Handshoe v. SSA

Filing 9

MEMORANDUM OPINION & ORDER: 1. Handshoe's motion for Summary Judgment 7 is DENIED; 2. Commissioner's Motion for Summary Judgment 8 is GRANTED; and 3. JUDGMENT in favor of Commissioner will be entered contemporaneously herewith. Signed by Judge Gregory F. Van Tatenhove on 3/23/2017. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
ELMER HANDSHOE,
Plaintiff,
v.
NANCY BERRYHILL, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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Civil No. 7:15-cv-102-GFVT

MEMORANDUM OPINION
&
ORDER

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The Plaintiff, Mr. Elmer Handshoe, brings this action pursuant to 42 U.S.C. § 405(g) to
obtain judicial review of an administrative decision of the Commissioner of Social Security, who
denied Handshoe’s claim for disability insurance benefits. The Court, having reviewed the
record and for the reasons set forth herein, will DENY Mr. Handshoe’s Motion for Summary
Judgment [R. 7] and will GRANT the Commissioner’s [R. 8.]
I
Handshoe filed his application for benefits on October 1, 2012, alleging disability
beginning on November 10, 2011, due to multiple physical impairments. A video-hearing was
conducted before Administrative Law Judge (“ALJ”) Michele Kelley on May 15, 2015,
presiding from Seven Fields, Pennsylvania. [Tr. 10] At the hearing, Gina Baldwin, a vocational
expert, testified. [Tr. 41.]
Handshoe was fifty-two years old as of the date of the hearing. [Tr. 61.] He has a GED
and previously worked as a “blastman assistant and a contract worker for a gas company, driving
trucks and doing odd jobs for his employer.” [R. 8 at 2.] Handshoe alleges disability due to a

slew of physical impairments. He complains of back pain; shoulder pain that makes him unable
to raise his shoulders above his head; acid reflux; and stomach and bowel issues. [R. 7-1 at 2.]
In evaluating a claim of disability, the ALJ conducts a five-step analysis. See 20 C.F.R.
§ 404.1520.1 First, if a claimant is performing a substantial gainful activity, he 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 his physical or mental ability to do basic work activities,
then he does not have a severe impairment and is not “disabled” as defined by the regulations.
20 C.F.R. § 404.1520(c). Third, if a claimant’s impairments meet or equal one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, he 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 assesses an
individual’s ability to perform certain physical and mental work activities on a sustained basis
despite any impairments 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 clamant has the RFC to perform the
requirements of his past relevant work, and if a claimant’s impairments do not prevent him from
doing past relevant work, he is not “disabled.” 20 C.F.R. § 404.1520(e). The plaintiff has the
ultimate burden of proving compliance with the first four steps. Kyle v. Comm'r Of Soc. Sec.,

The Sixth Circuit summarized this process in Jones v. Comm’r of Soc. Sec., 336 F.3d
469 (6th Cir. 2003):
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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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609 F.3d 847, 855 (6th Cir. 2010). Fifth, if a claimant’s impairments (considering his RFC, age,
education, and past work) prevent him from doing other work that exists in the national
economy, then he is “disabled.” 20 C.F.R. § 404.1520(f).
In this case, the ALJ issued his written decision on July 21, 2014. [Tr. 10-18.] At Step 1,
the ALJ found that Handshoe had not engaged in substantial gainful activity since the alleged
onset date of November 10, 2011. [Tr. 12.] At Step 2, the ALJ found that Handshoe had the
following severe impairments: “chronic low back pain, bilateral shoulder internal derangement,
and gastroduodenitis.” [Id.] Additional impairments were found to not be severe: “right knee
pain, hypertension, hyperlipidemia, gastroesophageal reflux disease (GERD), hiatal hernia, renal
cysts, renal stones, hepatic steatosis, and pre-diabetes.” [Id.] At Step 3, the ALJ concluded that
Handshoe does not have an “impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526),” so the analysis continued to the next step. [Tr.
14.] At Step 4, the ALJ concluded that Handshoe had an RFC to “perform medium work
(lift/carry/push/pull 50 pounds occasionally and 25 pounds frequently) as defined in 20 CFR
404.1567(c) . . .” [Tr. 14.] The ALJ noted the following specific limitations:
[H]e can stand/walk six hours total in an eight-hour workday; can sit six hours total in an
eight-hour workday; cannot perform overhead reaching activities with either upper
extremity; and must avoid concentrated exposure to extreme cold, humidity, vibration,
and hazards (unprotected heights, uneven surfaces, or dangerous machinery).
[Tr. 14.] With these limitations in mind, the ALJ determined that Handshoe was not capable of
performing any past, relevant work. [Tr. 16.] Finally, at Step 5, the ALJ adopted the opinion of
the vocational expert, that there were a significant number of jobs in the national economy that
Handshoe could perform. [Tr. 17.] As a result, the ALJ concluded that Handshoe was not

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disabled. [Tr. 18.] The Appeals Council found no reason for review. [Tr 1.] Handshoe now
seeks judicial review in this Court.
II
This Court’s review is 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 Richardson v. Perales, 402 U.S. 389, 401
(1971)). The substantial evidence standard “presupposes that there is a zone of choice within
which [administrative] decisionmakers 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, a reviewing court may not
conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations.
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citation omitted); see also
Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1228 (6th Cir. 1988). Rather, 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).

