Spence v. SSA

Filing 18

MEMORANDUM OPINION & ORDER: Dfts Motion for Summary Judgment (Record No. 16 ) is GRANTED. 2. Plas Motion for Summary Judgment (Record No. 13 ) is DENIED. 3. The administrative decision will be AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on 3/27/2017. (TDA) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
EUGENE SPENCE,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 7: 16-165-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Eugene Spence and Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security (“the Commissioner”). [Record Nos. 13, 16] Spence contends that the administrative
law judge (“ALJ”) assigned to his case erred by denying his claims for disability income
benefits (“DIB”) and supplemental security income (“SSI”). [Record No. 14] He requests that
the Court direct a finding of disability or, in the alternative, remand for further administrative
proceedings. The Commissioner contends that the ALJ’s decision is supported by substantial
evidence and should be affirmed. For the reasons discussed below, the Court will grant the
Commissioner’s motion and deny the relief sought by Spence.
I.

Procedural History

On May 4, 2010, Spence filed concurrent applications for a period of disability and
DIB under Title II of the Social Security Act (“the Act”) and SSI under Title XVI of the Act.
[Administrative Transcript, “Tr.,” 239, 245] Spence alleged that his disability began February
10, 2009. Id. The Social Security Administration (“SSA”) denied his applications initially
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and upon reconsideration. [Tr. 159–64] On September 14, 2010, Spence, who was represented
by attorney Eric Conn, requested a hearing before an ALJ. [Tr. 170] In an opinion dated
November 8, 2010, ALJ David Daugherty concluded that the record supported a fully
favorable decision that no hearing was necessary. [Tr. 149–53]
On May 18, 2015, Spence, along with hundreds of other social security beneficiaries,
received notice that the SSA had reason to believe that fraud or similar fault was involved in
his application and, as a result, his benefits were being suspended. [Tr. 39–44] Specifically,
the SSA had reason to believe that fraud was involved in certain cases involving evidence
submitted by Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Frederic Huffnagle, M.D.
and David P. Herr, D.O., dated between January 2007 and May 2011, which was submitted to
the SSA by Eric Conn or others associated with Conn’s law office. [Tr. 19]
The Appeals Council remanded the case to a new ALJ to decide whether the claimant
had been disabled as of November 8, 2010. ALJ L. Raquel Bailey Smith conducted a video
hearing on November 10, 2015. [Tr. 20] ALJ Smith was required to disregard Dr. David
Herr’s October 8, 2010 opinion, but the claimant was permitted to submit additional evidence
in support of his applications for benefits. See 42 U.S.C. §§ 405(u), 1383(e)(7). [Tr. 20] ALJ
Smith denied benefits in a written decision on February 17, 2016. [Tr. 31] Spence sought
review by the Appeals Council but that request was denied. [Tr. 1]. Accordingly, the claimant
has exhausted his administrative remedies and this matter is ripe for review under 42 U.S.C.
§§ 405(g), 1383(c)(3).
II.

Background

Spence was 31 years-old at the time of the ALJ’s decision and lived with his mother
and father. [Tr. 81] He had a girlfriend and a young son. [Tr. 386, 388] Spence completed
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the eleventh grade and took special education classes while in school. [Tr. 84, 306] He worked
full-time as an underground coal miner from 2003 through 2009. [Tr. 312] Spence testified
that he was forced to stop working in February 2009 due to pain in his back, legs, and arm.
[Tr. 74–75] These symptoms began after he was involved in a motor vehicle accident in
January 2008, in which the car he was driving was hit by a coal truck. [Tr. 391]
Spence reported having been treated by Dr. Hoover for these problems once a month
from 2008 through 2010. [Tr. 76] Dr. Hoover prescribed Lortab and Valium, but these
medications only “took the edge off.” [Tr. 75]

