Rivers v. Colvin

Filing 27

ORDER by Judge Maria-Elena James granting 19 Motion for Summary Judgment; denying 24 Motion for Summary Judgment. (mejlc3, COURT STAFF) (Filed on 6/28/2017) (Additional attachment(s) added on 6/28/2017: # 1 Certificate/Proof of Service) (rmm2S, COURT STAFF).

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RONALD DAVID RIVERS, Case No. 16-cv-02399-MEJ Plaintiff, 8 ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 9 10 NANCY A. BERRYHILL, Re: Dkt. Nos. 19, 24 Defendant. United States District Court Northern District of California 11 12 INTRODUCTION 13 Plaintiff Ronald David Rivers (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 14 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”), 15 the Acting Commissioner of Social Security, denying Plaintiff’s claim for disability benefits. 16 Pending before the Court are the parties’ cross-motions for summary judgment. Mot., Dkt. No. 17 19; Cross-Mot., Dkt. No. 24. Pursuant to Civil Local Rule 16-5, the motions have been submitted 18 on the papers without oral argument. Having carefully reviewed the parties’ positions, the 19 Administrative Record (“AR”), and relevant legal authority, the Court hereby GRANTS 20 Plaintiff’s motion and DENIES Defendant’s cross-motion for the reasons set forth below. BACKGROUND 21 22 Plaintiff applied for Social Security disability insurance benefits (“DIB”) and 23 Supplemental Security Income (“SSI”). Plaintiff contended he was disabled by mental 24 impairments he developed as a result of being falsely accused of, and incarcerated for, crimes he 25 did not commit. See Mot. The Social Security Administration (“SSA”) found Plaintiff’s mental 26 impairments were not sufficiently severe so to preclude his ability to work, and denied his 27 applications. 28 SOCIAL SECURITY ADMINISTRATION PROCEEDINGS 1 On August 24, 2012, Plaintiff applied for DIB and SSI, alleging disability beginning on 2 3 July 11, 2006. AR 224-227 (DIB), 228-236 (SSI). On January 11, 2013, the Social Security 4 Administration (“SSA”) denied Plaintiff’s claim, finding that Plaintiff did not qualify for disability 5 benefits. AR 91 (DIB), 92 (SSI), 67-78 (SSI Explanation), 79-90 (DIB Explanation). Plaintiff 6 subsequently filed requests for reconsideration, which were denied on July 30, 2013. AR 130- 7 141. On September 13, 2013, Plaintiff requested a hearing before an Administrative Law Judge 8 (“ALJ”). AR 145-147. ALJ Michael Blume conducted a hearing on September 30, 2014. AR 27- 9 66. Plaintiff testified in person at the hearing and was represented by counsel, Brian Baghai. As is relevant here, the ALJ also heard testimony from medical expert Dr. Calvin VanderPlate. 11 United States District Court Northern District of California 10 A. 12 Plaintiff’s Testimony Plaintiff has a Bachelor of Science degree in telecommunications; he worked in this field 13 as a system administrator for 11 years. AR 30, 32. He was incarcerated in 2006 and paroled in 14 2012. AR 31. 15 When asked why he could not work, Plaintiff testified: “I am having issues getting a job. I 16 believe that my criminal history has something to do with it . . . . I am thinking if I can get in 17 there then I should be okay. But getting in there has been an issue. I just – they don’t like the 18 criminal history.” AR 33. The ALJ asked Plaintiff, “So as far as you are concerned you can 19 work?” Id. Plaintiff replied: “Well, yeah. I mean, I have issues with my anxiety, but I am 20 thinking that I could . . . get in there and try.” Id. Upon questioning by his lawyer, Plaintiff 21 clarified that it would be “useless to try to get along with” supervisors “because they are out to . . . 22 do their job, which is to micro manage and I just get nervous and anxious and have the depression 23 and I have had it with supervisors before.” AR 48. 24 Plaintiff enrolled in school for paralegal studies in 2013. AR 31-32. He spends 25 approximately six hours a week in class. AR 32. He is doing well, earning As and Bs. Id. There 26 are about 20 people in his class; he takes the information away from class then works on it and 27 brings it back. AR 44. He pays for his studies with a government grant and a school loan. AR 28 2 1 31. He testified that he can be around others at school if it is not for a long period of time, but he 2 “go[es] there and [he] bear[s] it.” AR 33. He also takes online classes where he does not have to 3 interact with people. AR 33. He “definitely” works best in a setting where he can be alone. Id. 4 In addition to his classwork, Plaintiff goes to the library or learning center to study; he also does 5 homework. AR 37. He prefers to go shopping for groceries when the store first opens and no one 6 is there. AR 43. He takes the bus but gets anxious because there are people there. Id. His anxiety 7 and nervousness are worse when the bus is crowded. AR 44. 8 9 Plaintiff is prescribed Zoloft, Vistaril, and Benadryl, but he does not take these medications because he does not trust the people giving him the prescriptions. AR 34. Believing the District Attorney who prosecuted him is still after him, he fears the medicine will not allow 11 United States District Court Northern District of California 10 him to think: “I need to be able to think and so every time I have taken their medicine then it puts 12 me in a weird cycle to where everything is different.” AR 35. He refused mental health 13 medication while in prison because he did not trust the people giving it to him: “I don’t know what 14 they were giving me or for what reason, what it was doing to me, and I needed to stay focused.” 