Rowe v. Colvin

Filing 20

MEMORANDUM OPINION denying Plaintiff's 12 MOTION for Judgment on the Pleadings; granting Defendant's 18 MOTION for Judgment on the Pleadings; affirming the final decision of the decision of the Commissioner; dismissing this matter from the docket of this Court. Signed by Magistrate Judge Omar J. Aboulhosn on 3/28/2016. (cc: counsel of record) (tmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
LEONARD ROWE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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MEMORANDUM

CIVIL ACTION NO. 2:15-02014

OPINION

This is an action seeking review of the decision of the Commissioner of Social Security
denying Plaintiff's application for Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI), under Titles II and XVI of the Social Security Act, 42 U.S.C. '' 401-433, 13811383f. This case is presently pending before the Court on Plaintiff’s Motion for Summary
Judgment (Document No. 12.) and Defendant’s Motion for Judgment on the Pleadings. (Document
No. 18.) Both parties have consented in writing to a decision by the United States Magistrate Judge.
(Document Nos. 14 and 15.)
The Plaintiff, Leonard Rowe (hereinafter referred to as AClaimant@), filed applications for
DIB and SSI on January 24, 2012, and May 22, 2012 (protective filing date), respectively, alleging
disability as of January 1, 1997,1 due to “arthritis, knees, gout, [and] hand swelling.@2 (Tr. at 17,
177-83, 184-92, 204, 217.) The claims were denied initially and upon reconsideration. (Tr. at 10,

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Claimant amended his alleged onset date to May 31, 2011. (Tr. at 17, 33.)

The Notices of Reconsideration indicate that Claimant also alleged a concussion and dizzy spells as additional
disabling conditions. (Tr. at 121, 124.) On his form Disability Report – Appeal, dated October 3, 2012, Claimant
alleged that his swelling had worsened and that he experienced increased pain and restriction of movement of his
joints, especially his back and hip. (Tr. at 243.)

