Ferguson v. Social Security Administration

Filing 18

ORDER by Magistrate Judge Charles S. Miller, Jr. denying 10 Ferguson's Motion for Summary Judgment and granting 13 Commissioner's Motion for Summary Judgment. (ST)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NORTH DAKOTA
Rodger D. Ferguson,

)
)
Plaintiff,
)
)
vs.
)
)
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

Case No. 4:15-cv-032

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
1

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

2

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).

3

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,

4

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

5

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).

6

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:

7

(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. 8687).

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

8

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
9

claimant had a severe cardiovascular impairment during the period at issue. (Tr. 180).
F.

April 23, 2013 Administrative Hearing

The ALJ convened Ferguson’s second hearing on remand on April 23, 2013. (Tr. 92).
Ferguson appeared personally and was accompanied by his attorney. A vocational expert, Warren
Haganson also appeared by telephone. (Tr. 92). The ALJ informed everyone that he was not going
to limit what was presented at the hearing, but he did want to specifically hear information about
whether there was any additional limitations caused by any cardiovascular impairment. (Tr. 96).
The ALJ also pointed out that Ferguson needed to show that he became disabled sometime prior to
December 31, 2010, the date he was last insured. (Tr. 96).
1.

Ferguson’s testimony

Ferguson testified he was 62 years of age and lived with his daughter and son-in-law in a
basement apartment in Minot, North Dakota. (Tr. 97-98). He began working for Johnson’s Cab
Company the end of March 2012. (Tr. 99). He worked approximately three days before he
experience chest pains and was admitted to the hospital and received two stents in his right coronary
artery. (Tr. 99). He briefly went back to work after he had his heart surgery in September 2012 at
Johnson’s Cab Company in Elizabethtown but had to stop working because it was “too much”. (Tr.
98-99). Ferguson testified that the most he made at Johnson’s Cab Company was around $700 per
month. (Tr. 100). Prior to his attempt at working at Johnson’s Cab Company again in 2012, he last
worked in 2008 for the same company. (Tr. 100-101). Ferguson testified that he traveled to
Kentucky at the end of February 2011 because his daughter was experiencing problems with her
pregnancy. (Tr.102). 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. 102).

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When asked whether he thinks he would be able to do any of his jobs today with his health
problems, Ferguson answered no because he does not have the energy. (Tr. 102-03). He further
explained that he would not be able to work because of his spine surgery, numbness in his arms and
hands, his leg burns and aches where they removed the main artery, he wakes up frequently during
the night, he is weak and tired, he gets nauseated, and he has to lay down often. (Tr. 104). Ferguson
agreed with the ALJ that besides his open heart surgery in 2012 he had these health problems prior
to the end of 2010. (Tr. 104).
Ferguson testified that his main health problem is his heart. (Tr. 105). He was told by a
doctor that he had a medically-determinable heart problem in 2008. (Tr. 106-07). When asked
whether he had any medical treatment between 2008 and 2012 for any heart condition, Ferguson
responded that they were keeping his blood pressure regulated and taking medication. (Tr. 107).
Ferguson testified that he received medical treatment for his heart from Dr. Johnson at the Portland
Medical Clinic in Louisville, Kentucky. (Tr. 107). When asked what changed in 2012 that caused
him to go to the doctor for chest pain, Ferguson answered that he attempted to go back to work the
end of March but he assumed that the stress from trying to work caused his chest to start hurting and
aching. (Tr. 107-08). After he had the stents placed in his right coronary artery, he went back to
the doctor and had an EKG and x-ray completed. (Tr. 109). Ferguson had triple bypass surgery in
September 2012. (Tr. 110). When asked whether he had any follow up treatment since the open
heart surgery, Ferguson responded that he has gone back to the doctor and they have him on
medication to keep his heart regulated. (Tr. 110). Ferguson testified that he still has chest pains and
he carries nitroglycerin with him in case it becomes serious and the pain does not go away. (Tr.
110). Ferguson also takes blood pressure medication. (Tr. 110).