Spence advised ALJ Smith during the

administrative hearing that Dr. Hoover “got shut down,” and that his treatment records were
no longer available. [Tr. 77]
Spence testified that he does not sleep well at night and that he takes three or four 30
to 45-minute naps daily. [Tr. 78] He also reported that walking worsened his pain and he was
only able to walk about 35 or 40 steps without sitting down and resting for several minutes.
[Tr. 81–82] Spence stated that he can sit in a chair for two or three minutes before changing
positions. [Tr. 83] And he reported being able to lift only three or four pounds. [Tr. 83–84]
Spence further testified that he did not read well and was unable to complete a job application.
[Tr. 84]
David Winkle, M.D., performed a consultative examination in June 2010. [Tr. 405]
Spence complained of low back and left leg pain, difficulty walking, left arm pain and
numbness, nervousness, difficulty sleeping, and severe headaches. Id. Dr. Winkle noted that
Spence appeared healthy and that his mood and affect were appropriate. [Tr. 406] He had
slightly diminished sensation over his left hand, but his neurologic exam was otherwise
normal. Id. Spence was able to squat, tandem walk, and could walk on his heels and toes. Id.
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While Winkle noted some tenderness of the left shoulder and lumbar area, there was no muscle
atrophy. Further, the claimant had no pain with straight leg raising. Id. He also had normal
range of motion.
Dr. Winkle evaluated several x-rays as part of Spence’s examination. [Tr. 407] The
bony structure of Spence’s lumbar spine was normal and the disk spaces were preserved. Id.
Dr. Winkle believed muscle spasm was probable. Id. The claimant’s left femur and forearm
were also x-rayed, with normal results. Id. Winkle concluded that Spence had normal strength
and dexterity in the upper and lower extremities, but that his low back problems would limit
his ability to perform heavy lifting, as well as bending, twisting, and stooping. Id. Winkle
added that prolonged walking may be difficult, and that Spence “has some difficulty with use
of his left arm.” [Tr. 406–07]
Timothy Gregg, M.D., reviewed Spence’s file the following month. [Tr. 130–132] Dr.
Gregg opined that Spence could occasionally lift and/or carry 50 pounds and frequently lift
and/or carry 25 pounds. [Tr. 130] Further, he believed that Spence could walk, stand, or sit
for about six hours in an eight-hour workday. Id. He opined that Spence had no limitations
when it came to pushing, pulling, posture, vision, communication, manipulation, or the
environment. [Tr. 130–31] Gregg acknowledged that his findings were less restrictive than
those of Dr. Winkle, but believed that Winkle only provided a “snapshot of [Spence’s]
functioning” and, therefore, did not accurately represent the severity of his limitations. [Tr.
131]
William Rigby, Ph.D., performed a consultative examination concerning the claimant’s
mental abilities in May 2010. [Tr. 385] Spence advised Dr. Rigby that he had experienced
problems with anxiety for two years. Dr. Rigby found that Spence’s thought processes were
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free of psychotic symptoms, but were somewhat concrete in cognitive style. [Tr. 386] Further,
Spence had intact long and short-term memory. Dr. Rigby diagnosed Spence with a depressive
disorder and assigned him a Global Assessment of Functioning (“GAF”) score of 60, which
indicates moderate difficulty in social and occupational functioning. [Tr. 388] Rigby indicated
that Spence was below average intellectually, but not mentally retarded.1 Id.
Rigby concluded that Spence was mildly impaired in his ability to understand, retain,
and follow simple instructions. [Tr. 389] He determined that there was no impairment in
Spence’s ability to sustain concentration and persistence to complete tasks in normal time, but
there were moderate limitations regarding Spence’s ability to maintain social interactions and
to adapt and respond to the pressures of normal day-to-day work activity. Id.
Mary Thompson, Ph.D., and Ann Hess, Ph.D., reviewed Spence’s file on behalf of the
agency. Thompson opined that Spence had mild limitations in maintaining social functioning,
but that he was not limited in activities of daily living, or in maintaining concentration,
persistence, or pace. [Tr. 401] Thompson noted that Spence drives, goes shopping, and has a
limited but active social life. [Tr. 403] She accorded great weight to Dr. Rigby’s findings and
concluded that Spence’s complaints of nervousness did not significantly impact his ability to
perform basic work activities. Id. Dr. Hess, who reviewed the file on reconsideration, noted
that no new medical evidence had been submitted. [Tr. 129] She also gave great weight to
Dr. Rigby’s findings and agreed with Thompson’s assessment. [Tr. 130]
The ALJ determined that Spence had the following severe impairments: chronic back
pain and depressive order, not otherwise specified. [Tr. 23] She determined that Spence did

