Foster v. Social Security Administration
ORDER denying plaintiff's request for relief 2 and affirming the decision of the Commissioner. Signed by Judge James M. Moody on 8/1/12. (kpr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
Emma J. Foster,
Michael J. Astrue, Commissioner,
Social Security Administration
ORDER AFFIRMING THE COMMISSIONER’S DECISION
In this case, plaintiff‐claimant Emma J. Foster sought judicial review of defendant
Commissioner Michael J. Astrue’s denial of her application for supplemental security
income (SSI). Foster asked the court to reverse the Commissioner’s decision and
remand her case to the Social Security Administration (SSA) for the award of benefits.1
In the alternative, she asked the court to reverse the decision and remand her case for
another hearing. After considering the record, the arguments of the parties, and the
applicable law, this court affirms the Commissioner’s decision.
Scope of judicial review. In reviewing a decision denying an application for
disability benefits, the court must determine whether substantial evidence supports the
Commissioner’s decision and whether the Commissioner made a legal error.2
Docket entry # 2.
See 42 U.S.C. § 405(g) (requiring the district court to determine whether the
Commissioner’s findings are supported by substantial evidence and whether the
Commissioner conformed with applicable regulations); Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (stating that the court’s “review of the Commissioner’s denial of
benefits is limited to whether the decision is ‘supported by substantial evidence in the
Substantial evidence is more than a mere scintilla of evidence; it means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.3 In
determining whether substantial evidence supports the Commissioner’s decision, the
court must consider evidence that detracts from the Commissioner’s decision as well as
evidence that supports the decision, but the court may not reverse the Commissioner’s
decision simply because substantial evidence supports a contrary decision.4
The disputed issues. The parties do not dispute that Foster exhausted her
administrative remedies5 or that the Commissioner’s administrative law judge (ALJ)
followed the required five‐step process for determining whether a SSI claimant is
disabled.6 Instead, the parties disagree about the following aspects of the
record as a whole’”); Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997) (“We will uphold
the Commissioner’s decision to deny an applicant disability benefits if the decision is
not based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.”).
See Slusser, 557 F.3d at 925.
See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993).
See Anderson v. Sullivan, 959 F.2d 690, 692 (8th Cir. 1992) (stating that “the Social
Security Act precludes general federal subject matter jurisdiction until administrative
remedies have been exhausted” and explaining that the Commissioner’s appeal
procedure permits claimants to appeal only final decisions).
See 20 C.F.R. § 416.920 (setting forth the five‐step sequential evaluation process
for determining whether a claimant is disabled and entitled to SSI).
(1) the ALJ’s determination about Foster’s residual functional capacity
(2) the ALJ’s determination that Foster could perform her previous work;
(3) the ALJ’s evaluation of Foster’s credibility.
Based on these complaints, Foster argued that substantial evidence does not support the
Commissioner’s conclusion that she was not disabled. Foster also maintained the
Commissioner’s decision does not comport with required legal standards.
The Commissioner’s decision. Before applying for disability benefits, Foster
worked for two and a half years as a cook for a Wal‐Mart deli.7 Foster alleged she
became disabled on August 1, 2007, but she also reported being laid off.8 At that time,
Foster was 57 years old.
The record reflects very little in terms of other employment. Foster reported
working for M.S. Express as a deli cook from 1999 to 2001, and for Dixie Food as a
scaler‐packer from July 1996 to May 1998.9 In the latter job, Foster weighed hot dogs in
a lab. Beyond that, the record reflects minimal earnings.10
SSA record at pp. 100 & 105.
Id. at p. 99 (stating that she was laid off in August 2007). Foster testified she was
let go for an over‐payment of food stamps. Id. at p. 30.
Id. at p. 105.
Id. at p. 93.
Foster applied for SSI on April 7, 2008,11 and based her alleged disability on
diabetes and rheumatoid arthritis.12 The record does not support the allegation of
rheumatoid arthritis. Foster complained about numb hands, painful feet, and
After considering Foster’s application, the ALJ determined that despite having
severe impairments—hypertension, diabetes, osteoarthrosis, and obesity14—Foster had
the RFC15 to perform medium work, reduced by occasional bending, crouching,
stooping, kneeling, crawling and climbing, and no climbing ladders, ropes or
The ALJ consulted with a vocational expert and determined Foster could
perform her past work as a cook.17 Because the ALJ determined Foster could perform
Id. at p. 90.
Id. at p. 99.
