United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT Re: Dkt.
Nos. 22, 27
S. Hixson United States Magistrate Judge
Tyron L. brings this action pursuant to 42 U.S.C. §
405(g), seeking judicial review of a final decision of Nancy
A Berryhill, then-Acting Commissioner of Social Security,
denying Plaintiff's claim for disability
benefits. Pending before the Court are the
parties' cross-motions for summary judgment. ECF Nos. 22
(Pl.'s Mot.), 27 (Def.'s Mot.). Pursuant to Civil
Local Rule 16-5, the motions have been submitted on the
papers without oral argument. Having reviewed the
parties' positions, the Administrative Record
(“AR”), and relevant legal authority, the Court
hereby DENIES Plaintiff's motion and
GRANTS Defendant's cross-motion for the
Age, Education and Work Experience
is 49 years old. AR 79. While attending school he was
assigned to special education classes due to a learning
disability. AR 38. He completed either the eighth or ninth
grade of school but was “kicked out” for being a
“problem child.” AR 36-37. Plaintiff's last
job was at Nordstrom through the temp agency Volt in 2004. AR
39. His duties encompassed “basically just hanging up
clothes.” AR 44. He was fired due to missing too many
days of work. AR 46. Prior to Nordstrom, Plaintiff worked in
a warehouse doing various temp jobs. AR 427.
Eastmont Wellness Center
September 30, 2014, Plaintiff met with a treating mental
health provider at Eastmont Wellness Center, Jacqueline
Shiels, acting under the supervision of Hilary Combs, Psy.D.,
who diagnosed him with Post-Traumatic Stress Disorder
(“PTSD”). AR 427-35. Plaintiff reported that he
had learning problems, including a history of special
education and a lack of education beyond the ninth grade. AR
428, 430. He also reported sleep- and pain-related concerns.
AR 430. Plaintiff told Ms. Shiels, “I am not that good
with paperwork . . . I did not do good in school.”
Id. Ms. Shiels assigned a Global Assessment of
Functioning score of 58,  and upon a mental status examination,
documented that Plaintiff exhibited slowed thinking, partial
insight, and moderately impaired ability to make reasonable
decisions. AR 426, 431.
saw Ms. Shield once more on October 7, 2014. AR 424-26. His
primary concern was getting refills of pain medication. AR
424. Ms. Shields told Plaintiff to consult with a primary
care practitioner about an antidepressant that could help him
with his pain management, and she suggested a psychology
follow up in four to six weeks. AR 425.
Katherine Wiebe, Ph.D.
Wiebe, Ph.D., is an examining psychologist who performed a
psychological evaluation of Plaintiff on March 6, 2017,
including a clinical interview, administration of ten
separate psychological tests, and review of Plaintiff's
medical and mental health records. AR 516- 533. As noted in
her report, the evaluation was based on one session of client
contact. AR 517.
Wiebe diagnosed Plaintiff with: Major Depressive Disorder,
recurrent episode, severe with anxious distress; PTSD; other
specified personality disorder with Schizoid Personality
Traits, Avoidant Personality Traits, Paranoid Personality
Features, and Antisocial Personality Features; Unspecified
neurocognitive disorder; Specific learning disorder, with
impairment in written expression. AR 529. She determined his
PTSD was associated with his history of violence, including
having been stabbed. AR 528. She also noted that he takes
medication to treat his anxiety, depression and pain.
Wiebe also indicated that Plaintiff has severe impairments in
attention/concentration, short-term memory, long-term memory,
language, visual-spatial organization, and ADLs. AR 532. She
determined that he has moderate to severe impairment in
executive functioning and social functioning; moderate
impairment in judgment/insight; and mild impairment in
intellectual functioning, orientation, and motor/praxis.
Id. She explained that Plaintiff's cognitive
problems impair his ability to attend to, remember, and
follow through with tasks and directions. AR 529.
Dr. Wiebe also determined he has problems accomplishing
activities of daily living due to his psychiatric and
cognitive functioning problems. Id. She noted he has
tendencies for cognitive distortions, emotional
dysregulation, and problems with social interactions.
Id. He also has problems with depression,
irritability, social avoidance, paranoid thinking,
hypervigilance, suspiciousness, fatigue, and anger outbursts.
Id. Dr. Wiebe concluded that he would have
difficulties being able to relate and communicate effectively
and reliably with supervisors, co-workers, and the public in
a work environment and that, due to his long-term cognitive
and psychiatric disorder symptoms, he would have difficulty
being able to work on a full-time basis for two years, even
if he did not use any more substances. Id.
Wiebe did not evaluate his physical medical problems as they
are beyond the scope of her assessment. Id. As to
potential for treatment, Dr. Wiebe reported that
“[a]lthough there may be some difficulty in engaging
him in serious therapy, compliance need not be problematic
with extra efforts devoted to showing a caring
attitude.” AR 525.
Gino Inesi, MFT
December 24, 2012, Gino Inesi, MFT, completed a “Mental
Health Clinician's Confidential Report” form that
documented a diagnosis of PTSD and a GAF of 55. AR 536-37.