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When asked whether doctors put any restrictions on his activities because of his heart
condition, Ferguson responded in the negative. (Tr. 111). Ferguson testified that he is not being
treated for any other health condition. (Tr. 112). Ferguson testified that he does use a cane now to
help him balance but admitted that a doctor did not prescribe it for him. (Tr. 118-19).
Ferguson testified that prior to the end of 2010 he could only walk about a block before
needing a break, could stand for approximately 20 to 30 minutes before needing to sit down, could
carry about 10 pounds before hurting, and could only sit for a limited period before he gets stiff and
sore. (Tr. 125-26).
2.

Vocational expert’s testimony

When examining vocational expert, the ALJ first inquired whether a hypothetical individual
who is over the age 60 but not yet 65, with an eighth-grade formal education, with Ferguson’s
vocational profile and medically determinable impairments that cause the same work-related
limitations described by Ferguson could perform Ferguson’s past relevant work. (Tr. 134). The
vocational expert responded in the negative indicating that Ferguson’s reported limited standing
ability and need for frequent rest breaks would not be tolerated in the employment described in
Ferguson’s work history report. (Tr.134-135).
The ALJ next 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 carry 20 pounds occasionally and 10 pounds frequently; (b) could stand, walk, or sit for a total
of about six hours in an eight-hour workday; (c) had unlimited push-pull ability; (d) had no
limitations in postural activities, manipulative, or visual activities; and (e) had limitations in hearing.
(Tr. 135). The vocational expert responded that the individual described in this hypothetical could

12

perform Ferguson’s past work as a cashier checker, inspector, and street sweeper operator as
performed in the national economy. (Tr. 135-36). The ALJ then inquired whether a person would
be able to perform any of those jobs if they had the limitations described by Ferguson. (Tr. 136).
The vocational expert responded that a person with the limitations described by Ferguson would not
be able to perform any of his past jobs nor any other employment. (Tr. 136).
After the vocational expert had responded to the ALJ’s questions, counsel for Ferguson was
afforded an opportunity for examination. Counsel inquired whether an individual who was not able
to maintain the focus or concentration for two hour periods of time without needing to rest would
be precluded from working any of the past jobs. (Tr. 136). The vocational expert responded in the
affirmative stating that if a person is unable to concentrate for two hours, all competitive
employment would be ruled out (Tr. 136).
G.

ALJ’s July 17, 2013 decision

The ALJ issued his written opinion denying Ferguson’s application for DIB and SSI on July
17, 2013. (Tr. 21-24). The ALJ first found that Ferguson met the insured status requirements of
the Social Security Act through December 31, 2010. (Tr. 21). Next, the ALJ employed the five-step
sequential analysis when evaluating Ferguson’s application. At step one, he observed that Ferguson
had not engaged in any substantial gainful activities since January 22, 2010, his alleged onset date.
(Tr. 23). At step two, the ALJ recognized that Ferguson suffered from the following severe
impairments: degenerative disc disease, chronic obstructive pulmonary disease, and bilateral hearing
loss. (Tr. 23). The ALJ also found that Ferguson’s heart problems, headaches, and right hip pains
were not severe impairments.1 (Tr. 24-26).
1

As stated previously, the Appeals Council directed the ALJ to give further consideration to whether Ferguson
had a severe cardiovascular impairment during the period at issue because Ferguson had submitted new evidence which

13

Moving on to step three, the ALJ compared Ferguson’s impairments to the presumptively
disabling impairments listed at 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr. 26-27). In so doing,
the ALJ concluded that none of Ferguson’s aforementioned impairments, either individually or in
combination, were presumptively disabling. (Tr. 26-27).
The ALJ next assessed Ferguson’s residual functional capacity, i.e., his “ability to do
physical or mental work activities on a sustained basis despite limitations from his impairments.”
(Tr. 27-32). The ALJ made the following determination with respect to Ferguson’s residual function
capacity:
[C]laimant has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) within the following parameters: the claimant
can occasionally lift up to 20 pounds; frequently lift up to 10 pounds; sit (with
normal breaks) for a total of about 6 hours in an 8-hour workday; and stand and/or
walk (with normal breaks) for a total of about 6 hours in an 8-hour workday. The
claimant has no postural, manipulative, visual or environmental limitations.
Although the claimant does have limited hearing, he retains the ability to understand
and respond to oral communications.
(Tr. 27). In so doing the ALJ acknowledged that Ferguson’s medically determinable impairments
could reasonably be expected to cause the alleged symptoms. (Tr. 28). He nevertheless concluded
that the record and objective medical evidence did not support the level of impairment claimed by
Ferguson during the relevant time period for a number of reasons in more detail infra. (Tr. 28-32).
The ALJ found Ferguson’s subject complaints were less than credible and not supported by
objective observation or assessment. (Tr. 28).

