Foster v SSA

Filing 13

MEMORANDUM OPINION & ORDER: 1. Plaintiff's 10 MOTION for Summary Judgment is DENIED; 2. Commissioner's 12 MOTION for Summary Judgment is GRANTED; and 3. JUDGMENT in favor of the Commissioner will be entered contemporaneously herewith. Signed by Judge Gregory F. VanTatenhove on 8/15/2019.(JJ)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
LISA FOSTER,

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

Civil No. 5:18-cv-00382-GFVT

MEMORANDUM OPINION
&
ORDER

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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.
I
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

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The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir.

2003):
To determine if a claimant is disabled within the meaning of the Act, the ALJ employs a five-step
inquiry defined in 20 C.F.R. § 404.1520. Through step four, 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, but at step five of the inquiry, which is the
focus of this case, the burden shifts to the Commissioner to identify a significant number of jobs in
the economy that accommodate the claimant’s residual functional capacity (determined at step
four) and vocational profile.
Id. at 474 (internal citations omitted).

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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;
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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.
II
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 of
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Soc. 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 388, 389-90 (6th Cir. 1999). Here, the only issues for the Court are (1) whether
the ALJ properly assessed Ms. Foster’s severe impairments at Step 2, and (2) whether the ALJ
reasonably determined Ms. Foster’s RFC.
A
Ms. Foster alleges that the ALJ failed to properly assess additional severe impairments at
Step 2. [R. 10 at 6.] To that point, she believes that the ALJ should have considered her diabatic
neuropathy and left foot and ankle severe impairments. Ms. Foster fails to show that those
impairments were not considered or that the failure to consider them would be in error.
At Step 2, the claimant bears the burden of proving that her impairments are severe.
Jones, 336 F.3d at 474. But this step is a “de minimus hurdle in the disability determination
process.” Higgs, 880 F.2d at 862. An ALJ should not conclude that a claimant’s condition is
non-severe if the ALJ “is unable to determine clearly the effect of an impairment or combination
of impairments on the individual’s ability to do basic work activities.” SSR 85-28, 1985 WL
56856 at *12 (Jan. 1, 1985). If the effect of the claimant’s impairments is not clear, the ALJ
should continue the five-step evaluation. Id. And, Judge Reynolds did.
Ms. Foster begins by alleging that her diabetic neuropathy was a seventh severe
condition. That claim, however, ignores the ALJ’s determination that she had “insulin dependent
type II diabetes mellitus with possible neuropathy in the hands and feet”—or a finding that her

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neuropathy was a severe impairment. [Tr. 14.] To that point, the ALJ noted that “[Ms. Foster’s]
overall physical examination, including cardiovascular, vascular, extremity and psychiatric
evaluation, was normal.” Id. at 15 (emphasis added). Therefore, the ALJ appropriately
considered Ms. Foster’s neuropathy. And, to the extent the ALJ did not explicitly cite to every
record or piece of evidence, that is not required in making a determination of disability. See
Bosely v. Comm’r of Soc. Sec. Admin., 397 Fed.Appx. 195, 199 (6th Cir. 2010) (unpublished)
(“Neither the ALJ nor the Council is required to discuss each piece of data in its opinion, so long
as they consider the evidence as a whole and reach a reasoned conclusion.”).
Ms. Foster’s also believes that her left foot and ankle impairments should have been
classified as a severe impairment. [R. 10 at 8.] Ms. Foster, however, has not presented evidence
which would result in a consideration of her left foot and ankle impairments as severe. And,
“issues not fully developed and argued to be waived.” Brindley v. McCullen, 61 F.3d 507, 509
(6th Cir. 1995); see e.g., United States v. Layne, 192 F.3d 556, 566 (6th Cir. 1999) (stating that
“issues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation are deemed waived.”) Since Foster has failed to adequately support her
argument, the Court considers it waived.
In any event, Ms. Foster cannot show any prejudice from the ALJ’s failure to define
some impairments as severe. Indeed, a failure to declare some impairments as “severe at step
two . . . is legally irrelevant.” Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008). Here,
the ALJ continued the five-step analysis and considered Ms. Foster’s impairments when
considering her RFC.
B
Next, Ms. Foster alleges that the ALJ improperly weighed her subjective assessments of

