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Polly v. Berryhill

United States District Court, W.D. Virginia, Lynchburg Division

March 14, 2018

JEFFREY W. POLLY, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          Robert S. Ballou United States Magistrate Judge

         Plaintiff 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).


         This 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.[1] 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. 1990).


         Polly 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.[2] The state agency denied Polly's applications at the initial and reconsideration levels of administrative review. R. 52-60, 74-85.[3] 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[4] 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.


         Polly alleges that the ALJ erred by failing to give proper weight to the opinions of his treating physician, Dr. Hamilton.

         A. Medical History

         Polly 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.

         Polly 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.

         On May 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.

         In 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.

         B. Treating ...

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