69-77, 78-86, 87-88, 89-98, 99-108, 109-10, 121-23, 124-26.) On December 31, 2012, Claimant
requested a hearing before an Administrative Law Judge (ALJ). (Tr. at 127-28.) The hearing was
held on January 8, 2014, before the Honorable Peter Jung. (Tr. at 29-68.) By decision dated January
28, 2014, the ALJ determined that Claimant was not entitled to benefits. (Tr. at 17-28.) The ALJ=s
decision became the final decision of the Commissioner on December 20, 2014, when the Appeals
Council denied Claimant=s request for review. (Tr. at 1-6.) On February 20, 2015, Claimant
brought the present action seeking judicial review of the administrative decision pursuant to 42
U.S.C. ' 405(g). (Document No. 2.)
Under 42 U.S.C. ' 423(d)(5), a claimant for disability has the burden of proving a
disability. See Blalock v. Richardson, 483 F.2d 773, 774 (4th Cir. 1972). A disability is defined as
the "inability to engage in any substantial gainful activity by reason of any medically determinable
impairment which can be expected to last for a continuous period of not less than 12 months . . .
." 42 U.S.C. ' 423(d)(1)(A).
The Social Security Regulations establish a "sequential evaluation" for the adjudication of
disability claims. 20 C.F.R. '' 404.1520, 416.920 (2014). If an individual is found "not disabled"
at any step, further inquiry is unnecessary. Id. '' 404.1520(a), 416.920(a). The first inquiry under
the sequence is whether a claimant is currently engaged in substantial gainful employment. Id. ''
404.1520(b), 416.920(b). If the claimant is not, the second inquiry is whether claimant suffers from
a severe impairment. Id. '' 404.1520(c), 416.920(c). If a severe impairment is present, the third
inquiry is whether such impairment meets or equals any of the impairments listed in Appendix 1
to Subpart P of the Administrative Regulations No. 4. Id. '' 404.1520(d), 416.920(d). If it does,
the claimant is found disabled and awarded benefits. Id. If it does not, the fourth inquiry is whether
the claimant's impairments prevent the performance of past relevant work. 20 C.F.R. ''
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404.1520(e), 416.920(e). By satisfying inquiry four, the claimant establishes a prima facie case of
disability. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981). The burden then shifts to the
Commissioner, McLain v. Schweiker, 715 F.2d 866, 868-69 (4th Cir. 1983), and leads to the fifth
and final inquiry: whether the claimant is able to perform other forms of substantial gainful
activity, considering claimant's remaining physical and mental capacities and claimant's age,
education and prior work experience. 20 C.F.R. '' 404.1520(f), 416.920(f) (2014). The
Commissioner must show two things: (1) that the claimant, considering claimant=s age, education,
work experience, skills and physical shortcomings, has the capacity to perform an alternative job,
and (2) that this specific job exists in the national economy. McLamore v. Weinberger, 538 F.2d
572, 574 (4th Cir. 1976).
When a claimant alleges a mental impairment, the Social Security Administration Amust
follow a special technique at every level in the administrative review process.@ 20 C.F.R. ''
404.1520a(a) and 416.920a(a). First, the SSA evaluates the claimant=s pertinent symptoms, signs
and laboratory findings to determine whether the claimant has a medically determinable mental
impairment and documents its findings if the claimant is determined to have such an impairment.
Second, the SSA rates and documents the degree of functional limitation resulting from the
impairment according to criteria as specified in 20 C.F.R. '' 404.1520a(c) and 416.920a(c). Those
sections provide as follows:
(c) Rating the degree of functional limitation. (1)Assessment of functional
limitations is a complex and highly individualized process that requires us to
consider multiple issues and all relevant evidence to obtain a longitudinal picture
of your overall degree of functional limitation. We will consider all relevant and
available clinical signs and laboratory findings, the effects of your symptoms, and
how your functioning may be affected by factors including, but not limited to,
chronic mental disorders, structured settings, medication and other treatment.
(2) We will rate the degree of your functional limitation based on the extent
to which your impairment(s) interferes with your ability to function independently,
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appropriately, effectively, and on a sustained basis. Thus, we will consider such
factors as the quality and level of your overall functional performance, any episodic
limitations, the amount of supervision or assistance you require, and the settings in
which you are able to function. See 12.00C through 12.00H of the Listing of
Impairments in appendix 1 to this subpart for more information about the factors
we consider when we rate the degree of your functional limitation.
(3) We have identified four broad functional areas in which we will rate the
degree of your functional limitation: Activities of daily living; social functioning;
concentration, persistence, or pace; and episodes of decompensation. See 12.00C
of the Listings of Impairments.
(4) When we rate the degree of limitation in the first three functional areas
(activities of daily living, social functioning; and concentration, persistence, or
pace), we will use the following five-point scale: None, mild, moderate, marked,
and extreme. When we rate the degree of limitation in the fourth functional area
(episodes of decompensation), we will use the following four-point scale: None,
one or two, three, four or more. The last point on each scale represents a degree of
limitation that is incompatible with the ability to do any gainful activity.
Third, after rating the degree of functional limitation from the claimant=s impairment(s), the SSA
determines their severity. A rating of Anone@ or Amild@ in the first three functional areas (activities
of daily living, social functioning; and concentration, persistence, or pace) and Anone@ in the fourth
(episodes of decompensation) will yield a finding that the impairment(s) is/are not severe unless
evidence indicates more than minimal limitation in the claimant=s ability to do basic work
activities. 20 C.F.R. '' 404.1520a(d)(1) and 416.920a(d)(1).