indicated he may have had a severe cardiovascular impairment during the time frame at issue. The ALJ analyzed this
issue thoroughly and concluded that the medical records did not establish a formal diagnosis of a cardiovascular
condition arising from medically acceptable clinic and laboratory diagnostic techniques prior to April 2012. (Tr. 25).
Even though Ferguson testified that his main health problem was his heart, Ferguson did not dispute the ALJ’s
finding about his heart issues in his current motion for summary judgment. The court would note however, that although
there may be enough evidence that Ferguson had a cardiovascular condition or coronary artery disease as of April 2012,
there is sufficient evidence to support the ALJ’s finding that he did not have a cardiovascular condition or coronary artery
disease on December 31, 2010, his date last insured.

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At the fourth step the ALJ determined that Ferguson was capable of performing past relevant
work as an inspector of nonferrous metals. (Tr. 33). Ferguson had worked as an aluminum inspector
from 1999 to 2004. (Tr. 33). The ALJ noted the vocational expert’s testimony that an individual
with Ferguson’s RFC would be able to perform such work both as described by Ferguson and as
described in the Dictionary of Occupational Titles. (Tr. 33). As a consequence, the ALJ ruled that
Ferguson was not disabled as defined by Social Security Act and was ineligible for either DIB or
SSI benefits. (Tr. 33).
Having determined Ferguson could perform his past relevant work as an aluminum inspector,
the analysis ended without reaching the fifth step which would have required determining whether
Ferguson could perform other work considering his RFC, age, education, and work experience.
II.

GOVERNING LAW
A.

Standard of review

The scope of this court’s review is limited. The court it is not permitted to conduct a de novo
review. Rather, it must look at the record as a whole to determine whether there is substantial
evidence to support the Commissioner’s decision. Ellis, 392 F.3d at 993.
Substantial evidence is less than a preponderance, but more than a scintilla of evidence. E.g.,
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (“Buckner”). It is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Nelson v. Sullivan, 966
F.2d 363, 366 n.6 (8th Cir. 1992) (quoting Richardson v. Perales, 402 U.S. 389, 401(1971)).
Under the substantial evidence standard, it is possible for reasonable persons to reach
contrary, inconsistent results. Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). Thus, the
standard “embodies a zone of choice within which the [Commissioner] may decide to grant or deny

15

benefits without being subject to reversal on appeal.” Id. Consequently, the court is required to
affirm a Commissioner’s decision that is supported by substantial evidence - even when the court
would weigh the evidence differently and reach an opposite conclusion. Id.; Buckner, 646 F.3d at
556 (“Rather, if, after reviewing the record, we find that it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner's findings, we
must affirm the decision of the Commissioner.”) (internal quotations and citations omitted).
In conducting its review, the court is required to afford great deference to the ALJ’s
credibility assessments when the ALJ has seriously considered, but for good reason has expressly
discounted, a claimant’s subjective complaints, and those reasons are supported by substantial
evidence based on the record as a whole. See Haggard v. Apfel, 175 F.3d 591, 594 (8th Cir. 1999)
(“Haggard”); Brockman v. Sullivan, 987 F.2d 1344, 1346 (8th Cir. 1993) (“Brockman”). The Eighth
Circuit has stated, “Our touchstone is that a claimant’s credibility is primarily a matter for the ALJ
to decide.” Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir. 2003) (“Anderson”).
Nonetheless, the court’s review is more than a search for evidence that would support the
determination of the Commissioner. The court is required to carefully consider the entire record in
deciding whether there is substantial evidence to support the Commissioner’s decision, including
evidence unfavorable to the Commissioner. Ellis, 392 F.3d at 993.
B.

