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Davis v. Colvin

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

September 30, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


LAUREL BEELER, Magistrate Judge.


On July 3, 2013, Douglas Davis filed a complaint, pro se, against the acting Commissioner of Social Security, Carolyn Colvin, seeking judicial review of the Commissioner's final decision denying his claim for disability benefits for his claimed disabilities caused by broken ribs, collapsed lungs, and back, knee, and hand pain. Complaint, ECF No. 1. The Administrative Law Judge ("ALJ") found that Mr. Davis could not perform his past relevant work, but could perform other work in the national economy available in significant numbers. Administrative Record ("AR") 24-31. All parties have consented to the court's jurisdiction. ECF Nos. 4, 11. Pursuant to Civil Local Rule 16-5, the matter is deemed submitted for decision by this court without oral argument. See ECF No. 19. For the reasons stated below, the court DENIES the Commissioner's motion for summary judgment, and REMANDS this case to the Social Security Administration for further proceedings.



Mr. Davis applied for disability and disability insurance benefits on January 12, 2010. AR 160-61. The Commissioner denied Mr. Davis's claims initially on June 10, 2010, and upon reconsideration on September 17, 2010. AR 90-94, 96-100. On October 6, 2010, Mr. Davis requested a hearing before an ALJ. AR 102-03. On June 9, 2011, Mr. Davis applied for supplemental social security income. AR 24. In both applications, he alleged his disability began on June 5, 2008. Id.

ALJ Tim Stueve conducted a hearing on both applications on August 18, 2011 in Oakland, California. AR 37-87. Mr. Davis was represented by attorney Michael Paul, substituting for Avi Leibovic. AR 39. Mr. Davis and vocational expert Joel Greenberg (the "VE") testified. Id. On September 6, 2011, the ALJ issued his decision that Mr. Davis was not disabled under the Social Security Act. AR 21-35. On April 30, 2013, the Appeals Council denied Mr. Davis's request for review, rendering the ALJ's decision the final decision of the Commissioner. AR 1-3.

On July 3, 2013, Mr. Davis filed the complaint in this action. Complaint, ECF No. 1. Because Mr. Davis did not move for summary judgment by November 12, 2013, in accordance with the court's Social Security Procedural Order, ECF No. 2, the court ordered him to show cause, in writing, why his action should not be dismissed for failure to prosecute. See Order, ECF No. 17. By letter dated February 4, 2014, Mr. Davis responded to the order to show cause, stating that the Commissioner's determination that he could lift 30 to 50 pounds was wrong. See ECF No. 18 at 1. Mr. Davis also stated that Dr. Merritt Smith advised him that his injuries are permanent and he is totally disabled due to chronic arthritis and disc disease. Id.

The court discharged the order to show cause, provided a copy of the court's Handbook for Litigants Without a Lawyer, and advised Mr. Davis how he could seek assistance from the Legal Help Center. See ECF No. 19 at 2. The court indicated that Mr. Davis could file a brief within 28 days to provide any additional reasons he is entitled to summary judgment in his favor. Id. Davis did not file anything further. The Commissioner moved for summary judgment. See Motion, ECF No. 20. Mr. Davis did not file an opposition to the Commissioner's motion.


This section summarizes the medical evidence in the administrative record from (A) Mr. Davis's treating physicians, (B) his non-treating physicians, (c) the hearing testimony, and (D) the ALJ's findings.

A. Medical Evidence: Treating Physicians

1. Alameda County Medical Center, Christine O'Dell, R.N. (October 14, 2008)

On October 14, 2008, Mr. Davis went to Alameda County Medical Center complaining of flank and lower back pain. AR 297. According to the notes of registered nurse Christine O'Dell, Mr. Davis described his pain as sharp and increasing with inspiration. Id.