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Handshoe argues that the Commissioner’s decision “is not based on substantial evidence
as required by 42 U.S.C. § 405(g) and that he Commissioner erred as a matter of law in
determining that he is not entitled to DIB benefits for the reasons set forth herein.” [R. 7-1 at 1.]
Handshoe has made the following arguments:
1. “The ALJ gave no weight to the treating physician’s RFC.” [Id. at 8.]
2. The non-examiner opinion’s must be based on substantial evidence. [Id. at 11.]
“The ALJ gave great weight to Dr. Mukherjee, the non-examining physician,”
who did not “perform a thorough review of the available medical record.” [Id.]
3. “The ALJ failed to include all the restrictions and limitations in the RFC and then
failed to adequately describe the claimant in the hypothetical to the vocational
expert.” [Id. at 12.]
A
Handshoe complains that the ALJ gave no weight to his treating physician’s RFC. [Tr.
16.] Dr. Ira Potter, Handshoe’s treating physician, treated the client from August 2009 on a
continuous basis. [R. 7-1 at 8.] Dr. Potter ordered various testing for Handshoe and referred him
to additional doctors, one of whom performed surgery on Handshoe’s shoulder. [See id. at 9.]
The Social Security Administration’s regulations explain to claimants that:
If we find that a treating source's opinion on the issue(s) of the nature and severity
of your impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in your case record, we will give it controlling weight. When we do not
give the treating source's opinion controlling weight, we apply the factors listed in
paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in
paragraphs (d)(3) through (d)(6) of this section in determining the weight to give
the opinion. We will always give good reasons in our notice of determination or
decision for the weight we give your treating source's opinion.
20 C.F.R. § 404.1527(d)(2). The other factors which must be considered when deciding whether
to give the treat physician’s opinion controlling weight include: the length of the treatment
relationship, the frequency of examination, the nature and extent of the treatment relationship,

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the supportability of the opinion, the consistency of the opinion with other evidence in the
record, and whether the treating source is a specialist. 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), d(3)d(5); 416.927(d)(2)(i)-(ii), d(3)-d(5).
The regulations also contain a clear procedural requirement that the ALJ must give “good
reasons” for discounting a treating physician's opinion, specific enough “to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion
and the reasons for that weight.” 20 C.F.R. §§ 1527(d)(2), 416.927(d)(2).
Contrary to Handshoe’s assertion, the ALJ did explain why he did not afford any weight
to Dr. Potter’s opinion. Dr. Potter asserted that Handshoe could not work an 8 hour day, could
lift no more than 10 pounds, would be absent from work more than four days per month, and had
a variety of postural and environmental limitations. [Tr. 415-420.] The ALJ asserted that these
findings were “inconsistent with his treatment records that show vague lumbar signs and normal
neurological findings.” [Tr. 32.] The ALJ detailed Dr. Potter’s responses to Handshoe’s various
complaints and found that Dr. Potter reported Handshoe’s various infirmities were being
controlled with a successful shoulder surgery and medication for his bowel problems, which
Handshoe had failed to discuss at length with Dr. Potter. [Tr. 14.] Further, the ALJ noted that
though Handshoe complained of lower back back, he has not had surgery, received no injections,
had no physical therapy or chiropractic care. [Tr. 14.] The ALJ also found that Handshoe “was
only partially credible,” because “[m]ost of his impairments are controlled with medications or
his current treatment regimen.” [Tr. 16.] Because the ALJ provided adequate reasons for
discounting Dr. Potter’s evaluation of his patient, this Court declines to overrule the ALJ’s
decision to not consider his recommendation.

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B
Handshoe complains that the non-examining physician, Dr. Mukherjee did not “perform
a thorough review of the available medical record” [R. 7-1 at 11.] and his opinion could not have
been based on substantial evidence in contravention of the rule set out in Gayheart v.
Commissioner of Social Security, 710 F.3d 365, 376 (6th Cir. 2013), holding that “opinions from
nontreating and nonexamining sources are never assessed for ‘controlling weight.’ The
Commissioner instead weighs these opinions based on the examining relationship (or lack
thereof), specialization, consistency, and supportability, but only if a treating-source opinion is
not deemed controlling.”
Handshoe relies on the standard used in Jones v. Astrue, 808 F. Supp. 2d 993, 996 (E.D.
Ky. 2011), where the ALJ relied on a non-examining physician’s evaluation when that physician
had not examined the complete file of the claimant. However, as this Court has already held, this
aspect of the holding in Jones is no longer good law. Numerous cases in this Circuit have
already reached that conclusion. See, e.g., Helm v. Comm'r of Soc. Sec. Admin, 405 Fed.Appx.
997, 1002 (6th Cir. 2011) (“There is no categorical requirement that the non-treating source's
opinion be based on a ‘complete’ or ‘more detailed and comprehensive’ case record.”); Fry v.
Comm'r of Soc. Sec., 476 Fed.Appx. 73, 75 (6th Cir. 2012) (rejecting claimant's argument that
non-examiner's “opinion was inadequate because it was based on a review of the record before
she began treatment with [another doctor],” and holding that “the ALJ properly considered [the
non-examiner's] report as opinion evidence.”); Keith v. Colvin, 2016 WL 1212068, at *5 (M.D.
Tenn. Mar. 29, 2016) (“Despite [the claimant's] reliance on Jones v. Astrue . . . for the
proposition that the opinion of a non-examining expert who does not examine a complete record
does not comprise substantial evidence, this court is bound only by the Sixth Circuit precedent

