Polly v. Colvin

Filing 20

MEMORANDUM OPINION. Signed by Magistrate Judge Robert S. Ballou on March 14, 2018. (ca)

3/14/2018
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
LYNCHBURG DIVISION
JEFFREY W. POLLY,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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Civil Action No. 6:16cv42

MEMORANDUM OPINION
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).
STANDARD OF REVIEW
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

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The Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment, which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Disability

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).
CLAIM HISTORY
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 process4 and denying his claim for benefits. R. 12–23. The ALJ found that

under the Act requires showing more than the fact that the claimant suffers from an impairment which affects his
ability to perform daily activities or certain forms of work. Rather, a claimant must show that his impairments
prevent him from engaging in all forms of substantial gainful employment given his age, education, and work
experience. See 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
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Polly’s date last insured was December 31, 2015; thus, he must show that his disability began on or before
this date and existed for twelve continuous months to receive DIB. R. 216; 42 U.S.C. §§ 423(a)(1)(A), (c)(1)(B),
(d)(1)(A); 20 C.F.R. §§ 404.101(a), 404.131(a).
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Polly was born on September 9, 1982, and was 28 years old on his alleged onset date, making him a
“younger individual” under the Act. R. 22, 52.
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The five-step process to evaluate a disability claim requires the Commissioner to ask, in sequence,
whether the claimant: (1) is working; (2) has a severe impairment; (3) has an impairment that meets or equals the
requirements of a listed impairment; (4) can return to his past relevant work; and if not, (5) whether he can perform
other work. Johnson v. Barnhart, 434 F.3d 650, 654 n.1 (4th Cir. 2005) (per curiam) (citing 20 C.F.R.§ 404.1520);
Heckler v. Campbell, 461 U.S. 458, 460–62 (1983). The inquiry ceases if the Commissioner finds the claimant
disabled at any step of the process. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The claimant bears the burden of
proof at steps one through four to establish a prima facie case for disability. At the fifth step, the burden shifts to the
Commissioner to establish that the claimant maintains the residual functional capacity (“RFC”), considering the

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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.
ANALYSIS
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

claimant’s age, education, work experience, and impairments, to perform available alternative work in the local and
national economies. 42 U.S.C. § 423(d)(2)(A); Taylor v. Weinberger, 512 F.2d 664, 666 (4th Cir. 1975).

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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.

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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 Physicians Opinions
Polly argues that the ALJ erred by failing to give controlling weight to the opinions of his
treating physician Dr. Hamilton, who found that Polly had significant functional limitations that
eliminated his ability to work and that Polly met Listing 1.02. In support, Polly asserts that Dr.
Hamilton’s opinions are supported by “objective observations, physical examination, and
testing.” Pl.’s Br. at 6, Dkt. No. 14. The Commissioner asserts that the ALJ properly explained
the weight he gave Dr. Hamilton’s opinions and that the record does not support Dr. Hamilton’s
restrictions, including his “speculation” that Polly would miss more than two days of work a
month.
The social security regulations require that an ALJ give the opinion of a treating source
controlling weight if he finds the opinion “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with the other substantial evidence in

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[the] case record.” 20 C.F.R. § 404.1527(c)(2). The ALJ must give “good reasons” for not
affording controlling weight to a treating physician’s opinion. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2); Saul v. Astrue, No. 2:09–cv–1008, 2011 WL 1229781, at *2 (S.D.W.Va. March
28, 2011). Further, if the ALJ determines that a treating physician’s medical opinion is not
deserving of controlling weight, the following factors must be considered to determine the
appropriate weight to which the opinion is entitled: (1) the length of treatment and frequency of
examination; (2) the nature and extent of the treatment relationship; (3) the opinion’s support by
medical evidence; (4) the opinion’s consistency with the record as a whole; and (5) the treating
physician’s specialization. 20 C.F.R. §§ 404.1527(c)(2)-(5), 416.927(c)(2)-(5). “None of these
factors may be omitted or disregarded by the ALJ in weighing the value of a treating physician's
opinion.” Ricks v. Comm’r, No. 2:09cv622, 2010 WL 6621693, at *10 (E.D.Va. Dec. 29, 2010).
Here, the ALJ appropriately considered these factors and the record in determining the
weight to give to the opinions of Dr. Hamilton. The ALJ gave Dr. Hamilton’s opinion regarding
Polly’s functional limitations, as set out in the 2014 Physical Form, little weight, noting that,
while Polly fractured his knee and ankle and underwent surgery, his “clinical examinations
indicated near normal knee range of motion and only moderate arthritis in his ankle.” R. 20, 595.
Furthermore, the ALJ noted that Polly had no upper extremity impairments that justified the
lifting restrictions placed by Dr. Hamilton. Id. The ALJ emphasized that Dr. Hamilton’s
proposed limitations are inconsistent with his treatment notes which indicated that Polly could
work as a cabinetmaker when using narcotic medications, and that Polly could “travel, drive,
work at least part time, attend his children’s events, do chores, mow the yard, and take the dog
out.” R. 20. Substantial evidence supports these findings, including the Function Report where
Polly indicated he took care of a dog, did laundry, mowed the lawn with a riding mower, washed

