United States District Court, E.D. Kentucky, Southern Division, London
ELBERT E. POLLARD, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
C. Reeves, United States District Judge
matter is pending for consideration of cross-motions for
summary judgment filed by Plaintiff Elbert E. Pollard and
Defendant Nancy A. Berryhill, Acting Commissioner of Social
Security. [Record Nos. 1');">19 and 22] Pollard 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. 1');">19-1');">1] He requests that the
Court direct a finding of disability or, alternatively,
remand the matter for further administrative proceedings.
[Record No. 1');">19-1');">1, p. 1');">15] The Commissioner argues that the
ALJ's decision is supported by substantial evidence and
should be affirmed.
reasons discussed below, the Court will grant the
Commissioner's motion and deny the relief sought by
December 1');">12, 201');">12, Pollard 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.[1');">1" name="FN1');">1" id=
"FN1');">1">1');">1] [Administrative Transcript, hereafter,
“Tr., ” 59] Pollard alleged that his disability
began December 6, 201');">12. Id. The Social Security
Administration (“SSA”) denied his applications
initially and upon reconsideration. Id. Pollard
requested and was granted an administrative hearing before
ALJ Robert Bowling, who issued a written decision denying
benefits on February 6, 201');">15. [Tr. 59-70] Pollard then sought
review by the Appeals Council but that request was denied.
[Tr. 1');">1]. He has exhausted his administrative remedies and
this matter is ripe for review under 42 U.S.C. §§
was 48 years-old at the time of the ALJ's decision.
[See Tr. 69-70] He has a high school education and
has received vocational training in automobile body work.
[Tr. 82] Over the past fifteen years, Pollard operated a
bulldozer for a coal company. [Tr. 83] He injured his low
back at work during 2005 and was off work for some time due
to the injury. [Tr. 898] Pollard stopped working completely
in 201');">11');">1. [Tr. 83] At the time of administrative hearing, he
had a driver's license and drove approximately once per
week. [Tr. 81');">1-82]
testified that he is unable to work due to low back pain and
numbness, which travels to his legs and feet. [Tr. 86, 97] He
also complained of numbness in his hands and problems
sleeping. [Tr. 88] Pollard contends that, with respect to his
back, he had not undergone surgery but he would like to. [Tr.
89-90] He had recently begun receiving steroid injections as
conservative treatment and had also received chiropractic
treatment. [Tr. 90-91');">1] Additionally, Pollard had started to
walk with a cane, which had been prescribed by his nurse
practitioner. [Tr. 92] He also reported being treated for
depression. [Tr. 86-89]
reported being five feet, eight inches tall and weighing 21');">15
pounds. [Tr. 80] He testified being able to sit and stand for
approximately 30 minutes and having the ability to walk 1');">100
yards. [Tr. 1');">100] While Pollard did have some trouble lifting,
he believed he could lifts items weighing as much as a case
of soft drinks. Id. He felt that he could kneel and
crouch a little, but that he could not bend, stoop, or crawl.
[Tr. 1');">100-01');">1] Additionally, the claimant felt that his
depression interfered with his ability to maintain attention
and to understand. [Tr. 1');">101');">1]
Polley, M.D., conducted a consultative examination on March
2, 201');">13. [Tr. 709] At that time, Pollard complained of back
and leg pain and reported having been treated only with
Flexeril. [Tr. 709-1');">10] Dr. Polley noted that Pollard's
lumbar range of motion was decreased, with flexion limited to
sixty degrees and lateral bending of ten degrees bilaterally.
[Tr. 71');">10] His lower extremity strength was five out five,
however, with the exception of his left dorsiflexors, which
were four out of five. Deep tendon reflexes were normal and
sensation to light touch was intact. [Tr. 71');">11');">1] According to
Dr. Polley, the claimant was walking with a limp and using a
Polley suspected that Pollard had left-side nerve root
impingement in his low back, but he had no MRI study to
assist him in confirming the diagnosis. Id. Further,
at that time, Pollard had not received any conservative
treatment to address his symptoms. Id. Accordingly,
Polley recommended that Pollard be referred for further
diagnostic testing of his low back. [Tr. 71');">12] Additionally,
he opined that Pollard had moderate disability in performing
“manual labor jobs, ” and “even some
moderate duty jobs.” He believed that Pollard would not
be limited, however, in performing light duty work for an
eight-hour workday. Id.
that month, Pollard received an audiological evaluation. [Tr.
825] Pollard reported to the audiologist performing the
evaluation that he was having trouble hearing television, as
well as in crowds. Id. Audiometric results revealed
a moderate to severe hearing loss, and the audiologist
recommended two hearing aids. Id.
1');">1, 201');">13, Brittainy Shaw, M.S., performed a consultative
examination concerning Pollard's mental limitations. [Tr.
752] Pollard reported that he had been diagnosed with
depression and was being treated with Seroquel and
Citalopram. [Tr. 753] He also had been seeing a therapist for
six months. Id. Pollard advised Shaw that he was
unable to manage bills or go shopping. Id. Shaw
observed that Pollard's recall, memory, attention, and
concentration were normal. Id. Although he reported
feelings of sadness, low energy and crying spells, Pollard
denied any history of depression prior to leaving his job.
[Tr. 754] Shaw further determined that Pollard's
reasoning was concrete, his decision- making was normal, and
his judgment was good. Id. He did have limitations
in the areas of coping and intellect/education. Id.
administered the WAIS-IV, an instrument which assesses
intelligence, and found Pollard to have a Full Scale IQ
(“FSIQ”) of 68, which falls within the mild range
of mental retardation. Id. She noted, however, that
a significant discrepancy between his processing speed score
and his verbal comprehension score and, thus, his FSIQ might
not be an accurate representation of his intellectual
functioning. Id. According to Shaw, Pollard's
FSIQ score warranted a diagnosis of borderline intellectual
functioning rather than mild mental retardation. Id.
Ultimately, Shaw indicated that Pollard's ability to
understand, remember, sustain attention, and carry out
instructions toward the performance of simple, ...