2. John Muir Medical Center (February 9 - March 4, 2009)

On February 9, 2009, Mr. Davis sustained significant injuries in a single vehicle accident on the freeway. AR 249. He was transported by ambulance to John Muir Medical Center where he was examined and treated by numerous doctors and medical staff, including Dr. Nicolas Skaric and Dr. Karin Cheung. AR 248-294. Examination by admitting physician Dr. Skaric and pulmonary intensivist Dr. Cheung revealed injuries including chest and abdominal trauma. AR 251, 253. A toxocology screen was positive for cocaine. AR 251. Mr. Davis was admitted into the Intensive Care Unit and intubated due to his respiratory condition. AR 250-53. Doctors performed multiple imaging tests in order to determine the extent of Mr. Davis's injuries. A CT Scan of Mr. Davis's chest revealed bilateral pulmonary contusions and tiny pneumothoraces. AR 250. Mr. Davis had multiple rib fractures, including ribs two through ten on his left side and his second rib on the right side. Id. A chest x-ray corroborated the multiple rib fractures and showed diffuse subcutaneous air and mediastinal emphysema. Id. Mr. Davis was discharged on March 4, 2009. AR 358. He was prescribed Norco for pain and a nicotine patch. AR 249.

3. Alameda County Medical Center, Dr. Daniel Price (April 15, 2009)

On April 15, 2009, Mr. Davis visited Alameda County Medical Center for chest and upper body pain and a refill of his medication. AR 340-50. A physical examination showed clear lungs, normal pulse, no abdominal tenderness, clear speech, and normal gait. AR 340-41. A chest x-ray showed multiple left-sided rib fractures. AR 343. Dr. Price prescribed Vicodin for pain and referred Mr. Davis to the General Medicine Clinic for follow-up care. AR 340, 349.

4. West Oakland Health Council, Dr. Merritt Smith (September 1, 2009)

On September 1, 2009, Mr. Davis sought treatment at West Oakland Health Council for pain and his chest and left shoulder. AR 302-12. Upon examination, Dr. Merritt Smith reported nasal polyps and congestion and mild dysymmetry in the shape of his chest. AR 305. All other findings were normal. Id. Dr. Smith prescribed Naprosyn and Vicodin, recommended he return in 8 weeks, and referred him to Health Education for tobacco, cocaine, alcohol, and marijuana abuse. AR 304, 316. Dr. Smith's report of Mr. Davis's visit includes more details, but is largely illegible.

5. Dr. Tom Piatt (September 28, 2009)

On September 28, 2009, radiologist Dr. Piatt issued a report on x-rays of Mr. Davis's chest, cervical spine, and left shoulder. AR 314. Dr. Piatt found old rib fractures and upper lobe densities. Id. He recommended further evaluation with apical lordotic and oblique views to determine possible infiltrates or masses. Id. The cervical spine x-ray revealed degenerative changings, including mild narrowing of discs C4-C5 and C5-C6. Id. The image of Mr. Davis's left shoulder showed an old AC separation and calcification anterior to the distal clavicle, and it confirmed a left rib fracture. Id.

6. Dr. Merritt Smith (November 10, 2009)

Mr. Davis next saw Dr. Smith on November 10, 2009. In addition to Naprosyn and Vicodin, Dr. Smith prescribed an eye drop called Lodex. He indicated that Mr. Davis wanted to return to work. AR 308-09.

7. Alameda County Medical Center, Dr. Eric Snoey (April 16, 2010)

Mr. Davis visited Alameda County Medical Center on April 16, 2010 after he slipped and fell on stairs in his wife's house. AR 338. Mr. Davis complained of mid-lower back pain that was exacerbated by movement. Id. He described the pain as dull, aching, sharp, and throbbing and rated it a 5 out of 10. Dr. Snoey diagnosed Mr. Davis with back strain and prescribed Lorazepam and Vicodin. AR 338-39. A chest x-ray showed multiple left-sided rib fractures and an increased density in the apex of the lung likely to indicate a contusion. AR 343.

