United States District Court, S.D. Ohio, Eastern Division
JOHN E. FERGUSON, Plaintiff,
COMMISIONER OF SOCIAL SECURITY, Defendant.
C. Smith, Judge
REPORT AND RECOMMENDATION
KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE
John E. Ferguson, brings this action under 42 U.S.C. §
405(g) seeking review of a final decision of the Commissioner
of Social Security (“Commissioner”) denying his
application for Supplemental Security Income
(“SSI”). For the reasons set forth below, it is
RECOMMENDED that Plaintiff's Statement
of Errors (Doc. 9) be OVERRULED and that
judgment be entered in favor of Defendant.
filed his application for SSI on June 15, 2015, alleging that
he was disabled beginning June 1, 2009. (Doc. 8, Tr. 260-65).
After his application was denied initially and on
reconsideration, the Administrative Law Judge (the
“ALJ”) held the hearing on September 13, 2017.
(Tr. 43-117). On January 25, 2018, the ALJ issued a decision
denying Plaintiff's application for benefits. (Tr.
12-36). The Appeals Council denied Plaintiff's request
for review, making the ALJ's decision the final decision
of the Commissioner. (Tr. 1-6).
filed the instant case seeking a review of the
Commissioner's decision on September 10, 2018 (Doc. 1),
and the Commissioner filed the administrative record on
November 26, 2018 (Doc. 8). Plaintiff filed his Statement of
Errors (Doc. 9) on January 10, 2019, Defendant filed an
Opposition (Doc. 10) on February 24, 2019, and Plaintiff
filed his Reply (Doc. 11) on March 11, 2019. Thus, this
matter is now ripe for consideration.
Relevant Medical History and Hearing Testimony
usefully summarized Plaintiff's medical records:
. . . As for the claimant's diabetes with neuropathy, his
hemoglobin A1c was often normal. (Exhibit B7F, page 6;
Exhibit B20F, page 2; Exhibit B22F, pages 15, 30). His blood
sugar levels were often elevated. (Exhibit B18F, page 13;
Exhibit B20F, page 9). He would not check his blood sugars at
home. (Exhibit B22F, page 15).
In June 2015, he reported having tingling and numbness in his
hands and feet. He reported burning in the soles of his feet,
toes, and occasionally outside his fourth and fifth fingers.
He denied any weakness. (Exhibit B6F, page 1). It was noted
this neuropathy was likely due to his diabetes. (Exhibit B6F,
page 4). In July 2015, he reported the bottom of his feet
were hurting. He had refused an orthopedic consultant and was
non-adherent to his medications. (Exhibit B9F, page 1) . . .
In February 2016, his diabetes was well controlled with low
blood sugars and good hemoglobin A1c control. . . .
In February 2017, he reported his foot pain was worse since
switching to Lyrica and blamed this increase in pain for his
worsening mood, weight gain, and continued smoking. (Exhibit
B22F, page 54). . . .
* * *
The claimant had degenerative changes in his cervical spine.
In June 2015, he reported having a habit of twisting his
neck, causing it to be sore by the end of the day. He
indicated he had a tendency to tip his neck with his ear to
the left. He denied any shooting pan from his neck. (Exhibit
B6F, page 1).
* * *
The claimant had issues with his knees. In May 2015, he
reported having pain and discomfort in both knees. A left
knee arthroscopy was indicated, but the claimant wanted to
hold off on doing it for a few months. (Exhibit b4F, page 2).
In January 2016, he reported he was putting air in his tires
every three days and it was getting difficulty [sic] to kneel
and get back up due to his knee pain. (Exhibit B17F, page 7).
In February 2016, he had a left knee scope with partial
medical meniscectomy, chondroplasty, and bone marrow
augmentation. (Exhibit B17F, pages 11-12). Two weeks later,
he reported doing great and was doing very well. The surgical
incision looked fine. He wanted to go ahead and schedule the
right knee scope. (Exhibit B17F, page 4).
In March 2017, he reported he had done better initially with
his knees after surgery, but now felt his symptoms were
worse, especially in the right knee whenever he bent it.
(Exhibit B22F, page 72). In May 2017, he reported having a
lot of problems with his right knee with swelling and pain.
He indicated he would squat a lot and rest on his knees from
cleaning. He indicated he would not do this often, but it
would help. . . .
Imaging did not fully support the claimant's allegations.
May 2015 X-rays of his right knee showed no joint effusion
and a minimal irregularity of the patellar articular surface
and no significant joint narrowing. May 2015 X-rays of the
left knee showed minimal irregularity to the patellar
articular surface and apparent unfused epiphyses or old
avulsion fracture fragments anterior to the proximal tibia.
The joint compartments were well maintained. (Exhibit B3F,
page 2). January 2016 X-rays of the left knee showed mild
changes of degenerative joint disease. (Exhibit B17F, page
Turning to the claimant's mental health treatment for
ADHD, borderline personality disorder, dysthymic disorder,
and Tourette's, . . .
In June and July 2015, he denied any memory loss, aggression,
crying spells, stress, or anger. He reported depression and
described having been denied disability. (Exhibit B9F, pages
In October 2015, the claimant reported his Cymbalta was
really helping with his depression. (Exhibit B8E, page 13).
In December 2015, he reported his tics had worsened since he
stopped taking Topiramate and wanted to go back on them. He
described his current tics as throat clearing, coughing, neck
movements, and facial grimacing. (Exhibit B24F, page 3). In
January 2016, he continued to deny any aggressive behavior,
crying spells, memory loss, stress, or anger. (Exhibit B16F,
page 18). A week later, he switched primary care doctors and
reported having memory loss and depression. However, he
denied any insomnia. (Exhibit B22F, page 6). He reported he
worried about everything and was a mess. He claimed he did
not feel much benefit from his Cymbalta, though it did help
with his pain. His Cymbalta dosage was increased. He reported
feeling on edge. He was not seeing a counselor and was ...