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Michael R. v. Saul

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

August 26, 2019

Michael R., Plaintiff,
Andrew Saul, Commissioner of Social Security, Defendant.


          Iain D. Johnston, United States Magistrate Judge.

         Plaintiff is seeking disability benefits based his impairment of silicosis, a non-curable and progressive lung disease caused by inhaling tiny bits of silica. Starting in 1989, plaintiff worked as a concrete laborer, and it is assumed he got silicosis from this work. Plaintiff was first diagnosed in 2003 at which time he stopped working and filed a worker's compensation claim, eventually receiving a lump sum settlement of $320, 000. R. 849. He did not return to work until the 2008-09 timeframe (the exact date is unclear) when he worked for five or six months before stopping because, he claims, his silicosis made him unable to keep up with the job demands. For a brief period in 2011, he tried working as a handyman, but stopped again because of his health.

         In December 2011, he filed a Title II disability application. Since he only filed a Title II application, he had to prove that he was disabled in the period between his alleged onset date of May 20, 2009 and his date last insured (“DLI”) of September 30, 2010. The Court will refer to this 16-month period as the “DLI period.” The key issue in this case is whether plaintiff can show that he was disabled during the DLI period rather than at some later point when his silicosis indisputably worsened.

         In 2013, an administrative law judge (“ALJ”), after holding a hearing, issued a four-and-half page decision finding that plaintiff was not disabled. No. expert was called at this hearing. Plaintiff appealed that ruling to this Court and the parties voluntarily agreed to a remand. The same ALJ held a second hearing. Dr. Ronald Semerdjian testified as the medical expert. In 2015, the ALJ issued a second ruling reaching the same result as the first ruling. Plaintiff again appealed. In 2017, after full briefing, this Court issued a written ruling finding that a remand was required based on multiple arguments. See Ritacco v. Berryhill, 2017 WL 2215016 (N.D. Ill. May 19, 2017); R. 1518-1531. The Court stated that it was unfortunate that the ALJ had issued two erroneous decisions in two years and recommended that a different ALJ be assigned to the case. R. 1531. On remand, a new ALJ took over. After holding a hearing, at which Dr. Semerdjian again testified, the new ALJ issued an unfavorable ruling. This appeal is from that ruling, the third such ruling in this now long-running case.

         Plaintiff raises arguments here similar to those he raised in the last appeal. In reading plaintiff's briefs, the Court discerns two primary arguments being made.[2] The first is what the Court will refer to in shorthand as the extrapolation argument. The second is that the credibility analysis was flawed.

         I. The Extrapolation Argument

         The Court will first briefly summarize this argument, which goes by various names, and then discuss how plaintiff tries to use it. In a nutshell, the extrapolation argument (again, this is the Court's label) is a method of proof for establishing that a claimant was disabled in an earlier period of time when contemporaneous medical evidence was lacking or insufficient. The method relies on the fact that certain slowly progressing diseases follow a typical or well-known progression. Relying on this general knowledge, a doctor can then combine it with known facts about a claimant's condition at a later point in time and then extrapolate backwards to make an educated guess about the claimant's condition at an earlier point. The theory rests on the assumption that progressive diseases don't suddenly emerge. The argument usually requires at least two chronological data points to draw a comparison line, somewhat as it would be done on two-axis graph. This argument is authorized by, and discussed more fully in, SSR 83-20 and Seventh Circuit cases such as Allord v. Barnhart, 455 F.3d 818 (7th Cir. 2006).[3] It has sometimes been described as a “retrospective diagnosis.” Id. at 822.

         Plaintiff's attempt to rely on this theory begins with the foundational fact that, in early 2014, plaintiff consulted with Dr. Stuart Rich at the University of Chicago who stated that plaintiff's silicosis was then “severe” and that plaintiff “likely should be considered for lung transplantation.” R. 1320-21. Everyone seems to agree that plaintiff would qualify as disabled if this were the relevant date. But this date was over three years after the DLI. The question is whether plaintiff can rely on Dr. Rich's 2014 statements, or alternatively on other post-DLI evidence, to shed light on his condition during the DLI period.

