Stimson v. Colvin

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS., 17, 21

          JOSEPH C. SPERO MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff Hubert Stimson seeks review of the final decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (the ''Commissioner"), denying his applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. For the reasons stated below, the Court GRANTS Stimson‘s Motion for Summary Judgment, DENIES the Commissioner‘s Motion for Summary Judgment, and REMANDS Stimson‘s claim to the Commissioner for a calculation and award of benefits consistent with this Order.^[1]

         II. BACKGROUND

         A. Procedural Background

         On March 31, 2011, Stimson applied for disability insurance benefits and supplemental security income, alleging that he had been disabled since January 1, 2009 due to lower back and knee problems as well as chronic obstructive pulmonary disease (''COPD") and emphysema. Administrative Record (''AR") 190, 223. The Social Security Administration denied Stimson‘s claim on July 14, 2011. Id. at 65-66. On reconsideration, Stimson further alleged high levels of stress and anxiety. Id. at 253-54. The Social Security Administration affirmed the denial on February 2, 2012. Id. at 67-68. On March 29, 2012, Stimson requested a hearing before an administrative law judge. Id. at 109-11. Administrative Law Judge Timothy Terrill held a brief hearing on November 27, 2012, at which Stimson did not have proper identification. Id. at 12, 56-59. The case was reassigned to Administrative Law Judge Amita Tracy (the ''ALJ"), who held a hearing on May 7, 2013. Id. at 31. The ALJ issued an unfavorable decision on May 24, 2013, finding Stimson not disabled. Id. at 9-23. The Social Security Administration Appeals Council denied Stimson‘s request for review on July 29, 2014, finding no reason to review the ALJ‘s decision. Id. at 1-3.

         Stimson filed this action on October 2, 2014 under 42 U.S.C. § 405(g) and § 1383(c)(3), which give the Court jurisdiction to review the final decision of the Commissioner. Compl. (dkt. 1). The parties filed cross motions for summary judgment. Pl.‘s Mot. (dkt. 17); Comm‘r‘s Mot. (dkt. 21).

         B. Stimson's Background

         1. Personal and Employment History

         Stimson was 53 years old as of January 1, 2009, the alleged onset date of his disability. AR 69. Stimson graduated from high school in 1973 and served in the U.S. Coast Guard from 1976 to 1980. Id. at 224, 240. According to his Work History Report, Stimson worked as a shipping coordinator for Autodesk, Inc. from 1993 to 1996, as an export administrator at Advanced Fiber/Telelabs Communication from 1996 to 2005, as a manager at a Christmas store from 2006 to 2007, and on and off as a part-time handyman from 2008 to February 2011. Id. at 34, 45, 237-40.

         2. Medical History

         The Administrative Record contains no medical evidence prior to February 2011 or after September 2012. Stimson did not see a doctor until February 9, 2011, when he began treatment at the San Francisco Veteran Medical Center. AR 53-54, 306.

         a. Chronic Pain from Lower Back and Knee

         In March 2011, medical tests diagnosed Stimson‘s lower back with moderate multilevel degenerative disc disease with disc space narrowing and osteophytosis, moderate facet sclerosis, and arthritis without obvious significant nerve compression. AR 320, 381. Further, a neurosurgeon indicated in November 2011 that Stimson most likely also suffers from lumbar radiculopathy and potentially an L4 nerve root impingement. Id. at 270.

         Bilateral knee imaging from March and November 2011 revealed only minimal problems with Stimson‘s right knee, although medical notes from November 2011 indicate increasingly frequent swelling and buckling as well as sharp localized pain in the medial and lateral joints. Id. at 344, 707. Stimson underwent physical therapy for his right knee from October to November 2011. Id. at 508. A knee MRI from December 2011 revealed no evidence of knee problems. Id. at 677.

         Dr. Frank Chen examined Stimson in June 2011. Id. at 350-51. Dr. Chen‘s report indicates negative examinations for chronic low back pain, chronic pain of both knees, and shortness of breath on exertion. Id. at 351. He also determined that Stimson had ''no functional limitations on a medical basis." Id.

         In July 2011, a state agency medical consultant reviewed Stimson‘s medical record and provided a physical residual capacity assessment. Id. 60-64. The consultant reported that Stimson could lift and carry 50 pounds occasionally and 25 pounds frequently, sit for six hours and stand or walk for six hours in an eight-hour workday, and occasionally balance, stoop, kneel, crouch, crawl, and climb ramps, stairs, ladders, ropes, or scaffolds. Id. at 61, 352-53. The consultant opined that Stimson seemed capable of medium work. Id. at 353. In January 2012, another state agency medical consultant reported essentially identical findings, but differed in finding that Stimson could frequently-as opposed to merely occasionally-balance, stoop, kneel, crouch, and crawl. Id. at 87, 91-92, 548-49. The second consultant expressly indicated that great weight was assigned to Dr. Chen‘s June 2011 opinion. Id. at 90.

