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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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RONALD DAVID RIVERS,

Case No. 16-cv-02399-MEJ

Plaintiff,
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ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
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NANCY A. BERRYHILL,

Re: Dkt. Nos. 19, 24

Defendant.

United States District Court
Northern District of California

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INTRODUCTION

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Plaintiff Ronald David Rivers (“Plaintiff”) brings this action pursuant to 42 U.S.C. §

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405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill (“Defendant”),

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the Acting Commissioner of Social Security, denying Plaintiff’s claim for disability benefits.

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Pending before the Court are the parties’ cross-motions for summary judgment. Mot., Dkt. No.

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19; Cross-Mot., Dkt. No. 24. Pursuant to Civil Local Rule 16-5, the motions have been submitted

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on the papers without oral argument. Having carefully reviewed the parties’ positions, the

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Administrative Record (“AR”), and relevant legal authority, the Court hereby GRANTS

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Plaintiff’s motion and DENIES Defendant’s cross-motion for the reasons set forth below.
BACKGROUND

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Plaintiff applied for Social Security disability insurance benefits (“DIB”) and

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Supplemental Security Income (“SSI”). Plaintiff contended he was disabled by mental

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impairments he developed as a result of being falsely accused of, and incarcerated for, crimes he

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did not commit. See Mot. The Social Security Administration (“SSA”) found Plaintiff’s mental

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impairments were not sufficiently severe so to preclude his ability to work, and denied his

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applications.

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SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

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On August 24, 2012, Plaintiff applied for DIB and SSI, alleging disability beginning on

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July 11, 2006. AR 224-227 (DIB), 228-236 (SSI). On January 11, 2013, the Social Security

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Administration (“SSA”) denied Plaintiff’s claim, finding that Plaintiff did not qualify for disability

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benefits. AR 91 (DIB), 92 (SSI), 67-78 (SSI Explanation), 79-90 (DIB Explanation). Plaintiff

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subsequently filed requests for reconsideration, which were denied on July 30, 2013. AR 130-

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141. On September 13, 2013, Plaintiff requested a hearing before an Administrative Law Judge

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(“ALJ”). AR 145-147. ALJ Michael Blume conducted a hearing on September 30, 2014. AR 27-

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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.

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A.

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Plaintiff’s Testimony
Plaintiff has a Bachelor of Science degree in telecommunications; he worked in this field

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as a system administrator for 11 years. AR 30, 32. He was incarcerated in 2006 and paroled in

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2012. AR 31.

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When asked why he could not work, Plaintiff testified: “I am having issues getting a job. I

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believe that my criminal history has something to do with it . . . . I am thinking if I can get in

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there then I should be okay. But getting in there has been an issue. I just – they don’t like the

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criminal history.” AR 33. The ALJ asked Plaintiff, “So as far as you are concerned you can

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work?” Id. Plaintiff replied: “Well, yeah. I mean, I have issues with my anxiety, but I am

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thinking that I could . . . get in there and try.” Id. Upon questioning by his lawyer, Plaintiff

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clarified that it would be “useless to try to get along with” supervisors “because they are out to . . .

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do their job, which is to micro manage and I just get nervous and anxious and have the depression

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and I have had it with supervisors before.” AR 48.

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Plaintiff enrolled in school for paralegal studies in 2013. AR 31-32. He spends

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approximately six hours a week in class. AR 32. He is doing well, earning As and Bs. Id. There

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are about 20 people in his class; he takes the information away from class then works on it and

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brings it back. AR 44. He pays for his studies with a government grant and a school loan. AR

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31. He testified that he can be around others at school if it is not for a long period of time, but he

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“go[es] there and [he] bear[s] it.” AR 33. He also takes online classes where he does not have to

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interact with people. AR 33. He “definitely” works best in a setting where he can be alone. Id.

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In addition to his classwork, Plaintiff goes to the library or learning center to study; he also does

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homework. AR 37. He prefers to go shopping for groceries when the store first opens and no one

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is there. AR 43. He takes the bus but gets anxious because there are people there. Id. His anxiety

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and nervousness are worse when the bus is crowded. AR 44.

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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

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him to think: “I need to be able to think and so every time I have taken their medicine then it puts

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me in a weird cycle to where everything is different.” AR 35. He refused mental health

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medication while in prison because he did not trust the people giving it to him: “I don’t know what

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they were giving me or for what reason, what it was doing to me, and I needed to stay focused.”

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AR 42. He believed prison authorities were trying to blur his thinking or keep him from thinking

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straight so that they could control him. AR 42. Since he was paroled in 2012, Plaintiff sees

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doctors for his anxiety. AR 35-36. He sees Dr. Garcia, a psychiatrist, every other month; he also

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sees Dr. Girtman, a psychologist, once a month. Id.

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Plaintiff has acquaintances at school, but no friends he trusts and no family in the area. AR

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38. He testified that he has trust issues because he has been surrounded by people who are out to

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get him: the DA, the people with whom he was incarcerated, and now the parole staff. AR 40. He

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believes the DA and his cell mates were being influenced by evil spirits. AR 40-41. At the time

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of the hearing, he had been homeless and living in his car for two years. AR 30. He does not

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sleep well at night: he is 6’1” and 234 pounds and his car is “really small”; in addition, he is

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worried about his safety. AR 30, 38. He receives general assistance. AR 31. He takes Benadryl

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“now and then” for sleep. AR 34.

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Plaintiff attempted suicide in 1985. AR 39. When stressed, he experiences visual
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distortions and auditory hallucinations; these occur two to three times a week and can last into the

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next day. AR 41. Since he was paroled, Plaintiff has gotten into verbal conflicts with a classmate,

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a teacher, and therapists. AR 44-48.

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B.