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set forth in Helm and Fry.”); Skaggs v. Colvin, 2016 WL 782309, at *5 (E.D. Ky. Feb. 26, 2016)
(“[W]hile the District Court in Jones seems to suggest that, when an ALJ affords more weigh to a
non-examining physician over an examining physician, only the most recent opinions are
credible since they account for all preceding opinions, the Sixth Circuit has established that no
such completeness rule or requirement exists.”); Price v. Colvin, 2016 WL 782259, at *3 (E.D.
Ky. Feb. 26, 2016) (“Jones relied on a Social Security Ruling that did not create a definitive rule,
and, more importantly, the Sixth Circuit has made it clear that no such rule exists.”). In the
absence of any such completeness rule, the ALJ's only obligation is to provide “good reasons”
for giving greater weight to the non-examiners' opinions. Helm, 405 Fed.Appx. at 1000.
Here, the ALJ gave sufficient reasons for ascribing “significant weight” to Dr.
Mukherjee’s opinion. [Tr. 16.] The ALJ explained that Dr. Mukherjee’s opinion was “based on
a thorough review of the available medical record . . . [and his] opinion [was] internally
consistent and well supported by a reasonable explanation and the available evidence.” [Tr. 16.]
The ALJ considered the opinion of Dr. Nutter and Dr. Potter as well and concluded both should
be given less weight than Dr. Mukherjee’s opinion. The ALJ stated that Dr. Nutter’s opinion
was “so vague” to be “not helpful in determining a specific residual functional capacity
assessment,” however, the ALJ did afford “great weight to Dr. Nutter’s objective clinical
findings.” [Tr. 16.] The ALJ’s reasons for affording Dr. Potter’s opinion little weight were
outlined in the previous section.
Because there is no requirement in the Sixth Circuit to examine a complete medical
record and the ALJ’s discretionary determination to ascribe significant weight to Dr.
Mukherjee’s opinion is supported by substantial evidence, this Court finds in favor of the
Defendant on this argument.

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C
Handshoe’s final argument alleges that the ALJ “failed to include all the restrictions and
limitations in the RFC and then failed to adequately describe the claimant in the hypothetical to
the vocational expert.” [R. 7-1 at 12]
The ALJ posed several hypotheticals to the vocational expert related to Handshoe and his
abilities, but did not include information about Handshoe’s gastroduodenitis. [See Tr. 57-59.]
The Sixth Circuit has held that it is not necessary for a vocational expert to be given a list of a
claimant’s medical conditions. Rather, a “hypothetical question need only reference all of a
claimant's limitations.” Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004). The
vocational expert does not make the decision on what medical conditions would make work
difficult for the claimant, but only uses the “residual functional capacity,” along with “age,
education, and work experience.” Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir.
2004). Since the ALJ determines the claimant’s residual functional capacity, the findings of the
ALJ will dictate what hypothetical questions should be asked. In fact, the ALJ found Handshoe
“only partially credible” and that his “allegations of . . . acid reflux, stomach, and bowels [sic]
problems are deemed excessive. [Tr. 16.] Since the ALJ did not find the claimant credible as to
his gastroduodenitis limitations, she did not include those limitations in the hypotheticals posed
to the vocational expert and was not required to do so.
The first half of this argument, that restrictions for gastroduodenitis were not included in
the ALJ’s RFC has been addressed above. The ALJ gave significant weight to Dr. Mukherjee’s
opinion and did not find Handshoe credible as to his bowel problems, particularly since
Handshoe had made no recent complaints to his primary care doctor, Dr. Potter. [See Tr. 16.]
Because the ALJ did not find claimant credible as to his limitations due to gastroduodenitis, the

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ALJ was not required to include these limitations in her RFC. Therefore, this Court finds in
favor of the Defendant on this argument as well.
III
Thus, after reviewing the record, the Court finds that the ALJ’s decision finding
Handshoe not disabled is supported by substantial evidence. Even if the evidence could also
support another conclusion, the ALJ’s decision must stand because the evidence reasonably
supports her conclusion. See Her, 203 F.3d at 389-90; Casey v. Sec'y of Health & Human Servs.,
987 F.2d 1230, 1233 (6th Cir. 1993).
ACCORDINGLY, and the Court being sufficiently advised, it is hereby ordered as
follows:
1.

Handshoe’s motion for Summary Judgment [R. 7] is DENIED;

2.

The Commissioner’s Motion for Summary Judgment [R. 8] is GRANTED; and

3.

JUDGMENT in favor of the Commissioner will be entered contemporaneously

herewith.
This the 23rd day of March, 2017.

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