Ferguson v. Commissioner of Social Security

Filing 25

OPINION AND ORDER: The decision of the ALJ is hereby REMANDED for further proceedings consistent with this Opinion. Signed by Judge William C Lee on 5/3/2018. (jss)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
MICHAEL CHARLES FERGUSON,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 1:17cv237

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) as provided for in the Social
Security Act. 42 U.S.C. §416(I). Section 405(g) of the Act provides, inter alia, "[a]s part of his
answer, the [Commissioner] shall file a certified copy of the transcript of the record including the
evidence upon which the findings and decision complained of are based. The court shall have
the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the [Commissioner], with or without remanding the case
for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for disability insurance benefits must establish an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to last for a continuous period of not less
than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental

impairment is "an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an
impairment exists. It must be shown that the impairment is severe enough to preclude the
plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th
Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.
1979). It is well established that the burden of proving entitlement to disability insurance
benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.
Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The most recent favorable medical decision finding that the claimant was disabled
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is the determination dated November 15, 2010. This is known as the “comparison
point decision” or CPD.
2.

At the time of the CPD, the claimant had the following medically determinable
impairments: congenital heart anomaly (status post Tetralogy of Fallot repair and
Blalock-Taussig shunts at age 3 and pulmonary artery stent placement in 2007).
These impairments were found to medically equal section 4.06C (Ex. 1A, 8F) of
20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d)).

3.

Since the established onset date, the claimant has not engaged in substantial
gainful activity (Ex. 2D, 3D, 6D, 7D)(20 CFR 404.1594(f)(1)).

4.

Since April 11, 2014, the claimant has not had an impairment or combination of
impairments which has met or medically equaled the severity of an impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and
404.1526).

5.

Medical improvement occurred as of April 11, 2014 (20 CFR 404.1594(b)(1)).

6.

The medical improvement is related to the ability to work because, as of April 11,
2014, the claimant’s CPD impairments no longer met or medically equaled the
same listing that was equaled at the time of the CPD (20 CFR 404.1594(c)(3)(i)).

7.

Since April 11, 2014, the claimant has had the following severe impairments:
congenital heart disease (status post Tetralogy of Fallot repair at age 3, pulmonary
artery stenting in 2007, and pulmonary valve replacement in 2011)(20 CFR
404.1594(f)(6)).

8.

Based on the impairments present as of April 11, 2014, the claimant has had the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) (lifting, carrying, pushing, and pulling 20 pounds occasionally and 10
pounds frequently and, in an eight-hour period, sitting or standing/walking for a
total of 6 hours each) except that he is not able to climb ladders, ropes, or
scaffolds at all and he can only occasionally climb ramps and stairs, stoop, kneel,
crouch, and crawl. He must also avoid concentrated exposure to extreme heat,
extreme cold, humidity, fumes, odors, dust, gases, poor ventilation, and other like
respiratory irritants. He must avoid all exposure to unprotected and dangerous
moving machinery.

9.

As of April 11, 2014, the claimant was unable to perform past relevant work (20
CFR 404.1565).

10.

On April 11, 2014, the claimant was a younger individual age 18-49 (20 CFR
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404.1563).
11.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).

12.

Beginning on April 11, 2014, transferability of job skills is not material to the
determination of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,
Subpart P, Appendix 2).

13.

Since April 11, 2014, considering the claimant’s age, education, work experience,
and residual functional capacity based on the impairments present as of April 11,
2014, the claimant is able to perform a significant number of jobs in the national
economy (20 CFR 404.1560() and 404.1566).

14.

The claimant’s disability ended as of April 11, 2014 and he has not become
disabled again since that date (20 CFR 404.1594(f)(8)).

(Tr. 17- 40).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on December 11, 2017. On March 12, 2018, the
defendant filed a memorandum in support of the Commissioner’s decision to which Plaintiff
replied on April 2, 2018. Upon full review of the record in this cause, this court is of the view
that the ALJ’s decision must be remanded.
A five-step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:

