United States District Court, D. North Dakota
Rodger D. Ferguson, Plaintiff,
Carolyn W. Colvin, Acting Social Security Administration Commissioner, Defendant.
ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY
JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY
Charles S. Miller, Jr., Magistrate Judge United States
Rodger Ferguson (“Ferguson”), seeks judicial
review of the Social Security Commissioner’s denial of
his application for Social Security Disability Insurance
Benefits (“DIB”) under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434, and
Supplemental Security Income (“SSI”) under Title
XVI of the Social Security Act, 42 U.S.C. § 1381,
et. seq . This court reviews the
Commissioner’s final decision pursuant to 42 U.S.C.
first applied for DIB and SSI while living in Kentucky on
March 7, 2008. (Tr. 142). An Administrative Law Judge
(“ALJ”) determined Ferguson was not disabled on
January 21, 2010. (Tr. 151). No appeal was taken.
filed his second application for DIB and SSI while he was
living in North Dakota on May 6, 2010, amending his allege
onset date to January 22, 2010. (Tr. 298-302, 292-296). His
application was denied initially and upon reconsideration.
(Tr. 157-159, 188-189).
convened an administrative review hearing on November 23,
2011. (Tr. 41). She issued a written decision denying
Ferguson’s application on January 13, 2012. (Tr. 173).
The Appeals Council granted Ferguson’s subsequent
request for review on December 18, 2012, and remanded the
case to an ALJ for an additional hearing to determine whether
Ferguson had severe cardiovascular impairment and, if so, to
determine the effect that impairment had on Ferguson’s
occupational base. (Tr. 179-181). The additional hearing was
held on April 23, 2013. (Tr. 92). On July 17, 2013, the ALJ
issued an unfavorable decision. (Tr.33). Ferguson requested
review of the ALJ’s decision with the Appeals Council.
(Tr. 15). The Appeals Counsel denied Ferguson’s request
for review thereby rendering the ALJ’s decision as the
Commissioner’s final decision on February, 19, 2015.
initiated the above-entitled action on March 30, 2015,
seeking judicial review of the Commissioner’s final
decision pursuant to 42 U.S.C. § 405(g). See
Docket No. 1. Ferguson filed a motion for summary judgment on
September 2, 2015. See Docket No. 10. The
Commissioner filed a response in opposition to
Ferguson’s motion and his own motion for summary
judgment on October 5, 2015. See Docket No. 13.
Ferguson filed a reply brief on November 2, 2015.
See Docket No. 16. The parties have also filed
notice of their consent to the undersigned’s exercise
of jurisdiction over this matter. See Docket Nos. 4
was born in 1951 and was 62 years old on the date of the
second administrative hearing. (Tr. 97). He is 5'7"
and weighs approximately 185 pounds. (Tr. 47). He is divorced
and has eight children. (Tr. 47). He lives in an basement
apartment in Minot, North Dakota, with his daughter and her
husband (Tr. 98). He has an eighth grade education and
testified that he was able to read, write, and do simple
math. (Tr. 49, 133). Ferguson’s past relevant work
includes that of a cashier, equipment operator, quality
assurance inspector, factory laborer, street sweeper, machine
operator, cook, and cab driver/dispatcher. (Tr. 49-59; 103).
Although Ferguson briefly worked as a cab driver at
Johnson’s Cab Company in Elizabethtown, Kentucky since
the alleged onset date, he has not engaged in anything that
qualifies as substantial gainful activity. (Tr. 23; 99-100).
Medical records created between January 1, 2010 to December
presented to James Jackson, M.D. on January 5, 2010, as a new
patient and indicated that his medical problems included high
blood pressure, osteoarthritis, a “leaky” heart
valve, chronic obstructive pulmonary disorder
(“COPD”), gastritis, and gastroesophageal reflux
disease (“GERD”). (Tr. 469-470). Dr. Jackson
reported Ferguson was in no acute distress, showed good range
of motion in his neck, and had clear lungs. (Tr. 470). Less
than a month later, Ferguson returned to Dr. Jackson for a
routine follow-up exam. (Tr. 472). Dr. Jackson observed
Ferguson was in no acute distress, exhibited an appropriate
mood, and had clear lungs, but needed to quit smoking. (Tr.