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pain and other symptoms. [R. 10 at 8.] In the course of a disability determination, an ALJ is
required to consider subjective allegations of pain, symptoms, and limitations caused by a
claimant’s impairment. 20 C.F.R. § 416.929(a). However, an “individual’s statements as to pain
or other symptoms shall not alone be conclusive evidence of disability…” 42 U.S.C. §
423(d)(5)(A). The Regulations prescribe a two-step process for assessing a claimant’s subjective
allegations of pain and other symptoms. 20 C.F.R. § 416.929(c)(1). The Sixth Circuit in
Moruzzi v. Commissioner of Social Security described it as follows:
We are to first "examine whether there is objective medical evidence of an underlying
medical condition." Buxton, 246 F.3d at 773 (quoting Duncan v. Sec'y of Health &
Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)). "If there is, we then examine: (1)
whether this evidence confirms the severity of the alleged pain arising from the
condition; or (2) whether the objectively established medical condition is of such a
severity that it can reasonably be expected to produce the alleged disabling pain."
759 Fed. Appx. 396, 403 (6th Cir. 2018).
At the first step, the ALJ found that Foster’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms.” [Tr. 18.] However, Foster failed to
satisfy step two because her alleged “intensity, persistence and limiting effects of these
symptoms are not entirely consistent with the medical evidence and other evidence in the
record[.]” Id. At this step, the record reflects two major inconsistencies. First, Ms. Foster
complained of her “long history of right knee and right leg pain,” but her “right knee was
assessed as normal. Id. Second, she reported sleep difficulty, but the “treatment record from the
Total Lung Care and Sleep Center shows the claimant takes 15 minutes to fall asleep.” Id.
Even if Ms. Foster is correct, she cannot show she was harmed by the ALJ’s assessment
of her impairments. The ALJ’s RFC finding accommodates Foster’s allegedly “disabling pain.”
The highly restrictive RFC called for sedentary work, see 20 C.F.R. § 416.967(a), with numerous
additional conditions tailored to her circumstances. Any of Ms. Foster’s difficulties with
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standing or walking are accommodated by the ALJ’s determination that she could not “stand[] or
walk[] in excess of one hour without interruption[.]” [Tr. 17.] And, Ms. Foster’s complaints
about pain while bearing weight, [Tr. 721]; are factored into the RFC’s finding that she “lift[] no
more than 10 pounds at a time.” 20 C.F.R. § 416.967(a). Lastly, the pain Foster feels when
pressing on a gas pedal was dealt with insofar as the RFC expressly prohibits “operation of foot
pedal controls.” [Tr. 17.] All of Ms. Foster’s subjective complaints were appropriately
considered by the ALJ.
Ms. Foster’s last allegation is that the ALJ failed “to find that [she] met the highest range
in the highest category of obesity[.]” [R. 10 at 10.] She is wrong. In assessing Foster’s RFC,
the ALJ found that she had a “BMI in excess of 40,” which was the highest level recognized by
Social Security at the time. 2 And, Ms. Foster’s particular BMI or weight level does not establish
her “obesity as a ‘severe’ or ‘not severe’ impairment.” 84 FR 22924 at *22925. “Obesity is not
a listed impairment; however, the functional limitations caused by the [medically determinable
impairments] of obesity, alone or in combination with another impairment(s), may medically
equal a listing.” Id. (emphasis added). The ALJ appropriately considered the functional
limitations caused by Ms. Foster’s obesity. [Tr. 16-17.].
Ms. Foster allegation continued that she “cannot ambulate effectively given her physical
size.” [R. 10 at 10.] The record suggests otherwise. If her obesity prevented her from walking,
her treating physicians would not have placed her on a walking regimen, or told her to “kick up
her activity level.” [Tr. 15.] Further, the record shows that Foster could: picks things up around
the house; vacuums; do the laundry; cleans surfaces; run errands and shop; and take her children
to school. [Tr. 15.] All these activities belied any argument that she was unable to ambulate

2

The Ruling, 2002 SSR LEXIS 1 at *4, on which the Social Security Administration’s Brief relies, has
since been updated with the Ruling 84 FR 22924.

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effectively. Accordingly, the ALJ found that the functional limitations of Foster’s obesity,
“individually and in combination with other impairments,” did not qualify as a listed impairment.
84 FR 22924 at *22925; [Tr. 17.] Foster’s already highly restrictive RFC was properly assessed.
III
Longstanding Sixth Circuit precedent holds that as long as the ALJ’s decision is
supported by substantial evidence, “reversal would not be warranted even if substantial evidence
would support the opposite conclusion.” Bass, 499 F.3d at 509. Upon review, the Court finds
that the ALJ’s determination that Ms. Foster was not disabled starting on October 21, 2014, is
supported by substantial evidence in the record. Therefore, the ALJ was justified in denying Ms.
Foster’s application for a period of disability and disability insurance benefits. Accordingly, and
the Court being sufficiently advised, it is hereby ORDERED as follows:
1.

The Plaintiff’s Motion for Summary Judgment [R. 10] is DENIED;

2.

The Commissioner’s Motion for Summary Judgment [R. 12] is GRANTED; and

3.

JUDGMENT in favor of the Commissioner will be entered contemporaneously

herewith.
This the 15th day of August, 2019.

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