15 AR 42. He believed prison authorities were trying to blur his thinking or keep him from thinking 16 straight so that they could control him. AR 42. Since he was paroled in 2012, Plaintiff sees 17 doctors for his anxiety. AR 35-36. He sees Dr. Garcia, a psychiatrist, every other month; he also 18 sees Dr. Girtman, a psychologist, once a month. Id. 19 Plaintiff has acquaintances at school, but no friends he trusts and no family in the area. AR 20 38. He testified that he has trust issues because he has been surrounded by people who are out to 21 get him: the DA, the people with whom he was incarcerated, and now the parole staff. AR 40. He 22 believes the DA and his cell mates were being influenced by evil spirits. AR 40-41. At the time 23 of the hearing, he had been homeless and living in his car for two years. AR 30. He does not 24 sleep well at night: he is 6’1” and 234 pounds and his car is “really small”; in addition, he is 25 worried about his safety. AR 30, 38. He receives general assistance. AR 31. He takes Benadryl 26 “now and then” for sleep. AR 34. 27 28 Plaintiff attempted suicide in 1985. AR 39. When stressed, he experiences visual 3 1 distortions and auditory hallucinations; these occur two to three times a week and can last into the 2 next day. AR 41. Since he was paroled, Plaintiff has gotten into verbal conflicts with a classmate, 3 a teacher, and therapists. AR 44-48. 4 B. Medical Evidence 5 In September 2007, Plaintiff reported to a prison psychologist that he attempted suicide in 6 1985, but explained how therapy after the incident helped him feel “resolved.” AR 547; AR 686 7 (Plaintiff put a gun to his head and was hospitalized for four days). He stated he did not want 8 mental health services, and that he would seek help if he got depressed and/or suicidal; the 9 psychologist documented there was “no evidence of mental illness.” AR 547. Plaintiff was in the care of “CCCMS”1 for at least some time during his incarceration, but he reported to his parole 11 United States District Court Northern District of California 10 case worker that he only was classified as “3C” because he wanted to take anger and stress 12 management classes that were only available to inmates with mental health classifications. AR 13 381, 414, 417-19, 716. Plaintiff was placed on suicide watch in December 2007 after reporting he believed his 14 15 cellmate was possessed by evil spirits and was “messing with his head.” See AR 374 (admitted in 16 December 2007 to homicidal intent: wants to kill cellmate because he is “stupid”); AR 419 (in 17 February 2008, reporting delusional episode with prior cellmate “a few months ago”; reporting 18 current cellmate also “messing with his head”); AR 462 (on watch for 7 days in December 2007; 19 diagnosed “psychosis [not otherwise specified (‘NOS’)]” and “delusions”). This incident was not 20 the first time Plaintiff believed people were possessed by evil spirits: he explained to a therapist in 21 January 2008 that he believed his sister-in-law communicated with evil spirits, poisoned his food 22 and jinxed his ability to get a job. AR 414, 420, 458. In May 2008, Plaintiff was again placed on 23 watch for suicidal thoughts after he asserted his cellmate’s evil spirits gave him bad dreams. AR 24 483, 488, 555, 582. In June 2008, Plaintiff continued to discuss witchcraft and his doctor noted 25 26 27 28 1 Correctional Clinical Case Management System is a California Department of Corrections and Rehabilitation program that treats mentally ill inmates who do not meet criteria for higher levels of care and exhibit symptom control or are in partial remission as a result of treatment. 4 1 this suggested that Plaintiff experienced delusions of the persecutory type and a “pattern of 2 judging this way anyone / people he does not trust.” AR 458. In August 2008, Dr. Escoffon noted 3 that Plaintiff did not want to be “labeled” due to past delusional incidents, which Plaintiff said 4 were just “defenses.” AR 450. Plaintiff continued to discuss evil spirits with his mental health 5 providers thereafter. See, e.g., AR 446 (in November 2008, Dr. Escoffon wrote that Plaintiff was 6 currently stable without medication, but that he “still has symptoms of paranoia with delusional 7 thinking” but is able to reflect and acknowledge that “his thought might not reflect what is actually 8 true”); AR 443 (in March 2009, Dr. Escoffon noted that Plaintiff had questions about evil spirits 9 and “normalcy of tuning into them”); AR 442 (in June 2009, Plaintiff reported to Dr. Escoffon that his “cellie’s spirits are making me have bad dreams”; Dr. Escoffon wrote: “He has linear thought 11 United States District Court Northern District of California 10 process—other than delusional thinking re: sprits”); AR 552 (in August 2009, wanted to talk about 12 ways to communicate with evil spirits). He continued to have problems with cellmates and 13 wanted to change clinicians. See AR 550 (“He’s having problems w/ cellie similar to previous 14 cellies but does not want his beliefs to seem ‘delusional’ and thus guardedly said he would not talk 15 about it.”); AR 553 (in June 2009, Plaintiff “was wanting to change clinicians. Explored reasons 16 why & discussion parallel to his repeated pattern of wanting to change cellies.”). Dr. Escoffon 17 and other clinicians frequently noted that Plaintiff was oriented, was well-groomed, denied 18 suicidal or homicidal ideation, and was generally pleasant and cooperative. See passim. In 19 January 2008, Dr. Landry noted no evidence of thought disorder, that Plaintiff was oriented to 20 time and space, and well groomed; he also observed Plaintiff had “at least normal intelligence. BS 21 in communication. Likely to underrepresent symptoms.” AR 594. 