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Davila v. Colvin

United States District Court, N.D. Illinois

June 29, 2015

JAIME E. DAVILA Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER

SUSAN E. COX, MAGISTRATE JUDGE

Plaintiff Jaime E. Davila (“Plaintiff”) appeals the Commissioner of Social Security’s decision to deny his Supplemental Security Income benefits under Title II of the Social Security Act. We grant Plaintiff’s motion for summary judgment [dkt. 15] and deny the Commissioner’s motion for summary judgment [dkt. 22]. The Administrative Law Judge’s decision is remanded for further proceedings consistent with this opinion.

STATEMENT

Plaintiff appeals the Commissioner of Social Security’s decision to deny him Disability Insurance Benefits under Title II of the Social Security Act.[1] A motion for summary judgment has been filed on behalf of Plaintiff Jaime E. Davila (“Plaintiff”). A motion for summary judgment has been filed on behalf of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (“Commissioner”). For the reasons outlined below, we grant Plaintiff’s motion [dkt. 15] and deny the Commissioner’s motion [dkt. 22]. The Administrative Law Judge’s (“ALJ”) decision is remanded for further proceedings consistent with this opinion.

Plaintiff was in an accident while at work on January 13, 2010.[2] He was driving a truck when a car crashed in to him, causing a multiple vehicle accident that left Plaintiff with injuries including damage to his right ankle, right knee, left shoulder, back and neck.[3] Plaintiff began seeing his treating orthopedist, Michael Zindrick, M.D., on January 22, 2010.[4] On June 21, 2011, Dr. Zindrick noted that Plaintiff had back pain that was worse with prolonged sitting.[5] On February 16, 2012, Dr. Zindrick opined that Plaintiff was permanently disabled.[6] Dr. Zindrick again stated on August 31, 2012, that Plaintiff had reached maximum medical improvement, meaning he was permanently disabled, and was not capable of performing gainful employment.[7]

Plaintiff also had to undergo a number of surgeries on his various injuries.[8] For example, orthopedic specialist Dr. Steven Chudik, M.D., performed arthroscopic surgery on Plaintiff’s right knee on May 6, 2010.[9] Dr. Robyn Vargo, M.D., performed a right ankle arthroscopy on May 11, 2010.[10] Plaintiff underwent another arthroscopic surgery performed by Dr. Chudik on his left shoulder on October 26, 2010.[11]

Plaintiff requested a second opinion on his condition, and Dr. Zindrick referred him to another orthopedist, Dr. Simon Lee, M.D., who became Plaintiff’s treating physician as well.[12]On April 21, 2011, Dr. Lee opined that Plaintiff could perform light or sedentary work.[13] On June 27, 2011, Dr. Lee noted in his post-exam form that Plaintiff needed to alternate sitting and standing fifteen minutes per hour.[14] On September 30, 2011, Dr. Lee’s post-physical exam form stated that Plaintiff was limited to alternating sitting and standing thirty minutes per hour.[15]

However, he also found that Plaintiff had reached maximum medical improvement, meaning that his condition would not improve beyond the limitations noted in Dr. Lee’s report.[16]

Non-treating medical consultants also examined Plaintiff. Dr. Edward Goldberg, M.D., determined on December 20, 2010, that Plaintiff was able to return to work without any restrictions.[17] Dr. Rock Oh, M.D., a state medical consultant, reviewed Plaintiff’s file and gave controlling weight to Dr. Lee’s opinion, but noted that the allegations of limitations in daily functions were only partially credible given other evidence in the case.[18] On August 31, 2011, Dr. James Hinchen, M.D., another state medical consultant, gave partial weight to Dr. Zindrick’s opinion that Plaintiff could not go back to work, but concluded that Plaintiff could perform light or sedentary work.[19] Dr. Rodney Schainis examined Plaintiff on February 8, 2013, and determined that Plaintiff was only capable of standing or walking less than 2 hours per workday and sitting less than 6 hours.[20] Dr. Schainis also noted that Plaintiff should be considered fully disabled.[21] Dr. Schainis’s medical findings were added to the record on February 21, 2014, by the Appeals Council as Exhibit 18F.[22]

Plaintiff applied for Social Security Disability benefits on February 28, 2011.[23] His application stated that he received workers’ compensation.[24] The Social Security Administration denied Plaintiff’s application on June 10, 2011.[25] Upon reconsideration on September 6, 2011, the Administration upheld its decision that Plaintiff was not disabled, and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”).[26]

On March 7, 2012, Plaintiff notified the Administration that he did not want his attorney’s services any longer and would be representing himself at the hearing before the ALJ.[27] Plaintiff received a packet notifying him of his hearing, which contained information describing his right to counsel.[28] The information included what a representative could do, how much one could charge, and an explanation of a cap of twenty-five percent of past due benefits that an attorney could receive.[29] The information was sent in both Spanish and English.[30] Plaintiff had also previously signed a fee agreement that specified the twenty-five percent cap on attorneys’ fees while he had been represented by counsel.[31]

On November 14, 2012, the ALJ, Janice Bruning, held a hearing in which Plaintiff and a vocational expert testified.[32] The ALJ informed Plaintiff that an attorney or non-attorney representative could “help [Plaintiff] obtain information regarding [Plaintiff’s] claim, explain the proceedings that occur before [the ALJ], and explain the medical terms in regards to [Plaintiff’s] case.”[33] The ALJ gave the vocational expert a hypothetical that included the ability to occasionally lift and carry ten pounds, and less than ten pounds frequently, stand and/or walk a total of two hours during the work day with a cane, sit at least six hours with a sit and stand option, meaning after sitting for 45 minutes to be allowed to stand for one or two minutes.[34] The hypothetical also included the limitations that such an individual could never climb ladders, occasionally climb stairs and occasionally bend, stoop and crawl, and reach above the head and outwards frequently with the left arm and hand.[35] The vocational expert testified that a person with Plaintiff’s age, education, work experience and the ALJ’s hypothetical limitations could work as a hand packager, bench assembler, and order clerk.[36] When asked about job availability if the individual would be off task twenty percent of the day, the vocational expert testified that would be job preclusive.[37]

During the hearing, Plaintiff used an interpreter because, as he testified, he wanted one to be sure he could understand all the terminology used.[38] Plaintiff stated that he has difficulty using his left hand, and that he can make sandwiches, do the dishes, and manage personal care but it is difficult, takes a long time, and cannot be completed at a normal pace.[39] He also testified that his mother-in-law picks up his two-year-old son in the morning and cares for his son during the day, but that Plaintiff drops off his older son at school.[40] Plaintiff further mentioned that he collected unemployment benefits for three weeks before they were terminated because he could not physically seek employment after the accident.[41]

In the ALJ’s findings after the hearing, she gave significant weight to Dr. Lee’s conclusion that Plaintiff could perform light to sedentary work.[42] However, she gave no weight to Dr. Lee’s finding that claimant cannot sit or stand longer than fifteen or thirty minutes.[43] The ALJ stated that she gave no weight to that part of the opinion because there was no evidence to ...


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