United States District Court, N.D. California
HUGH J. HARRELL, Plaintiff,
CAROLYN W. COLVIN, Defendant.
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 10, 11
MARIA-ELENA JAMES, United States Magistrate Judge
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.
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.
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.
SECURITY ADMINISTRATION PROCEEDINGS
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.
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.
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.
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.
Vocational Expert's Testimony
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.
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
testified that both jobs would be eliminated if a person
could only do occasional reaching, handling, and fingering.
Dr. Barnes' Testimony
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.
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
has extensive medical records documenting his injury and
treatment history. See AR 481-1237.
relevant part, Plaintiff was treated for two herniated
cervical discs, spinal stenosis, kyphosis, and severe
radiculopathy. AR 578.
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.
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 ...