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Herrick v. Berryhill

United States District Court, N.D. California

September 25, 2019




         Plaintiff Kathryn Herrick moves for summary judgment to reverse the Commissioner of the Social Security Administration’s (the “Commissioner’s”) final administrative decision, which found Herrick not disabled and therefore denied her application for benefits under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. [Docket No. 21.] The Commissioner cross-moves to affirm. [Docket No. 22.] For the reasons stated below, the court grants the Commissioner’s motion and denies Herrick’s motion.


         Herrick filed an application for Social Security Disability Insurance (“SSDI”) benefits on August 20, 2013 and an application for Supplemental Security Income (“SSI”) benefits on December 12, 2013. Administrative Record (“A.R.”) 198-99, 200-05. She initially alleged a disability onset date of August 1, 2011; however, prior to the hearing before an Administrative Law Judge (“ALJ”), Herrick amended the alleged onset date to December 2, 2013. A.R. 198, 200, 396. Herrick’s applications were initially denied on August 27, 2014 and again on reconsideration on November 5, 2014. A.R. 118-23, 126-31. On December 8, 2014, Herrick filed a request for a hearing before an ALJ. A.R. 138-39. Herrick appeared and testified at an August 8, 2016 hearing. A.R. 35-64.

         After the hearing, ALJ Evangelina P. Hernandez issued a decision finding Herrick not disabled. A.R. 16-34. The ALJ determined that Herrick has the following severe impairments: affective disorder, personality disorder, bipolar disorder, and attention deficit hyperactivity disorder (“ADHD”). A.R. 21. The ALJ found that Herrick retains the following residual functional capacity (“RFC”):

[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: the claimant is limited to simple work as defined in the Dictionary of Occupational Titles as SVP levels 1 and 2, routine and repetitive tasks. She needs to work in a low stress job as defined as only occasional decision making required and only occasional changes in the work-setting. She is limited to no interaction with the general public and only occasional interaction with coworkers and supervisors.

         A.R. 23. Relying on the opinion of a vocational expert (“VE”) who testified that an individual with such an RFC could perform other jobs existing in the economy, including motor vehicle assembler and cleaner/housekeeper, the ALJ concluded that Herrick is not disabled. A.R. 28-29.

         The Appeals Council denied Herrick’s request for review on December 22, 2017. A.R. 1-6. The ALJ’s decision therefore became the Commissioner’s final decision. Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1231 (9th Cir. 2011). Herrick then filed suit in this court pursuant to 42 U.S.C. § 405(g).


         To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents her from engaging in substantial gainful activity[1] and that is expected to result in death or to last for a continuous period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

         To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are as follows:

1. At the first step, the ALJ considers the claimant’s work activity, if any. If the claimant is doing substantial gainful activity, the ALJ will find that the claimant is not disabled.
2. At the second step, the ALJ considers the medical severity of the claimant’s impairment(s). If the claimant does not have a severe medically determinable physical or mental impairment that meets the duration requirement in [20 C.F.R.] § 416.909, or a combination of impairments that is severe and meets the duration requirement, the ALJ will find that the claimant is not disabled.
3. At the third step, the ALJ also considers the medical severity of the claimant’s impairment(s). If the claimant has an impairment(s) that meets or equals one of the listings in 20 C.F.R., Pt. 404, Subpt. P, App. 1 [the “Listings”] and meets the duration requirement, the ALJ will find that the claimant is disabled.
4. At the fourth step, the ALJ considers an assessment of the claimant’s RFC and the claimant’s past relevant work. If the claimant can still do his or her past relevant work, the ALJ will find that the claimant is not disabled.
5. At the fifth and last step, the ALJ considers the assessment of the claimant’s RFC and age, education, and work experience to see if the claimant can make an adjustment to other work. If the claimant can make an adjustment to other work, the ALJ will find that the claimant is not disabled. If the claimant cannot make an adjustment to other work, the ALJ will find that the claimant is disabled.

