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Davis v. Colvin

United States District Court, N.D. California, San Jose Division

July 22, 2014

CAROLYN COLVIN, Acting Commissioner, Social Security Administration, Defendant.


PAUL S. GREWAL, Magistrate Judge.

Plaintiff Victor Mature Davis appeals the decision by Carolyn Colvin, Acting Commissioner of Social Security, denying him Social Security benefits.[1] Davis moves for summary judgment or remand.[2] The Commissioner opposes the motion and cross-moves for summary judgment.[3] The matter was submitted without oral argument pursuant to Civ. L.R. 16-5. Having reviewed the papers and considered the arguments of counsel, the court DENIES Davis' motion for summary judgment or remand and GRANTS the Commissioner's cross-motion for summary judgment.


Davis was born April 19, 1957.[5] He has a high school education[6] and has worked as a roofer, laborer, driver, street maintainer and warehouse assistant.[7] In June 2008, Davis strained his right arm, lower back and knees while lifting a box at work.[8] In July and August 2008, he underwent testing and physical therapy, which showed mostly normal results with the exception of tenderness of the back and knees.[9] At that time, his treating physician, Dr. Abeles, limited him to light work, including no lifting, pushing or pulling greater than 20 pounds and no repetitive bending, twisting or stooping.[10]

In January and May 2009, physical examinations conducted in connection with Davis' worker's compensation claim revealed no obvious back problems aside from a decrease in range of motion to 70 percent of normal.[11] He had full range of motion of both shoulders and both knees but pain in the right shoulder and weakness with external rotation.[12] In January 2009 Abeles relaxed Davis' work restrictions to allow him to lift, push and pull up to 40 pounds.[13]

In September 2009, MRIs revealed no acute lower back problems but showed labial and rotator cuff tears in Davis' right shoulder.[14] Abeles further relaxed Davis' work restrictions to no lifting, pushing or pulling greater than 50 pounds.[15] Abeles also authorized right shoulder surgery, which was denied by Davis' workman's compensation program in April 2010.[16] Abeles again recommended shoulder surgery, noting that Davis had failed all conservative treatment options.[17] In September 2010, Davis elected not to further pursue the shoulder surgery and remained limited to no lifting, pushing, or pulling greater than 50 pounds.[18]

Then, in June 2010, Abeles completed a physical capacities statement in connection with Davis' disability insurance application in which he noted severe physical limitations. Abeles stated that Davis could stand for only five minutes at a time due to knee pain, sit upright for only ten minutes at a time due to back pain, rarely lift less than ten pounds, work for less than two hours of an eight hour workday, miss more than four days of work per month and require more than the usual three workday breaks.[19] Abeles also stated that Davis suffered from pain severe enough to interfere with his work capacity for two-thirds of an eight-hour workday.[20] The doctor also limited Davis' pushing, pulling, handling and fingering ability.[21]

Davis first applied for Title II disability insurance benefits on June 1, 2011, [22] claiming a period of disability from an alleged onset date of December 31, 2008[23] through a "date last insured" for Title II disability benefits[24] of June 30, 2010.[25] Davis alleges that his work-related injuries, along with tinnitus and auditory hallucinations, limited his ability to work from 2009-2010.[26] In June 2011, the state agency reviewing physician, Dr. Jaituni, reviewed the relevant medical evidence and opined that Davis could lift and carry from 25 to 50 pounds, stand, sit and walk six of eight hours in the workday, was limited in reaching overhead with his right arm and also limited in crawling, crouching and climbing.[27] Davis' claim was first denied on August 11, 2011 and again upon reconsideration on November 8, 2011.[28] Davis then requested and was granted a hearing before an ALJ.[29]

A. Hearing

The hearing took place on July 25, 2012.[30] Davis appeared with his counsel and testified about his past work experiences, the circumstances of his injuries and the difficulties they create in his daily life.[31] He described chronic and acute knee, back and shoulder pain[32] that prevented him from sleeping or working, as well as a constant ringing in his ears.[33] He also testified that he could walk less than one block, lift less than five pounds and that he needed assistance to perform some routine tasks, such as chores.[34]

Vocational Expert Ronald Morrell testified that Davis' previous work primarily required medium to very heavy physical demands.[35] He stated that Davis could have found light employment under the limitations set out in the treatment reports from 2008-2010, but that no jobs were available if Davis was subject to the more restrictive limitations of Abeles' June 2010 physical capacities statement.[36]

In addition to the live testimony, Davis offered several pieces of written evidence at the hearing. First, he introduced a July 24, 2012 letter from his friend, Winfred Williams, stating that Davis suffered from constant pain in his shoulder, back and knees.[37] The letter also noted that Davis was unable to sit or stand for long due to his pain and that he complained of ringing in his ears.[38] Williams also pointed out that she occasionally drove Davis from Palo Alto to San Pablo or Richmond.[39]

Second, Davis offered another letter from his acquaintance, Devorah Ginden, describing him as in constant pain from his work injury.[40] That letter was written on the day of the hearing.[41] Finally, Davis introduced physical therapy records from Abeles dated between April 27, 2010 and June 2, 2010.[42] These records documented treatments for Davis' knees, back, and shoulder injuries.[43] At the hearing, the ALJ indicated that he would accept these written exhibits into evidence, but the latter two pieces never made it in.[44] The ALJ took the case under submission.

B. ALJ's Findings

The ALJ issued his decision on August 2, 2012. At the first step of the disability analysis, the ALJ found that Davis had not been engaged in substantial gainful employment from the alleged onset date through the date last insured.[45] At step two, he found that Davis' right shoulder injury, with partial tears of tendons with tendinosis, qualified as severe impairment per 20 C.F.R. § 404.1520(c).[46] The ALJ further found that Davis' claimed back conditions were not severe and that no medical evidence in the record supported Davis' assertion that he heard voices.[47] At step three, the ALJ found Davis' combined impairments did not meet or medically equal any of the listed impairments.[48] At step four, he found that, through the date last insured, Davis had the residual functional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b) with the following limitations: occasional overhead reaching with the left extremity; climbing ramps and stairs no more than occasionally; crawling no more than occasionally; not climbing ladders, ropes and scaffolds and not performing jobs requiring fine hearing capability or frequent verbal and telephone communications.[49]

In making his residual functional capacity determination, the ALJ largely discounted the restrictions of Abeles' 2010 statement, noting that the severe limitations contained in the report were inconsistent with objective medical evidence contained in Abeles' worker's compensation treatment records.[50] Based on these contradictions, the ALJ accorded little weight to the opinion of Abeles and instead relied primarily upon the worker's compensation records.[51] The ALJ also ...

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