Id. at p. 99.
Id. at p. 13.
The Commissioner’s regulations define RFC as “the most [the claimant] can still
do despite [the claimant’s] limitations.” 20 C.F.R. § 404.1545(a)(1) (DIB) & 20 C.F.R.
§ 416.945(a) (SSI).
SSA record at p. 14.
Id. at p. 18.
her past work,18 the ALJ concluded that Foster was not disabled under the Social
Security Act.19 The ALJ’s decision became the final decision of the Commissioner for
the purpose of judicial review pursuant to 42 U.S.C. § 405(g).
Substantial evidence supports the Commissioner’s decision. The following
substantial evidence supports the Commissioner’s conclusion that Foster was not
disabled: (1) treatment notes for diabetes, (2) treatment notes for hypertension,
(3) evidence about weight, (4) treatment notes by Dr. Beata Majewski, (5) a physical
RFC assessment, and (6) vocational expert testimony.
Treatment notes for diabetes. Foster was diagnosed with diabetes type II at least
as early as December 19, 2006.20 Type II diabetes is the most common form of diabetes.
It is “considered a milder form of diabetes because of its slow onset…and because it
frequently can be controlled with diet and oral medication.”21 The diagnosis of diabetes
See 20 C.F.R. § 416.920(a)(4)(iv) (“ At the fourth step, we consider our
assessment of your residual functional capacity and your past relevant work. If you can
still do your past relevant work, we will find that you are not disabled.”).
SSA record at p. 18. To be disabled under the Social Security Act, a claimant
must be “unable to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. § 1382c(a)(3)(A).
SSA record at p. 176. Foster may have been diagnosed earlier, but earlier
medical records are mostly illegible.
2 The Gale Encyclopedia of Med. 1347 (4th ed.).
supports the ALJ’s determination that Foster is impaired by diabetes.
The treatment notes for diabetes support the ALJ’s RFC determination because
the notes documented no serious complications. Although diabetes type II can often be
controlled with diet alone, or diet and medication, untreated type II diabetes can result
in numerous serious health problems—i.e., “kidney failure, heart disease, stroke, limb
amputation, and blindness.”22 In some cases, insulin injections are needed if diet and
oral medication fail to maintain normal glucose levels.23
Foster’s doctors prescribed oral medication, recommended a low caloric diet for
weight loss,24 and encouraged Foster to exercise.25 Doctors documented no symptoms
signaling the complication of Foster’s diabetes—e.g., foot ulcers, slow‐healing wounds,
gum infections, blurred vision, heart disease, or urinary tract infections. Foster’s
prescribed treatment plan, and the lack of documentation of serious complications,
Id. at p. 1346.
Id. at pp. 1347 & 1350.
SSA record at p. 171 (on Dec. 20, 2007, characterizing Foster’s diabetes as
uncontrolled and prescribing 1800 calorie diet); p. 201 (on July 26, 2008, stressing the
“importance of sodium intake, saturated fat and cholesterol, caloric balance, sufficient
intake of complex carbohydrates, fiber, calcium and iron”); p. 204 (on Aug. 16, 2008,
encouraging Foster to change her diet); p. 219 (on May 26, 2009, instructing Foster to
decease sugar intake and diet).
See id. p. 207 (on July 26, 2008, stressing the “importance of regular exercise”);
p. 204 (on Aug. 16, 2008, stressing the importance of 30‐45 minutes of exercise most
days of the week); p. 219 (on May 26, 2009, instructing Foster to exercise).
support the ALJ’s determination about Foster’s RFC because nothing supported a
Treatment notes for hypertension. Foster was diagnosed with hypertension, or
high blood pressure, at least as early as August 3, 2006.26 “Hypertension is serious
because people with the condition have a higher risk for heart disease and other
medical problems than people with normal blood pressure.”27 The diagnosis of
hypertension supported the ALJ’s determination that hypertension was a serious
The treatment notes for hypertension support the ALJ’s RFC determination
because the notes document no serious complications. The goal of treating
hypertension is to lower blood pressure,28 because untreated hypertension can lead to
arteriosclerosis, heart attack, stroke, enlarged heart, and kidney damage.29 “Treatment
to lower blood pressure may include changes in diet, getting regular exercise, and
taking anti[‐]hypertension medications.”30 “The key to avoiding serious complications
Id. at p. 3.
3 The Gale Encyclopedia of Med. 2215 (4th ed.).
Id. at p. 2217.