1

The name of listing 12.05 has been changed to “intellectual disability,” but at the time of Dr.
Rigby’s report, it was “mental retardation.” 20 C.F.R. pt. 404, Subpt. P, App. 1, § 12.05(C).
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not have an impairment or combination of impairments that met or medically equaled a listing
under 20 C.F.R. Part 404, Subpart P, Appendix 1. [Tr. 62] After considering the record, the
ALJ determined that Spence had the residual functional capacity (“RFC”) to perform a reduced
range of medium work as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). [Tr. 25]
Specifically, the ALJ determined that Spence could perform medium work with
[f]requent stooping, kneeling, crouching, crawling, and climbing of ramps and
stairs. The beneficiary could occasionally climb ladders, ropes, and scaffolds.
He could frequently handle and finger with the left, non-dominant upper
extremity. The beneficiary was able to understand, remember, and carry out
unskilled, simple, repetitive, and routine tasks in an environment where tasks
involved work primarily with things, not people. The beneficiary was able to
adapt to the occasional changes associated with unskilled work. The beneficiary
was able to perform tasks learned through demonstration as opposed to reading
instructions.
[Tr. 25]
Spence could not perform any of his past relevant work based on this RFC. [Tr. 29]
Because there were jobs existing in significant numbers in the national economy that Spence
could perform, however, the ALJ determined that he had not been under a disability from the
alleged onset date through the date of the prior ALJ’s decision, on November 8, 2010. [Tr.
29–31]
III.

Standard of Review

Under the Act, a “disability” is defined as “the inability to engage in ‘substantial gainful
activity’ because of a medically determinable physical or mental impairment of at least one
year’s expected duration.” Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)
(citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s disability determination is made by an ALJ in
accordance with “a five-step ‘sequential evaluation process.’” Combs v. Comm’r of Soc. Sec.,
459 F.3d 640, 642 (6th Cir. 2006) (en banc) (quoting 20 C.F.R. § 404.1520(a)(4)). If the
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claimant satisfies the first four steps of the process, the burden shifts to the Commissioner with
respect to the fifth step. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. §§ 404.1520(b), 416.920(b).
Second, the claimant must show that he suffers from a severe impairment or a combination of
impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c). Third, if the claimant is not engaged in
substantial gainful employment and has a severe impairment which is expected to last for at
least twelve months and which meets or equals a listed impairment, he will be considered
disabled without regard to age, education, and work experience. 20 C.F.R. §§ 404.1520(d),
416.920(d). Fourth, if the claimant has a severe impairment but the Commissioner cannot
make a determination of the disability based on medical evaluations and current work activity,
the Commissioner will review the claimant’s RFC and relevant past work to determine whether
he can perform his past work. If he can, he is not disabled. 20 C.F.R. §§ 404.1520(f),
416.920(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other work,
the Commissioner will find the claimant disabled. 20 C.F.R. §§ 404.1520(g), 416.920(g).
“The Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec., 312
F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th
Cir. 1999)).

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This Court’s review is limited to determining whether the ALJ’s findings are supported
by substantial evidence and whether the ALJ employed the proper legal standards in reaching
his decision. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial
evidence is such relevant evidence as reasonable minds might accept as sufficient to support
the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass v. McMahon, 499 F.3d
506, 509 (6th Cir. 2007). The Commissioner’s findings are conclusive if they are supported
by substantial evidence. 42 U.S.C. § 405(g).
IV.
A.

Analysis

Sufficiency of the Record

Spence contends that, upon redetermination, the record did not contain sufficient
medical evidence for the ALJ to make a decision supported by substantial evidence. In this
same vein, the claimant argues that the ALJ had a duty to send him for further physical and
psychological examinations before rendering a decision. [Record No. 14, p. 10] However, the
Commissioner is not required to gather additional evidence to replace evidence that is
disregarded during the redetermination process pursuant to 42 U.S.C. §§ 405(u) and 1383(e).
Rather, the burden is on the claimant to produce additional evidence. See, e.g., Robinson v.
Colvin, No. 1: 13-cv-2536, 2015 WL 1400585, at *21 (N.D. Ohio, March 26, 2015) (citing
Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986)).
Additionally, an ALJ is not required to order an additional examination unless more
evidence is needed to render a decision. See Landsaw, 803 F.2d at 214. Here, not only were
additional examinations unnecessary, but the ALJ would not have been permitted to consider
such evidence. When redetermining entitlement to benefits under §§ 405(u) and 1383(e), the
ALJ considers the claim only through the date of the final determination of the claimant’s
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application for benefits. SSR 16–1p, 2016 WL 1029284, at *5 (March 14, 2016). While the
Commissioner will consider new evidence if it relates to the time period at issue, he or she will
not develop new evidence regarding the claimant’s current state of health. Id.
No IQ scores were available to evaluate the claimant under Listing 12.05, which relates
to intellectual disability. While there is no indication that Spence asked the ALJ to refer him
for IQ testing, he now argues that the ALJ’s decision should be reversed because she failed to
do so. [Record No. 14, p. 11] However, as explained in the ALJ’s opinion, the record contains
no evidence of deficits in adaptive functioning, which are required to establish an intellectual
disability under Listing 12.05. See Hayes v. Comm’r of Soc. Sec., 357 F. App’x 672, 674–75
(6th Cir. 2009). Any suggestion to the contrary is undercut by the following facts: the claimant
had a girlfriend, fathered a child, and obtained a driver’s license. [Tr. 87] Prior to the onset
of his back pain, he enjoyed hunting and riding a four-wheeler. [Tr. 296] He reported
socializing daily, playing video games, and ran heavy machinery as a full-time underground
coal miner for six years. [Tr. 94–95, 296, 312–21] Spence reported that, although he was not
“smart” when it came to money, he was able to count change and pay bills. [Tr. 295] Based
on the foregoing, the ALJ did not err in failing to sua sponte order IQ testing of Spence.
The claimant also notes that he hired his attorney one week prior to the administrative
hearing, which was held on November 11, 2015. [Record No. 14, p. 11] He contends that the
ALJ erred by denying him an extension of time to further develop the record. Id. The hearing
transcript reveals that the claimant’s attorney sought to introduce evidence regarding the
claimant’s current medical status. [Tr. 70–71] The ALJ explained that she would not be
permitted to consider such evidence. Id.