473). On March 24, 2010, Ferguson presented to Dr. Jackson
with complaints of left ear hearing loss for the past several
months and nausea. (Tr. 474). Dr. Jackson noted
Ferguson’s breathing and COPD were stable and
Ferguson’s nausea was likely due to the Chantix he had
started to help him quit smoking. (Tr. 474-475). Dr. Jackson
advised Ferguson to discontinue the Chantix. (Tr. 475).
sought treatment in July and August 2010 for GERD, arthritis,
and hypertension. (Tr. 482, 491). During Ferguson’s
July 2010 examination, his health care provider prescribed
Celebrex and over-the-counter Tylenol for Ferguson’s
osteoarthritis, and recommended he stop smoking. (Tr. 482).
During the August 2010 examination his health care provider
noted Ferguson’s examination was normal and lungs were
clear. (Tr. 492).
August 20, 2010, Ferguson underwent a consultive examination
with Dr. Mojgan Mohandesi and Dr. Wade Talley (Tr. 493-495).
Ferguson reported having chronic neck and back problems since
1991, emphysema, skin cancer, hypertension, COPD, GERD,
spondylosis, osteoarthritic changes of his hip, and a
“leaky” heart valve. (Tr. 493). Upon examination
Dr. Talley observed Ferguson made eye contact, answered
questions appropriately, and was in no acute distress. (Tr.
494). He also noted Ferguson showed tenderness to palpation
to his posterior neck and a decreased range of motion due to
pain, but had good coordination and strength in his upper
extremities. (Tr. 494). Dr. Talley reported that Ferguson had
full function and movement of his elbows, wrists, and
fingers, was able to pick up a pencil, penny, and other small
objects without difficulty, and showed present and equivocal
sensory functioning in his upper and lower extremities. (Tr.
494-495). Dr. Talley further indicated Ferguson had a good
gait, full muscle strength in all his major muscle groups,
and no muscle atrophy. (Tr. 494). Cervical and lumbar spine
x-rays showed the beginning of degenerative joint disease of
Ferguson’s lower cervical spine and facet joint
osteoarthropathy in his lumber spine. (Tr. 495, 497).
Psychiatric exam was appropriate without depression or
anxiety. (Tr. 495).
October 21, 2010, Dr. Charles Gasser assessed
Ferguson’s hearing and found he had a sensorineural
hearing loss affecting his right ear and a moderate
conductive mixed hearing loss affecting his left ear, and
that he was a candidate for amplification should he wish to
pursue it. (Tr. 499).
Marlin Johnson, the state agency reviewing physician,
reviewed the evidence in Ferguson’s case on October 28,
2010, and concluded Ferguson retained the ability to perform
light work. (Tr. 504-507). Dr. Thomas Christianson confirmed
Dr. Johnson’s assessment on January 25, 2011. (Tr.
Medical records created after December 31, 2010
April 10, 2012, Dr. Abdi Agahtehrani placed stents in
Ferguson’s right coronary artery and for the three days
following the placement restricted Ferguson from strenuous
activity, lifting more than 10 pounds, swimming, tub baths,
climbing several flights of stairs, and sitting for more than
two hours. (Tr. 446).
September 13, 2012, Ferguson underwent coronary bypass
surgery due to coronary artery disease and angina. (Tr. 523).
Following bypass surgery, Ferguson returned to Dr.
Agahtehrani three times for follow-up visits between October
2012 and May 2013. (Tr. 538, 540, 542). Ferguson reported
chest pain during each visit, but Dr. Agahtehrani recommended
only that Ferguson continue taking prescribed medications
(Id.). Ferguson reported during all three visits
that he continued to smoke. (Id.).
August 12, 2013, Ferguson presented to the emergency room
complaining of a productive cough and headaches, but denying
chest pain and shortness of breath. (Tr. 552, 554). Dr.