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Fourth, if the claimant=s

20 C.F.R. Pt. 404, Subpt. P, App. 1, ' 12.04, provides that affective disorders, including
depression, will be deemed severe when (A) there is medically documented continuous or
intermittent persistence of specified symptoms and (B) they result in two of the following: marked
restriction of activities of daily living; marked difficulties in maintaining social functioning;
marked difficulties in maintaining concentration, persistence or pace; or repeated episodes of
decompensation , each of extended duration or (C) there is a medically documented history of a
chronic affective disorder of at least 2 years= duration that has caused more than a minimal
limitation of ability to do basic work activities with symptoms currently attenuated by medication
or psychosocial support and (1) repeated extended episodes of decompensation; (2) a residual
disease process resulting in such marginal adjustment that a minimal increase in mental demands
or change in the environment would cause decompensation; or (3) a current history of 1 or more
years= inability to function outside a highly supportive living arrangement, and the indication of a
continued need for such an arrangement.
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impairment(s) is/are deemed severe, the SSA compares the medical findings about the severe
impairment(s) and the rating and degree and functional limitation to the criteria of the appropriate
listed mental disorder to determine if the severe impairment(s) meet or are equal to a listed mental
disorder. 20 C.F.R. '' 404.1520a(d)(2) and 416.920a(d)(2). Finally, if the SSA finds that the
claimant has a severe mental impairment(s) which neither meets nor equals a listed mental
disorder, the SSA assesses the Claimant=s residual functional capacity. 20 C.F.R. ''
404.1520a(d)(3) and 416.920a(d)(3). The Regulation further specifies how the findings and
conclusion reached in applying the technique must be documented at the ALJ and Appeals Council
levels as follows:
At the administrative law judge hearing and the Appeals Council levels, the written
decision issued by the administrative law judge and the Appeals Council must
incorporate the pertinent findings and conclusions based on the technique. The
decision must show the significant history, including examination and laboratory
findings, and the functional limitations that were considered in reaching a
conclusion about the severity of the mental impairment(s). The decision must
include a specific finding as to the degree of limitation in each of the functional
areas described in paragraph (c) of this section.
20 C.F.R. '' 404.1520a(e)(2) and 416.920a(e)(2) (2014).
In this particular case, the ALJ determined that Claimant satisfied the first inquiry because
he had not engaged in substantial gainful activity since May 31, 2011, the amended alleged onset
date. (Tr. at 19, Finding No. 2.) Under the second inquiry, the ALJ found that Claimant suffered from
Aosteoarthritis, degenerative joint disease, gout, and obesity,@ which were severe impairments. (Tr. at
19, Finding No. 3.) At the third inquiry, the ALJ concluded that Claimant=s impairments did not meet
or equal the level of severity of any listing in Appendix 1. (Tr. at 21, Finding No. 4.) The ALJ then
found that Claimant had a residual functional capacity to perform light exertional level work, as
follows:

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[T]he [C]laimant has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except he could occasionally lift and carry
twenty pounds, frequently lift and carry ten pounds. He could stand and walk six hours
and sit six hours in an eight-hour workday. He would be able to push and pull less than
twenty pounds with the upper and lower extremities. He should never climb ladders,
ropes, or scaffolds, but could occasionally climb ramps and stairs, balance, stoop,
kneel, crouch, and crawl. He must avoid concentrated exposure to extreme cold,
extreme heat, vibration, and hazards, such as machinery and heights, etc.
(Tr. at 22, Finding No. 5.) At step four, the ALJ found that Claimant was able to perform his past
relevant work as a mall sweeper. (Tr. at 26, Finding No. 6.) On the basis of testimony of a Vocational
Expert (AVE@) taken at the administrative hearing, the ALJ further concluded that Claimant could
perform jobs such as a cafeteria attendant, cashier, and stock checker, at the unskilled, light level of
exertion. (Tr. at 26-27, Finding No. 10.) On these bases, benefits were denied. (Tr. at 28, Finding No.
11.)
Scope of Review
The sole issue before this Court is whether the final decision of the Commissioner denying the
claim is supported by substantial evidence. In Blalock v. Richardson, substantial evidence was defined
as:
evidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat
less than a preponderance. If there is evidence to justify a refusal to direct a verdict
were the case before a jury, then there is >substantial evidence.=
Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972) (quoting Laws v. Celebrezze, 368 F.2d 640,
642 (4th Cir. 1966)). Additionally, the Commissioner, not the Court, is charged with resolving conflicts
in the evidence. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). Nevertheless, the Courts Amust
not abdicate their traditional functions; they cannot escape their duty to scrutinize the record as a whole
to determine whether the conclusions reached are rational.@ Oppenheim v. Finch, 495 F.2d 396, 397
(4th Cir. 1974).
A careful review of the record reveals the decision of the Commissioner is supported by

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substantial evidence.
Claimant=s Background
Claimant was born on November 5, 1959, and was 54 years old at the time of the administrative
hearing, January 8, 2014. (Tr. at 26, 34, 177, 184.) Claimant had an eleventh grade, or limited education
and was able to communicate in English. (Tr. at 26, 34, 216-17.). Claimant had past relevant work as
a mall sweeper, an ambulance attendant, a truck driver helper, and an acting building super. (Tr. at 26,
56-58, 218, 224-31.)
The Medical Record.
The Court has reviewed all the evidence of record, including the medical evidence, and will
discuss it below in relation to Claimant=s arguments.4
On April 14, 2011, Claimant’s treating physician, Dr. Riaz Rahman, M.D., noted Claimant’s
complaint of arm pain and sent him for a neurological consult.5 (Tr. at 340-41, 524-25.) Claimant was
examined by Dr. Andrew Faskowitz, D.O., who diagnosed post herpetic neuralgia that resulted from a
flu shot. (Tr. at 343-45, 527-29.)
On September 19, 2012, Dr. Nilima Bhirud, M.D., conducted a consultative evaluation at the
request of the State Disability Determination Service. (Tr. at 402-08.) Claimant reported a history of
arthritis, knee problems, and gout, which affected his feet, knees, elbows, and hands. (Tr. at 402.) He
reported attacks from gout once a week that lasted four to five days, for which he took Indocin. (Id.)
He also took Allopurinol daily for arthritis. (Id.) Claimant reported a history of morning stiffness and
pain in the joints of the bilateral hands that was made worse by lifting weights. (Tr. at 403.) He stated