22 Plaintiff’s prison records include diagnoses for “delusional disorder” in January 2008 (AR 23 592), “mood disorder” in May 2008 (AR 385), “psychosis NOS” in December 2007 (AR 408), 24 “symptoms of paranoia with delusional thinking” in November 2008 (AR 562), “delusional 25 disorder NOS persecutory type” in January 2009 (AR 444), “psychosis NOS (delusional 26 disorder)” in June 2009 (AR 483), “delusional disorder NOS persecutory type” and “personality 27 disorder NOS” in June 2009 (AR 555), personality disorder NOS and delusional disorder NOS in 28 5 1 October 2009 (AR 550), depression, “c/o” insomnia and anxiety in May 2012 (AR 664). 2 Throughout his time in prison, he declined mental health medication, and his treaters agreed that 3 medications were not indicated. See passim. 4 In February 2011, Plaintiff requested a mental health visit and reported he was “getting a little paranoid” because he was handling his appeal pro se and did not want anyone seeing or 6 messing with his legal papers, which were all in his cell; he wanted something to calm himself but 7 otherwise did not want or need mental health treatment; he was found to be oriented to time and 8 space, clear and coherent. AR 647. In May 2012, Plaintiff reported he could not sleep because he 9 was having anxiety about his impending release, where he would go, what he would do, where he 10 would live, and how he could get money. AR 663 (“I feel very anxious about getting out in a few 11 United States District Court Northern District of California 5 months.”). 12 After being paroled, Plaintiff was assigned to attend weekly group therapy and monthly 13 individual therapy. AR 838. Plaintiff expressed interest in seeing a psychiatrist for anxiety and 14 depression. AR 684. He expressed a “logical plan to redo his resume and apply for work. . . Is 15 considering seeking work as a paralegal, was pro per in 2 of his trials.” AR 692. In December 16 2012, his clinician reported Plaintiff “has the attitude of the victim of the system” but was 17 compliant with parole conditions; he was still anxious and his mood was down despite taking 18 Prozac, his depression was partly improved, but he still had depressed mood and anxiety. AR 722. 19 In February 2013, his case worker wrote: “Still has chronic depression but seems more upbeat 20 today.” AR 706. Plaintiff reported thoughts of suicide to his state parole therapist, but he did not 21 have a specific plan to end his life. See AR 840 (12/11/13); AR 752 (2/27/13). One of his 22 clinicians described Plaintiff as having “an attitude as usual” in group therapy and wrote he 23 participated “minimal[ly]” on that day. AR 705. In March 2013, he was briefly placed in custody 24 after threatening his clinician. AR 704-06 (Plaintiff got “really upset” was belligerent and 25 intimidating, so counselor reported incident). He was reported to feel victimized by parole, had 26 anxiety, and needed a therapist to resolve his issues. AR 704. 27 28 He told his counselor that he applied for SSI because he could not find a job (AR 707); he 6 1 believed he would be able to obtain benefits because he had been in prison for a long time and had 2 a history of depression (AR 708). His clinician opined Plaintiff did not “seem willing to work and 3 he would rather pretend to have a mental illness to collect SSI,” based on the fact he did not follow 4 her suggestion to call the Port of Oakland to apply for a job. AR 707. He also stopped working 5 for Caltrans because crew members did not want him around; he decided to avoid conflicts and 6 quit. AR 708. 7 In July 2013, SSA consultant Elizabeth Covey, Psy. D., reviewed Plaintiff’s records and 8 concluded his psychiatric symptoms were mild. AR 100-105. She acknowledged Plaintiff’s 9 history of depression with some occasional persecutory beliefs in 2008-2009, his occasional acute distress requiring suicide watch, and his increased anxiety and depressed mood since being 11 United States District Court Northern District of California 10 paroled. AR 101. She also noted he had no problems with activities of daily living, but that 12 Plaintiff indicated he had a poor response to stress. Id. She opined the evidence in the file showed 13 no more than mild limitations in work functioning due to mood disorder. Id. Having reviewed his 14 parole records and CDCR records, and given Plaintiff’s overall history and some documentation 15 of psychological symptoms including irritability, Covey suggested it was reasonable to assess 16 moderate social limitations; she found Plaintiff appeared capable of complex work in a suggested 17 limited public contact environment. Id. In terms of social limitations, she opined Plaintiff’s 18 ability to do the following was moderately limited: he could interact appropriately with the general 19 public; ask simple questions or request assistance; accept instructions and respond appropriately to 20 criticism from supervisors; get along with coworkers or peers without distracting them or 21 exhibiting behavioral extremes; and respond appropriately to changes in work settings. AR 103. 