United States District Court, N.D. Illinois, Western Division
Michael D. Ritacco Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER
D. Johnston United States Magistrate Judge.
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
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
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
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. 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.
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.
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.
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.” Id.
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
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
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 ...