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Claimant alleges error only respecting his mental impairments. The Court therefore, limits the summary of the
evidence to that related to Claimant’s mental impairments.
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It was noted on December 16, 2010, that Claimant had a history of left forearm surgery and a right wrist fracture.
(Tr. at 328, 540.)

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that he fractured his right wrist 27 years ago, which resulted in surgery. (Id.) He reported constant
throbbing and increased pain with cold temperatures of the right wrist. (Id.) He further reported that he
could lift twenty pounds in the right hand and that he had pain in the bilateral shoulder that was made
worse by lifting his arms overhead. (Id.)
Physical examination of Claimant’s hands revealed swelling of the IP and MCP joints, mild
tenderness, good grip, and an ability to pick up a coin from the table with either hand. (Tr. at 404.)
Examination of the wrists revealed tenderness and a bony presence on the medial side, with decreased
range of right wrist motion, and no swelling or tenderness of the left wrist or shoulders. (Id.) Dr. Bhirud
noted that there was no evidence of gout in Claimant’s joints. (Id.)
On September 24, 2012, Claimant established himself as a patient with Dr. Lester Labus, M.D.,
for complaints of constant burning of the arm, with a one to two week history, and bilateral elbow pain.
(Tr. at 409-11, 656-58.) Dr. Labus noted on physical examination that Claimant had swelling of both
MCP I joints of the hands, with swelling of the tenosynovial compartments and dorsal aspect of the
left wrist. (Tr. at 410, 657.) Dr. Labus gave a working diagnosis of rheumatoid arthritis, noting that he
likely had something other than gout, and continued Claimant on Naproxen and prescribed Prednisone.
(Tr. at 410-11, 657-58.)
On September 28, 2012, Dr. Fulvio Franyutti, M.D., a State agency reviewing medical
consultant, assessed Claimant’s RFC, and concluded that Claimant was capable of performing light
exertional level work, with no manipulative limitations. (Tr. at 72-77.) Dr. Franyutti opined that
Claimant should avoid concentrated exposure to temperature extremes and vibration and moderate
exposure to hazards. (Tr. at 74-75.)
Claimant returned to Dr. Labus on October 24, 2012, and reported that his wrist was worse
with increased swelling. (Tr. at 653.) Dr. Labus diagnosed tenosynovitis of the left hand and wrist. (Tr.

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at 654.) On November 16, 2012, Claimant complained of pain and swelling of the joints in his hands.
(Tr. at 651.) On physical examination, Dr. Labus observed swelling of the bilateral MCP II and III
joints. (Tr. at 652.) He assessed possible rheumatoid arthritis. (Id.)
X-rays of Claimant’s right hand on November 16, 2012, revealed osteopenic bones with
deformity of the right distal radius and shortening of the radius, that was consistent with an old fracture.
(Tr. at 517.) Degenerative changes were noted at the carpometacarpal joints with joint space narrowing,
sclerosis, and osteophyte formation. (Id.) Some joint space narrowing of the second and third
metacarpophalangeal joints and the interphalangeal joints, also were noted. The x-rays of the left hand
demonstrated mild joint space narrowing, with some soft tissue swelling at the left wrist and distal
forearm. (Id.)
On December 26, 2012, Dr. Rabah Boukhemis, M.D., a State agency reviewing medical
consultant opined that Claimant was capable of performing light exertional level work, with no
manipulative limitations and the same environmental limitations assessed by Dr. Franyutti. (Tr. at 9496, 102-07.)
On January 22, 2013, Claimant continued to complain of hand pain and stiffness that was worse
with cold weather. (Tr. at 648.) Dr. Labus again noted swelling of the hands and diagnosed
osteoarthritis of the hands. (Tr. at 649.) On May 6, 2013, Dr. Labus referred Claimant for physical
therapy related to his back complaints. (Tr. at 647.) Claimant underwent physical therapy for his back
complaints in May 2013, and reported on May 16, 2013, that he experienced occasional tingling in the
bilateral hands. (Tr. at 468.)
On June 21, 2013, Claimant presented to the emergency department at St. Francis Hospital
with complaints of hand and wrist injuries from a fall, with deformity. (Tr. at 436, 438.) Claimant fell
out of the vehicle as he was going to the hospital for evaluation of right lower extremity pain. (Tr. at

