Danny Foster v. Michael J. Astrue

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-1646
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Danny Foster, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the Western
* District of Arkansas.
Michael J. Astrue, Commissioner, *
Social Security Administration, * [UNPUBLISHED]
*
Appellee. *
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Submitted: September 27, 2011
Filed: October 4, 2011
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Before MELLOY, BOWMAN, and SHEPHERD, Circuit Judges.
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PER CURIAM.
Danny Foster appeals the district court’s1 order affirming the denial of disability
insurance benefits (DIB) and supplemental security income. Upon de novo review,
see Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011), we affirm. First, we find
no error in the administrative law judge’s (ALJ’s) determination as to which of
1
The Honorable Robert T. Dawson, United States District Judge for the Western
District of Arkansas, adopting the report and recommendations of the Honorable
Barry A. Bryant, United States Magistrate Judge for the Western District of Arkansas.
Foster’s impairments was severe. See Caviness v. Massanari, 250 F.3d 603, 605 (8th
Cir. 2001) (claimant has burden of showing impairment is severe--that it significantly
limits his physical or mental ability to perform basis work activity). Second, we find
that substantial evidence supports the ALJ’s determination as to Foster’s residual
functional capacity (RFC), see Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010)
(ALJ is responsible for determining RFC based on all relevant evidence, including
medical records observations of treating physicians and others, and claimant’s
description of limitations)2; and that the ALJ properly relied on the testimony of a
vocational expert to find that Foster could perform his past relevant work, see Wagner
v. Astrue, 499 F.3d 842, 853-54 (8th Cir. 2007). Finally, to the extent Foster has
properly developed the issue, see Meyers v. Starke, 420 F.3d 738, 743 (8th Cir. 2005),
we reject as meritless his contention that he was presumptively disabled under a
particular listing.
The judgment is affirmed.
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2
Notably, while an ALJ must first evaluate a claimant’s credibility before
determining RFC, see Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005), Foster
has not challenged the ALJ’s credibility determination, see Hacker v. Barnhart, 459
F.3d 934, 937 n.2 (8th Cir. 2006) (abandonment of issue on appeal)
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