         In April 2012, Stimson‘s treating physician Dr. Sabina Hoque from the Veteran Medical Center provided a detailed assessment of Stimson‘s functional limitations, in the form of a questionnaire. Id. at 562-65. Dr. Hoque indicated that Stimson could sit for only 20 minutes at one time and only two hours total in an eight-hour work day or stand for more than two hours at one time but only four hours total in an eight-hour work day, that Stimson would need to walk for ten minutes every ninety minutes during a workday, that Stimson will need to take unscheduled breaks during a workday approximately every one to two hours for fifteen minutes, that Stimson could lift and carry twenty pounds rarely and ten pounds occasionally, that Stimson would likely be absent from work about two days per month due to impairments or treatment, and that Stimson could never stoop or crouch, can rarely climb ladders or stairs, and can occasionally twist his body. Id. Although Dr. Hoque did not provide specific evidence in support of each assessment, she indicated that Stimson was diagnosed with lumbar radiculopathy and knee arthralgis, with clinical findings and objective signs of positive straight leg raise test and tenderness along medial joint line with positive patellar grind. Id. at 562. She also reported that Stimson‘s treatment included injections and physical therapy. Id. Dr. Hoque further indicated that Stimson‘s impairments were reasonably consistent with his symptoms and functional limitations, id. at 563, and noted that the earliest date that her opinion applied to was September 23, 2011, id. at 565. In July 2012, Stimson underwent surgery on his right knee, including arthroscopy and debridement partial meniscectomy procedures. Id. at 693. The post-operation notes indicate that Stimson suffered from chondromalacia and torn meniscus in his right knee. Id. The report also indicates that the level of function in Stimson‘s right knee prior to surgery was ''progressive debility [due to right] knee pain." Id. Stimson was prescribed a cane after the surgery. Id. at 686. A medical report from August 2012 indicates that Stimson was ''[a]lready feeling better after his surgery" though he still had ''intermittent discomfort" and was taking ibuprofen occasionally. Id. at 721. Stimson deferred additional clinic appointments and discontinued post-surgery physical therapy in September 2012. Id. at 720.

         b. Mental Health

         Although the medical records from the Veteran Medical Center indicate potential anxiety and depression, the Veteran Medical Center does not appear to have evaluated Stimson for those impairments. In January 2012, psychological assistant Deborah von Bolschwing, Ph.D., of Health Analysis, Inc. examined Stimson. Id. at 529-31. In her report, Dr. von Bolschwing assessed that Stimson had no psychological disorders. Id. at 530. Dr. von Bolschwing is a ''Registered Psychological Assistant" and her report was signed by her supervising psychologist Dr. Paul Martin. Id. at 531. In February 2012, a state agency psychological consultant reviewed the medical record and concluded that Stimson‘s mental impairments were non-severe. Id. at 88-89. In reviewing the record, the consultant assigned great weight to Dr. von Bolschwing‘s opinion. Id. at 90.

         c. Other

         The Administrative Record indicates that Stimson‘s impairments also included COPD, obesity, and high blood pressure. Id. at 15, 413, 479, 756. Stimson has not, however, pursued those afflictions as a basis for disability in his present Motion.

         C. Administrative Hearing

         1. Stimson's Testimony

         The ALJ began her examination of Stimson with questions regarding his housing and income. AR 33-35. Stimson explained that he was divorced and had two adult children, that he lived in a house together with the owner, that he currently did not have a source of income, and that he had not received any unemployment benefits or worker‘s compensation since January 2009. Id. When asked about his driver‘s license, Stimson explained that he sold his vehicles and let the license expire because ''[i]t was getting painful to drive." Id. at 35. He further explained that he lives close to and walks to stores, and that he arranges a ride with a friend when he needs go somewhere further from home. Id.

         When the ALJ asked about his military service, Stimson explained that he served in the Coast Guard for four years, that he did deck duties during his service, and that he had not applied for VA disability benefits because his benefits had ''lapsed." Id. at 40.