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444, 446.) It was noted that he had limited left wrist and hand motion, with swelling and an abrasion.
(Id.) The x-rays of Claimant’s right hand and wrist revealed a comminuted distal radial fracture with
intraarticular extension, with ulnar plus variance present, of the right hand. (Tr. at 448, 459-60.)
Multifocial degenerative osteoarthritis was noted along the wrist with diffuse osteopenia and soft tissue
swelling of the wrist. (Id.) Claimant therefore, was diagnosed with a radius fracture of the right wrist
and a distal radius fracture of the right hand, with severe arthritis. (Tr. at 455.) His right forearm was
placed in a splint and he was discharged home in good condition, with a prescription for Norco. (Tr. at
456-57.)
Claimant was examined by Dr. Clark D. Adkins, M.D., on June 27, 2013, for complaints of
right arm and wrist pain following an injury from a fall. (Tr. at 616-17.) Dr. Adkins noted on
examination that Claimant had a clear deformity of his wrist, with some mild crepitation, but no
tenderness about the elbow. (Tr. at 616.) Dr. Adkins diagnosed a fracture of the distal radius/ulna and
malunion of fracture. (Id.) Claimant was placed in a splint. (Id.) On July 3, 2013, Claimant’s splint was
removed and he was placed in a short-arm cast. (Tr. at 618.) On July 15, 2013, Claimant reported that
he was doing well and Dr. Adkins confirmed that Claimant had a malunion of the fracture but that the
current fracture was not displaced. (Tr. at 620.) Dr. Adkins noted on August 8, 2013, that Claimant
had an obvious deformity of his wrist, that his ulnar styloid was somewhat prominent, and that he
moved his elbow, fingers, wrist, and hand well. (Tr. at 622.) Dr. Adkins opined that Claimant “may do
better in the long-run with an osteotomy,” which would be planned after the fractures had healed. (Tr.
at 622.) Claimant was placed in a canvas wrist support. (Id.) On September 9, 2013, Claimant reported
that he had been wearing his brace and Dr. Adkins noted that overall, his function was improving,
though he reported pain in his elbow. (Tr. at 624, 633.) Physical examination revealed tenderness of
the wrist and elbow and an absence of crepitation or tenderness over the ulnar nerve. (Id.) The x-rays

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of Claimant’s elbow revealed no obvious bony injury, but a bit of arthritis with some spurring of the
coronoid process. (Id.) X-rays of Claimant’s wrist revealed that the fracture had healed. (Id.) Dr.
Adkins explained to Claimant that he had a malunited wrist fracture. (Id.) He noted that Claimant had
two fractures and that the initial fracture was malunited and that the newer fracture was displaced
minimally, although Claimant had increasing pain. (Id.) An osteotomy of Claimant’s wrist was
scheduled to attempt to add some length to his wrist. (Tr. at 624-25, 633-34.)
On November 7, 2013, Dr. Labus noted Claimant’s continued complaints of pain and stiffness
and noted that he had not had the surgery as planned. (Tr. at 627, 630.) Claimant reported that he was
able to lift 30 pounds occasionally and less than 20 pounds frequently. (Id.) He also indicated that he
could carry less than 20 pounds occasionally. (Id.) Claimant reported that he was able to perform
simple grasping with the left hand regularly but only for a short period of time with the right hand due
to the recent injury. (Id.) Dr. Labus diagnosed generalized osteoarthrosis of multiple sites and opined
that Claimant should avoid moving machinery; temperature and humidity changes, with mild
restriction; and dust, fumes, and gases, with mild restriction. (Tr. at 629, 632.) He further opined that
Claimant was unable to drive automotive equipment and that due to his pain and stiffness, he required
frequent breaks at least every two hours. (Id.)
On November 11, 2013, Dr. Labus completed a form Medical Source Statement Physical, on
which he noted that Claimant was diagnosed with generalized osteoarthrosis of the hands and fracture
of the right ulna/radius. (Tr. at 728-31.) Claimant’s symptoms included pain and stiffness of the right
wrist and elbow and pain and stiffness of the bilateral hands and fingers. (Tr. at 728.) He assessed
Claimant’s prognosis as fair. (Id.) Dr. Labus opined that Claimant’s symptoms often interfered with
the ability and attention required to perform simple, work-related tasks. (Id.) He opined that Claimant
was capable of sitting for eight hours in an eight-hour workday and that he had limitations in