22 She opined Plaintiff could interact appropriately with supervisors, interact briefly and superficially 23 with coworkers, and could only have limited public contact. Id. 24 In August 2013, Plaintiff was evaluated by Dr. Laura Jean Catlin, Psy. D., at the request of 25 his attorney in connection with SSA proceedings. AR 743-750. She conducted a clinical 26 interview, and administered a Beck Depression Inventory (“BDI”), Burns Anxiety Scales, and 27 Brief Symptom Inventory. AR 744. Dr. Catlin opined Plaintiff “appeared to be a credible 28 7 1 historian.” Id. She noted that Plaintiff’s mood was depressed and anxious and his affect flat and 2 restricted; he reported some suicidal thoughts but had no plan or intent to follow through on them; 3 he reported having tactile hallucinations for the past year; was anxious about his current financial 4 situation and depressed because he felt wrongly accused; his insight and judgment were impaired; 5 his memory and concentration poor. AR 747. Plaintiff scored 37 on the BDI, which indicated 6 “severe depression.” Id. The results of his Burns Anxiety test also showed he was experiencing 7 high levels of anxiety. Id. Dr. Catlin opined that Plaintiff was “experiencing high levels of 8 psychological distress. He [was] experiencing high levels of anxiety, interpersonal sensitivity, and 9 phobic anxiety, paranoia, and depression.” AR 748. Her conclusions were drawn from her evaluation of Plaintiff, including his “clinical presentation, reported symptoms and history, test 11 United States District Court Northern District of California 10 results, and any available accompanying documents.” Id. She diagnosed major depressive 12 disorder—severe; generalized anxiety disorder; social anxiety; and PTSD. Id. She opined 13 Plaintiff’s ability to work was severely impaired, including his ability to maintain attention for a 14 two hour segment, to work in coordination with or in proximity to others, to work a complete 15 workday and workweek without interruptions from his symptoms, to maintain adequate pace and 16 persistence to perform complex or detailed basis, to adapt to changes in job routine, to withstand 17 the stress of a routine workday, to accept instruction and respond appropriately to criticism from 18 supervisors, to get along with co-workers and peers without unduly distracting them or exhibiting 19 behavioral extremes, his ability to interact appropriately with co-workers, supervisors or the 20 public, and his ability to use public transportation. AR 749-50. She further opined Plaintiff had 21 marked difficulties in maintaining social functioning and that his deficiencies of concentration, 22 persistence and pace were in the extreme range. AR 750. 23 C. 24 Medical Expert Testimony Dr. Calvin VanderPlate did not examine Plaintiff. He reviewed Plaintiff’s records and 25 testified the diagnoses most supported by the record were mood disorder NOS, personality 26 disorder NOS, and anxiety disorder NOS. AR 50. He opined the treatment records suggested 27 Plaintiff’s depression appeared relatively mild, and that anxiety was “not really” mentioned in the 28 8 1 record. Id. He opined the anxiety and depression appeared to be situational and frequently related 2 to present circumstances or legal issues. Id. 3 Dr. VanderPlate opined that Dr. Catlin’s conclusions were “quite at odds with the rest of 4 the record.” AR 50-51. He suggested that the severity of Dr. Catlin’s assessment “was based on 5 the checklist testing” she used: “the examiner gave a number of paper and pencil tests and they are 6 basically symptom checklists. They are not really tests per s[e]. That is sort of a misnomer. It is 7 a list of symptoms and you either circle or check symptoms or you rate yourself in terms of the 8 severity of each symptom that is present . . . . [Y]ou can best think of them as a structured 9 interview as opposed to a test per say. And particularly in disability type evaluation there tends to be a tendency to want to overstate symptoms on those tests. And so I would not put a lot of 11 United States District Court Northern District of California 10 credence on those assessments.” AR 51-52. Dr. VanderPlate found that “frankly there are no 12 examples in the record of decompensation under stress. There is no psych hospitalizations and 13 the record appears fairly consistent . . . demonstrating moderate or low – demonstrating mild to 14 low moderate symptoms.” AR 52 (emphasis added). 15 Dr. VanderPlate opined that Plaintiff could perform complex work, ideally with no public 16 contact but that he probably is capable of occasional public contact; Dr. VanderPlate imposed no 17 limitation on Plaintiff’s contact with supervisors and coworkers, but opined Plaintiff could do well 18 with infrequent contact with them; he also found maybe mild to possibly low moderate limitations 19 in terms of pace, concentration and persistence. AR 52-54. He clarified that Plaintiff may have 20 “intermittent problems” dealing with supervisors if “excessive demands” were placed on him: “[i]t 21 is the intensity of the interaction and what he perceives as how they are relating to him that creates 22 the problem.” AR 55. Regular work demands and routine evaluations and monitoring would not 23 likely cause a conflict. AR 56. Dr. VanderPlate testified that there “really is no indication in the 24 record of any ongoing suspiciousness or distrust or ongoing conflicts.” Id. (emphasis added). 25 Dr. VanderPlate acknowledged Plaintiff’s 2009 diagnosis of delusional disorder, persecutory type 26 based on “when he was talking about the spirits making him have bad dreams and that is not 27 repeated again in the record. That is a onetime event. You know, frankly, the spirits causing 28 9 1 the bad dreams is rather idiosyncratic and peculiar and quite atypical as a delusion, and a paranoid 2 delusion . . . . [W]e do know that it does not reappear in the record and therefore based on 3 the written record, if it is there it is well controlled or it is not an issue.” AR 57 (emphasis 4 added). 