relevant testimony:
R. 65-67. The upshot of this second phase is that Dr. Semerdjian perhaps modified his opinion slightly by stating that, although plaintiff may not have strictly met the documentation requirements of Section 7.00(c), she nonetheless equaled the requirements of 7.05(a). In its response brief, the government states that Dr. Semerdjian "amended" his opinion during the course of the hearing, presumably referring to this second phase. (Gov. Resp. Br. at 6.)
In the third phase, plaintiff's counsel took over questioning and basically had Dr. Semerdjian reaffirm his bottom-line conclusion:
R. 75-76.
A reviewing court may enter judgment "affirming, modifying, or reversing the decision of the [Commissioner], with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). If supported by substantial evidence, the Commissioner's factual findings are conclusive. Id. Substantial evidence exists if there is enough evidence that would allow a reasonable mind to determine that the decision's conclusion is supportable. Richardson v. Perales, 402 U.S. 389, 399-401 (1971). Accordingly, the reviewing court cannot displace the decision by reconsidering facts or evidence or making independent credibility determinations. Elder v. Astrue, 529 F.3d 408, 413 (7th Cir. 2008). However, the Seventh Circuit has emphasized that review is not merely a rubber stamp. Scott v. Barnhart, 297 F.3d 589, 593 (7th Cir. 2002) (a "mere scintilla" is not substantial evidence). If the Commissioner's decision lacks evidentiary support or adequate discussion, then the court must remand the matter. Villano v. Astrue, 556 F.3d 558, 562 (7th Cir. 2009). Moreover, a reviewing court must conduct a critical review of the evidence before affirming the Commissioner's decision. Eichstadt v. Astrue, 534 F.3d 663, 665 (7th Cir. 2008). Indeed, even when adequate record evidence exists to support the Commissioner's decision, the decision will not be affirmed if the Commissioner does not build an accurate and logical bridge from the evidence to the conclusion. Berger v. Astrue, 516 F.3d 539, 544 (7th Cir. 2008). And, as the Seventh Circuit has repeatedly held, the federal courts cannot build the logical bridge on behalf of the ALJ. See Jensen v. Colvin, 2013 U.S. Dist. LEXIS 135452, *33-34 (N.D. Ill. 2013).
The only issue before this Court is whether plaintiff meets the listing for sickle cell disease. Plaintiff does not challenge other findings, such as the residual functional capacity analysis. Set forth below is the pertinent part of the opinion analyzing the listing issue:
R. 15-16 (emphasis added by the ALJ) (exhibits citations removed).
After reviewing this explanation, the Court concludes that this case should be remanded. The ALJ's reasoning is vague in several respects, but more importantly it relies on an aggressive—and, at times, skewed—interpretation of the expert's testimony. To put it more bluntly, the ALJ essentially rejected the medical expert's opinion despite making it look like he and the expert were in agreement.
The above explanation consists of a number of loosely tethered and interlocking observations, followed by back-to-back block quotes of the legal tests, followed by yet more observations. However, the ALJ did not match up the observations to the discrete parts of the tests. The ALJ lumped the two sections together, making it hard for this Court to know exactly what he found was lacking.
It thus makes sense to consider the two sections separately, beginning with the gateway provision in 7.00(c). As this Court reads this section, it contains really only one mandatory provision. The claimant must provide "appropriate hematologic evidence" that she has sickle cell disease.
To the extent that the ALJ found plaintiff failed to satisfy 7.00(c)—and this Court is not sure if he did—then the ALJ should have provided a more complete analysis. The ALJ gives the impression that Dr. Semerdjian had doubts whether plaintiff had hemoglobin SC disease. But this is a misimpression, at best. At the start of his testimony, Dr. Semerdjian testified that it was his opinion that plaintiff met listing 7.05, which would necessarily require that she have some form of the disease. Even when he later testified that plaintiff may not have met the precise requirements of Section 7.00(c), he nonetheless concluded that plaintiff would equal the listing. This again would have to rest on the belief that she had the disease. Thus, his professional judgment clearly was that plaintiff had SC disease.
As for whether the specific documentation requirement of 7.00(c) had been met, even this point is not clear to this Court. It is true, as the doctor testified, that no one found evidence that the electrophoresis test had been done. But as noted above, section 7.00(c) simply refers to "appropriate hematologic" evidence. Neither the ALJ, nor the parties here, have discussed the possibility that there is evidence meeting this standard. Dr. Semerdjian referred to various lab reports that pointed to hemoglobin SC disease. He noted that plaintiff had aseptic necrosis in her shoulder, that she had schistocytes in blood smears, and that an MRI showed hemorrhaging attributable to SC disease.
If the ALJ believed the above evidence did not qualify as "appropriate" evidence, then the ALJ should have considered getting a definitive blood test. The current version of Listing 7.00 states: "We will make every reasonable effort to obtain the results of appropriate laboratory testing you have had. We will not purchase complex, costly, or invasive tests, such as tests of clotting-factor proteins, and bone marrow aspirations." § 7.00(B)(4). It is not known whether a confirmatory test here would be costly or difficult. The fact a confirmatory test is given to all newborns would suggest it is not. The ALJ should explore this issue further.
