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Ferguson v. Colvin

United States District Court, D. North Dakota

July 27, 2016

Rodger D. Ferguson, Plaintiff,
v.
Carolyn W. Colvin, Acting Social Security Administration Commissioner, Defendant.

          ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

          Charles S. Miller, Jr., Magistrate Judge United States District Court

         Plaintiff, 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. § 405(g).

         I. BACKGROUND

         A. Procedural history

         Ferguson 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.

         Ferguson 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).

         An ALJ 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. (Tr.1-5).

         Ferguson 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 & 5.

         B. Personal background

         Ferguson 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).

         C. Medical evidence

         1. Medical records created between January 1, 2010 to December 31, 2010

         Ferguson 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).

         Ferguson 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).

         On 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).

         On 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).

         Dr. 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. 512).

         2. Medical records created after December 31, 2010

         On 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).

         On 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.).

         On 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).

         D. November 23, 2011 Administrative Hearing

         The ALJ 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).

         1. Ferguson’s testimony

         Ferguson 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. 49-51).

         When 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.).

         Ferguson 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. 64-65).

         When 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).

         Ferguson 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).

         Ferguson 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).

         2. Vocational expert’s testimony

         When 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:

         (a) 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).

         The 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).

         After 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).

         E. ALJ’s January 13, 2012 decision and appeal

         The ALJ 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. 180).

         F. April 23, 2013 ...


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