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The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
In 2010, Plaintiff was experiencing shortness of breath, dizziness, and pre-syncope (Tr.
338). A MRI of the heart performed on September 27, 2010, revealed significant pulmonary
regurgitation in the moderate range (Tr. 341). Plaintiff’s ejection fraction was 45% (Tr. 341). On
November 15, 2010, J. Sands, M.D., determined that Plaintiff’s impairment equaled Listing 4.06
(Tr. 367). Based on the MRI and other diagnostic imaging, surgery was recommended. Plaintiff
had pulmonary valve replacement surgery in January of 2011 (Tr. 55, 338).
Plaintiff “felt better after the surgery” (Tr. 369). On February 12, 2013, Plaintiff reported
that he was feeling “pretty good,” though he experienced fatigue and dizziness, especially with
bending over (Tr. 369). He kept busy with housework and caring for his five children (Tr. 369).
As a hobby, he enjoyed taxidermy (Tr. 369).
On March 25, 2014, an echocardiogram revealed normal chamber dimension; ejection
fraction of 50% (at the “lower limits of normal”); normal valve morphology of mitral and aortic
valve; normal functioning of the prosthetic pulmonary valve; and mild tricuspid regurgitation of
no hemodynamic significance (Tr. 396).
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On January 27, 2015, Plaintiff’s treating cardiologist, William Kay, M.D., “reassured him
that his structural congenital heart disease [was] currently stable. His pulmonary valve function
[was] stable and he [did] not require a pulmonary valve replacement at [that] time” (Tr. 411). A
follow-up was recommended in one year (Tr. 411). The following month, on February 5, 2015,
Dr. Kay wrote a letter confirming Plaintiff’s patient status (Tr. 409). The entirety of the body of
the letter read as follows:
This letter is in regards to [Plaintiff]. [Plaintiff] is currently being followed in my
clinic for adult congenital heart disease. His current condition has kept him from
being able to work, and he is on social security disability. He will likely be on
disability for the remainder of his life. Please contact me if there are any further
questions or concerns.
(Tr. 409). Then on November 4, 2015, Dr. Kay wrote another letter (Tr. 417). This letter
documented Plaintiff’s complaints of “near syncope” and passing out (Tr. 417). Plaintiff reported
that he would experience “lightheadedness and/or hot flashes prior to episodes. He [felt] like
frequent rest periods and light duty seem[ed] to keep the episodes at a lower occurrence” (Tr.
417). Dr. Kay then listed restrictions that Plaintiff had suggested for himself:
For the above reasons, he feels it necessary to have the following restrictions in
order to prevent/precipitate episodes:
No twisting/turning movements
May only perform light work
Will need frequent rest periods
Will need to take 1-2 naps daily while at work
(Tr. 417).
Plaintiff lives with his wife and five children (Tr. 39, 112). In 2015, the oldest of the
children was eight years old (Tr. 112). Plaintiff is able to care for the younger children who are
not yet in school (Tr. 42, 112, 218). He helps his children with homework and watches movies
(Tr. 112). Plaintiff cooks and prepares meals (Tr. 42, 112, 219). Plaintiff’s household chores

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include leaf-raking, repairs, and yardwork (Tr. 219). In addition to taxidermy, Plaintiff’s other
hobby is hunting (Tr. 40, 59, 219, 369). During hunting season, he hunts four to five days a week
(Tr. 242).
In support of remand, Plaintiff first argues that the ALJ erred at Step 2, and should have
found that Plaintiff’s condition equaled a listing. As the Commissioner notes, Plaintiff fails to
develop any argument on this point, as he neither identifies the listed impairment he purports to
equal, nor cites to medical evidence to support that his impairment equals the severity of a listed
impairment. However, the only relevant listed impairment is Listing 4.06, Symptomatic
congenital heart disease. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 4.06. The ALJ found at step two
that Plaintiff did not meet or equal this or any listed impairment since April, 11, 2014 (Tr. 18). To
support that his impairment equals the severity of (presumably) Listing 4.06, Plaintiff only
vaguely refers to a MRI “showing the extent of the persistent heart problem” (Plaintiff’s Brief at
12-13). Plaintiff does not cite to the MRI he references in his argument, but he presumably refers
to the MRI of the heart performed on September 27, 2010 (Tr. 339-344). Plaintiff also refers to an
opinion related to the MRI by John Brown, M.D. This is presumably Dr. Brown’s letter from
October 13, 2010 (Tr. 338).
The Commissioner notes that this MRI and the discussion of the MRI by Dr. Brown are
not relevant to the contested period at issue in this appeal (Tr. 338-344). The point of comparison
in Plaintiff’s case was November 15, 2010 (Tr. 17, 399). This was “the most recent favorable
medical decision that [Plaintiff] [was] disabled or continued to be disabled.” 20 C.F.R. §
404.1594(b). On this date, Plaintiff equaled Listing 4.06 (Tr. 367). The MRI – dated September
27, 2010 – and the letter – dated October 13, 2010 – both constitute medical evidence from prior