Law governing eligibility for adult benefits

An individual shall be considered to be disabled for purposes of DIB if the person is unable
to engage in any substantial gainful activity by reason of a medically determinable physical or
mental impairment that can be expected to result in death or that has lasted, or can be expected to
last, for a continuous period of not less than twelve months. E.g., Hilkenmeyer v. Barnhart, 380 F.3d

16

441, 443 (8th Cir. 2004); Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); see 42 U.S.C.
§§ 423(d)(1)(A), 1382c(a)(3)(A). To be entitled to disability benefits, a claimant must prove he was
disabled before his insurance expired. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
In deciding whether a claimant is disabled within the meaning of the Act, the ALJ is
required to use the five-step sequential evaluation mandated by 20 C.F.R. §§ 404.1520(a)(4),
416.920(a)(4)2 and determine:
(1)

whether the claimant is presently engaged in a substantial gainful activity,

(2)

whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities,

(3)

whether the claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations,

(4)

whether the claimant has the residual functional capacity to perform his or
her past relevant work, and

(5)

if the claimant cannot perform the past work, the burden then shifts to the
Commissioner to prove that there are other jobs in the national economy that
the claimant can perform.

If the ALJ reaches the fourth or fifth steps, the ALJ must determine a claimant’s residual
functional capacity (“RFC”), which is what the claimant can do despite his or her limitations. 20
C.F.R. §§ 404.1545, 416.945. The ALJ is required to make the RFC determination based on all
relevant evidence, including, particularly, any observations of treating physicians and the claimant’s
own subjective complaints and descriptions of his or her limitations. Pearsall v. Massanari, 274 F.3d
at 1218.
III.

ANALYSIS AND DISCUSSION
Ferguson makes five arguments in support of his motion for summary judgment: (1) the
2

The provisions in 20 CFR Part 404 apply to DIB and the provisions in Part 416 apply to SSI benefits.

17

Appeals Council failed to review additional evidence submitted by Ferguson; (2) the ALJ erred by
not finding Ferguson’s impairments equaled Listings 1.02, 11.03, and 3.02; (3) the ALJ improperly
rejected the opinions of his treating physicians without contacting them and requesting additional
information; (4) the ALJ improperly rejected Ferguson’s testimony as not being credible; and (5)
the ALJ failed to accurately and thoroughly present hypotheticals to the vocational expert.
A.

Additional evidence

Ferguson argues the Appeals Council erred by not considering the additional supporting
evidence he submitted before denying review. In support of his request for review by the Appeals
Council, Ferguson submitted additional medical records from: (1) Norton Healthcare from April 8,
2012 to November 27, 2013; (2) Norton Audubon Hospital from August 12, 2013; and (3) Norton
Audubon Hospital from June 2, 2008 to August 12, 2013. (Tr. 526-545; 546-586; 587-590).
However, the Appeals Council did consider the additional evidence before declining review.
The Appeals Council stated in their decision:
In looking at your case, we considered the additional evidence listed on the enclosed
Order of Appeals Council. We considered whether the Administrative Law Judge’s
action, findings, or conclusion is contrary to the weight of evidence of record. We
found that this information does not provide a basis for changing the Administrative
Law Judge’s decision.
(Tr. 1-2). Since the Appeals Council considered the additional evidence, this court does not evaluate
the Appeals Council decision to deny review under controlling Eighth Circuit precedent. Bergmann
v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000); Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994).
Instead, the court must determine “whether the administrative law judge’s determinations is
supported by substantial evidence on the record as a whole, including the new evidence submitted
after the determination was made.” Id., citing Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992).

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Consequently, the court concludes that the Appeals Council properly considered the record
including the additional evidence submitted by Ferguson when reaching their decision to deny
review.
B.

