United States District Court, W.D. Virginia, Lynchburg Division
JEFFREY W. POLLY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
S. Ballou United States Magistrate Judge
Jeffrey W. Polly (“Polly”) filed this action
challenging the final decision of the Commissioner of Social
Security (“Commissioner”) finding him not
disabled and therefore ineligible for disability insurance
benefits (“DIB”) under the Social Security Act
(“Act”). 42 U.S.C. §§ 401-433. Polly
alleges that the Administrative Law Judge (“ALJ”)
erred by failing to give proper weight to the opinions of
Polly's treating physician, Thomas Hamilton, M.D. I
conclude that substantial evidence supports the
Commissioner's decision in all respects. Accordingly, I
DENY Polly's Motion for Summary Judgment
(Dkt. No. 13) and GRANT the
Commissioner's Motion for Summary Judgment (Dkt. No. 18).
court limits its review to a determination of whether
substantial evidence exists to support the Commissioner's
conclusion that Polly failed to demonstrate that he was
disabled under the Act. Mastro v. Apfel, 270 F.3d 171,
176 (4th Cir. 2001). “Substantial evidence is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion; it consists of more than a
mere scintilla of evidence but may be somewhat less than a
preponderance.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996) (internal citations and alterations
omitted). The final decision of the Commissioner will be
affirmed where substantial evidence supports the decision.
Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
protectively filed for DIB on June 6, 2012, claiming that his
disability began on May 25, 2011 due to a crushed right foot
and calcaneus fracture, right knee and patella fracture,
depression, and arthritis. R. 12, 216-19. The state agency
denied Polly's applications at the initial and
reconsideration levels of administrative review. R. 52-60,
74-85. On January 13, 2015 ALJ Brian P. Kilbane
held a hearing to consider Polly's claims for DIB. R.
29-50. Counsel represented Polly at the hearing, which
included testimony from vocational expert Robert Jackson. On
January 30, 2015, the ALJ entered his decision analyzing
Polly's claims under the familiar five-step
process and denying his claim for benefits. R.
12-23. The ALJ found that Polly was insured at the time of
the alleged disability onset and that he suffered from the
severe impairments of a comminuted, displaced interarticular
calceneus fracture and right patellar fracture status post
surgeries, and subtalar arthritis. R. 14. The ALJ determined
that these impairments, either individually or in combination
did not meet or medically equal a listed impairment. R. 16,
21. The ALJ concluded that Polly retained the residual
functional capacity (“RFC”) to perform a limited
range of sedentary work. R. 16. Specifically, the ALJ found
that Polly can lift and carry 20 pounds occasionally and 10
pounds frequently, can stand and walk two hours, and sit six
hours, in an eight-hour day, can occasionally climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl, but can
never climb ladders, ropes, or scaffolds, and should avoid
concentrated exposure to vibration and hazards. Id.
The ALJ determined that Polly was unable to perform his past
relevant work as a cabinet maker, pipe layer, automotive
detailer, ceramic tile installer, and spray painter, but that
he could perform jobs that exist in significant numbers in
the national economy, such as small parts assembler,
inspector/grader, and telephone order clerk. R. 22-23. Thus,
the ALJ concluded that Polly was not disabled. R. 23. Polly
appealed the ALJ's decision and the Appeals Council
denied his request for review on January 30, 2015. R. 9-11.
alleges that the ALJ erred by failing to give proper weight
to the opinions of his treating physician, Dr. Hamilton.
was injured in a motor vehicle accident on May 25, 2011,
sustaining a comminuted fracture of his right patella and
right heel, and a left inferior patellar tendon rupture. R.
320, 325. Polly underwent surgery on May 25, 2011 for his
injuries. R. 328. Mark L. Hagy, M.D. performed a second
surgery in September 2011, to correct a nonunion of the
patella and to remove hardware. R. 430-31. Dr. Hagy noted in
December 2011 that Polly was “doing well” three
months post-surgery, and that he would “continue to get
better.” Thus, Dr. Hagy released Polly to “return
to work as needed.” R. 481.
saw his primary care physician Dr. Hamilton approximately
once every one to two months following the May 2011 accident
with consistent complaints of right knee and ankle pain. Dr.
Hamilton prescribed medication for pain relief and
inflammation. Dr. Hamilton noted persistent pain in
Polly's right knee and ankle in June 2012, approximately
a year following the motor vehicle accident. R. 544. Dr.
Hamilton noted in July, September, and November 2012 that
Polly favored his right leg when walking, and prescribed
Oxycodone and anti-inflammatory medication. R. 544-45. In
January 2013, Dr. Hamilton noted improvement in Polly's
right ankle pain, and stated Polly was working about twenty
hours per week. R. 546. In April 2013, Polly continued to
complain of chronic ankle, foot, and knee pain, and he
indicated that he did not want to decrease his Oxycodone dose
because he was working approximately 40 hours per week. R.
584. In May 2014, Polly reported “fairly good
relief” from Oxycodone and that his knee and ankle pain
was “essentially the same.” R. 581. Dr. Hamilton
noted that Polly walked unassisted, but favored his right
leg, and had increased pain when he flexed his right knee,
and pain on motion in his right ankle, with limited range of
motion in his ankle. R. 581-82. Polly also complained about
feeling depressed about his situation and Dr. Hamilton
diagnosed “situational depression.” R. 581.
14, 2014, Dr. Hamilton completed an Assessment of Ability to
do Work-Related Activities (Physical) Form, where he
indicated that Polly could stand and/or walk 3-4 hours, and
sit 4 hours, in a workday due to chronic pain. R. 567-69. Dr.
Hamilton also found that Polly would miss more than two days
of work a month due to his impairments. R. 569. In January
2015, Dr. Hamilton noted on a check-box form that Polly met
Listing 1.02. R. 586.
December 2014, Polly saw Solono Parekh, M.D., complaining of
worsening foot pain. R. 593. X-rays of the right ankle and
foot showed moderate subtalar arthrosis, and that the
hardware was stable. R. 595. On examination, Polly had
antalgic gait and pain on subtalar joint inversion and
eversion, but no deformity and normal strength. R. 594. Dr.
Parekh noted that Polly was considering surgery for hardware
removal and subtalar fusion, but wanted to pursue
nonoperative management first. R. 595-96.