Id. at p. 2217 (emphasis in source).
of hypertension is to detect and treat it before damage occurs.”31
Foster’s doctors recommended changing Foster’s diet and getting regular
exercise, and prescribed anti‐hypertension medications.32 Doctors documented no
serious complications. The treatment notes showed that Foster’s blood pressure
improved with medication compliance,33 although Foster was not always compliant.34
The treatment notes support the ALJ’s determination because “[a]n impairment which
can be controlled by treatment or medication is not considered disabling.”35 Nothing in
the treatment notes supported a reduced RFC.
Evidence about weight. Foster is 5 feet tall.36 Treatment notes documented her
Id. at p. 2218.
SSA record at pp. 205‐07 (on July 26, 2008, giving Foster clonidine; stressing
moderation in sodium intake, saturated fats and cholesterol; and recommending regular
exercise); id. at p. 204 (on Aug. 16, 2008, prescribing Hydrochlorothiazide, encouraging
decrease in caloric intake, and stressing the importance of regular exercise).
Id. at p. 174 (on June 13, 2007, hypertension was uncontrolled); p. 172 (on Aug.
17, 2007, normal blood pressure); p. 171 on Dec. 20, 2007, normal blood pressure); p. 187
(on May 20, 2008, high blood pressure); p. 204 (on Aug. 16, 2008, good blood pressure);
p. 219 (on May 26, 2009, good blood pressure); p. 218 (on June 9, 2009, noting
medication compliance and normal blood pressure). “Blood pressure lower than 120/80
mm Hg is considered normal.” 3 The Gale Encyclopedia of Med. 2216 (4th ed.).
SSA record at p. 219 (on May 26, 2009, characterizing Foster as non‐compliant
patient); p. 217 (on July 21, 2009, annotating chart with non‐compliant patient).
Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).
SSA record at p. 28.
weight as averaging 196 pounds. A person with that height and weight has a body
mass index (BMI) of 38.3. A person with BMI over 25 is considered obese.37 Foster’s
weight showed that she was obese.
Evidence about Foster’s weight support the ALJ’s determination that Foster’s
ability to work was impaired by obesity. Because obesity can cause functional
limitations “in any of the exertional functions such as sitting, standing, walking, lifting,
carrying, pushing, and pulling,”38 evidence about Foster’s weight also supports the
ALJ’s RFC determination limiting Foster to occasional bending, crouching, stooping,
kneeling, crawling, and restricting Foster from climbing ladders, ropes or scaffold.
Dr. Majewski’s treatment notes. Dr. Majewski is a rheumatologist. Foster
complained to Dr. Majweski about pain and swelling in her left ankle and left hand, and
severe pain in the fingers of her left hand.39 Dr. Majewski ordered a rheumatoid factor
test to determine whether Foster had rheumatoid arthritis and started Foster on
“Individuals with BMI’s over 25 are considered to be obese because this is the
BMI level above which health risks increase.” 10‐78A Attorneys’ Textbook of Med. (3d
ed.) P 78A.00. But see 4 The Gale Encyclopedia of Med. (4th ed.) 3116 (characterizing a
BMI of over 30 as obese).
Social Security Ruling 02‐1p: Policy Interpretation Ruling on Titles II & XVI:
Evaluation of Obesity at ¶ 8, effective Sept. 12, 2002. See 4 The Gale Encyclopedia of
Med. 3116 (4th ed.) (describing how obesity stresses the body’s organs and increases the
risk of problems like fatigue and poor physical fitness).
SSA record at p. 160.
Lab results were negative for the rheumatoid factor,41 so Dr. Majewski diagnosed
Foster with inflammatory arthritis, seronegative.42 This diagnosis supports the ALJ’s
determination that Foster was impaired by osteoarthrosis,43 the most common joint
disorder.44 Dr. Majewski’s treatment notes also support the ALJ’s determination that
Foster can work because Dr. Majewski reported that Foster had improved with
methotrexate, stating, “Functionally, she is doing reasonably well…”45 Nothing in the
treatment notes supported a reduced RFC.
A physical RFC assessment. The record includes a physical RFC assessment by
Dr. Lucy Sauer. In the assessment, Dr. Sauer opined that Foster could lift and/or carry
50 pounds occasionally and 25 pounds frequently; stand and/or walk for a total of
6 hours in an 8‐hour workday; and sit for a total of 6 hours in a normal 8‐hour
Id. at p. 161. One use of methotrexate is to treat rheumatoid arthritis.
