United States District Court, N.D. California
ORDER ON MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS.,
C. SPERO MAGISTRATE JUDGE
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
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.
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).
Personal and Employment History
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.
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.
Chronic Pain from Lower Back and Knee
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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."
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.
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