Inesi found Plaintiff had marked limitations in several
mental work-related categories, including the ability to:
carry out very short and simple instructions; maintain
attention for extended periods-two hour segments or more;
work in coordination or proximity to others without being
unduly distracted by others; make simple work-related
decisions; complete a normal workday and workweek without
interruptions from psychologically based symptoms and to
perform consistent pace without an unreasonable number and
length of rest periods; and respond appropriate to changes in
a routine. AR 536-37.
Farrell Barnett, M.D.
August 5, 2014, Plaintiff saw primary care doctor Farrell
Barnett, M.D., complaining of back, neck, and knee pain and
requesting Dr. Barnett complete a form for General
Assistance. AR 448-50. Plaintiff reported that he could not
stand to be around people and therefore he felt he was unable
to work. AR 448. On psychiatric exam, Dr. Barnett found
Plaintiff oriented as to time, place, person, and situation;
had normal insight and exhibits normal judgment; and
demonstrated appropriate mood and affect. AR 450. Psychiatric
findings at a subsequent appointment on September 16, 2014,
were likewise normal. AR 439-41. In a patient plan dated
September 16, 2014, Dr. Barnett instructed Plaintiff to stop
using marijuana to help with insomnia. AR 442. Dr. Barnett
indicated he would refer Plaintiff “to
psychology” for possible anxiety. Id.
Subsequent treatment records from Dr. Barnett consistently
show normal mental status findings and do not mention any
mental disorders. AR 510, 514-15, 548.
Patricia Spivey, Psy.D.
December 4, 2014, Patricia Spivey, Psy.D., performed a
psychological evaluation. AR 478-81. Dr. Spivey documented
Plaintiff's complaints of paranoia and fear of heights
and small spaces. AR 479. However, she observed that he was
alert and oriented, had a neutral mood and congruent affect,
had unremarkable thought content, and had a linear,
goal-directed thought process. Id. Her test results
showed Plaintiff had deficits across areas including verbal
comprehension, reasoning, calculations, processing speed,
memory, calculation, abstraction ability, and he had
borderline to extremely low IQ scores. AR 479-80. However,
she questioned the validity of the test results, noting that
Plaintiff made little effort on the test and responded
“I do not know” after numerous questions, when
the answers could have been worked out with minimal effort.
AR 480. Ultimately, Dr. Spivey diagnosed Plaintiff with
Polysubstance Dependence, Anxiety Disorder, and Antisocial
Personality Disorder. Id. She found that Plaintiff
has no impairment in his ability to: follow simple or complex
instructions, maintain adequate pace or persistence to
complete 1-2 step simple repetitive tasks or complex tasks,
maintain adequate attention/concentration, adapt to changes
in job routine, verbally communicate effectively with others,
and communicate effectively in writing. AR 480-81. Further,
she found that Plaintiff only had mild impairment in the
ability to maintain emotional stability/predictability and
moderate impairment in withstanding the stress of a routine
work day and in interacting appropriately with coworkers,
supervisors and the public on a daily basis. AR 481.
SOCIAL SECURITY ADMINISTRATION PROCEEDINGS
31, 2014, Plaintiff filed a claim for Disability Insurance
Benefits, alleging disability beginning on January 1, 1997.
AR 79-80, 93-94, 214, 218. Plaintiff subsequently amended his
alleged onset date to September 1, 2004. AR 15, 335. On
January 23, 2015, the Social Security Administration denied
Plaintiff's claim, finding he did not qualify for
disability benefits. AR 136-45. Plaintiff subsequently filed
a request for reconsideration, which was denied on May 8,
2015. AR 149-59. On September 10, 2015, Plaintiff requested a
hearing before an Administrative Law Judge
(“ALJ”). AR 162, 164-67. ALJ Evangelina P.
Hernandez conducted a hearing on April 10, 2017. AR 34-78.
Plaintiff testified in person at the hearing and was
represented by counsel, Alan Dunnigan.
testified he has anxiety that is triggered when he is around
a lot of people. AR 50. He gets nervous, dizzy, has
difficulty breathing, and he starts to feel like he is going
to faint. Id. For example, he testified to being
nervous during his testimony and as a result feeling like his
heart was racing and he wanted to leave. Id. He
feels the same way in public spaces. Id. Plaintiff
testified to feeling paranoid around crowds of people and
“being on heights.” AR 51. The effects of his
paranoia are the same as those of his anxiety: dizziness,
difficulty breathing, and feeling faint. Id. At the
time of his testimony, he was taking Trazadone, a sleep aid,
and pain medication. Id.
testified that he was fired in 2004 during his probationary
period at Nordstrom because he missed too many days of work,
which he said was due to being stressed out and hospitalized.