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Correspondence in the record demonstrates that, on December 7, 2015, the plaintiff was
given an opportunity to submit additional evidence. [Tr. 371] On December 21, 2015, a case
manager noted that the additional evidence had not been received, however, and that the case
was being forwarded to the ALJ for post-hearing review. Id. Around that same time, the
claimant asked the ALJ to hold the record open for an additional month. [Tr. 372] It is unclear
whether that request was granted, but on December 18, 2015, the plaintiff submitted records
from the Martin County School District. [Record No. 373–81] The record also contains
treatment notes from Three Rivers Medical Center, but it is not known when these were
submitted. [Tr. 412–504]
Based on the foregoing, the claimant has not established that the ALJ precluded him
from developing the record. Assuming, arguendo, that the ALJ denied the claimant a second
extension of time to introduce additional evidence, the claimant has not shown that he was
prejudiced by this denial. Rather, he has made vague references to additional evidence without
explaining how the purported evidence is relevant to his claim of disability during the relevant
time period.
B.

The ALJ’s Evaluation of Opinion Evidence

Spence also contends that the ALJ erred in her evaluation of the opinion evidence. [Tr.
14, pp. 11–14] Specifically, he contends that, pursuant to 20 C.F.R. § 404.1519p, the ALJ was
obligated to re-contact Drs. Rigby and Winkle because the ALJ remarked that portions of their
conclusions were not stated in “vocationally relevant terms.” [See Tr. 26–27] This argument
fails. Under the regulations, the agency will re-contact a consulting examiner for clarification
only when the examiner’s report is “inadequate or incomplete.” 20 C.F.R. §§ 404.1519p(b),
416.919p(b). The claimant has not shown that these reports were inadequate or incomplete,
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necessitating further contact. A consultative examiner’s report is not rendered incomplete by
the absence of a statement about what a claimant can still do despite his limitations. Dooley
v. Comm’r of Soc. Sec., 656 F. App’x 113, 122 (6th Cir. 2016) (citing 20 C.F.R. §§
404.1519n(c)(6) and 416.919n(c)(6)).
Both Winkle and Rigby engaged in comprehensive examinations of Spence and
reported their objective findings. The ALJ noted that, although Winkle’s examination of
Spence was largely unremarkable, Winkle assessed significant limitations which were
apparently based on Spence’s subjective complaints. Accordingly, the ALJ gave Winkle’s
opinion little weight. [Tr. 26] The ALJ found Rigby’s conclusion that the claimant was
intellectually limited consistent with the claimant’s school records. She assigned Rigby’s
opinion some weight, noting that the limitations assessed were not stated in vocationally
relevant terms. [Tr. 27]
As the ALJ found, no treating source provided an opinion regarding the claimant’s
functional abilities. Notably, the record contains no treatment notes regarding any of the
claimant’s alleged disabling conditions. Rather, the only records from treating sources are
from outside the relevant time period and concern conditions that are unrelated to the disability
claims. [See Tr. 374–81; 412–504] Dr. Winkle—the only physician to have examined
Spence—reported exam results that were largely unremarkable. [Tr. 405] Dr. Rigby noted
that Spence had intact long and short-term memory. He was able to recall colors and shapes
of common items, and could perform some simple math. [Tr. 386] Rigby diagnosed Spence
with depressive disorder and assigned a GAF of 60.2 [Tr. 388] Drs. Gregg, Thompson, and

