Ferguson v. Astrue, Civil Action No.: 5:12-CV-01925-RDP

Decision Date28 August 2013
Docket NumberCivil Action No.: 5:12-CV-01925-RDP
PartiesRYAN ALAN FERGUSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
CourtU.S. District Court — Northern District of Alabama

Plaintiff Ryan Alan Ferguson ("Plaintiff") brings this action pursuant to Sections 205(g) and 1631(c) of the Social Security Act (the "Act"), seeking review of the decision by the Commissioner of the Social Security Administration ("Commissioner") denying his applications for a period of disability, disability insurance benefits ("DIB"), and Social Security Income ("SSI") benefits under the Act. See also, 42 U.S.C. §§ 405(g), 1383(c)(3). Based upon the court's review of the record and the briefs submitted by the parties, the court finds that the decision of the Commissioner is due to be affirmed.

I. Proceedings Below

This action arises from Plaintiff's application for disability, DIB, and SSI filed on March 27, 2009. (Tr. 100, 102, 162, 179). Plaintiff alleges his disability began on March 7, 2009. (Id.). The Social Security Administration initially denied Plaintiff's applications on July 7, 2009. (Tr. 66-67, 76-80). On September 28, 2009, Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Tr. 82). Plaintiff's request was granted and a hearing was held on September 2, 2010. (Tr. 37-63, 87, 94). In his November 5, 2010 decision, the ALJconcluded Plaintiff was not disabled under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act. (Tr. 13-24). After the Appeals Council denied Plaintiff's request for review, the ALJ's decision became the final decision of the Commissioner, and therefore a proper subject of this court's appellate review. (Tr. 1-3, 8). 42 U.S.C. §§ 405(g), 1383(c)(3).

Plaintiff was thirty-one years old at the time of the hearing. (Tr. 40). Plaintiff alleges his disability began March 7, 2009 and that he suffers from pelvic displacement, ADHD, asthma, and tick disorder.1 (Tr. 167). Plaintiff has previously worked at shops, fast food restaurants, and a food processing plant. (Tr. 143-50). Although Plaintiff alleges he has been unable to engage in substantial gainful activity since March 7, 2009, he acknowledged that he was laid off due to job performance and reported seeking employment. (Tr. 167, 234-35, 239-40)

On August 28, 2008, Plaintiff visited Cullman Internal Medicine and saw Dr. Lane Friedman. (Tr. 232). Dr. Friedman found Plaintiff was in "generally [] good health," but noted he suffered from chronic weight issues and urged him to decrease his weight. (Tr. 232-33). Although Plaintiff reported recently losing twenty pounds, Dr. Friedman indicated he was obese at a weight of 291 pounds. (Id.). Dr. Friedman referred Plaintiff to Dr. Gregory Windham for a physical examination. Upon examination, Dr. Windham detected "firmness palpable in the right periumbilical region," which he believed could be a hernia. (Tr. 218-19, 229). After a follow-up CT scan of Plaintiff's abdomen and pelvis on March 5, 2009, Dr. Windham's opinion was that Plaintiff did not have a hernia, but "probably has a lipoma." (Tr. 215, 228). Plaintiff declined surgery as an option and indicated he would follow-up if necessary. (216, 228).

On December 31, 2009, Plaintiff was seen at Cullman Internal Medicine complaining of lower back pain for the past nine months. (Tr. 226). An x-ray was attempted, however, at aweight of 346 pounds, Plaintiff was too heavy for their equipment and was given orders to have the x-ray taken at the hospital. (Tr. 226-27). Plaintiff was prescribed Flexeril and Ultram for his back pain as needed. (Tr. 227). On April 26, 2010, Plaintiff underwent an ultrasound at Cullman Radiology Group, P.C. by Dr. Jeffrey Nicholson. Dr. Nicholson found Plaintiff to have a normal liver, no focal or diffuse abnormalities, and an "unremarkable" gallbladder, common hepatic duct, and right kidney. (Tr. 223).

In a follow-up with Dr. Friedman on April 29, 2010, Plaintiff's lab results showed a mild increase in blood sugar, hyperlipidemia and some mild abnormal liver tests, and a normal abdominal ultrasound. (Tr. 221). At that time, Plaintiff weighed 357 pounds, an increase of eleven pounds in four months. Dr. Friedman noted Plaintiff experienced shortness of breath after minimal exertion and that his activities were limited by hip problems. (Id.). Dr. Friedman diagnosed Plaintiff with probable mild hypertension, morbid obesity, abnormal Liver Function Tests ("LFTs"), probable diabetes mellitus, and hyperlipidemia. (Tr. 222). According to Dr. Friedman, Plaintiff's abnormal LFTs were "almost certainly" due to his fatty liver. (Id.). Dr. Friedman continued Plaintiff's Flexeril, Ultram, and Albuterol prescriptions and added a prescription for Pravastatin. (Tr. 221). At a July 9, 2010 appointment, Dr. Friedman added sleep apnea, asthma, and chronic back pain to his assessment of Plaintiff. (Tr. 317-18). Plaintiff was instructed by Dr. Friedman to use a CPAP machine for his sleep apnea as needed. (Tr. 317). At Plaintiff's last visit to Dr. Friedman on October 12, 2010, Plaintiff denied symptoms from sleep apnea, asthma, or chronic back pain; Dr. Friedman removed these conditions from his assessment. (Tr. 342-44). At that meeting, Plaintiff weighed 349 pounds. (Tr. 342-43).