20 C.F.R. § 416.920(a)(4); 20 C.F.R. §§ 404.1520; Tackett, 180 F.3d at 1098-99.


         A. Herrick’s Testimony

         Herrick testified that “from childhood [she] was quite different” and always had a “ton of energy.” A.R. 42. She described herself as a “handful.” A.R. 42. At some point, however, she “started becoming distant from other people” because she did not “know how to get along with them” and did not understand why they were mean. A.R. 42. She “couldn’t handle social situations” and became “very isolated.” A.R. 43. She engaged in self-harm cutting behavior when she was young. A.R. 54. Herrick graduated from college in 1996, and also obtained a Montessori teaching degree and a paralegal degree. A.R. 39. She attempted graduate degrees in philosophy twice but did not finish either program because she “wasn’t able to turn in papers.” A.R. 40. Some years later, she did finish a single course, which “took [her] all.” A.R. 40.

         Herrick testified that she has held many jobs. She was a child care assistant in 2003 and 2004. A.R. 60. She used to be a substitute teacher but was fired for “trying to be friends with the kids outside of school.” A.R. 49. She has also worked in a temporary office job, as a bar waitress, at a burger joint, as a copy editor, and as a paralegal. A.R. 48-49, 58, 60-61. She did some landscaping, and said that she “loved it” and enjoys physical labor. A.R. 57.

         Herrick claimed that the reason she cannot work now is because she is depressed and has no energy. A.R. 40. When she does have energy, she tries to regulate her day by taking notes on what she needs to do, such as taking showers and doing laundry. A.R. 40. Herrick identified her one of her main problems as “attention stuff.” A.R. 42. “I lose my train of thought. I forget what I was going [sic], what I’m meaning to say, ” she explained. A.R. 42. Herrick testified that she is often forgetful, such as walking out of her apartment without her keys or other items she needs. A.R. 43-44. She said that she takes extensive notes on a daily basis and has “many systems” to try to organize herself. A.R. 44. She uses three white boards to plan her day and also keeps a time log. A.R. 51. Despite these systems, she has trouble following through and completing tasks. A.R. 52. Although she has been diagnosed with bipolar disorder, Herrick testified that she has not had manic episodes for a while and that mania is her “best regulated symptom.” A.R. 46.

         On a good day, Herrick tries to shower, stretch, meditate, and take a walk, although she said that she is not sure she has ever completed all of those tasks on the same day. A.R. 41. On a typical date, she gets up, makes coffee, washes her face, brushes her teeth, straightens her hair, gets dressed, and spends time with her cats. A.R. 54. Usually, she gets back in bed and reads the news, browses Facebook, and plays solitaire. A.R. 54. “I’m just trying to exist, ” she stated. A.R. 54. Herrick said that she is “[n]ormally . . . a very tidy person, ” but there are times when her laundry piles up and she cannot complete it. A.R. 41. She eats lots of fruit, vegetables, and protein, and cooks on good days. A.R. 45. On bad days, she eats cereal, fruit, and other food that she can keep in her room. A.R. 45. She tries to practice good sleep hygiene and she takes her medicine regularly. A.R. 45.

         Herrick testified that, in addition to her depression, she cannot work because she does not get along with people. A.R. 47. She stated that they “take exception to my . . . freedom with my opinions, ” and described herself as “very judgmental.” A.R. 48. “I’m very moralistic and I don’t keep that out of my professional life and people get annoyed with me, ” she explained. A.R. 48. When she works, “[t]hings always seem great at first.” A.R. 47. However, she has a “hard time seeing anyone as an authority.” A.R. 47. She “hate[s] rules that have no reason” and has a hard time following directions if she disagrees with them. A.R. 48. She rethinks things and does not “ever do anything the same way twice.” A.R. 49.

         These social issues persist outside of work as Herrick spends most of her time alone. A.R. 50-51, 53. She testified she does not have any friends and does not really have a relationship with her parents, although she is friendly when she sees them. A.R. 53, 55. She has a cousin in the area but she has “too much depression to go over and see him.” A.R. 56. She avoids her roommates, to the point that she peeks out of her room to make sure they are not around before she goes to the fridge. A.R. 45. Herrick has tried making friends and going to Meetup groups, but “nothing sticks.” A.R. 56. She observed that “[i]t’s not very rewarding to be around not depressed people, ” and that she gets along better with people who are depressed. A.R. 56. However, she said that she enjoys her daily interactions with store clerks. A.R. 56.