Listing-level impairments

Ferguson argues he meets Listings 1.02 for major dysfunction of a joint, 11.03 for Epilepsy,
and 3.02(B) for chronic restrictive ventilatory disease. The Commissioner contends that the ALJ
properly determined that Ferguson was not disabled at step three of the sequential evaluation process
because Ferguson did not meet his burden to show he meets all of the criteria in the listing for which
he claims disability.
A listing-level impairment is one that is presumptively disabling without consideration of
the claimant’s age, education, and work experience. 20 C.F.R. § 404.1520(d). The burden is on the
claimant to show he has a listing-level impairment. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th
Cir. 2004). In order to meet this burden, the claimant must show he meets all the specified medical
criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). An impairment that meets only some of the
criteria, no matter how severe, is insufficient. Id.
1.

Listing 1.02 impairment

Ferguson argues that he meets Listing 1.02, “Major Dysfunction of a Joint.” See Docket No.
11 at 3-4. Ferguson references weakness, pain, numbness in his arms and hands, inability to perform
fine motor manipulative movements on more than an occasional basis, and inability to walk more
than a block before needing to rest following his 2002 cervical fusion.
Listing 1.02 provides as follows:
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
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instability) and chronic joint pain and stiffness with signs of limitation of motion or
other abnormal motion of the affected joint(s), and findings on appropriate medically
acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the
affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;
or
B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder,
elbow, or wrist-hand), resulting in inability to perform fine and gross movements
effectively, as defined in 1.00B2c.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.02. Effective ambulation is defined to mean:
b. What We Mean by Inability to Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an extreme limitation of the
ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.
(Listing 1.05C is an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of sustaining a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily
living. They must have the ability to travel without companion assistance to and from
a place of employment or school. Therefore, examples of ineffective ambulation
include, but are not limited to, the inability to walk without the use of a walker, two
crutches or two canes, the inability to walk a block at a reasonable pace on rough or
uneven surfaces, the inability to use standard public transportation, the inability to
carry out routine ambulatory activities, such as shopping and banking, and the
inability to climb a few steps at a reasonable pace with the use of a single hand rail.
The ability to walk independently about one's home without the use of assistive
devices does not, in and of itself, constitute effective ambulation.
See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00B2b.
Although Ferguson used a cane at the time of the administrative hearing on April 23, 2013
and testified that he used the cane to help him balance (Tr. 119), he is still able to ambulate
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effectively as defined in § 1.00B2b. Among other things, he has a driver’s license and is able to
drive a car. He drives to the store to buy groceries for himself and his ex-wife. He does not use a
walker, two canes, or two crutches. Ferguson testified he goes frequently goes back and forth
between North Dakota to Kentucky. However, there is no evidence he needs companion assistance
when traveling. Finally, Ferguson can complete all his daily living activities, including house
cleaning, cooking, laundry, bathing, and dressing, although it takes him longer to do.
In summary, the court concludes there is substantial evidence supporting the ALJ’s
conclusion that Ferguson’s impairments do not meet or equal Listing 1.02.
2.

Listings 11.03 and 3.02 impairments

Ferguson argues that he meets Listing 11.03 “Seizure” because his “migraines occur more
frequently than once per week and are disabling in nature.” See Docket No. 11 at 4. Ferguson also
argues “may meet or equal” Listing 3.02(B) “Chronic Pulmonary Insufficiency” due to his COPD
exacerbations. See id.
The burden is on the claimant to show he has a listing-level impairment. Johnson, 390 F.3d
at 1070 (8th Cir. 2004). The court rejects Ferguson’s conclusory assertions that the ALJ failed to
consider whether he met Listings 11.03 or 3.02(B) because Ferguson has failed to provide any
relevant law or facts supported by the record regarding these listings. See Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005) (summarily rejecting appellant’s conclusory assertion that the ALJ
failed to consider whether he met certain listings where the appellant provided no analysis of the
relevant law or facts); see also Reynolds v. Astrue, 390 Fed. App’x 612, 613 (8th Cir. 2010); Taylor
v. Astrue, 467 Fed. App’x 544 (8th Cir. 2012); Walters v. Colvin, 615 Fed.App. 394, 395 (8th Cir.
2015) (all finding the same). Therefore, there is substantial evidence supporting the ALJ’s

21

conclusion that Ferguson’s impairments do not meet or equal Listings 11.03 or 3.2(B).
C.