         To be clear, plaintiff is not relying solely on the extrapolation argument. There are at least two other sources of information. Some contemporaneous medical evidence exists from the DLI period, although it is not extensive. Specifically, plaintiff was then being treated by Dr. Sean Forsythe, a pulmonologist. Plaintiff saw this physician several times during the DLI period, and he went to emergency rooms twice in May 2010. The second source is plaintiff's testimony from the three hearings. At these hearings, he was recollecting what his symptoms were many years earlier. He testified that he had chest pains, shortness of breath, weakness in his legs, and fatigue causing him to take catnaps.

         In plaintiff's last appeal, he argued that the prior ALJ had flatly and improperly declared that all post-DLI evidence was “immaterial to the issue at hand.” R. 1524. That is, the ALJ misunderstood the law. This Court agreed, and discussed SSR 83-20 and Seventh Circuit cases like Allord. See R. 1524-25.

         On remand, plaintiff's counsel again pursued this argument. Plaintiff argues here that the new ALJ was hostile to this theory-if not downright confused by it. Plaintiff claims that the ALJ did not “take this evidence seriously”; did not allow counsel to fully cross-examine Dr. Semerdjian by cutting off lines of questioning and re-directing the doctor's testimony; and failed to follow SSR 83-20 by “consistently refus[ing] to acknowledge” the relevancy of post-DLI evidence. Dkt. #12 at 7-8. In short, the ALJ prejudged this argument “early on.” Id. at 6.

         Rather than beginning with this question of whether the ALJ impeded counsel's efforts, the Court will first try to understand plaintiff's extrapolation argument and then evaluate its viability. In other words, the Court will temporarily take the ALJ out of the picture.

         Counsel first described this theory in the pre-hearing letter brief. Here is the key paragraph:

Theory of the Case
Claimant should be found to meet or equal Listing 3.02 based upon his moderate to severe silicosis which has existed since 2003. SSR 83-20 explicitly notes that in the case of slowly progressive impairments that “it will be necessary to infer the onset date from the medical and other evidence that describe the history of symptomatology of the disease process.” Therefore, while the only FEV1 score prior to his DLI is above listing level, it was also specifically indicated that this spirometry testing was an improvement since her [sic] prior test in 2005. (16F at 3). Post-DLI there are numerous fluctuations of his FEV1 scores, many falling below listed level, while others, as recently as May of 2016, reaching nearly the same level as the December 2009 test. These fluctuations occurred despite the fact that, at least in 2011 and 2012, the CT scan findings were essentially the same as the 2010 CT scan. (10F at 80; 5F at 25). Given the fluctuations of this FEV1 scores and the fact that his spirometry testing coincided with an encounter where he was not experiencing much wheezing or coughing (as opposed to other visits during the period in question like his May 2010 ER visits), it should be reasonable to find that Claimant met listing levels prior to his DLI. At the very least it should be clear [that] he would have extensive limitations stemming from this impairment that would result in an absentee rate outside the accepted tolerance of even sedentary work.

R. 1709.[4]

         The paragraph contains a lot of information, some of it technical. Starting with the big picture, the Court notes that counsel seems to be referring to two alternative ways of using the extrapolation argument. The first and primary theory, which takes up all but the last sentence of the paragraph, is that plaintiff meets or equals Listing 3.02. The second theory, presented as a type of fallback argument, is that plaintiff could be found disabled based on an unacceptable “absentee rate” caused by his silicosis symptoms. These two arguments correspond to the two basic methods of proof-meeting a listing at Step Three or relying on a functional capacity analysis (“RFC”) at Step Four. Meeting a listing is generally regarded as the tougher but more direct route. One court referred to the listings as “a catalogue of ‘automatic disabilities.'” Mersel v. Heckler, 577 F.Supp. 1400, 1406 n.15 (S.D.N.Y. 1984), as quoted in Carolyn A. Kubitschek and Jon C. Dubin, Social Security Disability Law and Procedure in Federal Court, p. 310 (2019 ed.) (hereinafter, “Kubitschek and Dubin”). The listings are “automatic” in the sense that they rely on technical medical criteria, and do not require analysis of functional limitations, vocational factors, or credibility. Id.