         B. Treatment Records

         1. Sparrow Hospital Records [December 2013]

         On December 2, 2013, Herrick was admitted to Sparrow Hospital in Lansing, Michigan. A.R. 406-91. The emergency department notes record that she had just had a stressful experience with a romantic partner in Chicago, after which her parents took her back to their home in Michigan. A.R. 407-08. At her parents’ home, Herrick became aggressive. A.R. 408. She threw things and broke several pieces of her parents’ property as well as a window. A.R. 408, 413. She picked up a shard of glass and told her providers that she considered suicide but did not cut herself. A.R. 438. She then leaned her head out of a second-floor window to “get fresh air.” A.R. 408. Because of Herrick’s aggressive behavior, her parents called emergency medical services and the police. A.R. 408. When they arrived, Herrick was banging her head on the sink. A.R. 413. According to the police report, Herrick assaulted the ambulance driver. A.R. 443. She was taken to Sparrow Hospital’s emergency room in an ambulance. A.R. 408, 412, 438.

         The emergency room notes record that Herrick was oriented to person, place, and time; was cooperative; and did not appear to be in acute distress. A.R. 409-10. She exhibited impulsive behavior, a short attention span, and impaired insight, but had fair eye contact, logical speech, a stable mood, and adequate judgment. A.R. 417. Herrick was tearful and lethargic on admission. A.R. 438. She told the providers there that she did not have suicidal or homicidal ideations and that she had not attempted to hurt or kill herself. A.R. 408. The prior diagnoses noted include ADHD, bipolar 1 disorder, depression, and insomnia. A.R. 414. The notes reflect that Herrick’s parents did not want to take her home at that time because of the possibility that she could become aggressive again. A.R. 410. Herrick was seen talking on the phone with a friend and getting “increasingly aggravated” due to “the loss of the love of her life.” A.R. 412. She also stated that she did not want to talk to her parents at that time. A.R. 411. Herrick told the hospital staff that she became angry and aggravated when her parents kept asking her questions about the relationship that ended in Chicago. A.R. 415.

         Herrick was transferred to St. Lawrence Hospital on an involuntary psychiatric hold. A.R. 438. The discharge summary noted that Herrick responded well to treatment. A.R. 434. The providers were concerned that her use of Adderall diminished the quality of her sleep, and it appeared that her sleep, cognition, and attention appeared to improve after several days of withholding Adderall. A.R. 434. Without stimulants, she “did not appear to be impulsive, easily distracted or hyperactive.” A.R. 439. The treatment regime focused on helping Herrick “gain insight into her relatively poor repertoire of coping skills” and awareness of how to use her strengths to improve her life situation. A.R. 434. The discharge provider noted that Herrick appears to fixate on her diagnoses as a “rationalization for why she continues to stagnate in her progress” instead of as a means to guide treatment. A.R. 434. However, Herrick told providers that she “wouldn’t mind a repetitive job, ” such as on an assembly line, which would “allow her to think while working, and would leave time outside of work for her creative pursuits.” A.R. 439. On discharge, Herrick was cooperative, had intact attention and good concentration, good immediate and remote memory, and fair insight and judgment. A.R. 440. The final diagnoses listed upon discharge were acute stress disorder, bipolar disorder NOS, ADHD, and borderline personality disorder. A.R. 435. She was assessed with a GAF score of 41-50.[2] A.R. 435.

         2. Alameda County Mental Health Records [December 2013 to February 2014]

         On December 18, 2013, Herrick was evaluated by Alameda County Behavioral Health Care Services for psychiatric follow up after her hospitalization. A.R. 492-555. The mental status exam revealed that Herrick had an anxious mood and affect, but had good eye contact, fair insight, and good impulse control and judgment. A.R. 493. She was oriented and alert, and her memory, concentration, and abstract thinking were within normal limits. A.R. 507. Her suicide risk was assessed as low. A.R. 500. The providers discussed possible diagnoses and treatment options and encouraged her to attend DBT classes. A.R. 508. She was assessed with a GAF of 45. A.R. 494, 508.

         On January 3, 2014, Herrick appeared for a medication follow up. A.R. 511. She told the providers that she was doing well and that her mood had been more stable since the first time she was seen. A.R. 511. She had begun to stabilize her daily routine by waking up early, taking showers, and eating meals. A.R. 511. She expressed a desire to exercise regularly and said that she was working on her journaling. A.R. 511. The notes indicate that she had good hygiene, was wearing appropriate clothing, and had good eye contact. A.R. 511. Her speech was fluent, she had a logical and goal directed thought process, and her mood and affect appeared appropriate. A.R. 511. She was oriented, appeared to have intact memory, and good attention and concentration. A.R. 512. On January 10, 2014, Herrick told providers that ...

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