RFC determination

Having reached the fourth step of the five-step sequential analysis, the ALJ was required to
assess Ferguson’s RFC. As explained previously, RFC is the most a person can do despite that
person’s limitations. 20 C.F.R. § 404.1545(a)(1). “The ALJ should determine a claimant’s RFC
based on all the relevant evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of his limitations.” Lacroix v. Bernhardt, 465 F.3d
881, 887 (8th Cir. 2006).
The ALJ determined that Ferguson: (1) could occasionally lift up to 20 pounds; frequently
lift up to ten pounds; (2) could sit (for normal breaks) for about six hours in an eight hour workday;
(3) could stand/walk (with normal breaks) for a total of about six hours in an eight our workday; (4)
had no postural, manipulative, visual or environmental limitations; and (5) retained the ability to
understand and respond to oral communicated despite have limited hearing. The ALJ then relied
upon his RFC determination, together with testimony from the vocational expert, to conclude
Ferguson was capable of returning to his past relevant work and therefore was not disabled. (Tr. 27).
The primary medical evidence that the ALJ relied upon for his RFC determination was the
assessment of Ferguson’s RFC completed by the State agency consultant, Dr. Marlin Johnson, on
October 28, 2010. (Tr. 503-510). Although Dr. Johnson did not personally examine Ferguson, his
assessment relied in part upon the results of the physical examination of Ferguson conducted on
October 20, 2010, by Dr. Mohandesi and Dr. Talley. On January 25, 2011, Dr. Thomas Christianson
reviewed all of the evidence in the file and affirmed Dr. Johnson’s assessment. (Tr. 511-513).
Ferguson disagrees with the ALJ’s RFC determination. Ferguson contends he cannot

22

perform his past relevant work due to neck and back pain, COPD, migraine headaches, syncope,
vertigo, depression, an inability to focus and maintain persistence and pace, the side effects of his
medication, and the need to limit his exposure to fumes and irritants. See Docket No. 11 at 4-5. He
contends the record supports his argument that he does not have the RFC to perform any substantial
gainful activity let alone light or sedentary duties because these impairments would require
“frequent absences, unscheduled breaks and the need to nap, which precludes any and all
competitive work activities.” See id. at 6. Ferguson argues the ALJ erred in determining his RFC
because: (1) the ALJ rejected the opinions of his treating physicians without contacting them and
requesting additional information; and (2) the ALJ improperly rejected much of Ferguson’s
testimony as not being credible.
1.

Treating physician’s opinions

Ferguson argues the ALJ improperly rejected the opinions of his treating physicians.
Ferguson contends the ALJ violated his duty to develop the facts fully and fairly by not contacting
these treating physicians and requesting additional information and/or clarification.
Ferguson identifies three physician opinions from 1992 and 1993, which he contends indicate
his impairments are permanently disabling. Specifically, he asserts that Dr. Raymond Shea’s
progress notes dated August 4, 1992, October 6, 1992, and July 7, 1993, stated that Ferguson was
permanently and totally disabled. See id. at 5. An ALJ may give a physician’s opinions less weight
if it is vague, conclusory, and inconsistent with the record. Stormo v. Barnhart, 377 F.3d 801, 805806 (8th Cir. 2004) (citation omitted). The court has reviewed the entire record and is unable to
locate the opinions of Dr. Raymond Shea from August 4, 1992, October 6, 1992, and July 7, 1993,
cited by Ferguson in his brief in support of summary judgment nor does the ALJ discuss these

