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Conner v. Colvin

United States District Court, N.D. California

December 12, 2014

JANET D. CONNER, Plaintiff,

For Janet D. Conner, Plaintiff: Harvey Peter Sackett, LEAD ATTORNEY, Sackett and Associates, San Jose, CA.

For Carolyn W. Colvin, Commissioner, Social Security Administration, Defendant: Francesco Paulo Benavides, LEAD ATTORNEY, Office of General Counsel, San Francisco, CA; Alex Gene Tse, U.S. Attorneys Office, San Francisco, CA.


KANDIS A. WESTMORE, United States Magistrate Judge.

On September 10, 2014, the Court granted Plaintiff Janet D. Conner's motion for summary judgment, denied Defendant Carolyn W. Colvin's motion for summary judgment, and remanded the case for further proceedings. Judgment was entered consistent with that order. Plaintiff now moves to alter that judgment pursuant to Federal Rule of Civil Procedure 59(e). She asks that the case be remanded not for further proceedings, but for immediate payment of disability insurance benefits. Defendant opposes the motion. For the reasons set forth below, the motion is GRANTED, and this case is REMANDED for calculation and payment of benefits.


A. Plaintiff's applications

Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (" DIB") on January 22, 2010 and a Title XVI application for Supplemental Security Income (" SSI") on January 27, 2010. (Administrative Record (" AR") at 78-79, 136-37, 139-43.) She alleged that she became disabled on June 30, 2007, due to right knee pain, hand pain, back pain, and high blood pressure. (Id. at 82, 91, 136, 140.) The Social Security Administration (" SSA") denied Plaintiff's applications initially and on reconsideration. (Id. at 82-86, 91-95.)

B. The administrative hearing

Plaintiff requested a hearing before an Administrative Law Judge (" ALJ"). (Id. at 96.) ALJ Mary P. Parnow held the hearing on August 29, 2011. (AR at 96-97). Plaintiff, who was represented by counsel, testified at the hearing, as did Malcolm J. Brodzinsky, a vocational expert (" VE").

1. Plaintiff's testimony

Plaintiff testified that she was 53 years old at the time of the hearing, possessed a high school diploma, and had last worked in July 2008, doing part-time office work at a warehouse. (Id. at 52.) She stated that she stopped doing that work because sitting bothered her, she was taking breaks and " they didn't like that." (Id. at 53.) She indicated that every 30 minutes, she would elevate her leg for about 10 minutes and that she could not work while doing so because of the pain. (Id.) At home, she elevates her leg on two pillows for at least five or six hours because she's in bed most of the time. (Id. at 64.) She does this because of the pain and to take some pressure off her knee. (Id. at 65.)

Prior to her office work, Plaintiff was employed as a catering cook and pastry chef for about three years. (Id. at 53-54). In that position, she would cook, cater, and serve food at different events. (Id. at 54.) She would also lift chaffing dishes weighing approximately 20 to 25 pounds. (Id. at 54-55.) Before her work as a cook and pastry chef, Plaintiff worked as a floor supervisor at a telephone call center, supervising 60 operators, walking the floor, taking over phone calls, and troubleshooting. (Id. at 55.) She held that job for three years. (Id. at 56.) She testified that she would not be able to return to that type of work because of " the sitting for periods of time and the walking and [her] hands are messed up and [her] back." (Id.) She also indicated that she worked as a dishwasher and a cook at a soul food restaurant, and did some work at a bakery at one point. (Id. at 58.)

Plaintiff further testified that she had been receiving worker's compensation as a result of a knee injury she sustained while lifting a chaffing dish during a catering event. (Id. at 60.) She indicated that the claim had been settled, and a portion of the settlement was intended to cover a knee replacement. (Id.) According to Plaintiff, she experiences a " dull throbbing pain all the time, " her knee is stiff in the morning, and it's worse during cold weather. (Id.) She stated that it takes her " a minute to get around, to unwind a little bit, " and sometimes she has to ice her knee before she bathes. (Id.)

Plaintiff indicated that she had two surgeries and went to therapy twice. (Id. at 61.) After the first surgery, [1] she felt " a little relief at first, [and she] even tried to go back to work" but then she went back to the doctor and needed another surgery. (Id.) She stated that she experienced no relief after the second surgery. (Id.) Her pain is about a seven or eight in the morning when she first wakes up, and she can get the pain down to a five or six after she ices her knee and takes her pain pills. (Id. at 61-62.) At the time of her second surgery, [2] her doctor advised her that she needed a knee replacement. (Id. at 61.)

With respect to other impairments, Plaintiff testified that she's been diagnosed with sciatic nerve, arthritis, and depression. (Id. at 62.) She also testified that she can sit and stand for about 15-20 minutes, walk for about a half block before stopping to take a break, and lift " maybe five pounds." (Id. at 62, 63.) She stated that she cannot lift her one-year old grandchild. (Id. at 64.) She also indicated that she has problems with concentration and focus as a result of her pain medication. (Id. at 65.) On one occasion, she forgot she was boiling eggs and woke up to the sound of her smoke detector, and on another, she left some water running. (Id.) Plaintiff also stated that some of her medications give her bad headaches, sweats, and trouble sleeping. (Id. at 65, 66.) She takes hydrocodone once every eight hours or once every four hours if the pain is bad. (Id. at 66.)

Plaintiff also testified that she lives alone in an apartment and that her daughter, who was 28 at the time of the hearing, visits about four times a week. (Id. at 67, 68.) She helps with the cleaning, does the grocery shopping, and prepares her mother's meals for the week, which Plaintiff reheats in the microwave. (Id. at 67, 68.) As for common day-to-day activities, Plaintiff stated that she can wash her hair on her own, which she keeps short because it's easier to manage, she does not drive because it causes her too much pain, and she does not go out or socialize too much but goes to church when she can, where she sits in the back so that she does not interrupt everyone when she has to get up and go outside. (Id. at 69, 70.)

2. The VE's testimony

The VE testified that Plaintiff's past work as a catering cook was semi-skilled work with a light physical demand. (Id. at 72.) He classified her work as a customer service clerk as skilled work with sedentary physical demands. (Id.) Plaintiff's work as a dishwasher was unskilled medium work, while her work as a cook was skilled work with medium physical demands. (Id. at 73.) Her work as a floor supervisor at a call center qualified as skilled work with sedentary physical demands. (Id.)

The VE considered various hypotheticals posed by the ALJ and by Plaintiff's counsel. (Id.) The ALJ asked the VE to first consider an individual who was 48 at onset, 53 at the time of the hearing, with a high school education, and with the past relevant work he had described. (Id.) This individual could (1) stand and walk for four hours in an eight hour day, with breaks, (2) sit for six hours in an eight hour day, also with breaks, (2) carry 10 pounds frequently and 20 pounds occasionally, (3) push and pull devices up to 20 pounds, (4) occasionally bend, squat, kneel, crouch, climb, and crawl, and (5) would need a cane for ambulation over three to four blocks. (Id.) When asked whether such an ...

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