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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF KENTUCKY SOUTHERN DIVISION at LONDON CHERYL PARTIN, ) ) Plaintiff, ) ) Civil Action No. 6:07-284-JMH ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) MEMORANDUM OPINION AND ORDER OF SOCIAL SECURITY, ) ) Defendant. ) ) ) ** ** ** ** **

This matter is before the Court on cross motions for summary judgment [Record Nos. 10 and 11]1 on the plaintiff's appeal of the Commissioner's denial of her application for disability insurance benefits and Supplemental Security Income (SSI). The Court, having reviewed the record and being otherwise sufficiently advised, will deny the plaintiff's motion and grant the defendant's motion. I. FACTUAL AND PROCEDURAL BACKGROUND This appeal concerns Plaintiff's second application for

disability insurance and SSI. Plaintiff's first application, filed on July 21, 2003, claimed November 23, 2002, as the date of onset of disability. After holding a hearing on Plaintiff's application, on October 18, 2005, Administrative Law Judge ("ALJ") Alderisio
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These are not traditional Rule 56 cross motions for summary judgment. Rather, they are procedural devices used by the Court to obtain the views of the parties regarding the sufficiency of the evidence contained in the administrative record developed before the Commissioner.

rendered a decision unfavorable to Plaintiff. On appeal, the ALJ's decision was affirmed by U.S. District Judge Unthank. Plaintiff filed a second application, the subject of this appeal, on November 9, 2005, continuing to assert November 23, 2002, as the date of disability. ALJ Letchworth issued an

unfavorable decision on the new application on February 17, 2007. In his decision, ALJ Letchworth found that absent new and material evidence of a deterioration in Plaintiff's condition, res judicata precluded the reconsideration of Plaintiff's first application, to the extent that the periods of disability alleged in the first and second applications overlapped. Plaintiff appealed ALJ's

Letchworth's decision to this Court. At the time of ALJ Letchworth's decision, Plaintiff was 35 years old. [Tr. 70]. She has less than a high school education,

attending special education classes for reading and math. [Tr. 7071]. Plaintiff has past relevant work as a store laborer, poultry cutter, dishwasher, and house cleaner. [Tr. 317]. Plaintiff

alleges she is disabled as a result of two slipped discs in her back, numbness in her hands, and knee problems. [Tr. 364]. After

reviewing the entire record, ALJ Letchworth found, inter alia, that the plaintiff suffers from the severe conditions of degenerative joint disease and degenerative disk disease, but that she did not have any conditions, either singly or in combination, which met a listed impairment [Tr. 319]. The ALJ found that Plaintiff was

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unable to perform any of her past relevant work, but that she retained the residual work capacity to perform various other jobs in the national economy [Tr. 319-20]. On appeal, Plaintiff contends that ALJ Letchworth erred by failing to accurately portray her condition in the hypothetical question posed to the vocational expert. Specifically, Plaintiff

complains that ALJ Letchworth failed to include in the hypothetical question certain physical restrictions found by consultative

examiner Dr. Jules Barefoot. II. STANDARD OF REVIEW In reviewing the ALJ's decision to deny disability benefits, the Court may not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility. Cutlip v. Sec'y of Health & Human Serv., 25 F.3d 284, 286 (6th Cir. 1994). Instead, judicial review of the ALJ's decision is limited to an inquiry into whether the ALJ's findings were supported by

substantial evidence, see 42 U.S.C.

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