23

opinions in his decision. In any event, these opinions predate Ferguson’s alleged onset date by more
than 15 years and therefore have little relevancy to Ferguson’s current claims especially since the
ALJ cited numerous medical opinions and records that contradict Dr. Shea’s alleged opinion that
Ferguson is totally disabled. Furthermore, opinions on whether a claimant is disabled or unable to
work are reserved to the Commissioner. 20 C.F. R. § 404.1527(e)(1).
Ferguson also relies on Dr. Talley’s assessment that Ferguson was having numerous ongoing
and difficult health issues. Ferguson attended a physical consultive examination with Dr. Mohandesi
and Dr. Talley on August 20, 2010, in Minot, North Dakota. In his decision, the ALJ addressed in
detail the opinions of Dr. Mohandesi and Dr. Talley and determined:
It does not appear that Dr. Mohandesi or Dr. Talley opined as to any work-related
abilities or limitations of the claimant following this evaluation. (Ex. C6F).
However, it is of note that their examination notes do not reveal findings lending
considerable support to the claimant’s allegations. Aside form reduced neck range
of motion and tenderness of the neck, their physical examination was largely
unremarkable. Despite the claimant’s allegations of severe weakness and numbness,
strength and sensation were both intact. Similarly, despite the claimant’s allegations
of balance problems and an inability to walk, the claimant’s gait and other
movements were noted to be unremarkable. As such, these examination findings
were given particular weight by the undersigned.
(Tr. 31). The ALJ did not violate his duty to develop the facts by failing to request additional
information from Dr. Talley because he properly considered and weighed the opinion evidence
provided by Dr. Mohandesi and Dr. Talley. The ALJ “does not...have to seek additional clarifying
statements from a treating physician unless a crucial point is undeveloped.” Stormo, 377 F.3d at
806. Ferguson does not argue, nor does the court find a crucial point that is undeveloped.
Ferguson also argues that the ALJ should have obtained the opinion of a medical expert
because he knew that Ferguson had no health insurance and was unable to maintain consistent care
and treatment. This argument lacks merit as the ALJ was not required to obtain a medical expert

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opinion, especially since the ALJ ordered a consultive examination.
2.

Credibility determination

Ferguson argues that the ALJ improperly rejected much of his testimony as not being
credible and he alleges the ALJ erroneously determined that his ability to do some chores infers that
he can work on a full-time basis. He also argues the ALJ did not thoroughly evaluate the intensity
and persistence of his symptoms before determining his RFC.
In evaluating a claimant’s subjective complaints, the ALJ is required to assess the claimant’s
credibility in light of the objective medical evidence and “any evidence relating to: a claimant’s
daily activities; duration, frequency and intensity of pain; dosage and effectiveness of medication;
precipitating and aggravating factors, and functional restrictions.” Id. In this circuit, these are
referred to as the “Polaski factors” after the Eighth Circuit’s decision in Polaski v. Heckler, 739 F.2d
1320 (8th Cir. 1984). E.g., Ellis v. Barnhart, 392 F.3d 988, 993-996 (8th Cir. 2005) (“Ellis”). A
claimant’s subjective complaints may be discounted only if found to be inconsistent with the record
taken as a whole. Pearsall v. Massanari, 274 F.3d at 1218. The court should, “defer to the ALJ’s
determinations regarding the credibility of testimony, so long as they are supported by good reasons
and substantial evidence.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (quoting Guilliams
v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
The record shows the ALJ considered multiple factors in assessing Ferguson’s credibility.
First, the ALJ found the severity of Ferguson’s impairments were not consistent with the objective
medical evidence in the record. In his opinion, the ALJ summarized in detail the medical evidence
that he viewed as being inconsistent with Ferguson’s claims. This included: (1) Dr. Shields’ medical
opinions from 2008; (2) Dr. Jackson’s progress notes from January and March 2009 ; (3) the results
of the physical examinations conducted by Dr. Mohandesi and Dr. Talley in August 2010; and (4)
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the functional capacity assessment made by Dr. Johnson, which in part relied upon the results of the
physical examinations made by Dr. Mohandesi and Dr. Talley and which stated that Ferguson’s
claimed limitations were only “partially credible” and “may be overstated.” (Tr. 508).
Next, the ALJ cited Ferguson’s failure to obtain treatment for symptoms for a significant
period of time. See Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (“While not dispositive,
a failure to seek treatment may indicate the relative seriousness of a medical problem.”). The ALJ
noted that subsequent to February 2009, the record appeared to suggest a gap in medical treatment
sought or received by Ferguson. Ferguson was seen as a new patient on January 5, 2010, which the
ALJ pointed out was during the time period he was applying for disability benefits. Ferguson was
then seen on January 29, 2010, March 24, 210, and then not again until August 20, 2010. The ALJ
noted that Ferguson presented for refills of his medication in September of 2010 but other than that
the records reveal another lengthy gap in any medical treatment sought or received by Ferguson.
Ferguson did receive treatment for cardiovascular problems in 2012, albeit that treatment was also
very rare.
Ferguson also contends he had no health insurance since 2010 and was unable to maintain
consistent care and treatment. However, the ALJ noted that there was little indication that Ferguson
exhausted low-cost or other indigent treatment options, nor was there indication that Ferguson was
refused treatment due to his inability to pay. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th Cir.
1992) (concluding a lack of evidence that a claimant attempted to find any low cost or no cost
medical treatment for his alleged pain and disability is inconsistent with a claim of disabling pain.).
Finally, the ALJ discussed Ferguson’s work history, finding that his sporadic work history
dating to 2005 did not lend significant probative weight to his allegations. The ALJ noted the fact
that Ferguson reported that his work ended in February of 2008 for reasons unrelated to his medical
26

