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Moore v. Colvin

United States District Court, N.D. Illinois, Western Division

July 2, 2015

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.


IAIN D. JOHNSTON, Magistrate Judge.

Plaintiff Shamyatta Moore brings this action under 42 U.S.C. ยง 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 S.C. 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.[1] In many (but not all) of these visits, doctors diagnosed her as having a sickle cell crisis, an acute painful episode caused by the disease. She typically was given IV fluids and pain medication and sent home without being hospitalized.

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."[2] It contains two parts relevant to this case. The first, section 7.00(c), is a type of gateway provision requiring the claimant to prove she has the disease:

C. Sickle cell disease refers to a chronic hemolytic anemia associated with sickle cell hemoglobin, either homozygous or in combination with thalassemia or with another abnormal hemoglobin (such as C or F).
Appropriate hematologic evidence for sickle cell disease, such as hemoglobin electrophoresis, must be included. Vaso-occlusive or aplastic episodes should be documented by description of severity, frequency, and duration.
Major visceral episodes include meningitis, osteomyelitis, pulmonary infections or infarctions, cerebrovascular accidents, congestive heart failure, genito-urinary involvement, etc.

R. 15. Section 7.05 sets forth additional qualifications the claimant must show to be disabled:

7.05 Sickle cell disease, or one of its variants. With:
A. Documented painful (thrombotic) crises occurring at least three times during the 5 months prior to adjudication; or
B. Requiring extended hospitalization (beyond emergency care) at least three times during the 12 months prior to adjudication; or
C. Chronic, severe anemia with persistence of hematocrit of 26 percent or less; or
D. Evaluate the resulting impairment under the criteria for the affected body system.

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.[3] His testimony is lengthy and can be broken down into three phases. In the first phase, Dr. Semerdjian gave his opinion on whether plaintiff met Listing 7.05(a). He explained first that plaintiff did not have sickle cell disease where the trait is inherited from both sides (referred to as sickle cell SS) but instead had hemoglobin S.C. disease where sickle cell trait is inherited from one parent (the "S") and a separate unspecified blood disorder is also inherited (the "C). He stated that hemoglobin S.C. disease typically produces less severe symptoms than sickle cell SS R. 42-43. He noted that "ordinarily" there should be "some documentation" of the disease in the record, but explained that "I think she's had it for as long as the record we have, plus we have the original testing done[.]" R. 43. He then explained that in reviewing the records of the "very frequent emergency room visits, " he tried to "separate out what are visits for other things from visits that are for [a sickle cell] crisis." Id. For example, he pointed to one visit where plaintiff complained about chest pain, which he stated "may or may not be related to [a sickle cell] crisis, " but he did not count this visit as constituting one because the emergency room doctors did not designate it as such. R. 44. Even after excluding these visits, Dr. Semerdjian concluded plaintiff met Listing 7.05(a) because she had at least three crises in the last five months. R. 44.

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."[4] R. 48. The ALJ asserted that plaintiff would need some documentation to meet the listing. Dr. Semerdjian stated that a test could be done by having blood drawn. The ALJ then asked whether it would be expensive. The doctor was not sure, and the ALJ did not pursue this issue further.

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 S.C. 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 S.C. 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 S.C. 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 S.C. 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, ...

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