AR 39-40, 43-46. He testified he was fired from every job he
ever had, with the reasons varying from being too late to not
getting along with others. AR 49. All his employers said he
had an “attitude problem.” Id. He also
struggled with following instructions at work. AR 68.
stays mostly at home, watching television or playing games on
his phone, and does not have any hobbies or activities
outside the home. AR 53. For the most part, he only ventures
outside to smoke a cigarette and stretch his legs. AR 54. He
lives with his landlady who performs most household tasks for
him (such as cooking and cleaning) and reminds him of his
medical appointments. AR 54, 57. Plaintiff stated that he has
thought about suicide, has hurt other people, and been hurt
by others through physical violence. AR 56. He testified that
he had been beaten up and he was in a number of motorcycle
accidents and bad car accidents, but he was never treated at
a hospital, explaining that he did not like hospitals and
went only if he had to. AR 47. He testified that when he was
messing around with “a bunch of friends, ” a car
fell on his left leg and crushed it, but he did not pursue
treatment. AR 48.
physical ailments, Plaintiff testified that he can probably
lift 10 to 15 pounds. AR 60. He stated that simple tasks like
making the bed cause pain in his back. Id.
struggled with alcoholism since his teenage years. AR 63. He
stopped drinking liquor and switched to beers after doctors
warned him about long term effects of drinking on his liver.
AR 63-64. He also smokes marijuana a couple of times a month.
ALJ's Decision and Plaintiff's Appeal
19, 2017, the ALJ issued an unfavorable decision finding
Plaintiff was not disabled. AR 12-25. This decision became
final when the Appeals Council declined to review it on March
13, 2017. AR 1-3. Having exhausted all administrative
remedies, Plaintiff commenced this action for judicial review
pursuant to 42 U.S.C. § 405(g). On January 16, 2019,
Plaintiff filed the present Motion for Summary Judgment. On
March 14, 2019, Defendant filed a Cross-Motion for Summary
STANDARD OF REVIEW
Court has jurisdiction to review final decisions of the
Commissioner pursuant to 42 U.S.C. § 405(g). An
ALJ's decision to deny benefits must be set aside only
when it is “based on legal error or not supported by
substantial evidence in the record.” Trevizo v.
Berryhill, 871 F.3d 664, 674 (9th Cir. 2017) (citation
and quotation marks omitted). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019)
(citation and quotation marks omitted). It requires
“more than a mere scintilla, ” but “less
than a preponderance” of the evidence. Id.;
Trevizo, 871 F.3d at 674.
court “must consider the entire record as a whole,
weighing both the evidence that supports and the evidence
that detracts from the Commissioner's conclusion, and may
not affirm simply by isolating a specific quantum of
supporting evidence.” Trevizo, 871 F.3d at 675
(citation and quotation marks omitted). However,
“[w]here evidence is susceptible to more than one
rational interpretation, the ALJ's decision should be
upheld.” Id. (citation and quotation marks
omitted). “The ALJ is responsible for determining
credibility, resolving conflicts in medical testimony, and
for resolving ambiguities.” Garrison v.
Colvin, 759 F.3d 995, 1010 (9th Cir. 2014) (citation and
quotation marks omitted).
the harmless error rule applies where substantial evidence
otherwise supports the ALJ's decision. Molina v.
Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012). “[A]n
error is harmless so long as there remains substantial
evidence supporting the ALJ's decision and the error does
not negate the validity of the ALJ's ultimate
conclusion.” Id. (citation and quotation marks
omitted). A court may not reverse an ALJ's decision
because of a harmless error. Id. at 1111 (citation
omitted). “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Id. (citation and
quotation marks omitted).
Framework for Determining Whether a Claimant Is
regulations promulgated by the Commissioner of Social
Security provide for a five-step sequential analysis to
determine whether a Social Security claimant is
disabled. 20 C.F.R. § 404.1520. The sequential
inquiry is terminated when “a question is answered
affirmatively or negatively in such a way that a decision can
be made that a claimant is or is not disabled.”
Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir.
1990). During the first four steps of this sequential
inquiry, the claimant bears the burden of proof to
demonstrate disability. Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five,
the burden shifts to the Commissioner “to show that the
claimant can do other kinds of work.” Id.
(quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th
must first determine whether the claimant is performing
“substantial gainful activity, ” which would
mandate that the claimant be found not disabled regardless of
medical condition, age, education, and work experience. 20
C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ
determined Plaintiff had not performed substantial gainful
activity since September 1, 2004. AR 18.
two, the ALJ must determine, based on medical findings,
whether the claimant has a “severe” impairment or
combination of impairments as defined by the Social Security
Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe
impairment is found, the claimant is not disabled. 20 C.F.R.
§ 404.1520(c). Here, the ALJ determined Plaintiff had
the following severe impairments: alcohol abuse, anxiety
disorder, and antisocial personality disorder. AR 18.
ALJ determines that the claimant has a severe impairment, the
process proceeds to the third step, where the ALJ must
determine whether the claimant has an impairment or
combination of impairments that meet or equals an impairment
listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the
“Listing of Impairments”). 20 C.F.R. §
404.1520(a)(4)(iii). If a claimant's impairment either
meets the listed criteria for the diagnosis or is medically
equivalent to the criteria of the diagnosis, he is
conclusively presumed to be disabled, without considering
age, education and work ...