United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
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.
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.]
evaluating a claim of disability, an ALJ conducts a five-step
analysis. See 20 C.F.R. §
404.1520. 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.
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. §
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).
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.
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.
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 ...