Theodore Forrest noted upon examination that Ferguson was in
no acute distress, showed a normal range of motion in his
neck, and had normal pulmonary effort. (Tr. 554). Dr. Forrest
also reported Ferguson exhibited normal strength,
coordination, and muscle tone, and showed no cranial nerve
deficits or tenderness. (Id.). Additionally, a chest
x-ray revealed no acute disease and a computed tomography
(“CT”) study of Ferguson’s head showed no
acute intracranial findings. (Tr. 526-527).
November 23, 2011 Administrative Hearing
convened Ferguson’s first hearing on November 23, 2011.
(Tr. 41). Ferguson appeared personally and was accompanied by
his attorney. A vocational expert also appeared by phone.
(Tr. 41). Ferguson’s attorney requested an amended
onset date of January 22, 2010, which is the day after his
application in Kentucky was denied. (Tr. 45). The ALJ agreed
to this, and questions proceeded. (Tr. 46).
testified he was 60 years old and lived in a trailer in
Minot, North Dakota with his daughter and son-in-law. (Tr.
48). As to his education he stated he had completed the
eighth grade. (Tr. 49). He testified he has no problems
reading, writing, or doing simple math. (Tr. 49). He is
5'7" and weighs 185 pounds. (Tr. 47). He is
right-handed. (Tr. 47). He had his drivers license and drove
a couple of times a week to the store. (Tr. 48-49). He last
worked as a night shift dispatcher at a cab company in
February 2008, working approximately 60 hours a week. (Tr.
asked what prevents him from working, Ferguson testified that
he is unable to concentrate, and has frequent headaches,
“popping bones”, nausea, light-headedness, and
dizziness. (Tr. 59-60). He also testified that he has
problems with his hearing, especially when he is laying down.
(Tr. 60). When asked whether he ever got a hearing aid, he
answered no because he did not have the money. (Tr. 60.).
stated that he traveled to Kentucky at the end of February
2011 because his daughter was experiencing problems with her
pregnancy. (Tr. 62). His ex-wife became sick around that same
time so he traveled back and forth from North Dakota to
Kentucky to help her out. (Tr. 62-63). He helped his ex-wife
by doing some light cooking, grocery shopping, and helping
her shower. (Tr. 65). He also testified that it takes him a
long time to get to the store and he usually forgets to buy
something even though it was on the list. (Tr. 65). He
further testified that while staying with his ex-wife, he
used a bathing/shower chair due to his unstableness. (Tr.
asked by the ALJ if he was taking any medications regularly,
Ferguson responded that he took aspirin and Tylenol and was
supposed to be taking his blood pressure pills, but was out
of them. (Tr. 66-67). When asked why he did not get medical
help in Kentucky at free clinics, Ferguson responded that he
did not feel it was proper to use the free clinics in
Kentucky because he lived in North Dakota. (Tr. 64-65).
testified that he used a “traction kit” on his
neck which helped relieve the pressure and he also used a
“TENS unit” which is an “electronic
gizmo” that flexes the muscles in the back. (Tr. 68).
When asked whether he relied on any assistive devices, he
responded that he has a cane but it is in storage and he
cannot get to it. (Tr. 68). When asked about his nausea,
Ferguson responded that it comes and goes and that it feels
better after he lays down for a couple of hours. (Tr. 68-69).
He stated that he usually has to lay down twice a day due to
the nausea. (Tr. 69). Ferguson also testified that he gets
light-headed usually every day, he has trouble concentrating
on anything, and he smokes approximately one and a half packs
of cigarettes a day. (Tr. 69-71).
reported that he has pain in his neck which causes frequent
headaches. (Tr. 71-72). He also reported problems with his
back, right knee, and ankles. (Tr. 72). He can sit for about
30 to 40 minutes until his back gets stiff. (Tr. 73). He can
stand for about 20 minutes until he has to sit down because
his head starts hurting and he becomes unstable. (Tr. 73). He
can walk for about 100 feet until he gets out of breath and
can lift about five or 10 pounds before it starts hurting his
back. (Tr. 73).
