United States District Court, S.D. California
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT (DOC. NOS. 17 AND 18.)
WILLIAM V. GALLO, UNITED STATES MAGISTRATE JUDGE
an action for judicial review of a decision of the
Commissioner of Social Security (“the
Commissioner”) denying plaintiff Gweynn Brown
disability insurance benefits and supplemental security
income benefits under Title XVI of the Social Security Act.
42 U.S.C. §§ 301 et seq. The parties have
filed cross-motions for summary judgment, and the matter is
before the undersigned magistrate judge for preparation of a
report and recommendation. For the reasons stated below, the
Court recommends that Plaintiff's motion for summary
judgment be denied and that the Commissioner's motion be
November 14, 2012, Plaintiff filed a Title XVI application
for supplemental security income disability payments alleging
disability beginning on January 1, 2007. (AR 20, 147.) At the
hearing and upon the advice of counsel, Plaintiff amended her
alleged disability onset date to November 5, 2012. (AR 20,
35-36, 251.) Her alleged disability was due to Post Traumatic
Stress Disorder (“PTSD”), major depression, and
anti-social traits. (AR 22, 165, 252.)
application was initially denied on March 12, 2013, and again
upon reconsideration on January 14, 2014. (AR 20, 88, 97.)
Plaintiff then sought further review and filed a written
request for a hearing regarding her application denial. (AR
February 11, 2015, Plaintiff, represented by her attorney,
appeared and testified at a hearing in San Diego, California
before Administrative Law Judge (“ALJ”), Robin L.
Henrie. (AR 20, 33-61.) On March 23, 2015, the ALJ issued a
written decision finding that Plaintiff was not disabled and
denied her benefits. (AR 17-32.) The Appeals Council denied
Plaintiff's appeal on August 5, 2016. (AR 5.)
filed this action on November 22, 2016. (Doc. No. 1.) The
Commissioner answered the complaint on March 10, 2017. (Doc.
No. 13.) Plaintiff filed her motion for summary judgment on
April 27, 2017. (Doc. No. 17.) The Commissioner filed her
cross-motion on May 23, 2017. (Doc. No. 18.) Plaintiff did
not file an opposition to the Commissioner's cross-motion
for summary judgment.
administrative record before the ALJ contained the following
medical records relating to Plaintiff's alleged
saw Susan Swartz, MFT, eight times between December 6, 2012
and February 20, 2013. (AR 273.) Plaintiff provided Ms.
Swartz a mental health report prepared in 2011 by Dr. Robert
N. Page. (Id.) That report stated Plaintiff suffered
from PTSD, Major Depressive Disorder, and Polysubstance
Dependence. (Id.) Based on the limited interactions
between Ms. Swartz and Plaintiff, Ms. Swartz found Dr.
Page's diagnosis of Plaintiff's symptoms were
accurate. (Id.) Ms. Swartz further opined that
Plaintiff “would have little difficulty with . . .
work-related physical activities but would have substantial
difficulty with . . . work-related mental activities such as
understanding, remembering, sustained concentration &
persistence, social interaction, and adaptation.” (AR
Berkowitz, M.D., evaluated Plaintiff on February 26, 2013.
(AR 285.) Dr. Berkowitz diagnosed Plaintiff with a history of
depression, alcohol abuse in supposedly interval sustained
remission, and polysubstance abuse in supposedly full
sustained remission. (AR 287.) Dr. Berkowitz also diagnosed
Plaintiff with probable obsessive compulsive disorder.
(Id.) Dr. Berkowitz noted that Plaintiff had never
been psychiatrically hospitalized and did not regularly see a
psychiatrist. (AR 285.) Dr. Berkowitz opined Plaintiff had
moderate limits on her ability to socially interact with
others at an age appropriate level and on her ability to
understand instructions. (Id.) Due to her anxiety,
Plaintiff had moderate limits on her ability to complete
detailed and complex tasks and on her ability to concentrate
for at least two-hour increments. (Id.) Dr.
Berkowitz opined it would be difficult for Plaintiff to work
independently and without supervision. (Id.)
Finally, Dr. Berkowitz opined Plaintiff had no limitations on
her ability to handle funds or avoid normal hazards. (AR
288.) Dr. Berkowitz assigned Plaintiff a GAF score of
psychologist, Colette Valette, Ph.D., evaluated Plaintiff on
January 7, 2014. (AR 285.) Dr. Valette diagnosed Plaintiff
with adult antisocial behavior and noted that Plaintiff's
history indicated polysubstance abuse in full remission. (AR
296.) Dr. Valette ruled out PTSD and noted Plaintiff reported
a prior diagnosis of borderline personality disorder.
(Id.) She opined Plaintiff had no limits on her
ability to understand instructions or on her ability to
complete simple tasks when the tasks do not involve being
around a lot of people. (Id.) Plaintiff had moderate
limits on her ability to complete detailed tasks and on her
ability to concentrate for at least two-hour increments.
(Id.) Dr. Valette opined Plaintiff had limitations
on her ability to complete complex tasks. (Id.) She
opined Plaintiff had mild limits on her ability to socially
interact with others at an age appropriate level because she
became easily overwhelmed. (Id.) Plaintiff also had
mild limits on her ability to sustain an ordinary routine
without supervision because she was easily overwhelmed.
