Foster v. Halter

• Decision Date: 20 December 2001
• Docket Number: No. 00-4267.,00-4267.
• Citation: 279 F.3d 348
• Parties: Theresa E. FOSTER, Plaintiff-Appellant, v. William A. HALTER, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

279 F.3d 348

Theresa E. FOSTER, Plaintiff-Appellant, v. William A. HALTER, Defendant-Appellee.

No. 00-4267.

United States Court of Appeals, Sixth Circuit.

Argued November 28, 2001.

Decided and Filed December 20, 2001.^*

Rehearing Denied January 18, 2002.

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Clifford M. Farrell (argued and briefed), Manring & Farrell, Columbus, OH, for Plaintiff-Appellant.

Randall E. Yontz, Office of U.S. Atty., Columbus, OH, Rick Young (argued and briefed), Assistant Regional Counsel, Office of General Counsel, Social Security Administration, Chicago, IL, for Defendant-Appellee.

Before: CLAY and GILMAN, Circuit Judges; EDGAR, Chief District Judge.^**

OPINION

GILMAN, Circuit Judge.

Theresa E. Foster applied for and was denied disability insurance benefits and Supplemental Security Income under Titles II and XVI of the Social Security Act. The district court affirmed the adverse decision of the Administrative Law Judge (ALJ). Foster appeals that ruling, claiming that (1) her impairments meet or equal the listing for mental retardation, (2) the ALJ abused his discretion by refusing Foster's request for additional testing and expert testimony, (3) the ALJ's finding that Foster could perform a substantial number of jobs in the national economy is not supported by substantial evidence, and (4) the district court erred in refusing to remand the case for consideration of additional evidence. For the reasons set forth below, we AFFIRM the judgment of the district court.

I. BACKGROUND

A. Factual Background

Foster was 37 years old when she injured her left leg in July of 1992. Although Foster was initially diagnosed with a sprain to her medial collateral ligament, she later developed a foot-drop gait. Beginning in March of 1994, Foster also sought treatment from a psychiatrist. Foster underwent a psychiatric evaluation by Charles Walters, M.D., on January 6, 1995 at the request of the Social Security Administration. Dr. Walters reported that Foster met the criteria for severe mood disorder and that, as a result, she had a decreased ability to relate to others, deal with the public, and withstand the stress and pressures associated with day-to-day work activities.

On February 18, 1997, James C. Tanley, Ph.D., diagnosed Foster as having an adjustment disorder with depressed mood. Foster informed Dr. Tanley that she had completed the ninth grade in special education classes and that she had tried four times without success to earn her GED. Dr. Tanley reported that Foster's verbal IQ was 70, her performance IQ was 71, and her full scale IQ was 69, but he questioned whether Foster was making a good faith effort. These scores placed Foster at the uppermost limit of the mild range of mental retardation. Foster's attorney subsequently referred her to Roxanne Lewis, Ph.D., for additional testing. On December 10, 1998, Dr. Lewis reported that Foster's verbal IQ was 71, her performance IQ was 70, and her full scale IQ was 68. Dr. Lewis noted that Foster was "very cooperative with the examination."

B. Procedural background

Foster applied for disability insurance benefits (DIB) under Title II and Supplemental Security Income (SSI) benefits under Title XVI of the Social Security Act, alleging a disability onset date of July 24, 1992. The applications were denied both initially and on reconsideration. After a hearing, the ALJ determined that Foster was not disabled within the meaning of the Social Security Act because she "retained the residual functional capacity to perform a significant number of jobs in the national economy."

Foster appealed the ALJ's decision. The Appeals Council vacated the decision and remanded the matter after concluding that (1) "additional evidence is needed to document the nature and severity of [Foster's] mental impairment," and (2) the ALJ failed to "direct the vocational expert to assume moderate restrictions in daily activities and social functioning, and deficiencies of concentrating occurring often." On remand, the ALJ was directed to obtain additional evidence concerning Foster's affective disorder and supplemental evidence from a vocational expert to clarify the effect of Foster's moderate restrictions in daily activities and social functioning on her capacity to work.

After holding another hearing, the ALJ again denied Foster's application for DIB and SSI. The ALJ found that, despite her severe impairments, Foster "retains the residual functional capacity to do work which exists in significant numbers in the national economy." Foster again appealed the ALJ's decision, but this time the Appeals Council denied her claim.

She then filed a complaint in the United States District Court for the Southern District of Ohio. Her case was referred to a magistrate judge. The magistrate judge recommended that the court affirm the denial of benefits. Over objections by Foster, the district court adopted the magistrate judge's Report and Recommendation. This appeal followed.

II. ANALYSIS

A. Standard of review

Under 42 U.S.C. § 405(g), the ALJ's findings are conclusive as long as they are supported by substantial evidence. Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 851 (6th Cir. 1986) (stating that this court's review "is limited to determining whether there is substantial evidence in the record to support the findings"). "`Substantial evidence' means `more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept'" Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.1981) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). Furthermore, we must defer to an agency's decision "even if there is substantial evidence in the record that would have supported an opposite conclusion, so long as substantial evidence supports the conclusion reached by the ALJ." Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).

Our role is not to resolve conflicting evidence in the record or to examine the credibility of the claimant's testimony. See Gaffney v. Bowen, 825 F.2d 98, 100 (6th Cir.1987) (per curiam). Instead, we focus on whether substantial evidence supports the Commissioner's determination that Foster is not disabled within the meaning of the Social Security Act.

B. Legal framework for evaluating disability claims

A person is considered disabled under the Social Security Act "if [s]he is 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). Furthermore,

an individual shall be determined to be under a disability only if [her] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [s]he lives, or whether a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden lies with the claimant to prove that she is disabled. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).

A five-step analysis is utilized for evaluating disability claims. 20 C.F.R. § 404.1520. The claimant must first show that she is not engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). Next, the claimant must demonstrate that she has a "severe impairment." 20 C.F.R. § 404.1520(c). A finding of "disabled" will be made at the third step if the claimant can then demonstrate that her impairment meets the durational requirement and "meets or equals a listed impairment." 20 C.F.R. § 404.1520(d). If the impairment does not meet or equal a listed impairment, the fourth step requires the claimant to prove that she is incapable of performing work that she has done in the past. 20 C.F.R. § 404.1520(e). Finally, if the claimant's impairment is so severe as to preclude the performance of past work, then other factors, including age, education, past work experience, and residual functional capacity, must be considered to determine if other work can be performed. 20 C.F.R. § 404.1520(f). The burden shifts to the Commissioner at this fifth step to establish the claimant's ability to do other work. Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.1990).

C. Foster's impairment does not "meet or equal" Listing 12.05C

Foster first argues that the ALJ erred by failing to find that her impairment meets or equals Listing 12.05C, the listing for mental retardation. As noted above, a claimant has the burden of demonstrating that her impairment meets or equals a listed impairment.

Listing 12.05C provides in pertinent part as follows:

Mental retardation refers to significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

The required level of severity for this disorder is met when the requirements in A, B, C, or D are satisfied.

...

C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function;....

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05 (emphasis added). A claimant must demonstrate that her impairment satisfies the diagnostic description for the listed impairment in order to be found disabled thereunder. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A) ("Specific symptoms, signs, and laboratory findings in the paragraph A criteria of any of the listings in this section...