         Plaintiff's counsel chose to rely on Listing 3.02. It is entitled “Chronic respiratory disorders” and is not specifically geared towards silicosis. This listing is met if the claimant meets certain numerical thresholds from one of several spirometry tests. Counsel relied on the forced expiratory maneuver (“FEV1”). To meet the listing, the FEV1 score must be below the threshold. However, as counsel recognized, plaintiff faced a large stumbling block. Plaintiff's only FEV1 score during the DLI period (one taken in December 2009) was well above the threshold. To get around this problem, counsel attempted to rely on the extrapolation argument and draw inferences from other FEV1 scores. But this is where the argument runs into confusion. As counsel recognized, plaintiff had fluctuating FEV1 scores over a broad period, with some scores falling below the threshold and some not. For example, plaintiff's score in May 2016 was the same as the score in December 2009. However, counsel argued that plaintiff's CT scans did not fluctuate but instead showed a more predictable downward progression.

         This theory requires too many unnatural twists and turns to get around obvious pitfalls. Unlike the paradigmatic extrapolation case, where there is no medical evidence during the relevant period, here there is an FEV1 test during the DLI period. So one preliminary question is why that score shouldn't be the end of the story. Plaintiff must argue that this score was wrong, perhaps an outlier. Plaintiff makes a brief attempt at such an argument by stating that this score was taken during a time when plaintiff “was not experiencing much wheezing or coughing.” But even if this argument were a valid reason to ignore this one score, plaintiff would still have to contend with the fact that all the other many FEV1 scores fluctuated above and below the threshold for a decade or more. Notably, the most recent score available, taken in January 2018, still did not meet the threshold. R. 1709. Plaintiff has not tried to argue that a composite or average of these many scores was below the threshold. Counsel's response is to argue that the CT scans were a better indicator. This may be true, but it does not help the listing argument because 3.02 uses the FEV1 score (or other similar spirometry tests) as the sole criterion.

         For these reasons, the Court does not find that plaintiff has presented a viable way to meet the listing based on an extrapolation theory. Dr. Semerdjian testified that plaintiff could not meet or equal this listing.[5] Moreover, he testified that silicosis did not have a clear progression and that each case was different. This testimony further undermines plaintiff's attempt to use an extrapolation argument. However, Dr. Semerdjian did agree with plaintiff's counsel that silicosis sometimes causes fatigue, one of plaintiff's alleged symptoms. But Dr. Semerdjian further pointed out that the critical question of how severe or frequent this problem was at that time was a question that turns on plaintiff's credibility.

         As for the possibility that plaintiff could rely more generally on an extrapolation theory to support an RFC argument, the Court again finds that plaintiff has not articulated a clear theory. An overarching problem is that plaintiff's symptoms, like the FEV1 scores, seem to have oscillated at various points, rather than exhibiting a steadily downward progression. Various external factors could have played a role, including plaintiff's stopping smoking in 2008 and his going back to work in the construction industry in 2009, which his doctors advised him not to do. In short, although his condition may have generally declined over the entire 15-year timespan from 2003 to 2018, this does not necessarily shed light on how bad the condition was in 2009-10 or prove that it was declining in a continuous orderly manner. For example, at the December 2009 visit, Dr. Forsythe noted that plaintiff's spirometry tests had improved since 2005.

         Another weakness in counsel's extrapolation theory is that he ignores large chunks of the evidentiary record. Counsel's theory rests primarily, if not exclusively, on the one fact that, in early 2014, Dr. Rich suggested that plaintiff begin thinking about getting his name on the transplant list.[6] But this is a wobbly fact upon which to build an extrapolation argument. Not only is it far removed in time, over three years after the DLI, but it is also a mushy metric, not easy to cross-compare with a comparable earlier observation in the DLI period.

         Plaintiff's extrapolation theory does not rely on the medical evidence closer in time to the DLI. Plaintiff saw several doctors from 2011 to 2013, but plaintiff's brief curiously skips over this evidence and jumps to Dr. Rich's 2014 observation. This raises a question as to whether this evidence cuts against plaintiff's theory. In reviewing this evidence, the Court notes that it appears to present a mixed picture. To cite one example, plaintiff's pulmonologist at the time was Dr. Kellar. He twice completed RFC questionnaires, first in September 2012 and then again in June 2013.[7] These opinions provide two possible data points, roughly nine months apart. In general, Dr. Kellar's 2013 opinions portrayed plaintiff's condition as having worsened since the 2012 opinions. However, his 2012 opinions contain several assessments that are in the ballpark with the ALJ's RFC findings. For example, Dr. Kellar opined that plaintiff's prognosis was “good, ” that he could sit at least 6 hours a day and ...

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