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to the point of comparison (Tr. 17-18, 367, 399). The ALJ’s determination was that Plaintiff’s
disability ended over three years after the MRI was performed: “as of April 11, 2014” (Tr. 23).
Therefore, Plaintiff here relies on medical evidence from an uncontested period. Plaintiff, in
reply, states that there is no new MRI showing that he is not disabled. However, as discussed
above, in March 2014 an echocardiogram revealed an essentially normally-functioning heart.
And in January 2015, Plaintiff’s cardiologist, Dr. Kay reassured Plaintiff that his structuarl
congenital hart disease was stable. This court finds that the ALJ properly assessed Step 2.
Next, Plaintiff argues that the ALJ erred in discounting Dr. Kay’s opinion that Plaintiff
has episodes of near syncope that are consistent with an inability to hold down full-time
employment. The ALJ discussed Plaintiff’s treatment history with Dr. Kay, specifically Dr.
Kay’s treatment notes from January of 2015, showing that Plaintiff’s structural congenital heart
disease and pulmonary valve function were stable (Tr. 20, 411). On February 5, 2015, nine days
after that office visit, Dr. Kay stated that Plaintiff was “currently being followed in my clinic for
adult congenital heart disease. His current condition has kept him from being able to work, and he
is on social security disability. He will likely be on disability for the remainder of his life” (Tr.
409). The ALJ assigned little weight to this opinion (Tr. 21). The ALJ explained that this was an
issue reserved to the Commissioner (Tr. 21). 20 C.F.R. § 404.1527(d). An issue reserved to the
Commissioner is not given “any special significance.” 20 C.F.R. § 404.1527(d).
Similarly, the ALJ assigned little weight to the November 4, 2015 opinion from Dr. Kay,
in which Dr. Kay listed four restrictions that Plaintiff suggested for himself (Tr. 21, 417) . As the
ALJ noted, this was not a medical opinion, but rather a report of Plaintiff’s own subjective
statements (Tr. 21). An individual’s subjective statements are insufficient to establish disability.

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20 C.F.R. § 404.1529(a).
Plaintiff, in reply, argues that the ALJ fails to address Dr. Kay’s opinions as to Plaintiff’s
reasons for ceasing prescription medications (serious side-effects) and as to Plaintiff’s nearsyncopal episodes, which the record shows are severe enough and frequent enough to arguably
preclude any gainful full-time employment. Accordingly, the court will remand this case for a
closer look at Dr. Kay’s opinions, as well as any other opinion supporting Dr. Kay’s opinion.
Next, Plaintiff argues that the ALJ erred in failing to build a logical bridge from the
evidence to the conclusions about Plaintiff’s ejection fraction. The crux of Plaintiff’s argument
appears to be that in September of 2010 Plaintiff’s ejection fraction was 45%, and he was deemed
disabled. In March of 2014, Plaintiff’s ejection fraction was 50%, and in January 2015 his
ejection fraction was 49%. Plaintiff claims that a normal ejection fraction is greater than or equal
to 55 percent (the Commissioner states that 50 percent is at the lower limits of normal), and that
Plaintiff has always had a low ejection fraction. Plaintiff concludes that this is evidence that the
ALJ failed to build a logical bridge from the evidence to the conclusion. Although the Plaintiff’s
argument is far from clear, the court will give him the benefit of the doubt in this instance, since
the case is being remanded anyway, and order the ALJ on remand to provide a coherent
discussion of Plaintiff’s ejection fraction at various points in time, and how that relates (or
doesn’t relate) to the conclusion that Plaintiff is (or is not) disabled.
Next, Plaintiff argues that the ALJ failed to properly consider the diagnostic imaging
studies performed before and after Plaintiff’s point of comparison, November 15, 2010. Plaintiff
primarily objects to the use of an echocardiogram performed on March 25, 2014, which revealed
normal chamber dimension; ejection fraction of 50%, normal valve morphology of mitral and

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aortic valve; normal functioning of the prosthetic pulmonary valve; and, mild tricuspid
regurgitation fo no hemodynamic significance. Plaintiff believes that the ALJ gave too much
weight to this echocardiogram,. Plaintiff claims that the echocardiogram doesn’t address the right
versus left ejection fraction, and thus misses a core detail of Plaintiff’s heart problems. The
Commissioner’s response to Plaintiff’s argument is hazy, at best. Thus, the court will order a
remand on this issue also.
Lastly, Plaintiff argues that the ALJ erred by over-emphasizing Plaintiff’s daily activities.
The Commissioner notes that Plaintiff helps care for his five young children, cooks meals, does
some housework, and goes hunting. The Commissioner claims, without much explanation, that
these activities are inconsistent with the severity of impairment required to be considered
disabled. This court will remand on this issue, so that the ALJ can flesh out these activities and
determine how much help Plaintiff had from others, how often he was able to perform these
activities, how often did Plaintiff have to sit down and rest, and how strenuous were these
activities as performed by Plaintiff. Plaintiff states that he helped with cutting wood, but that he
operated the automatic log splitter while his family lifted the logs and stacked them. Likewise,
there is no evidence that hunting is a strenuous activity, as oftentimes it consists of sitting quietly
in a hidden spot and waiting for game to approach close enough to shoot. Therefore, remand is
appropriate so that these issues may be discussed more fully.

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Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby REMANDED for further
proceedings consistent with this Opinion.

Entered: May 3, 2018.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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