5 D. The ALJ’s Findings The regulations promulgated by the Commissioner of Social Security provide for a five- 6 7 step sequential analysis to determine whether a Social Security claimant is disabled.2 20 C.F.R. § 8 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or 9 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 11 United States District Court Northern District of California 10 inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r 12 Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the 13 Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. 14 Bowen, 849 F.2d 418, 422 (9th Cir. 1988)). 15 The ALJ must first determine whether the claimant is performing “substantial gainful 16 activity,” which would mandate that the claimant be found not disabled regardless of medical 17 condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ 18 determined that Plaintiff had not performed substantial gainful activity since July 11, 2006. AR 19 14. At step two, the ALJ must determine, based on medical findings, whether the claimant has 20 21 a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 22 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 23 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe 24 impairments: mood disorder NOS, anxiety disorder NOS, and personality disorder NOS. AR 14- 25 26 27 28 2 Disability is “the inability to engage in any substantial gainful activity” because of a medical impairment which can result in death or “which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). 10 1 2 15. If the ALJ determines that the claimant has a severe impairment, the process proceeds to 3 the third step, where the ALJ must determine whether the claimant has an impairment or 4 combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. 5 P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s 6 impairment either meets the listed criteria for the diagnosis or is medically equivalent to the 7 criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, 8 education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff 9 did not have an impairment or combination of impairments that meets the listings. AR 15. Before proceeding to step four, the ALJ must determine the claimant’s Residual Function 11 United States District Court Northern District of California 10 Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work 12 setting, despite mental or physical limitations caused by impairments or related symptoms. 20 13 C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the 14 claimant’s medically determinable impairments, including the medically determinable 15 impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff 16 had the RFC to perform a full range of work at all exertional levels; was capable of performing 17 complex tasks; was limited to frequent but not constant contact with co-workers and supervisors, 18 and with no public contact. AR 16. 19 The fourth step of the evaluation process requires that the ALJ determine whether the 20 claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 21 404.1520(f). Past relevant work is work performed within the past 15 years that was substantial 22 gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. § 23 404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not 24 disabled. 20 C.F.R. § 404.1520(a)(4) (iv). Here, the ALJ determined that Plaintiff could perform 25 past relevant work as a systems analyst. AR 19. 26 27 28 The ALJ also made an alternative finding at step five. AR 20 (“Although the claimant is capable of performing past relevant work, there are other jobs existing in the national economy 11 1 that he is also able to perform.”). In the fifth step of the analysis, the burden shifts to the 2 Commissioner to prove that there are other jobs existing in significant numbers in the national 3 economy which the claimant can perform consistent with the claimant’s RFC, age, education, and 4 work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this 5 burden by relying on the testimony of a vocational expert or by reference to the Medical- 6 Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 7 1111, 1114 (9th Cir. 2006). Here, based on the testimony of a vocational expert, Plaintiff’s age, 8 education, work experience, and RFC, the ALJ determined Plaintiff could perform jobs as a 9 cleaner or a machine feeder. AR 20. 10 United States District Court Northern District of California 11 E. ALJ’s Decision and Plaintiff’s Appeal On February 20, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was 12 not disabled. AR 12-21. This decision became final when the Appeals Council declined to review 13 it on April 18, 2016. AR 1. Having exhausted all administrative remedies, Plaintiff commenced 14 this action for judicial review pursuant to 42 U.S.C. § 405(g). On February 21, 2017, Plaintiff 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed the present Motion for Summary Judgment. On May 5, 2017, Defendant filed a CrossMotion for Summary Judgment. LEGAL STANDARD This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a scintilla but less than a preponderance” of evidence that “a reasonable person might accept as adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The court must consider the administrative record as a whole, weighing the evidence that both supports and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). However, “where the evidence is susceptible to more than one rational interpretation,” the court 12 1 must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 2 