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dishes, and attended church and his children’s activities bi-monthly.5 R. 259–61. Polly also
reported to Dr. Hamilton that he took trips to Kentucky, Walt Disney World, and Virginia Beach
in 2011, 2012, and 2014. R. 526, 546, 579.
Likewise, the ALJ gave Dr. Hamilton’s January 2015 opinion that Polly met Listing 1.02
little weight, emphasizing that Dr. Hamilton “provided no explanation for his opinion.” R. 21.
Polly must do more than rely upon the opinion of his treating physician. Here Polly fails to meet
his burden to explain how the medical evidence shows that he meets a Listing. See Sullivan v.
Zebley, 493 U.S. 521, 530 (1990) (“For a claimant to show that his impairment matches a
Listing, he must show that it meets all of the specified criteria. An impairment that manifests
only some of those criteria, no matter how severely, does not qualify.”).
The ALJ explained both the criteria for meeting Listing 1.02 and why Polly did not meet
those requirements. In the Listings of Impairments, “[e]ach impairment is defined in terms of
several specific medical signs, symptoms, or laboratory test results.” Sullivan, 493 U.S. at 530. A
claimant is presumed to be disabled if his or her impairment meets or is medically equivalent to
the criteria of an impairment set forth in the Listings. See 20 C.F.R. § 416.925. Under Listing
1.02, a social security claimant is disabled if she has “[m]ajor dysfunction of a joint” due to any
cause.6 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 1.02. In addition, the “major dysfunction of a
joint” requires the involvement of one major weight-bearing joint (i.e. hip, knee, or ankle)

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Polly also testified during the hearing that, while his wife did most of the household chores, he did a
“couple loads of laundry a day.” R. 41.
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“Major dysfunction of a joint” is defined as “gross anatomical deformity (e.g., subluxation, contracture,
bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other
abnormal motion of the affected joint(s),” and “findings on appropriate medically acceptable imaging of joint space
narrowing, bony destruction, or ankylosis of the affected joint(s).” Listing of Impairments § 1.02.

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resulting in an inability to walk effectively. Id. §1.02(A).7 The ALJ noted that ineffective
walking is “defined generally as having insufficient lower extremity functioning to permit
ambulation without the use of a hand-held assistive device(s) that limits the functioning of both
upper extremities.” R. 21. The ALJ wrote:
[Polly] does not require a walker, two crutches, or two canes. Moreover, his records
indicate that he was able to ambulate well enough to perform chores, drive, take out the
dog, and attend church and children’s activities. In addition, at his most recent
orthopedist visit, he did not require a gait aide and was able to walk at least one to four
blocks.
Id. Thus, the ALJ concluded that “Dr. Hamilton’s unsupported opinion that [Polly] met Listing
1.02 is given little weight.” Id. Instead, the ALJ gave great weight to the opinion of state agency
physician Thomas Phillips, M.D., who found Polly capable of performing a limited range of
sedentary work. R. 21. The ALJ noted that Dr. Phillip’s opinion is “consistent with [Polly’s]
improvement in knee range of motion, his ability to ambulate unassisted, his moderate subtalar
arthritis, his stable hardware, his ability to perform work such as laying tile and making cabinets,
and his decision to pursue only conservative treatment . . . .” R. 22.
Here, the ALJ considered the record, including Dr. Hamilton’s May 2014 Physical Form
and his January 2015 opinion that Polly met Listing 1.02, and determined that although Polly’s
comminuted, displaced interarticular calceneus fracture and right patellar fracture status post
surgeries and subtalar arthritis were severe impairments, his impairments individually or
combined did not meet Listing 1.02, or any other listing. The ALJ further concluded that Polly
was capable of a limited range of sedentary work. R. 16, 21. The ALJ’s job is to review the
medical evidence of record, weigh the medical opinions, and determine an RFC that represents
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Listing 1.02(B) requires involvement of one major peripheral joint in each upper extremity (i.e., shoulder,
elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively. However, Polly does
not argue that he has any limitations related to a major peripheral joint in each upper extremity limits, nor is there
evidence of this in the Record.

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Polly’s functional capacity. The ultimate decision on whether Polly meets the statutory definition
for disability is an administrative decision that is always reserved to the Commissioner. See
Morgan v. Barnhart, 142 F. App’x 716, 721–722 (4th Cir. 2005) (finding legal conclusions such
as “statements[s] by a medical source that [the claimant is] ‘disabled’ or ‘unable to work” are
opinions on issues reserved to the ALJ). Having reviewed the record as a whole, I find that
substantial evidence supports the ALJ’s decision to give the opinions of Dr. Hamilton little
weight.
CONCLUSION
For the foregoing reasons, Polly’s Motion for Summary Judgment is DENIED and the
Commissioner’s Motion for Summary Judgment is GRANTED and this case is DISMISSED
from the court’s docket.
Entered: March 14, 2018

Robert S. Ballou
Robert S. Ballou
United States Magistrate Judge

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