8. Dr. Merritt Smith (April 20, 2010)

Mr. Davis visited Dr. Smith again on April 20, 2010. AR 414. Mr. Davis complained of pain in his right hip and mid-lower back. Id. Dr. Smith prescribed Vicodin and Baclofen. Id. Dr. Smith ordered x-rays of Mr. Davis's cervical spine, lumbar spine, and thoracic spine. Id. A follow-up visit was scheduled for June 8, 2010. Id. Dr. Smith's treatment notes from this visit are otherwise illegible. See AR 414-15.

9. Dr. Tom Piatt (April 29, 2010 )

On April 29, 2010, Dr. Piatt issued a report on several imaging tests including thoracic spine, lumbar spine, left clavicle, bilateral hip, and chest x-rays. AR 416. The cervical spine x-ray revealed multilevel degenerative changes, particularly in the C5-C6 disc and left upper lobe density. Id. Both the thoracic spine and lumbar spine x-rays showed mild multilevel disc degeneration. AR 416-17. The left clavicle x-ray revealed an old grade 3 AC separation and old left rib fractures. AR 417. Bilateral hip x-rays conducted showed mild degenerative arthritis of the right hip and public symphysis. Id. Two chest x-rays revealed old rib fractures and degenerative changes, but no evidence of cardiopulmonary trauma or pulmonary pathology. AR 418.

10. Dr. Merritt Smith (June 8, 2010)

Mr. Davis saw Dr. Smith on June 8, 2010, but the doctor's records of this visit are extremely difficult to discern. The notes reference x-rays, labs, Vicodin, Baclofen, and a follow-up visit scheduled for July 27, 2010. Id.

11. Dr. Merritt Smith (July 27, 2010)

On July 27, 2010, Dr. Smith noted that Mr. Davis had chronic back pain but was stable. AR 412. In addition to Vicodin and Baclofen, three other medications were apparently prescribed. Id. A follow-up visit was scheduled for October 19, 2010. Dr. Smith's handwritten notes are otherwise illegible. See id.

12. Dr. Merritt Smith (August 8, 2010)

Dr. Smith completed the Physical Residual Functional Capacity Questionnaire on August 8, 2010. Dr. Smith diagnosed Mr. Davis with severe degenerative joint disease in his cervical, thoracic, and lumbar spine and indicated that his prognosis was fair and progressive. Id. Dr. Smith observed that Mr. Davis experiences chronic back pain, arm and leg weakness, and numbness bilaterally. Id. Dr. Smith noted that the pain is centered in Mr. Davis's cervical, thoracic, and lumbar spine. Id. Throughout his treatment, Dr. Smith utilized and recommended analgesics, muscle relaxants, physical therapy, and a TENS unit. Id. Dr. Smith found that Mr. Davis's impairments have lasted or are expected to last over 12 months. AR 422. Dr. Smith also noted that Mr. Davis suffered from depression which affects his physical condition. Id. Additionally, he mentioned that Mr. Davis's impairments are reasonably consistent with the symptoms and functional limitations described in his examination. Id.

According to Dr. Smith, Mr. Davis's ability to perform simple tasks is not impaired by his inability to concentrate. Id. Nonetheless, he recommended that Mr. Davis perform "low stress" work due to the chronic pain that affects his mood and attention span. Id. If placed in a competitive work situation, Dr. Smith estimated Mr. Davis could not sit or stand more than 5 minutes at any one time. AR 422-23. Dr. Smith opined that Mr. Davis could never lift or carry any weight in a competitive work situation and could never twist, stoop/bend, crouch, climb ladders, or climb stairs. AR 423. He indicated that Mr. Davis's limitations in doing repetitive reaching, handling, or fingering was moderate to severe. Id. Concluding that Mr. Davis's limitations in combination were likely to produce good and bad days, Dr. Smith estimated that Mr. Davis would be absent from work more than 4 days per month. AR 424.

13. Dr. Merritt Smith (December 7, 2010)

The records of Mr. Davis's appointment with Dr. Smith on December 7, 2010 refer to his chronic back pain and multiple level disc disease, and note other conditions that the court cannot read. AR 410. The next visit was scheduled for January 17, 2011, but the notes on the following page seem to indicate that Mr. Davis missed ...

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