Vocational expert’s testimony
examining the vocational expert, the ALJ first inquired
whether a hypothetical individual with Ferguson’s
vocational profile could perform Ferguson’s past
relevant work if he:
could lift 25 pounds frequently and 50 pounds occasionally;
(b) sit with normal breaks for a total of about six hours in
an eight-hour workday; (c) would have hearing loss, but would
retain the ability to hear and understand oral instructions,
and communicate information; (d) could not work with a
telephone; (e) would have no postural limits, visual limits,
or environmental limits. (Tr. 86-87). Second, she inquired
whether an individual with Ferguson’s vocational
profile and aforementioned mental restrictions could perform
Ferguson’s past relevant work if he: (a) could lift
and/or carry 20 pounds occasionally and 10 pounds frequently;
(b) could stand and/or walk with normal breaks for a total of
about six hours in an eight-hour workday; (c) could sit with
normal breaks for a total of about six hours in an eight-hour
workday; (d) would have hearing loss, but would retain the
ability to hear and understand oral instructions, and
communicate information; (e) could not work with a telephone;
would have no postural limits, visual limits, or
environmental limits. (Tr. 88). Third, she inquired whether
an individual with Ferguson’s vocational profile and
aforementioned mental restrictions along with the limitations
described in the second hypothetical along with the added
limitation that the individual would need to lie down twice a
day for several hours a day could perform Ferguson’s
past relevant work. (Tr. 88-89).
vocational expert responded that the individual described in
the first hypothetical could perform Ferguson’s past
work as a cook, inspector, doing the bolt work, doing the
forklift work, cashier checker, street sweeper, operator,
assembler, survey worker, and machine operator. (Tr. 88). As
for the individual described in the second hypothetical, the
vocational expert testified that he would not be able to
perform Ferguson’s past relevant work as he actually
performed those jobs but could generally perform work as a
cashier checker, street sweeper operator, assembler, and
production. (Id.). Finally, with respect to the
third hypothetical, the vocational expert testified that the
parameters outlined by the ALJ would exclude the individual
from essentially all jobs. (Tr. 89).
the vocational expert had responded to the ALJ’s
hypotheticals, Ferguson’s counsel was afforded an
opportunity for examination. First, counsel inquired whether
an individual would be able allowed in competitive employment
to work at their own pace, which was a slow and much less
than an average pace. (Tr. 89). Second, counsel inquired
whether or not it would be tolerated by an employer if the
individual was not able to keep to an employer’s strict
schedule. (Tr. 89). Third, counsel inquired whether an
individual who only had the focus and concentration to
maintain 30 minutes of activity at one time would be allowed
such opportunity in competitive employment. (Id.).
Finally, counsel inquired whether an individual who had to
take frequent breaks outside the normal break periods, would
be allowed such opportunity in competitive employment.
(Id.). The vocational expert responded that none of
the situations described by counsel would be tolerated in
competitive employment. (Tr. 88-89).
ALJ’s January 13, 2012 decision and
issued a decision on January 13, 2012, in which the ALJ
concluded that Ferguson was not disabled. (Tr. 166-173).
Ferguson asked the Appeals Council to review the decision.
The Appeals Council granted Ferguson’s request for
review. (Tr. 180). On December 18, 2012, the Appeals Council
issued a remand order stating in relevant part:
The claimant has submitted new evidence which indicates he
may have had a severe cardiovascular impairment during the
period at issue. An operative note from Norton Audubon
Hospital dated September 13, 2012, indicates the claimant
underwent a three vessel coronary bypass surgery on that date
after having undergone an angioplasty of the right coronary
artery in April 2012. At the hearing the claimant complained
of dizziness and shortness of breath with exertion, and at
the consultive examination he complained of chest pain
associated with walking (Exhibit C6F, page 2).
(Tr. 180). The Appeals Council directed the ALJ to giver
further consideration to whether the claimant had a severe
cardiovascular impairment during the period at issue. (Tr.
April 23, 2013 ...