Determinations of credibility, resolution of conflicts in medical testimony, and all other 3 ambiguities are to be resolved by the ALJ. Id. Additionally, the harmless error rule applies where substantial evidence otherwise supports 4 5 the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not 6 reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 7 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 8 (9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party 9 attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 10 (2009)). DISCUSSION United States District Court Northern District of California 11 The issue presented on appeal is whether the ALJ weighed the medical evidence correctly; 12 13 specifically, whether the ALJ erred in giving great weight to the opinion of Dr. VanderPlate and 14 no weight to that of Dr. Catlin. See Mot. 15 A. 16 Standards for Evaluating Medical Opinions Physicians may render medical opinions, or they may “render opinions on the ultimate 17 issue of disability—the claimant’s ability to perform work.” Reddick v. Chater, 157 F.3d 715, 725 18 (9th Cir. 1998). “Generally, the opinions of examining physicians are afforded more weight than 19 those of non-examining physicians, and the opinions of examining non-treating physicians are 20 afforded less weight than those of treating physicians.” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 21 2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)). 22 In order to reject the “uncontradicted opinion of a treating or examining doctor, an ALJ 23 must state clear and convincing reasons that are supported by substantial evidence.” Ryan v. 24 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (quotation and citation omitted). “If a 25 treating or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ may 26 only reject it by providing specific and legitimate reasons that are supported by substantial 27 evidence.” Id. (citation omitted). An ALJ can satisfy the “substantial evidence” requirement by 28 13 1 “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating 2 his interpretation thereof, and making findings.” Reddick, 157 F.3d at 725. “The ALJ must do 3 more than offer [] conclusions. He must set forth his own interpretations and explain why they, 4 rather than the doctors’, are correct.” Id. (citation omitted). 5 An ALJ errs when he or she does not explicitly reject a medical opinion or set forth 6 specific, legitimate reasons for crediting one medical opinion over another. See Nguyen v. Chater, 7 100 F.3d 1462, 1464 (9th Cir. 1996). In other words, it is error for an ALJ not to offer a 8 substantive basis before assigning little weight to the medical opinion. See id. Generally, the SSA 9 will give greater weight to an opinion that is more consistent with the record as a whole. 20 10 C.F.R. § 416.927(c)(4). An “ALJ should not be a mere umpire during disability proceedings, but must scrupulously United States District Court Northern District of California 11 12 and conscientiously probe into, inquire of, and explore for all relevant facts.” Widmark v. 13 Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citation and quotation marks omitted); Smolen v. 14 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (ALJ has “a duty to conduct an appropriate inquiry” if 15 she believes she needs to know the basis of a treating physician’s opinions in order to evaluate 16 them); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (“Ambiguous evidence . . . 17 triggers the ALJ’s duty to ‘conduct an appropriate inquiry.’” (quoting Smolen, 80 F.3d at 1288)). 18 B. 19 The ALJ’s Evaluation of Medical Evidence The ALJ gave “great weight” to Dr. VanderPlate’s opinion, holding it was consistent with 20 Plaintiff’s testimony and the records indicating Plaintiff was observed to be well groomed and 21 oriented with organized speech and no evidence of depression as of October 2012. AR 18. The 22 ALJ further concurred with Dr. VanderPlate’s assessment of Dr. Catlin’s psychological evaluation 23 as being “at odds with the remaining record” and thus gave her evaluation “no weight.” AR 18- 24 19. Instead of giving any weight to the opinion of the psychologist who examined and 25 interviewed Plaintiff, the ALJ adopted Dr. VanderPlate’s analysis, which he found well-reasoned 26 and supported by the longitudinal medical evidence. AR 19. The Court finds the ALJ’s 27 evaluation is not based on substantial evidence. 28 14 1 First, several of Dr. VanderPlate’s key opinions are based on an inaccurate representation 2 of the record. Dr. VanderPlate opined the underlying treatment records did not often reference 3 symptoms of anxiety, indicated Plaintiff’s depression symptoms are relatively mild, and that his 4 symptoms overall are situational and frequently related to legal issues or prison. AR 15. Plaintiff 5 was classified as mentally ill while in prison, but Dr. VanderPlate does not acknowledge this 6 during his testimony, and fails to develop the record about Plaintiff’s mental health classification 7 in prison. Moreover, as described above, Plaintiff’s prison medical records document a suicide 8 attempt in 1985, and document two multi-day suicide watches in prison after Plaintiff exhibited 9 suicidal and/or homicidal ideation. There thus is no basis for Dr. VanderPlate’s testimony that Plaintiff has never experienced episodes of decompression under stress. AR 52. Crucially, 11 United States District Court Northern District of California 10 Plaintiff’s records also document multiple diagnoses of “delusional disorder – persecutory type” 12 based on Plaintiff’s repeated