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Pollard v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, London

March 20, 2017

ELBERT E. POLLARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          Danny C. Reeves, United States District Judge

         This 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.

         For the reasons discussed below, the Court will grant the Commissioner's motion and deny the relief sought by Pollard.

         I. Procedural History

         On 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. §§ 405(g), 1');">1383(c)(3).

         II. Background

         Pollard 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]

         Pollard 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]

         Pollard 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]

         Nathan 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 crutch. Id.

         Dr. 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.

         Later 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.

         On July 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.

         Shaw 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, ...


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