Id. at p. 165.
Id. at p. 157. The absence of the rheumatoid factor distinguishes a seronegative
arthritis from rheumatoid arthritis.
Id. at p. 13.
Osteoarthrosis is another name for osteoarthritis. See 4 The Gale Encyclopedia
of Med. 3181 (4th ed.) (describing osteoarthritis as the “oldest and most common types
of arthritis that mostly affects the cartilage”).
SSA record at p. 157.
workday.46 The opined abilities were consistent with medium work.47 The consistency
supports the ALJ’s determination that Foster could perform medium work.
Vocational expert testimony. The vocational expert testified that a person with
Foster’s RFC could perform her past work as a cook.48 The vocational expert’s
testimony supports the ALJ’s determination that Foster could work as a cook, and thus,
that Foster was not disabled.
The Commissioner’s decision comports with applicable legal standards.
The RFC determination. Foster complained about the ALJ’s interpretation of
evidence about her activities of daily living, and argued that her activities do not
support a finding that she can do medium work.49 She maintained that the consulting,
examining doctor indicated she had more impairments than the ALJ found. She also
complained that the RFC determination did not incorporate limitations flowing from
arthritis in her hands.
“A claimant’s RFC represents the most he can do despite the combined effects of
Id. at p. 195.
See 20 C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25
SSA record at p. 41.
Docket entry # 16, p. 8.
all of his credible limitations and must be based on all credible evidence.”50 “In
determining the claimant’s [RFC], the ALJ has a duty to establish, by competent medical
evidence, the physical and mental activity that the claimant can perform in a work
setting, after giving appropriate consideration to all of her impairments.”51 The ALJ,
however, is not required “to mechanically list and reject every possible limitation.”52
Foster initially reported that she could make her bed, iron, shop, and attend
church.53 She later testified that she could hardly get around because of her left leg54
and that she could not button a garment or tie a shoelace with her left hand.55 After a
physical examination, a consultative physician reported that Foster could not squat or
rise from a squatting position.56 This evidence supports Foster’s allegation of disability,
but the court may not reverse the Commissioner’s decision simply because evidence
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011).
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996).
McCoy v. Astrue, 648 F.3d 605, 615 (8th Cir. 2011).
SSA record at p. 113.
Id. at p. 35.
Id. at p. 37.
Id. at p. 190.
supports a contrary decision.57 Instead, the court must defer to the ALJ’s findings if
supported by substantial evidence. Here, substantial evidence supports the ALJ’s
In determining RFC, the ALJ must first determine the applicant’s credibility,”58
and then determine a claimant’s RFC based on all relevant evidence.59 The ALJ in this
case evaluated Foster’s credibility and found her allegations about her limitations
partially credible.60 The unfavorable decision shows the ALJ considered all relevant
evidence. For example, the consultative examiner found that Foster could hold a pen
and write, pick up a coin, and touch her fingertips to her palm.61 This finding
contradicted Foster’s report that she could not button a garment or tie a shoelace. The
consultative examiner also found that Foster could stand and walk without assistive
devices and assessed Foster’s ability to walk, stand, sit, lift, carry, handle and finger as
moderate.62 Foster’s treating physician found a full range of motion in all extremities
See Sultan v. Barnhart, 368 F.3d 857, 863 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d
1210, 1213 (8th Cir. 1993).
Ellis v. Barnhart, 392 F.3d 988, 995‐96 (8th Cir. 2005).
Pearsall v. Massanari, 274 F.3d 1211, 1217‐18 (8th Cir. 2001).
SSA record at pp. 15‐17.
Id. at p. 190.
Id. at p. 191.
with crepitance (crunching with bending) in left knee,63 and encouraged Foster to
exercise.64 This evidence contradicted Foster’s testimony she could hardly get around.
To the extent Foster argued that postural limitations were inconsistent without
limitations on standing and walking,65 that argument fails for at least two reasons. First,
the ALJ limited Foster to up to six hours in an eight‐hour workday. Second, Foster had
a negative Romberg’s test.66 Foster alleged she was so impaired that she could not
work, but the ALJ cited substantial, competent medical evidence supporting the RFC
determination. The ALJ did not err in determining Foster’s RFC.
The determination that Foster could perform her previous work. Foster
contended that her description of her past work exceeded the demands of a short‐order
cook. She argued that her work was closer to a fry cook. Because she maintained the
ALJ used an erroneous job description in the unfavorable decision, she asked the court
to remand this case for re‐evaluation.