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performing repetitive reaching, handling, or fingering. (Tr. at 728-29.) Dr. Labus failed to complete
the portion of the form that asked for the percentage of the day that Claimant was capable of using his
hands, fingers, and arms for simple grasping, pushing and pulling, and fine manipulation. (Tr. at 729.)
When asked for remarks on Claimant’s limitations, Dr. Labus responded: “[S]ee Attached office
notes.” (Tr. at 731.)
Claimant=s Challenges to the Commissioner=s Decision
Claimant alleges that the Commissioner=s decision is not supported by substantial evidence
because the ALJ erred in assessing his RFC when he failed to account for Claimant’s well-documented
limitations in reaching, handling, and fingering. (Document No. 13 at 4-10.) Specifically, Claimant
asserts that his testimony, which was confirmed by Dr. Labus and the other objective evidence of
record, established significant hand use limitations. (Id. at 4.) Claimant notes that x-rays of the right
hand in June 2013, revealed degenerative osteoarthritis of the right hand and wrist, which was
confirmed by Dr. Labus, who acknowledged his complaints of pain and stiffness of the right hand,
wrist, and elbow. (Id.) He notes that Dr. Labus provided specialty treatment and noted that the problem
would only be corrected by surgery. (Id. at 5.) Claimant notes that Dr. Labus’s records reflected clinical
findings of pain, swelling, and stiffness. (Id.) He also notes that he underwent physical therapy in 2013.
(Id. at 5-6.)
Claimant asserts that the ALJ erred in failing to explain why his RFC did not include any hand
use limitations. (Id. at 7.) Claimant asserts that the ALJ failed to discuss any hand use limitations, other
than to report the underlying evidence that supported such limitations. (Id.) Claimant contends that the
ALJ’s failure is not harmless because his past work that the ALJ found him able to perform, as well as
the three alternate jobs described by the VE, require frequent reaching and handling. (Id. at 8.)
Accordingly, Claimant contends that the ALJ’s errors require remand. (Id. at 8-10.)

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In response, the Commissioner contends that substantial evidence supports the ALJ’s finding
that Claimant could perform the limited range of light work identified by the VE. (Document No. 18
at 7-10.) The Commissioner asserts that Dr. Adkins, Claimant’s treating physician, never placed any
work-related restrictions on him due to his intermittent hand and wrist complaints. (Id. at 8.) Dr. Bhirud
noted on examination that Claimant was able to pick up a coin from the table with either hand and pick
up a pen from the floor, and that he had good grip. (Id.) Furthermore, the state agency reviewing
medical consultants opined that Claimant did not have any work-related manipulative limitations. (Id.)
The Commissioner notes that Claimant even testified that he had left hand difficulty only once in a
while and could lift 40 pounds, despite having stated that he was unable to grab and hold things due to
right hand pain. (Id. at 9.) The Commissioner asserts that the ALJ amply accounted for Claimant’s
hand and wrist complaints in the assessed RFC, which was consistent with the evidence of record and
the VE’s testimony. (Id.)
The Commissioner also contends that the ALJ was not required to give any significant weight
to Dr. Labus’s opinion because he failed to set forth any specific limitations related to Claimant’s hands
and wrists. (Id.) The Commissioner again notes that Dr. Adkins did not assess any limitations and
noted in August 2013, that Claimant was able to move his fingers, wrists, hand, and elbow well. (Id.
at 9-10.) Accordingly, the Commissioner contends that the ALJ’s decision is supported by the
substantial evidence of record. (Id. at 10.)