impairment raised questions about the extent to which Ferguson’s continuing unemployment
thereafter was truly the result of his medical problems.
With respect to Ferguson’s daily activities, the ALJ did not reject Ferguson’s subjective
complaints solely based on his ability to do some chores. The ALJ acknowledged that Ferguson
takes breaks while doing the dishes and uses a chair in the shower; however he also noted that
Ferguson is able to drive to the store to get groceries and is able to meet his personal care needs.
Therefore, the ALJ ultimately concluded that Ferguson’s activities of daily living did not weigh
heavily either in support of or against Ferguson’s allegations.
After reviewing the ALJ’s decision and the record, the court concludes that, because the ALJ
gave several valid reasons for the ALJ’s determination that Ferguson was not entirely credible, the
ALJ’s credibility determination is entitled to deference. The court finds substantial support in the
record for the ALJ’s conclusions. The ALJ thoroughly evaluated the record and gave specific
reasons for finding Ferguson’s complaints were not fully credible. See Gregg v. Barnhardt, 354 F.3d
710, 714 (8th Cir. 2003) (“If an ALJ explicitly discredits the claimant’s testimony and gives good
reasons for doing so, we will normally defer to the ALJ’s credibility determination.”).
D.

Hypothetical questions

Ferguson also argues that the ALJ failed to accurately and thoroughly present hypotheticals
to the vocational expert and instead limited the vocational expert’s consideration “to but a part of
the whole.” “Testimony based on hypothetical questions that do not encompass all relevant
impairments cannot constitute substantial evidence to support the ALJ’s decision.” Jones v. Astrue,
619 F.3d 963, 972 (8th Cir. 2010) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)
(check this cite). “The ALJ’s hypothetical question to the vocational expert needs to include only
those impairments that the ALJ finds are substantially supported by the record as a whole.” Martise
27

v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (citing Lacroix, 465 F.3d at 889).
The ALJ’s hypothetical question included all the limitations found to exists by the ALJ and
set forth in the ALJ’s RFC determination. Id. Based on the court’s previous conclusion that the
ALJ’s RFC determination was supported by substantial evidence, the court finds that the
hypothetical questions posed by the ALJ were proper, and the vocational expert’s answers
constituted substantial evidence supporting the Commissioner’s denial of benefits. Id., see also
Lacroix, 465 F.3d at 889.
IV.

CONCLUSION

In this case, there is enough evidence supporting the Commissioner’s decision to meet the
“substantial” threshold and the decision to deny benefits falls within the zone of choice that prohibits
this court from reversing the decision even though there is substantial evidence supporting a contrary
outcome. Accordingly, Ferguson’s Motion for Summary Judgment (Docket No. 10) is DENIED,
the Commissioner’s Motion for Summary Judgment (Docket No. 13) is GRANTED, and the aboveentitled action is DISMISSED.
IT IS SO ORDERED.
Dated this 27th day of July, 2016.
/s/ Charles S. Miller, Jr.
Charles S. Miller, Jr., Magistrate Judge
United States District Court

28