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Ferguson v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

June 7, 2019

JOHN E. FERGUSON, Plaintiff,
v.
COMMISIONER OF SOCIAL SECURITY, Defendant.

          George C. Smith, Judge

          REPORT AND RECOMMENDATION

          KIMBERLY A. JOLSON, UNITED STATES MAGISTRATE JUDGE

         Plaintiff, 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.

         I. BACKGROUND

         Plaintiff 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).

         Plaintiff 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.

         A. Relevant Medical History and Hearing Testimony

         The ALJ 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 8).
***
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 1, 4).
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 ...

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