discussions with therapists over several years about his belief that 13 evil spirits have been interfering with his life through the actions of relatives (before his 14 incarceration) and through the behavior of multiple cellmates. Contrary to Dr. VanderPlate’s 15 testimony, Plaintiff’s mention of evil spirits in March 2008 was not an isolated incident that “does 16 not reappear in the record” (AR 57), but part of a pattern that began before his incarceration and 17 continued for several years. Moreover, Dr. VanderPlate opined Plaintiff’s anxiety and depression 18 appeared to be “situational” and due to being imprisoned or dealing with legal matters (AR 50), 19 but the record establishes Plaintiff also experienced increased anxiety about his imminent release, 20 his financial condition, and his living situation. Dr. VanderPlate did not explain how Plaintiff’s 21 “situation” since his release from prison was likely to improve his symptoms; indeed, Plaintiff is a 22 registered sex offender who is currently homeless and living in his car, and cannot get a job due to 23 his criminal history. Thus, the major premises of Dr. VanderPlate’s opinions, to which the ALJ 24 accorded great weight, are not based on substantial evidence. 25 Second, the reasons Dr. VanderPlate articulated to reject Dr. Catlin’s evaluation are not 26 squarely supported by the record. Dr. VanderPlate opined Dr. Catlin’s conclusions did not accord 27 with the results of her mental status examination because she reported Plaintiff maintained good 28 15 eye contact, logical thought processes, and otherwise normal interaction throughout the evaluation. 2 But Dr. VanderPlate does not explain why an individual with “delusional disorder NOS 3 persecutory type,” or an individual who suffers from anxiety in crowds but not one-on-one, would 4 not maintain good eye contact or otherwise have a normal interaction with a single, non- 5 confrontational examiner. Dr. VanderPlate simply does not tie Plaintiff’s diagnoses to the conduct 6 Dr. Catlin observed, and does not explain why the conduct is inconsistent with the claimed 7 impairments. Indeed, based on the record, it does not seem inconsistent: one of Plaintiff’s treaters 8 in prison observed in June 2009 that Plaintiff had “linear thought process—other than delusional 9 thinking re: spirits.” AR 442. Dr. VanderPlate also opined Dr. Catlin’s conclusions relied 10 “heavily” on Plaintiff’s self-reported symptoms from the checklist testing, which encourage 11 United States District Court Northern District of California 1 exaggeration in a disability context. But he does not acknowledge that Dr. Catlin also based her 12 opinion on the clinical interview she conducted, or that she found Plaintiff to be a credible 13 historian and did not doubt his credibility. AR 743-50. Finally, Dr. VanderPlate questioned 14 Plaintiff’s report of tactile hallucinations, as these were extremely rare and generally associated 15 with drug or alcohol withdrawal. This is not a basis for discounting Dr. Catlin’s opinion: while 16 she reports that Plaintiff stated he suffered from tactile hallucinations, there is no indication she 17 based her conclusions on that information, and if so, to what extent she did. Dr. VanderPlate’s 18 reasons for discounting Dr. Catlin’s conclusions therefore are also not based on substantial 19 evidence. 20 Third, the ALJ reached his conclusion that Dr. VanderPlate’s opinion was consistent with 21 the record as a whole because the ALJ focused only on those records that supported Dr. 22 VanderPlate’s opinion and ignored records to the contrary. For example, the ALJ acknowledged 23 Plaintiff’s 2012 parole records contained intermittent subjective reports of poor concentration, but 24 found there was “scant objective support” in the record to corroborate Plaintiff’s reported 25 symptoms; he found no evidence of depression as of October 2012; and found Plaintiff’s parole 26 records indicated he denied depression or excessive anxiety in August 2012. AR 18 (citing Ex. 27 15F/4, 7, 12). But as described above, Plaintiff’s parole records repeatedly reference depression, 28 16 1 anxiety, and suicidal thoughts through 2013. See, e.g., AR 684, 704, 722, 752, 840. The ALJ 2 found that Plaintiff’s ability to attend classes, get As and Bs, and study in public places on a daily 3 basis undercut his allegations of severe anxiety (AR 18), and supported Dr. VanderPlate’s opinion 4 that Plaintiff could perform complex tasks. AR 18. But the ALJ did not explain how Plaintiff’s 5 ability to attend a total of 6 hours of class a week3, some of which were online, translates into an 6 ability to hold a regular job and interact with supervisors and co-workers frequently. Moreover, 7 there is no evidence Plaintiff studied in places where he was surrounded by people, as there are 8 numerous areas in a library where he could isolate himself. The ALJ found the fact Plaintiff had 9 frequently been observed behaving in a socially-appropriate manner during group therapy showed he needed no restrictions in interacting with co-workers or supervisors. AR 19. But the fact 11 United States District Court Northern District of California 10 Plaintiff attended weekly group therapy for ninety minutes as a condition of his parole does not 12 necessarily show his ability to function on a regular basis in a work setting. While the therapy 13 notes show many instances where Plaintiff participated productively in the group meetings, 14 Plaintiff’s facilitator also felt Plaintiff had “attitude as usual” during the meetings, and in fact had 15 Plaintiff “detained” during one such meeting because she found him belligerent and threatening. 