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Davis v. Astrue

November 23, 2010

LARRY DAVIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER

The plaintiff, Larry Davis, seeks review of the final decision of the Commissioner ("Commissioner") of the Social Security Administration ("Agency") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. §§ 423(d)(2), and Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). Mr. Davis asks the court to reverse and remand the Commissioner's decision, while the Commissioner seeks an order affirming the decision.

I. PROCEDURAL HISTORY

Mr. Davis applied for DIB and SSI on March 19, 2007, alleging that he had been disabled since January 1, 2006, as a result of a car accident that left him with injuries to his cervical spine. (Administrative Record ("R.") 74, 133-137). His application was denied initially and upon reconsideration. (R. 78-82, 84-91). Mr. Davis continued pursuit of his claim by filing a timely request for hearing. An administrative law judge ("ALJ") convened a hearing, but at that time, Mr. Davis was unrepresented and claimed to have some records of treatment he wanted to add to the evidence in his file. The ALJ explained the benefits of representation, and allowed Mr. Davis five months to look for an attorney and either gather the records or provide the ALJ's staff with the necessary information to gather them. (R. 25). When the ALJ reconvened the hearing on July 8, 2008, Mr. Davis had not retained an attorney and chose to proceed pro se. (R. 29). He had not come up with any of the additional evidence he claimed to have either, nor had he contacted the ALJ's staff. (R. 25-26). In addition to Mr. Davis appearing and testifying, Ms. Wyset testified as a vocational expert. (R. 23, 58-73). On October 27, 2008, the ALJ issued a decision finding Mr. Davis not disabled because he could perform light work, with a number of additional restrictions, and that such jobs exist in significant numbers in the local economy. (R. 13-21). This became the final decision of the Commissioner when the Appeals Council denied Mr. Davis's request for review of the decision on June 13, 2007. (R. 5-7). See 20 C.F.R. §§ 404.955; 404.981. Mr. Davis has appealed that decision to the federal district court under 42 U.S.C. § 405(g), and the parties have consented to the jurisdiction of a Magistrate Judge pursuant to 28 U.S.C. § 636(c).

Mr. Davis, who is currently represented by counsel, does not argue that the ALJ failed to obtain a valid waiver of representation from him at his two hearings. See, e.g., Skinner v. Astrue, 478 F.3d 836, 841 (7th Cir. 2007). Mr. Davis explained that no attorneys were interested in taking his case because he had no medical evidence to support his claim for benefits. (R. 29).

II. THE EVIDENCE OF RECORD

A. Vocational Evidence

Mr. Davis was born on August 13, 1975, making him thirty-one years old at the time of the ALJ's decision. (R. 133). He made it through the twelfth-grade in high school, but lacked enough credits to graduate. (R. 36, 163). From 1994 to 2004 or 2005, Mr. Davis worked as a laborer out of a temp agency, doing various jobs ranging from driving to maintenance to repairing furniture. (R. 42, 160, 191). Mr. Davis explained that the job ended when he was "no longer needed . . . ." (R. 42). He also explained that he was let go because he was "too slow," but that was because he was working with all Spanish speaking workers and couldn't understand them. (R. 39). But he also said he was let go because he walked too slowly. (R. 41). At the time of his hearing, he had been watching his cousin's children for four days a week, for three months. (R. 37). He was paid $18 a day -- $6 per child -- by the Illinois Department of Human Services. (R. 37).

B. Medical Evidence

Mr. Davis has had a few motor vehicle accidents. The medical record begins with Mr. Davis's treatment following an accident in early January 2003. X-rays of Mr. Davis's left hip revealed an old bone deformity of the left iliac bone with a small, benign, irregular bony defect. (R. 240). An x-ray of his cervical spine showed evidence of a previous surgery with a fusion at C3 to C5. (R. 240). A CT of his cervical spine revealed a previous surgical fusion from C3 to C5, and a "questionable fusion at the C6-C7 level." (R. 239). There also appeared to be a mild bulging disc at C7-T1 and a small left cervical rib. (R. 239).

The disability agency arranged for Dr. Sandra Hare to perform a consultative examination on May 4, 2007. She noted that Mr. Davis complained that he had lost the power in his hands, claiming he was paralyzed. (R. 225). He said his balance was not good and he was not able to walk. (R. 225). Nevertheless, Mr. Davis had a normal range of motion in his lumbar spine. (R. 226). He exhibited a full range of motion in all his joints and normal strength in his upper extremities. (R. 227). Finger grasp and hand grasp were 5/5 bilaterally. (R. 227). His gait was normal and he could heel and toe walk.

(R. 227). Reflexes and sensation were both normal. (R. 227).

On November 15, 2007, Mr. Davis sought treatment for complaints of left arm numbness. (R. 246). The notes are essentially illegible, but it appears that deep tendon reflexes were 2, and strength in the left arm was 4/5, while the right arm was normal.

(R. 246). Mr. Davis was referred for an EMG.

On July 10, 2008, Mr. Davis had an EMG, but then he was complaining of increasing tingling in his hands and right arm. (R. 249). The findings were consistent with "chronic (or prior) right cervical radiculopathy, primarily affecting the C6-C7 roots." (R. 249).

C. Administrative Hearing ...


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