Id. at p. 214.
See docket entry # 16, p. 9.
SSA record at p. 190. “The Romberg test assesses the ability of the patient to
stand erect without swaying or falling.” 9‐307 Proving Med. Diagnosis & Prognosis
(Scope). “A normally functioning patient should be able to hold the Romberg position
for 15 seconds without falling or significant swaying, in which case the Romberg test is
said to be negative.” Id. at § 307.05.
In determining whether a claimant can do her past work, a “vocational expert or
specialist may offer relevant evidence within his or her expertise or knowledge
concerning the physical and mental demands of a claimant’s past relevant work, either
as the claimant actually performed it or as generally performed in the national
economy.”67 In this case, the ALJ consulted a vocational expert. After considering
Foster’s description of her past work, and considering various job descriptions in the
Dictionary of Occupational Titles (DOT), the vocational expert testified that Foster
could perform her past relevant work as a short‐order cook, DOT code 313.374‐014.68
Foster’s description of her work was consistent with the DOT’s description of a short‐
order cook.69 The ALJ did not err in determining that Foster could do her past work.
The ALJ’s evaluation of Foster’s credibility. Foster asserted that the ALJ did not
adequately explain why the medical evidence was inconsistent with her allegations of
20 C.F.R. § 416.960(b)(2).
SSA record at p. 40‐41.
Compare SSA record at pp. 29‐32, 105 & 108 (explaining that she cooked at a deli
and handled cold cuts and pans with food), with Dictionary of Occupational Titles, code
313.374‐014 (“Prepares food and serves restaurant patrons at counters or tables: Takes
order from customer and cooks foods requiring short preparation time, according to
customer requirements. Completes order from steamtable and serves customer at table
or counter.…Carves meats, makes sandwiches, and brews coffee. May clean food
preparation equipment and work area. May clean counter or tables.”).
pain.70 She suggested that the medical evidence showed that she was disabled. Foster’s
complaint challenges the ALJ’s evaluation of her credibility.
“In assessing a claimant’s credibility, an ALJ must consider all of the evidence
related to the subjective complaints, the claimant’s daily activities, observations of third
parties, and the reports of treating and examining physicians.”71 “The ALJ may
discount complaints of pain if they are inconsistent with the evidence as a whole.”72
In this case, the ALJ addressed all required considerations:73 Foster’s past work,
Foster’s treatment records, her description of her daily activities, allegations of pain and
other symptoms, the use of medication, and limitations flowing from Foster’s
conditions. Although Foster maintained the ALJ failed to explain why the medical
evidence was inconsistent with her allegations of pain, the ALJ’s opinion reflects the
Docket entry # 16, p. 11.
McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011) (citing Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984)).
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001).
In considering the credibility a claimant’s subjective complaints, an ALJ must
consider: (1) the claimant’s prior work record; (2) observations by third parties and
treating and examining physicians relating to such matters as: (a) the claimant’s daily
activities; (b) the duration, frequency and intensity of the pain; (c) precipitating and
aggravating factors; (d) dosage, effectiveness and side effects of medication; and
(e) functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
The opinion reflects a careful comparison Foster’s allegations with the medical
evidence and includes a reasoned explanation about why the medical evidence did not
support Foster’s allegations. For example, Foster alleged her conditions affected her
ability to lift, stand, walk, sit, climb stairs, kneel, squat, use her hands, see, bend,
remember, and complete tasks,74 but the ALJ reasoned that “although the claimant has
received treatment for the allegedly disabling impairments, that treatment has been
essentially routine and/or conservative.”75 The ALJ observed that Foster did not take
any narcotic based pain relieving medication in spite of the allegations of quite limiting
pain.”76 The record supports the ALJ’s reasoning. No medical evidence substantiated
Foster’s allegation of disabling symptoms, not even her most recent examination—an
examination she sought to support her allegations.77 The ALJ did not err in evaluating
Conclusion. Having determined that substantial evidence supports the
Commissioner’s denial of Foster’s application, and the Commissioner made no legal
error, the court DENIES Foster’s request for relief (docket entry # 2) and AFFIRMS the
SSA record at p. 118.
Id. at p. 17.
Id. at p. 214 (indicating Foster requested a physical for disability).
It is so ordered this 1st day of August, 2012.
United States District Judge
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