         Stimson stated that he can no longer work because of the pain in his lower back which ''radiates down the back of [his] legs and [his] knees." Id. at 39. Stimson testified that he is in pain ''[p]retty much all the time" and that lying down helps to relieve the pain. Id. He further stated that he takes medication for COPD and high blood pressure as well as ibuprofen for his chronic pain. Id. at 39-40. Stimson testified that the medications are effective with the exception of ibuprofen which was ''not doing much good anymore." Id. at 40. When the ALJ asked about stronger pain medications, Stimson explained that he missed his appointment for such medications and had not made another appointment. Id. at 39.

         Stimson testified that he had surgery on his right knee, that the surgery did not improve his chronic pain, and that he was a candidate for surgery for his back and for his knees. Id. at 40-41. Stimson then explained that injections and physical therapy also did not help to relieve his chronic pain, that he wears a brace consistently on his right knee, that he had been using a prescribed cane for over a year. Id. at 41-42. Stimson denied any mental health issues. Id. at 42.

         In regards to his exertional limitations, Stimson testified that he could sit for about 30 minutes at a time, stand for about one to two hours, and walk for about 30 minutes at a time. Id. at 43, 46. When the ALJ asked about his daily routine, Stimson explained that he ''take[s] care of anything personal that needs to be tidied up around the house, " that he ''take[s] a walk if the weather lets [him] outside, " that he occasionally cooks and cleans the kitchen, that he does laundry once a week, and that he does grocery shopping from a store two blocks away and ''get[s] small amounts of things at a time." Id. at 43.

         In discussing his past employment, Stimson explained that he had worked as an export administrator for about ten years. Id. at 37, 44. His duties included inspecting and packaging products as well as completing paperwork for shipping. Id. He testified that this job involved frequently lifting packages between 30 to 60 pounds and that the heaviest weight he had to lift was about 100 pounds. Id. Stimson further explained that he had worked as a manager at a Christmas store from 2006 to 2007. Id. at 36-37, 46-47. His duties included receiving and stocking new shipments, training part-time workers, and verifying time cards on a computer. Id. He testified that this job involved lifting weights of 20 to 30 pounds. Id. at 47.

         Stimson testified that he stopped working in 2007 because he left to go to Indiana when his brother passed away. Id. at 36, 44. He explained that when he returned to California in 2008, his physical condition ''had some weight" in his decision to not return to his former employers or occupation. Id. at 44-45. Stimson also testified that on and off from early 2008 to February 2011, he worked part-time as a handyman for a friend, removing carpet pads and cleaning floors for new floor installations. Id. at 34, 45. He stated that he worked about 12 to 20 hours per week, making less than $200 per week. Id. Stimson also stated that since January 2009, he had ''never really applied for" work other than part-time and that he had not done any volunteer work. Id. at 36.

         2.Vocational Expert's Testimony

         The ALJ called a vocational expert, Kathleen McApline (the ''VE"), to testify at the hearing. AR 47-53. The VE summarized Stimson‘s past work as ''construction worker II, very heavy, unskilled, " ''inventory, medium, unskilled, " ''materials handler, heavy, semi-skilled, " and ''shipping, medium, skilled" under the Dictionary of Occupational Titles. Id. at 48.

         In the first hypothetical, the ALJ asked the VE to consider an individual of Stimson‘s age, education and work experience who is ''limited to medium" with occasional climbing of ramps, stairs, stooping, balancing, kneeling, crouching and crawling, needs a cane to walk and for uneven terrain, cannot use ladders, ropes or scaffolds, and should have no exposure to atmospheric conditions or extreme temperatures. Id. at 48-49. The VE testified that such an individual could not perform Stimson‘s past work and could not perform any job ''at medium." Id. at 49. On the other hand, the VE testified that the hypothetical individual could work as a ''security guard, light, semi-skilled." Id.

         In the second hypothetical, the ALJ kept the same limitations as the first hypothetical individual, but limited to light instead of medium work. Id. The VE testified that the second hypothetical individual cannot perform Stimson‘s past work. Id. She further testified that the only jobs such an individual could perform were security guard and ''dispatcher, sedentary, semi-skilled, " which the individual could do with ''little, if any, vocational adjustment." Id. at 49-51. When the ALJ added a further limitation that the individual ''would be off-task 20 percent of the time due to the need for additional breaks in addition to the normal breaks in an eight-hour workday, " the VE answered that there would be no full-time jobs available. Id. at 50.

         In the third hypothetical, Stimson‘s attorney kept the same limitations as in the second, with an additional limitation that the individual could only stand and walk for about four hours in an eight hour work day. Id. at 52. The VE ...