(Id.) Finally, Dr. Valette concluded Plaintiff was
fully capable of handling funds and avoiding normal hazards.
(AR 297.) Dr. Valette assigned Plaintiff a GAF score of
August 28, 2013, the Department of Social Services requested
Plaintiff's medical history at Montana State Prison. (AR
292.) However, Montana State Prison did not produce any records
for Plaintiff after November 8, 2012. (Doc. No. 14-1 at 2.)
testified at a hearing before the ALJ on February 11, 2015.
(AR 33.) She was thirty years old at the time of the hearing.
(AR 36.) Plaintiff was single and had a son that was twelve
years old at the time of the hearing. (Id.) She had
never held a full-time job. (AR 37.) Her previous work
experience included part-time work as a stocker for Target
and part-time work as a concierge for a ranch in Montana.
testified that a guard at the Montana Women's Prison
raped her while she was in custody in 2011. (AR 38.) This
incident was the biggest factor contributing to her
impairments, (id.), and her worst symptom was
anxiety, (AR 52). She had a difficult time with authority
figures and functioning amid people without being weary.
guard who raped her was sentenced to twenty years in prison,
but he was eligible for parole prior to her hearing before
the ALJ. (Id.) She testified her anxiety heightened
in 2014 compared to 2013 as a result of her assailant's
parole hearing. (Id.) The guard is from San Diego
and his family has gang connections in the San Diego area.
testified that on a scale of zero to ten, where a ten
signified horrible symptoms requiring institutionalization
and zero signified no symptoms, her symptoms ranged from a
two to an eight. (AR 54.) At the time of the hearing, her
symptoms were at a five or six. (AR 55.) On average over the
preceding year, her symptoms were about a six. (Id.)
testified that she did not leave her residence often. (AR
40.) She lived at home with her parents and son. (AR 36.) Her
parents took her son to school and to soccer. (AR 41.) She
also testified that she did not go to her son's soccer
games due to severe outbreaks of an autoimmune
disease. (Id.) She had a California
Driver's license and vehicle. (AR 48-49.) Plaintiff did
not walk anywhere, and she usually drove herself in the
morning to obtain whatever she needed for the day. (AR 42.)
She drove one hundred miles per week at most. (AR 49.)
was “trying to do some online classes with Ashford
University.” (AR 40.) She took one class every five
weeks, and the classes took about two hours of her day.
(Id.) Plaintiff did not have many social activities
outside the home every day because she was very sick. (AR
42.) She testified she attended church regularly but stopped
when she got the autoimmune disease. (Id.)
capable of cleaning her living space in the apartment, but
she was not capable of anything too rigorous “like deep
clean[ing] the house.” (AR 43.) She testified that she
did not grocery shop, and she usually ate fast food. (AR 50.)
She testified she had not been to a movie in several months,
and she did not like to go to the theater because the number
of people there made her uncomfortable. (Id.) The
last time she went to a restaurant was a month prior to the
hearing, and she only remained there for about twenty minutes
due to her anxiety. (AR 51.) She spent her free time
“out in the sun when [she] can and [conducting] a lot
of internet research about school.” (AR 52.)
not sought treatment or gone to therapy because she did not
have insurance, and any other available treatments were
expensive given her economic status. (AR 44.) She testified
that she was not eligible for Medi-Cal, and she had not
attempted to seek medical treatment under the Affordable Care
Act. (AR 45.)
testified that she also had chronic migraines. (AR 45.)
Plaintiff took Topamax to treat the migraines for several
years, but was no longer eligible to receive medication
through the Prescription Drug Act. (Id.) She had
migraines approximately two to three times a week. (AR
45-46.) She was unable to do anything but lay in a cold, dark
room when she had a migraine. (AR 46.)
Vocational Expert's Testimony
Stock, a vocational expert, also testified at the hearing.
(AR 58.) The ALJ asked Mr. Stock about two hypotheticals.
First, the ALJ asked whether jobs are available for somebody
with unskilled work experience at any exertional level with
the following limitations:
[W]orking around dangerous unprotected heights, machinery or
chemicals or other noisy environments or (less than moderate
noise). Working in other than a low stress environment, which
means: (1) a low production level (where VE classified all
SGA jobs as low, average or high production; (2) no working
with the general public and no working with crowds or
co-workers; (3) only occasional contact with supervisors and
co-workers, but still having the ability to respond
appropriately to supervision, co-workers and usual, routine
work situations; and (4) the ability to deal with only
“occasional” changes in a routine work setting.
Work at no more than a low concentration level, which means
the ability to be alert and attentive to (and to adequately
perform) only unskilled work tasks. Work at no more than a
low memory level, which means: (1) the ability to understand,
remember and carry out only “simple” work
instructions; (2) the ability to remember and deal with only
“rare” changes in the work instructions from week
to week; and (3) the ability to remember and use good
judgment in making only “simple” work related
(AR 258.) Mr. Stock opined that the person described in the
above hypothetical could find work in the national economy.
(Id.) As examples, work as a router, a ticketer, or
silver wrapper were available. (Id.)
then changed the above hypothetical to the same work
capacity, but instead of restricting the individual's
ability to work in a low stress environment with
“occasional” contact with supervisors, he amended
the restriction to “rare” contact. (AR 59.) Mr.