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Foster v. Berryhill

United States District Court, E.D. Kentucky, Central Division, Lexington

August 15, 2019

LISA FOSTER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Gregory F. Van Tatenhove United States District Judge.

         Lisa Foster seeks judicial review of an administrative decision of the Commissioner of Social Security, which denied her claim for disability benefits. Ms. Foster brings this action pursuant to 42 U.S.C. § 405(g), alleging error by the ALJ considering the matter. The Court, having reviewed the record and for the reasons set forth herein, will DENY Ms. Foster's Motion for Summary Judgment and GRANT the Commissioner's.


         Ms. Foster filed an application for a period of disability and disability insurance benefits on October 21, 2014. [Transcript (hereinafter, “Tr.”) 11.] Ms. Foster's Motion for Summary Judgment alleges a disability beginning on June 22, 2013, due to peripheral artery disease, coronary artery disease, degenerative arthritis, osteoarthritis, claudication in the lower extremities, meniscus tear and diabetic neuropathy. [R. 10 at 3.] Ms. Foster's application was denied initially and upon reconsideration. Id. At Ms. Foster's request, an administrative hearing was conducted before Administrative Law Judge Roger L. Reynolds on May 15, 2017. [Tr. 11.] During the hearing, the ALJ heard testimony from Tina Stambaugh, an impartial vocational expert, as well as Ms. Foster. [Tr. 11.]

         In evaluating a claim of disability, an ALJ conducts a five-step analysis. See 20 C.F.R. § 404.1520.[1] First, if a claimant is working at a substantial gainful activity, she is not disabled. 20 C.F.R. § 404.1520(b). Second, if a claimant does not have any impairment or combination of impairments which significantly limit her physical or mental ability to do basic work activities, then she does not have a severe impairment and is not disabled. 20 C.F.R. § 404.1520(c). Third, if a claimant's impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, she is “disabled.” 20 C.F.R. § 404.1520(d). Before moving to the fourth step, the ALJ must use all the relevant evidence in the record to determine the claimant's residual functional capacity (RFC), which is an assessment of one's ability to perform certain physical and mental work activities on a sustained basis despite any impairment experienced by the individual. See 20 C.F.R. § 404.1520(e); 20 C.F.R. § 404.1545.

         Fourth, the ALJ must determine whether the claimant has the RFC to perform the requirements of her past relevant work, and if a claimant's impairments do not prevent her from doing past relevant work, she is not “disabled.” 20 C.F.R. § 404.1520(e). Fifth, if a claimant's impairments (considering her RFC, age, education, and past work) prevent her from doing other work that exists in the national economy, then she is “disabled.” 20 C.F.R. § 404.1520(f).

         Through Step Four of the analysis, “the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At Step Five, the burden shifts to the Commissioner to identify a significant number of jobs that accommodate the claimant's profile, but the claimant retains the ultimate burden of proving his lack of residual functional capacity. Id.; Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008).

         In this case, the ALJ determined that Ms. Foster was not disabled under the Social Security Act. [Tr. 20.] At Step 1, the ALJ found that Ms. Foster has not engaged in substantial gainful activity since the date of October 21, 2014, the date she submitted her application for disability benefits. [Tr. 14.] At Step 2, the ALJ found that Ms. Foster had the six following severe physical impairments: (i) insulin dependent type II diabetes mellitus with possible neuropathy in the hands and feet; (ii) peripheral arterial disease with stents to the left common iliac, right femoral and left subclavian arteries; (iii) coronary artery disease, status post PTCA; (iv) obesity; (v) degenerative joint disease, right ankle; and (vi) degenerative disease, bilateral knees. Id. At Step Three, the ALJ determined her combination of impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404 or Part 416. Id. at 16-17. Before moving on to Step Four, the ALJ considered the record and determined that Ms. Foster possessed the following residual functioning capacity:

[Ms. Foster] has the residual functional capacity to perform sedentary work as defined in 20 CFR 416.967(a) except she requires a sit stand option with the ability to change position briefly every hour for less than five minutes every hour, no standing or walking in excess of one hour without interruption, no standing or walking in excess of two hours total in an eight hour day, no sifting in excess of one hour in an eight hour day without interruption, no sitting in excess of 6 hours total in an eight hour day; no climbing of ropes, ladders or scaffolds; occasional climbing of stairs or ramps; frequent stooping, kneeling, crouching or crawling; no operations of foot pedal controls; frequent handling or fingering with the left upper extremity; no exposure to concentrate temperature extremes, excess humidity; concentrated vibration or industrial hazards; may require use of a cane for prolonged ambulation.

Id. at 18. After explaining the RFC, the ALJ found at Step Four that, based on her RFC, age, education and work experience, Ms. Foster was not capable of performing past relevant work experience as a self-employed babysitter and motel housekeeper. Id. at 19. Nonetheless, given Ms. Foster's RFC, the ALJ assessed that there are a significant number of jobs available in the national economy which Foster can perform. Id. at 19. The ALJ then issued an unfavorable decision to Foster, finding that she has not been under a disability as defined by the Act. Id. at 20. The Appeals Council denied Foster's appeal of the ALJ's decision. Id. at 8.


         This Court's review is generally limited to whether there is substantial evidence in the record to support the ALJ's decision. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003); Shelman v. Heckler, 821 F.2d 316, 319-20 (6th Cir. 1987). “Substantial evidence” is “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Richard v. Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard “presupposes that there is a zone of choice within which [administrative] decision makers can go either way, without interference by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).

         In determining the existence of substantial evidence, courts must examine the record as a whole. Cutlip, 25 F.3d at 286 (citing Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981), cert. denied, 461 U.S. 957 (1983)). However, courts are not to conduct a de novo review, resolve conflicts in evidence, or make credibility determinations. Ulman v. Comm'r ofSoc. Sec., 693 F.3d 709, 713 (6th Cir. 2012); see also Bradley v. Sec'y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). If the Commissioner's decision is supported by substantial evidence, it must be affirmed even if the reviewing court would decide the matter differently, and even if substantial evidence also supports the opposite conclusion. See Ulman, 693 F.3d at 714; Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Her v. Comm'r of Soc. Sec., 203 F.3d ...

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