The Court next considers Section 7.05. Here again, the ALJ did not explicitly connect the evidence to the legal test. The ALJ mostly discussed observations made by Dr. Semerdjian. However, Dr. Semerdjian stated three times that plaintiff met the requirements of 7.05(a), either directly or by equaling the listing. See R. 44 ("In this period of time that I mentioned, she would meet a listing because she would have at least three visits for crises in the five months preceding adjudication."); R. 65 ("I think she would equal [7.05] the last several months that we spoke of."); R. 75 ("Q: Doctor, you would agree that at least according to the records, that there are three sickle cell crises in the five months noted prior to today's adjudication, correct? A: Yes.").
The ALJ essentially ignored these statements by aggressively spinning the doctor's testimony to make it look like he did not really believe his own opinion. For example, the ALJ stated that the doctor's opinion was reached only after he "liberally" construed the "working" diagnoses of emergency room doctors. But these qualifications do not undermine the doctor's opinion. For one thing, this Court cannot find any statement in the hearing transcript where the doctor ever stated, at least in a direct way, that his opinion was based on a liberal reading of the evidence. Even if he made such a statement, it would not necessarily mean he was disavowing his own opinion. The decision on how to interpret the record—whether liberally or some other way—is part and parcel of the doctor's medical judgment, absent clear evidence showing that the doctor varied from accepted practice. As for the "working" diagnoses, the ALJ does not explain why a "working" diagnosis would be insufficient. It is not as if there is a later diagnosis undermining them. In any event, Dr. Semerdjian did not use this moniker.
The ALJ gave the impression that Dr. Semerdjian doubted these diagnoses. The ALJ cited to statements by Dr. Semerdjian such as the one that emergency room doctors "dealt with" plaintiff's pain "as if" they were sickle cell crises. But in making these statements, Dr. Semerdjian did not state that the doctors' conclusions were unwarranted. Again, if he had doubted their diagnoses, he would not have concluded that plaintiff met the requirements of 7.05(a). The ALJ also complained about the failure of these doctors to make "substantial clinical findings." But the ALJ did not explain what further steps or tests would normally be conducted. Dr. Semerdjian did not identify any. And the record does not suggest that these doctors jumped to a diagnosis of sickle cell disease without considering other possibilities. See, e.g., R. 943 ("Multiple diagnoses were considered in evaluation of this patient. At this time her presentation is most consistent with: Sickle cell pain crisis."). In some of the visits, the doctors concluded that she was not having sickle cell crisis, showing that it was not a default diagnosis applied in every case. Dr. Semerdjian, in his analysis, excluded such visits, even though he stated that it was still possible that they too could have been related to plaintiff's hemoglobin SC disease.
The ALJ insinuated that plaintiff was engaged in drug-seeking behavior rather than having a sickle cell crisis. Although Dr. Semerdjian stated (after prompting from the ALJ) that "there's always a concern about drug-seeking" because of plaintiff's earlier cocaine habit, he then stated that all the drug screens since 2007 had been negative for cocaine. R. 69-70. None of the emergency room doctors (insofar as this Court can tell) pointed to drug seeking as an explanation.
The other major concern this Court has with the ALJ's analysis is that he essentially imposed additional requirements not included in 7.05. For example, the ALJ complained that plaintiff was not hospitalized after going to the emergency room. However, subsection (a) merely requires three "crises." In contrast, subsection (b), which plaintiff was not relying on, explicitly refers to hospitalizations "beyond emergency care." By implication, subsection (a) cannot be read to require a hospitalization as these subsections are alternative ways of meeting the listing. Similarly, the ALJ emphasized that plaintiff's sickle cell crises were "short-lived" and "discrete." But it is not clear to this Court that this would preclude a finding that they were nonetheless still sickle cell crises. The same point applies about the lack of transfusions and the fact that urinary tract infections were not "ongoing" or frequent. Neither the ALJ, nor the government, has pointed to medical authority suggesting that transfusions or urinary tract infections are necessary for a sickle cell crisis to be diagnosed. At the hearing, the ALJ asked Dr. Semerdjian whether the treatment plaintiff received—intravenous Dilaudid and fluids—was customary, and he stated it was.
In sum, the Court finds that the ALJ failed to provide a sufficient explanation for his decision and improperly rejected the opinions of the medical expert and emergency room doctors based on his own assessment of the evidence. In doing so, he improperly played doctor. See Moon v. Colvin, 763 F.3d 718, 722 (7th Cir. 2014) (the ALJ should "rely on expert opinions instead of determining the significance of particular medical findings themselves"); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) ("ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.").
For these reasons, plaintiff's motion for summary judgment is granted; the government's motion is denied; and this case is remanded for further consideration.
