United States District Court, N.D. California
KATHRYN S. HERRICK, Plaintiff,
NANCY A. BERRYHILL, Defendant.
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 21, 22
M. RYU UNITED STATES MAGISTRATE JUDGE.
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
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.
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
[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.
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.
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).
THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS
qualify for disability benefits, a claimant must demonstrate
a medically determinable physical or mental impairment that
prevents her from engaging in substantial gainful
activity 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)).
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
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.
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.
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.
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.
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.
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.
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.
Sparrow Hospital Records [December 2013]
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.
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.
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. A.R. 435.
Alameda County Mental Health Records [December 2013 to
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.
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 ...