The plaintiff claims that the ALJ should not have relied on the GAF score assessed by Dr.
Rigby because the latest edition of the Diagnostic and Statistical Manual of Mental Disorders

2

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Hess reviewed Spence’s file, including these objective findings, and formed their own
opinions, using terms the ALJ found to be more vocationally relevant. The ALJ gave some
weight to Dr. Gregg’s opinion, but indicated that Dr. Gregg did not account for the muscle
tenderness and hand paresthesia that Dr. Winkle noted during his examination. [Tr. 28] The
ALJ gave little weight to the opinions of Drs. Thompson and Hess, who opined that Spence
had only mild limitation in social functioning and no limitation in the ability to maintain
concentration. [Tr. 28] The ALJ noted that these reviewing sources did not have access to the
claimant’s school records which showed a below-average reading level. Id.
The ALJ also considered the opinion of the claimant’s father. [Record No. 14, p. 14]
Cubert Spence completed a third-party function report on May 10, 2010. [Tr. 320] Mr. Spence
reported that his son was able to complete all personal care and that he was able to drive a car,
and go out alone by himself. [Tr. 324] Further, he reported that his son went out every three
days to shop for cigarettes, but only for five minutes. Id. He believed his son could not lift
much, stand long, reach high, or walk far. [Tr. 326] He also stated that the claimant got upset
easily, did not get along well with authority figures, and did not handle stress well. [Tr. 327]
The ALJ noted that, as the beneficiary’s father, Mr. Spence had many opportunities to
observe the claimant’s functioning. [Tr. 28] However, because he was not a medical
professional, his ability to make judgments regarding physical and psychological limitations
was limited. Id. Accordingly, the ALJ only gave the opinion some weight. As Spence notes,

(“DSM–5”) no longer includes the GAF scale. However, the SSA’s administrative message
entitled “Global Assessment of Functioning Evidence in Disability Adjudication” (AM–
13066, effective July 22, 2013) clarified that the SSA “will continue to receive and consider
GAF in medical evidence.” See, e.g., Kennedy v. Colvin, 3: 14-cv-665, 2016 WL 890602, at
*2 (W.D.N.C. March 8, 2016).
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third-party lay opinions are valid sources for ALJ consideration. See, e.g, Lashley v. Sec’y of
Health & Human Servs., 708 F.2d 1048, 1054 (6th Cir. 1983). While “perceptible weight”
must be given to lay testimony where it fully supported by the medical evidence, id., ALJs are
generally not required to discuss every piece of evidence considered under 20 C.F.R. §
404.1513. See Higgs v. Bowen, 880 F.2d 860, 864 (6th Cir. 1988). This is particularly true of
lay opinions that are cumulative of other evidence in the record. See id. Although Mr.
Spence’s third-party report was similar to the claimant’s subjective complaints, the ALJ
discussed it in her opinion and gave it some weight. Accordingly, the ALJ’s consideration of
the third-party report was appropriate.
Ultimately, there is no indication that the ALJ erred in considering the opinion evidence
or that the RFC is not supported by substantial evidence. The ALJ provided good reasons for
giving more weight to Dr. Gregg’s opinion than Dr. Winkle’s, despite the fact that Dr. Gregg
had not examined Spence. See 20 C.F.R. § 404.1527(c)(1). And the RFC took into account
the limitations assessed by Drs. Winkle and Gregg, as well as the claimant’s subjective
complaints. Specifically, the RFC limited the performance of more challenging physical
activities involving the trunk, as well the use of the claimant’s left upper extremity. [Tr. 25]
Further, under the assigned RFC, the claimant was limited to simple, routine tasks and learning
through demonstration, rather than reading. Id.
Based on the foregoing analysis, it is hereby
ORDERED as follows:
1.

Defendant Nancy A. Berryhill’s Motion for Summary Judgment [Record No.

16] is GRANTED.

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2.

Plaintiff Eugene Spence’s Motion for Summary Judgment [Record No. 13] is

DENIED.
3.

The administrative decision will be AFFIRMED by separate Judgment entered

this date.
This 27th day of March, 2017.

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