Analysis.
Claimant alleges that the ALJ failed to account for limitations in reaching, handling, and
fingering when he assessed Claimant’s RFC. (Document No. 13 at 4-10.) ARFC represents the
most that an individual can do despite his or her limitations or restrictions.@ See Social Security
Ruling 96-8p, 61 Fed. Reg. 34474, 34476 (1996). Pursuant to SSR 96-8p, the RFC assessment
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Amust be based on all of the relevant evidence in the case record,@ including A the effects of
treatment@ and the Alimitations or restrictions imposed by the mechanics of treatment; e.g.,
frequency of treatment, duration, disruption to routine, side effects of medication.@ Looking at all
the relevant evidence, the ALJ must consider the claimant=s ability to meet the physical, mental,
sensory and other demands of any job. 20 C.F.R. '' 404.1545(a), 416.945(a) (2014). AThis
assessment of your remaining capacity for work is not a decision on whether you are disabled, but
is used as the basis for determining the particular types of work you may be able to do despite your
impairment(s).@ Id. AIn determining the claimant's residual functional capacity, the ALJ has a duty
to establish, by competent medical evidence, the physical and mental activity that the claimant can
perform in a work setting, after giving appropriate consideration to all of her impairments.@
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996).
Opinions on a claimant’s Residual Functional Capacity are issues that are reserved to the
Commissioner. The Regulations state that:
We use medical sources, including your treating source, to provide evidence,
including opinions, on the nature and severity of your impairment(s). Although we
consider opinions from medical sources on issues such as whether your
impairment(s) meets or equals the requirements of any impairment(s) in the Listing
of Impairments in appendix 1 to subpart P of part 404 of this chapter, your residual
functional capacity . . . or the application of vocational factors, the final
responsibility for deciding these issues is reserved to the Commissioner.

