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Ferguson v. Colvin

United States District Court, D. Rhode Island

December 9, 2014

LEE F. FERGUSON, Jr., Plaintiff,

For Lee F. Ferguson, Jr., Plaintiff: Stephen P. Maguire, LEAD ATTORNEY, Cranston, RI.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Mary Rogers, LEAD ATTORNEY, U.S. Attorney's Office, Providence, RI.

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John J. McConnell, Jr., United States District Judge.

Plaintiff Lee Ferguson, Jr., brings this action under 42 U.S.C. § 405(g) to review a final decision of the Social Security Commissioner (the " Commissioner" ) finding that he was not disabled.[1] The Commissioner issued a final decision, in accordance with the ruling of an Administrative Law Judge (" ALJ" ), denying Mr. Ferguson's claim for Disability Income Benefits (" DIB" ) under Title II of the Social Security Act. Mr. Ferguson seeks reversal or remand of the disability determination (ECF No. 7), while the Commissioner seeks an affirmance of the decision. (ECF No. 8).[2] After a thorough review, this Court finds that the ALJ's failure to give appropriate weight to Mr. Ferguson's treating physician necessitates remand to the ALJ.


A. Procedural History

Mr. Ferguson filed his application for Social Security disability insurance benefits on September 7, 2011, alleging that he became disabled on October 1, 2009.[3] (Tr. at 11, 122-123).[4] Mr. Ferguson's application was denied initially, id. at 71-73, and on reconsideration, id. at 75-77, after which he requested a hearing before an ALJ. Id. at 78. ALJ Gerald Resnick held a hearing at which Mr. Ferguson, who was represented by counsel, and a vocational expert appeared and testified. Id. at 23-53. The ALJ issued a decision finding that Mr. Ferguson was not disabled from October 1, 2009 through the date of the ALJ's decision, and was therefore not entitled to receive the requested benefits. Id. at 11-19. The Appeals Council denied Mr. Ferguson's request for review, id. at 1-3, rendering the ALJ's decision the final decision of the Commissioner. Mr. Ferguson has exhausted his administrative remedies, and this case is now ripe for judicial review before this Court under 42 U.S.C. § 405(g).

B. Work History

Mr. Ferguson was approximately fifty years old on his alleged disability onset date and fifty-two years old on the date of

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the ALJ's decision. (Tr. at 19, 122). He is a college graduate. Id. at 140. He previously worked as an assistant project manager/project engineer, site superintendent, project manager/estimator, site clerk/assistant superintendent, architect draftsman, and pre-loader. Id. at 156. Mr. Ferguson also worked in building maintenance and in construction and compressor work, where he was self-employed. Id. Mr. Ferguson testified at the ALJ hearing that he stopped working as a draftsman due to concentration issues and economic cutbacks, but he was laid off due to his concentration. Id. at 42. He further stated that he collected unemployment between September 2009 and September 2011, and that to receive unemployment, he had to represent that he was able to work. Id. at 42-43.[5]

C. Medical Evidence

Mr. Ferguson alleged that he became disabled due to degenerative joint disease in his knees, a vertebra fracture, muscle spasms in his lower back, arthritis in his hips and back, a herniated disc in his neck, pinched nerves, and a degenerated ear filter. Id. at 139.

Mr. Ferguson received all of his medical treatment from the Veterans Administration Medical Center in Providence (" VA" ) where his primary care physician was Dr. John P. Bas, M.D. In December 2009, Mr. Ferguson began to complain of sharp right scapula pain, radiating through the front of his shoulder, with occasional arm numbness. Id. at 231. The VA referred him to physical therapy. Id. at 229. Mr. Ferguson also complained of cervical spine pain and diagnostic tests showed disc protrusion, degenerative changes, and minimal disc bulging. Id. at 221, 228. He wore a cervical traction unit. Id. at 220. He began physical therapy a month later and continued to report pain in his shoulder, into his arm and wrist, as well as reduced strength. Id. at 225.

During an orthopedic exam in June 2010, Mr. Ferguson had positive results on the Neer/Hawkins tests for shoulder impairment and on the Phalen's test for hand impingement. Id. at 218. In July 2010, Mr. Ferguson cited knee pain to Dr. Bas, id. at 210, and began using a TENS pain unit and night splints for carpal tunnel. Id. at 208-210.

By December 2011, Mr. Ferguson walked with a limp and required a wraparound hinged knee brace and a straight cane. Id. at 251-252; 412.

In the spring of 2012, the pain in Mr. Ferguson's knee, back, and neck increased. Id. at 389-90. An MRI showed multilevel degenerative changes in his lumbar spine. Id. at 362, 398. In late 2012, Mr. Ferguson continued with complaints of chronic knee, lower back, and neck pain. Id. at ...

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