On June 8, 2009, Dr. Will Crouch performed x-rays of Plaintiff's right hip and spine. (Tr. 280). The x-rays revealed "minimal degenerative changes [] throughout the right hip andacetabulum," while Plaintiff's spine "appear[ed] normal." (Id.). Dr. Crouch's impression was that Plaintiff suffered from minimal degenerative joint disease in his right hip. (Id.).

Beginning in October 2009, Plaintiff attended therapy at Mental Healthcare of Cullman ("MHC"). (Tr. 261). Plaintiff repeatedly reported depression and suicidal ideations to practitioners at MHC. (Tr. 235, 246, 252, 259, 261). Dr. Kazi Ahmad performed a psychiatric evaluation of Plaintiff and found he was alert and oriented, his concentration was "good," his attention and comprehension were within normal limits, and his interpersonal behaviors were within normal limits; however, his fund of knowledge was limited. (Tr. 254, 256). Despite Plaintiff's reported suicidal ideations, Dr. Ahmad's risk assessment indicated that Plaintiff did not pose a high risk to himself or others. (Tr. 256). Dr. Ahmad diagnosed Plaintiff with "major depression with psychosis" and prescribed Celexa for his depression and anxiety, and Vistaril for his agitation. (Tr. 257). At a follow-up appointment on November 20, 2009, Plaintiff and his brother reported that, after a few days of medication, Plaintiff was less angry, fought less, and had no suicidal thoughts. (Tr. 250).

About two months later, however, on January 13, 2010 Plaintiff reported mood swings and that he was not using the CPAP for his sleep apnea. (Tr. 248). Dr. Sultana Begum noted Plaintiff's mood was depressed, anxious, and irritable and his affect was anxious. (Tr. 249). Approximately three weeks later, Plaintiff's mother reported he was "doing great" and his depression and anxiety were better. (Tr. 245). On the next few visits, Gloria Noah noted that Plaintiff was taking the medications as prescribed, his mood was stable, and he "feels good." (Tr. 235, 239, 241). On March 31, 2010 and May 5, 2010 (over a year after his alleged disability onset date), Plaintiff reported that he wanted to find a job, but had not been successful. (Tr. 234-35, 239-40). Plaintiff was seen on four occasions from October 2010 through April 2011 andreported his mood as "doing great," "fairly well," "fine," and "feeling better." (Tr. 346, 348, 350, 352). At these meetings, a minor adjustment was made in Plaintiff's prescription dosage, but otherwise Plaintiff was described as stable. (Tr. 346-53).

On June 13, 2009, Plaintiff was referred by Disability Determination Services ("DDS") to Dr. Bharat Vakharia for a disability examination. (Tr. 274-78). Dr. Vakharia found that Plaintiff weighed 308 pounds. (Tr. 274). He noted that Plaintiff's movement of his cervical spine was limited by neck and back pain; movement of his right hip was significantly limited; he experienced lower back pain from flexing his knee; was walking with a minimal limp on his right leg; and could not squat more than seventy degrees because of lower back and hip pain. (Tr. 274-76). Dr. Vakharia also noted Plaintiff's previous diagnosis of a tilted pelvis and scoliosis, which has caused moderate, on and off, pain in Plaintiff's lower back and right hip since he was fifteen years old. (Tr. 274).

Dr. Mary Arnold, Psy. D., performed a psychological evaluation of Plaintiff on June 30, 2009. (Tr. 282). Dr. Arnold stated that Plaintiff's mood and affect are "congruent in the normal range" and that he was alert and oriented. (Tr. 286). Plaintiff was able to respond to questions regarding his fund of information and his abstract reasoning ability, his speech was fluid, he made eye contact, and his response times were within "the usual range." (Id.). Dr. Arnold estimated that Plaintiff's full-scale intelligence quotient ("FSIQ") in the low average range. (Id.). Dr. Arnold's diagnostic impression included Plaintiff's self-reported ADHD, a global assessment of functioning ("GAF") score of 60, a history of individualized education programs through the twelfth grade, in addition to his prior physical diagnoses. (Tr. 287). Plaintiff also told Dr. Arnold that his daily activities included dressing independently, cleaning his room, washingdishes, performing yard and garden work, feeding his family's animals, going to the lake and to a fireworks show, and playing basketball for short periods. (Id.).

A physical summary was prepared by Dr. Glenn Carmichael on July 9, 2009. Dr. Carmichael recommended a light residual functional capacity ("RFC") for Plaintiff, with occasional postural, and safety precautions based on his degenerative disk disease and...

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