16 The ALJ also did not reconcile the dozens of records showing Plaintiff had persecutory delusions 17 and perceived conflict with cellmates, prison therapists, the DA, co-workers and clinicians, with 18 the ALJ’s conclusion Plaintiff has the ability to get along with supervisors in a regular work- 19 setting. Fourth, the ALJ opined that claimant’s CDC records dated September 2007 to October 20 21 2009 (Ex. 20F), which were submitted post-hearing, also support Dr. VanderPlate’s opinion that 22 the underlying record does not support the alleged severity of the claimant’s symptoms. The ALJ 23 cites three records from this exhibit, in which Plaintiff denies suicidal or homicidal ideation (Ex. 24 20F/5), denies depression (Ex. 20F/6), and is diagnosed with a mood disorder in remission (Ex. 25 20F/21). This is cherry-picking, as several other records show otherwise: Exhibit 20F/31 relays 26 27 28 3 Defendant erroneously argues Plaintiff attended class six hours a day. Opp’n at 3. 17 1 that Plaintiff continues to have problems with his cellmate but does not want to discuss the issue 2 because he does not want to appear delusional, and also diagnoses Plaintiff with delusional 3 disorder, mood disorder in remission, and personality disorder (AR 785); Exhibit 20F/33 shows 4 that Plaintiff wanted to talk about ways to communicate about evil spirits (AR 787); Exhibit 5 20F/34 shows that he wanted to change clinicians, which his therapist noted was parallel to his 6 repeated pattern of wanting to change cellmates (AR 788); Exhibit 20F/36 again shows that 7 Plaintiff “continues to believe other inmates have spirits who are intentionally affecting him” and 8 lists diagnoses of delusional disorder NOS persecutory type and personality disorder (AR 790); 9 Exhibit 20F/37 mentions more discussions about evil spirits and reiterates the same diagnoses (AR 791); Exhibit 20F/40 mentions Plaintiff’s delusional thoughts about evil spirits; and Exhibit 11 United States District Court Northern District of California 10 20F/43 states Plaintiff is stable but “still has symptoms of paranoia with delusional thinking” (AR 12 797). The ALJ does not at any point address the repeated diagnoses of delusional disorder NOS— 13 persecutory type, and does not address the fact Plaintiff was in the care of CCCMS. 14 Finally, the ALJ concluded Dr. VanderPlate’s opinion was generally consistent with the 15 opinion of SSA consultant Elizabeth Covey. AR 19. The ALJ nonetheless rejected Dr. Covey’s 16 opinion to the extent she suggested limiting Plaintiff to superficial interaction with co-workers 17 because the record did not support such limitations. Id. In support, the ALJ provided as an 18 example the fact Plaintiff’s group therapy records “consistently describe him as being an active, 19 attending, and engaged participant in group therapy.” Id. The Court addressed this point above 20 and found it was not based on substantial evidence. 21 The Court thus finds that Dr. VanderPlate’s opinion is not supported by the record, that Dr. 22 VanderPlate’s reasons for rejecting Dr. Catlin’s opinion are not supported by the record, and that 23 the ALJ’s weighing of these two medical opinions in not based on substantial evidence. The ALJ 24 also did not develop the record regarding Plaintiff’s delusional disorder—persecutory type, a 25 diagnosis that appeared frequently throughout his CDCR records, but which Dr. VanderPlate did 26 not evaluate because he erroneously believed the diagnosis was based on a single incident. 27 28 18 1 CONCLUSION 2 For the reasons stated above, the Court GRANTS Plaintiff’s Motion for Summary 3 Judgment, DENIES Defendant’s Cross-Motion for Summary Judgment, and REVERSES the 4 ALJ’s decision. 5 In reviewing a Social Security Commissioner’s decision, a court may remand the case 6 “either for additional evidence and findings or to award benefits.” Smolen v. Chater, 80 F.3d 7 1273, 1292 (9th Cir. 1996). Typically, when a court reverses an ALJ’s decision, “the proper 8 course, except in rare circumstances, is to remand to the agency for additional investigation or 9 explanation.” Benecke v. Barnhart, 379 F.3d 587, 595 (9th Cir. 2004) (citations omitted). Moreover, “[r]emand for further proceedings is appropriate where there are outstanding issues that 11 United States District Court Northern District of California 10 must be resolved before a disability determination can be made, and it is not clear from the record 12 that the ALJ would be required to find the claimant disabled if all the evidence were properly 13 evaluated.” Taylor v. Comm’r of Soc. Sec., 659 F.3d 1228, 1235 (9th Cir. 2011) (reversing and 14 remanding for the consideration of new evidence instead of awarding benefits). 15 The case is REMANDED for further administrative proceedings in accordance with this 16 Order. The Court concludes remand is warranted so the ALJ can properly evaluate the evidence 17 of record and develop the record, including but not limited to the reasons for Plaintiff’s mental 18 illness classification in prison and his diagnoses of delusional disorder NOS persecutory type. 19 While this reevaluation may not cause the ALJ to conclude Plaintiff meets or equals a disability 20 listing, it may lead to a revision of Plaintiff’s RFC; accordingly, additional testimony from a 21 vocational expert may be required. 22 23 24 25 IT IS SO ORDERED. Dated: June 28, 2017 ______________________________________ MARIA-ELENA JAMES United States Magistrate Judge 26 27 28 19

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