See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2) (2014).
In determining what a claimant can do despite his limitations, the SSA must
consider the entire record, including all relevant medical and nonmedical evidence,
such as a claimant's own statement of what he or she is able or unable to do. That
is, the SSA need not accept only physicians’ opinions. In fact, if conflicting
medical evidence is present, the SSA has the responsibility of resolving the conflict.
Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995) (citations omitted).
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The Regulations state that opinions on these issues are not medical opinions as described
in the Regulation dealing with opinion evidence (20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2));
rather, they are opinions on issues reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e) and
416.927(e). For that reason, the Regulations make clear that “[w]e will not give any special
significance to the source of an opinion on issues reserved to the Commissioner. . . .” Id. §§
404.1527(e)(3) and 416.927(e)(3). The Regulations further provide that “[f]or cases at the
Administrative Law Judge hearing or Appeals Council level, the responsibility for deciding your
residual functional capacity rests with the Administrative Law Judge or Appeals Council.” See 20
C.F.R. §§ 404.1545 and 416.946 (2014). However, the adjudicator must still apply the applicable
factors in 20 C.F.R. § 416.927(d) when evaluating the opinions of medical sources on issues
reserved to the Commissioner. See Social Securing Ruling (“SSR”) 96-5p, 61 FR 34471, 34473
(1996).
Social Security Ruling 96-5p makes a distinction between an RFC assessment, which is
“the adjudicator’s ultimate finding of ‘what you can still do despite your limitations,’” and a
“‘medical source statement,’ which is a ‘statement about what you can still do despite your
impairment(s)’ made by an individual’s medical source and based on that source’s own medical
findings.” Id. SSR 96-5p states that “[a] medical source statement is evidence that is submitted to
SSA by an individual’s medical source reflecting the source’s opinion based on his or her own
knowledge, while an RFC assessment is the adjudicator’s ultimate finding based on a consideration
of this opinion and all the other evidence in the case record about what an individual can do despite
his or her impairment(s).” Adjudicators “must weigh medical source statements under the rules set
out in 20 C.F.R. § 416.927, providing appropriate explanations for accepting or rejecting such
opinions.” Id. at 34474.
As stated above, the ALJ concluded that Claimant was capable of performing light
exertional level work, which consisted of lifting and carrying twenty pounds occasionally and ten
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pounds frequently. (Tr. at 22.) The ALJ assessed postural limitations and found that Claimant must
avoid concentrated exposure to temperature extremes, vibration, and hazards. (Id.) In assessing
Claimant’s RFC, the ALJ acknowledged Claimant’s testimony that the primary conditions that
prevented him from working were his gout, arthritis, and inability to move his hands. (Tr. at 23,
46.) Claimant denied pain in his left hand and testified that he was unable to grab items with his
right hand like use to. (Tr. at 51.) He reported that he sometimes had difficulty holding objects and
often dropped items. (Id.) He testified that he experienced problems with his left hand “once in a
while.” (Id.) Claimant testified that his wrists, elbows, and ankles locked up and were painful. (Tr.
at 46.) He stated that he could lift 40 pounds and had no difficulty lifting a gallon of milk. (Tr. at
23, 51-52.)
The ALJ found that Claimant’s medically determinable impairments, including the
osteoarthritis of the hands and wrists, reasonably were expected to cause Claimant’s alleged
symptoms, but that Claimant’s allegations were not entirely credible. (Tr. at 23.) The ALJ noted
Dr. Bhirud’s notes of mild tenderness and swelling of both hands in September 2012, as well as
bony prominence on the medial side of the right wrist, with tenderness and decreased range of
motion. (Tr. at 23.) Nevertheless, Claimant had good grip. (Id.) The December 2012, x-rays of the
left hand were negative. (Id.) In June 2013, x-rays demonstrated a fracture and degenerative
osteoarthritis. (Id.) The ALJ also acknowledged Claimant’s reported activities, which were limited.
(Tr. at 24-25.) The ALJ gave great weight to the opinions of the State agency reviewing medical
consultants because their opinions were “balanced, objective, and consistent with the evidence of
record as a whole.” (Tr. at 25.) The ALJ gave little weight to Dr. Labus’s opinion, except that he
included the environmental limitations in his RFC. (Id.) The ALJ concluded that Dr. Labus’s
frequent break restrictions were unsupported by Dr. Labus’s examination notes. (Id.) The ALJ
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noted that despite Dr. Labus’s assessed limitations in reaching, handling, and fingering, he failed
to indicate the limitations in reference to an eight-hour workday. (Id.)
Claimant alleges that the documented pain, stiffness, and swelling of his right hand, wrist,
and elbow affected his ability to reach, handle, and finger. (Document No. 13 at 4.) Despite the
clinical findings from Claimant’s treating physician, the record is void of any assessed limitations.
In fact, Dr. Bhirud noted in September 2012, that Claimant had good grip and was able to pick up
a coin from the table with either hand. Furthermore, Dr. Adkins noted in August 2013, that
Claimant was able to move his fingers, hands, wrists, and elbow well. None of Claimant’s treating
providers placed in work-related limitations on Claimant due to his complaints of his fingers,
hands, wrists, or elbows. The two State agency reviewing medical consultants did not assess any
manipulative limitations. Claimant testified that he was able to lift 40 pounds and that he had
problems with his left hand only once in a while. Although Dr. Labus opined that Claimant had
limitations in performing repetitive reaching, handling, or fingering, he failed to set forth any
specific limitation or identify the percentage of the day that he was capable of performing such
functions. Furthermore, although Dr. Labus opined that Claimant had limitations in repetitive
reaching, handling, or fingering, his treatment notes failed to substantiate such an opinion.
Accordingly, the Court finds that the little weight assigned to Dr. Labus’s opinion is supported by
the substantial evidence of record.
Because the record failed to substantiate any limitations involving repetitive reaching,
handling, or fingering, the ALJ was not required to include such limitations in a hypothetical
question to the VE. To be relevant or helpful, a vocational expert=s opinion must be based upon
consideration of all evidence of record, and it must be in response to a hypothetical question which
fairly sets out all of the claimant=s impairments. Walker v. Bowen, 889 F.2d 47, 51 (4th Cir. 1989).
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A[I]t is difficult to see how a vocational expert can be of any assistance if he is not familiar with
the particular claimant=s impairments and abilities B presumably, he must study the evidence of
record to reach the necessary level of familiarity.@ Id. at 51. Nevertheless, while questions posed
to the vocational expert must fairly set out all of claimant=s impairments, the questions need only
reflect those impairments that are supported by the record. See Chrupcala v. Heckler, 829 F.2d
1269, 1276 (3d Cir. 1987). Additionally, the hypothetical question may omit non-severe
impairments, but must include those which the ALJ finds to be severe. See Benenate v. Schweiker,
719 F.2d 291, 292 (8th Cir. 1983). The ALJ therefore, was entitled to rely upon the VE’s testimony
that Claimant could perform the alternative jobs of a cafeteria attendant, cashier, and stock checker,
despite any reaching, fingering, or handling requirements.
After a careful consideration of the evidence of record, the Court finds that the
Commissioner=s decision is supported by substantial evidence. Accordingly, by Judgment Order
entered this day, the Plaintiff=s Motion for Summary Judgment (Document No. 12.) is DENIED,
Defendant=s Motion for Judgment on the Pleadings (Document No. 18.) is GRANTED, the final
decision of the Commissioner is AFFIRMED, and this matter is DISMISSED from the docket of
this Court.
.

The Clerk of this Court is directed to send a copy of this Memorandum Opinion to counsel

of record.
ENTER: March 28, 2016.

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