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Tyrone L. v. Saul

United States District Court, N.D. California

September 16, 2019

TYRONE L., [1]Plaintiff,
Andrew M. Saul, et al., Defendants.


          Thomas S. Hixson United States Magistrate Judge


         Plaintiff 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.[2] 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 following reasons.


         A. Age, Education and Work Experience

         Plaintiff 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.

         B. Medical Evidence

         1. Eastmont Wellness Center

         On 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, [3] 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.

         Plaintiff 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.

         2. Katherine Wiebe, Ph.D.

         Katherine 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.

         Dr. 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. Id.

         Dr. 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.

         Dr. 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.

         3. Gino Inesi, MFT

         On 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.

         4. Farrell Barnett, M.D.

         On 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.

         5. Patricia Spivey, Psy.D.

         On 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.


         On July 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.

         A. Plaintiff's Testimony

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Regarding 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.

         Plaintiff 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. AR 66.

         B. ALJ's Decision and Plaintiff's Appeal

         On June 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 Judgment.


         This 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.

         The 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).

         Additionally, 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).

         V. DISCUSSION

         A. Framework for Determining Whether a Claimant Is Disabled

         The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.[4] 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 Cir. 1988)).

         The ALJ 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.

         At step 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.

         If the 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 ...

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