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Harrell v. Colvin

United States District Court, N.D. California

April 25, 2017

HUGH J. HARRELL, Plaintiff,


          MARIA-ELENA JAMES, United States Magistrate Judge


         Plaintiff Hugh J. Harrell (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Carolyn W. Colvin (“Defendant”), the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court are the parties' cross-motions for summary judgment. Dkt. Nos. 10, 11. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having carefully reviewed the parties' positions, the Administrative Record (“AR”), and the relevant legal authority, the Court hereby GRANTS IN PART Plaintiff's Motion for Summary Judgment and DENIES IN PART Defendant's cross-motion for summary judgment for the reasons set forth below.


         Plaintiff was born on September 22, 1970. AR 20. Plaintiff worked as a microcomputer support specialist and was injured on November 2007 while carrying a box server. AR 14, 762. He stopped working on August 20, 2008 due to pain in his neck and lower back. AR 14, 763. In 2009, Plaintiff began receiving serious medical treatment, including multiple surgeries. AR 764. Although these surgeries helped and Plaintiff's pain decreased, he continued to experience pain.

         AR 764. Plaintiff also underwent physical therapy, as well as cognitive behavioral therapy for depressive symptoms. AR 764-765. Through the date last insured, December 31, 2013, Plaintiff suffered from lumbar spinal degenerative disc disease and cervical spinal degenerative disc disease, as well as mental impairments. AR 14, 16.


         On October 18, 2011, Plaintiff filed a claim for Disability Insurance Benefits, alleging disability beginning on August 28, 2008. AR 11, 25. On February 17, 2012, the Social Security Administration (“SSA”) denied Plaintiff's claim, finding that Plaintiff did not qualify for disability benefits. AR 11, 23. Plaintiff subsequently filed a request for reconsideration, which was denied on November 14, 2012. AR 11, 23. On January 8, 2013, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). AR 11, 26. ALJ Judson Scott conducted a hearing on February 10, 2014 and a supplemental hearing on September 8, 2014. AR 11, 30, 49. At both hearings, Plaintiff testified in person and was represented by counsel, Ashley N. Meyers. AR 11. The ALJ also heard testimony from Frank Barnes, M.D., an orthopedic surgeon medical expert at the first hearing; he also heard testimony from Vocational Expert (“VE”) Scott K. Nielson Jr. at both hearings. Id.

         A. Plaintiff's Testimony

         Plaintiff worked as a contractor doing server administration and help desk support at a law firm; he was “essentially an IT person.” AR 55. In November 2007, he was injured at work and had a laminectomy, that is, fusion surgery in his neck. AR 56-57, 59 (surgery was at ¶ 5 through C7, two levels of fusion). Plaintiff has one disc that is still herniated in his neck, and he will need to have it taken out in the future; his treaters do not want to fuse it because it would be too many fused discs. AR 59-60. Since his injury, he has difficulty standing or sitting for extended periods of time, and has difficulty bending. AR 55; see also AR 61 (back pain increases with sitting; after 10-15 minutes of sitting, Plaintiff's pain requires him to stand up). He has nerve-related pain in his arms and back pain 100% of the time at varying levels. AR 57. The pain worsens through the day and he thus requires “longer and longer breaks” throughout the day to alleviate the pain. AR 62. Plaintiff believes he could not work for eight hours a day even with the option to sit and stand at will. AR 62 (“If I have been sitting for a long time, I either have to stand up or lay down. If I'm standing for protracted lengths of time, I typically have to lay down to alleviate the pain for protracted standing. Sitting will not always alleviate the pain from standing.”). He has had pain so severe that he has had to lie down for an hour to get enough relief. AR 62-63. In addition to his difficulties sitting, after fifteen minutes of using a keyboard, his neck will start tightening up, and he will either start feeling nerve symptoms in his arms or general pain in his arms and hands. AR 65. His doctor told him to refrain from lifting more than ten pounds. AR 55.

         Although the laminectomy eliminated “about 85%” of his leg pain, Plaintiff still experiences numbness in his left foot. AR 57. He struggles with numbness in the right hand and also has problems with his left hand. AR 60.

         Plaintiff also testified he suffers from depression and anxiety but agreed that these issues are secondary to his physical problems. AR 57. Psychiatric medication adequately controls his depression and anxiety symptoms, if not entirely. AR 58. He wishes to work full-time again and believes he will be able to do so in the future. AR 56.

         B. Vocational Expert's Testimony

         As is relevant here, VE Nielson testified during the September 2014 hearing that the Dictionary of Occupational Titles (“DOT”) does not address the issue of sit/stand “in any way.” AR 44. Based on his experience and research, discussions with other members of the International Association of Rehabilitation Professionals/Social Security Vocational Expert Division, and a study where employers were surveyed about jobs that could be performed with a sit/stand at will option, the VE testified that telemarketers have the option to sit/stand at will, as can 17% of persons working as “cashier II.” AR 44, 46. The VE clarified that telemarketers work in a cubicle, which allows them to stand and walk around in the cubicle while they are working, especially with wireless headsets. AR 44. Some type of cashiers, such as parking lot cashiers, also can walk around in their area to move around a bit. AR 44.

         The VE testified the DOT classifies telephone solicitor as a semiskilled job with a specific vocational preparation (“SVP”) of 3 and a sedentary exertion level. AR 45. He identified 9, 809 full time telephone solicitor jobs in California and 159, 628 in the national economy. AR 45. VE Nielson also testified the DOT classifies cashier II as an unskilled job with an SVP of 2 and a light exertion level. AR 45. He identified 44, 653 full time cashier II jobs in California and 412, 715 in the national economy. AR 46. However, he stated that the number of cashier II jobs could be eroded by 90% based on the requirement for a sit/stand at will option, thus giving a total of 4, 465 full time cashier II jobs in California and 41, 271 in the national economy. AR 46.

         The VE testified that both jobs would be eliminated if a person could only do occasional reaching, handling, and fingering. AR 46.

         C. Dr. Barnes' Testimony

         During the first hearing, the ALJ heard testimony from non-examining medical expert, Dr. Barnes. Dr. Barnes testified Plaintiff met the requirements of Listing 1.04 from March 2008 until May 2010. AR 77. For the year prior to this period, Plaintiff could perform a range of sedentary work, but needed to change positions a few minutes every hour and could not look or reach overhead. AR 79-80. Between June 2010 and the date last insured, Plaintiff could perform sedentary work, but could not look up “for any length of time” and could only occasionally perform over-the-shoulder work and reach overhead. AR 83-84.

         D. Other Evidence

         1. Function Report Dated December 12, 2011 In December 2011, Plaintiff submitted a Function Report in connection with his application for disability benefits. See AR 375-82. He reported that he prepared a majority of meals for himself and his wife several days per week, washed dishes and swept, drove his dog to the park at least once per day, shopped in grocery stores twice a week for one to two hours, and played board and video games on the computer with his friends.

         2. Treatment Records

         Plaintiff has extensive medical records documenting his injury and treatment history. See AR 481-1237.

         In relevant part, Plaintiff was treated for two herniated cervical discs, spinal stenosis, kyphosis, and severe radiculopathy. AR 578.

         In December 2008, an Electromyogram and Nerve Conduction Study (“EMG/NCS”) showed a “normal examination” with “no electrodiagnostic confirmation of bilateral Radial, Median, Ulnar neuropathy; or cervical radiculopathy.” AR 531-33.

         Plaintiff underwent four surgical procedures on his spine in 2009: diskectomies at ¶ 5-6 and C6-7, foraminotomies at those two levels, and fusion at those levels. AR 578. In 2013, Plaintiff underwent a lumbar ...

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