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Ritacco v. Berryhill

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

May 19, 2017

Michael D. Ritacco Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, [1] Defendant.


          Iain D. Johnston United States Magistrate Judge.

         Plaintiff Michael D. Ritacco's quest for disability benefits is now more than five years old. Unfortunately, the end is still not in sight despite two administrative hearings already having been held.

         Sometime around 1989, plaintiff starting working as a concrete laborer excavating and paving roads. After many years in this line of work, he contracted silicosis, a non-curable and progressive lung disease caused by inhaling tiny bits of silica or other fine particles. As the medical expert testified, silicosis occurs when calcified nodules run together to form conglomerates, leading to lung scarring. Plaintiffs silicosis caused shortness of breath, fatigue, and weakness, among other symptoms. By 2009, he had stopped working construction because of these symptoms. Briefly in 2011, he tried to work as a handyman for a few months, but found this job too difficult.

         In December 2011, he filed a Title II application for disability insurance benefits, alleging an onset date of May 20, 2009. The first hearing was held in 2013, and shortly thereafter, the administrative law judge ("ALJ") issued a decision finding plaintiff not disabled. Plaintiff appealed that decision to this Court. After his opening brief was filed setting forth various errors committed by the ALJ, the Government agreed that a remand was appropriate, and the case was remanded in October 2014 without this Court ruling on the merits. In 2015, the same ALJ held a second hearing during which a medical expert testified. However, the ALJ again found plaintiff not disabled, and plaintiff again appealed. The central question remains the same as it was since the beginning-namely, whether plaintiff's silicosis, which is everyone agrees is now severe enough to prevent him from working, was severe enough on or before September 30, 2010, which is plaintiff's date last insured (hereinafter “DLI”).


         The first hearing was held on July 12, 2013, and lasted 25 minutes. Plaintiff testified that (among other things) he was “[c]onstantly fatigued and tired” and could not stand for long periods. R 44. When he went grocery shopping, he sat in the pharmacy while his wife shopped. It took him a couple of hours every morning to get out of bed because he was “really weak” from the hips down. R. 48. When the ALJ asked what his doctors were doing to treat the silicosis, plaintiff stated that “[t]here's no treatment” except for a possible double lung transplant. R. 46. Plaintiff was taking various inhalers, as well as steroids.[2] After plaintiff testified, a vocational expert testified that a person with “high fatigue” could not work any full-time job. R. 52. The ALJ did not call a medical expert to testify.

         On July 18, 2013, the ALJ issued a four-and-half page decision finding plaintiff not disabled during the relevant period-i.e. from the onset date of May 20, 2009 through the DLI of September 30, 2010 (hereinafter the “relevant period”). At Step Two of the five-step process, the ALJ found that plaintiff's silicosis was a severe impairment. However, the ALJ found that silicosis did not meet a listing because there was no pulmonary function test of record (i.e. during the relevant period). In the residual functional capacity (“RFC”) analysis, the ALJ shockingly found that plaintiff could perform “the full range of work at all exertional levels.” In other words, the ALJ concluded that plaintiff's silicosis caused no limitations in his ability to work.

         After remand from this Court, a second hearing before the same ALJ was held on July 28, 2015. The ALJ began by telling plaintiff he could give nods or whispers for answers “because of [his] condition.” R. 841. Plaintiff's counsel gave an opening statement summarizing the evidence. Counsel stated that plaintiff's symptoms “included weakness, dysthymia, chronic cough and chest pain;” that he was diagnosed with silicosis in approximately 2003 based on his exposure to silicone for 20 years working in construction; that his symptoms worsened in 2006 to 2007; that, in May 2009, his condition required two emergency room visits; and that he has been to the emergency room nine times due to respiratory complications. R. 842-43. There is no dispute that this summary is supported by the medical records. Plaintiff then testified about the same basic symptoms and facts as he testified to in the first hearing.

         The key witness was Dr. Ronald Semerdjian, an impartial medical expert. Dr. Semerdjian asked plaintiff a preliminary question about plaintiff's cervical discectomy and whether he had any continuing pain from that problem. Plaintiff testified that “it's a mild pain” that had “mellowed out” after his surgery. R. 872. About this answer, the ALJ observed the following: “That is refreshing to hear, something got better. [] Yeah, we don't usually hear that.”[3] Id.

         Dr. Semerdjian next addressed the silicosis, stating that it was “pretty solidly documented in the record.” R. 873. He opined that plaintiff did not meet Listing 3.06 based on his pulmonary function scores. Dr. Semerdjian's reasoning on this and other issues is reflected in the following portion of the transcript, which the Court will quote at some length because the ALJ's later decision largely glossed over it:

Just a quick note on what silicosis is. Usually in the lungs you see little calcified nodules but what can happen in silicosis, when it's more severe, is [these] little nodules begin to run together and they conglomerate.
And you get big clumps of scarring in the lungs. And when you get to that it's considered to be progressive or massive pulmonary fibrosis. And that's what they're describing on his CAT scans.
The CAT scan of the chest [on] May 5, 2010, it was actually a CAT scan angiogram looking for an embolism they didn't see. But they say what he does have is moderate to severe silicosis with moderate to severe progressive massive pulmonary fibrosis along with enlarged lymph nodes.
And the massive pulmonary fibrosis means that these nodules, or areas of scarring, are now running together, and it contracts the lungs. There were subsequent CAT scans of the chest. There was another one, for example, September 10, 2012, and that is read as bilateral progressive massive fibrosis.
And then again [on] June 13, 2013, in 7F, a CAT scan of the chest. It says conglomerate bilateral lung masses consistent with silicosis. Conglomerate means just the same as massive pulmonary fibrosis.
It really means they're clumping together. So he has evidence of significant, severe pulmonary-of silicosis with massive pulmonary fibrosis. And he has compromise of his function though it doesn't meet a listing level.
He did have some oxygen studies done that I see January 10, 2012, in 28F. They did a six minute walk which means they checked his oxygen on room air, at rest and then they had him walk. In this case, they call it a six minute walk but he walked for only four minutes.
He may have become short of breath. But his oxygen saturations are actually good. They stay at 96 percent so if those are the-I didn't find any other oxygen measurements. If those are the only oxygen ...

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