Medical Evidence

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In September 2007, Plaintiff reported to a prison psychologist that he attempted suicide in

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1985, but explained how therapy after the incident helped him feel “resolved.” AR 547; AR 686

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(Plaintiff put a gun to his head and was hospitalized for four days). He stated he did not want

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mental health services, and that he would seek help if he got depressed and/or suicidal; the

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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

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case worker that he only was classified as “3C” because he wanted to take anger and stress

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management classes that were only available to inmates with mental health classifications. AR

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381, 414, 417-19, 716.
Plaintiff was placed on suicide watch in December 2007 after reporting he believed his

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cellmate was possessed by evil spirits and was “messing with his head.” See AR 374 (admitted in

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December 2007 to homicidal intent: wants to kill cellmate because he is “stupid”); AR 419 (in

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February 2008, reporting delusional episode with prior cellmate “a few months ago”; reporting

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current cellmate also “messing with his head”); AR 462 (on watch for 7 days in December 2007;

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diagnosed “psychosis [not otherwise specified (‘NOS’)]” and “delusions”). This incident was not

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the first time Plaintiff believed people were possessed by evil spirits: he explained to a therapist in

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January 2008 that he believed his sister-in-law communicated with evil spirits, poisoned his food

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and jinxed his ability to get a job. AR 414, 420, 458. In May 2008, Plaintiff was again placed on

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watch for suicidal thoughts after he asserted his cellmate’s evil spirits gave him bad dreams. AR

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483, 488, 555, 582. In June 2008, Plaintiff continued to discuss witchcraft and his doctor noted

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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.
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this suggested that Plaintiff experienced delusions of the persecutory type and a “pattern of

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judging this way anyone / people he does not trust.” AR 458. In August 2008, Dr. Escoffon noted

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that Plaintiff did not want to be “labeled” due to past delusional incidents, which Plaintiff said

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were just “defenses.” AR 450. Plaintiff continued to discuss evil spirits with his mental health

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providers thereafter. See, e.g., AR 446 (in November 2008, Dr. Escoffon wrote that Plaintiff was

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currently stable without medication, but that he “still has symptoms of paranoia with delusional

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thinking” but is able to reflect and acknowledge that “his thought might not reflect what is actually

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true”); AR 443 (in March 2009, Dr. Escoffon noted that Plaintiff had questions about evil spirits

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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

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process—other than delusional thinking re: sprits”); AR 552 (in August 2009, wanted to talk about

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ways to communicate with evil spirits). He continued to have problems with cellmates and

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wanted to change clinicians. See AR 550 (“He’s having problems w/ cellie similar to previous

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cellies but does not want his beliefs to seem ‘delusional’ and thus guardedly said he would not talk

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about it.”); AR 553 (in June 2009, Plaintiff “was wanting to change clinicians. Explored reasons

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why & discussion parallel to his repeated pattern of wanting to change cellies.”). Dr. Escoffon

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and other clinicians frequently noted that Plaintiff was oriented, was well-groomed, denied

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suicidal or homicidal ideation, and was generally pleasant and cooperative. See passim. In

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January 2008, Dr. Landry noted no evidence of thought disorder, that Plaintiff was oriented to

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time and space, and well groomed; he also observed Plaintiff had “at least normal intelligence. BS

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in communication. Likely to underrepresent symptoms.” AR 594.

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Plaintiff’s prison records include diagnoses for “delusional disorder” in January 2008 (AR

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592), “mood disorder” in May 2008 (AR 385), “psychosis NOS” in December 2007 (AR 408),

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“symptoms of paranoia with delusional thinking” in November 2008 (AR 562), “delusional

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disorder NOS persecutory type” in January 2009 (AR 444), “psychosis NOS (delusional

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disorder)” in June 2009 (AR 483), “delusional disorder NOS persecutory type” and “personality

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disorder NOS” in June 2009 (AR 555), personality disorder NOS and delusional disorder NOS in

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October 2009 (AR 550), depression, “c/o” insomnia and anxiety in May 2012 (AR 664).

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Throughout his time in prison, he declined mental health medication, and his treaters agreed that

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medications were not indicated. See passim.

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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

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messing with his legal papers, which were all in his cell; he wanted something to calm himself but

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otherwise did not want or need mental health treatment; he was found to be oriented to time and

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space, clear and coherent. AR 647. In May 2012, Plaintiff reported he could not sleep because he

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was having anxiety about his impending release, where he would go, what he would do, where he

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would live, and how he could get money. AR 663 (“I feel very anxious about getting out in a few

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months.”).

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After being paroled, Plaintiff was assigned to attend weekly group therapy and monthly

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individual therapy. AR 838. Plaintiff expressed interest in seeing a psychiatrist for anxiety and

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depression. AR 684. He expressed a “logical plan to redo his resume and apply for work. . . Is

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considering seeking work as a paralegal, was pro per in 2 of his trials.” AR 692. In December

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2012, his clinician reported Plaintiff “has the attitude of the victim of the system” but was

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compliant with parole conditions; he was still anxious and his mood was down despite taking

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Prozac, his depression was partly improved, but he still had depressed mood and anxiety. AR 722.

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In February 2013, his case worker wrote: “Still has chronic depression but seems more upbeat

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today.” AR 706. Plaintiff reported thoughts of suicide to his state parole therapist, but he did not

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have a specific plan to end his life. See AR 840 (12/11/13); AR 752 (2/27/13). One of his

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clinicians described Plaintiff as having “an attitude as usual” in group therapy and wrote he

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participated “minimal[ly]” on that day. AR 705. In March 2013, he was briefly placed in custody

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after threatening his clinician. AR 704-06 (Plaintiff got “really upset” was belligerent and

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intimidating, so counselor reported incident). He was reported to feel victimized by parole, had

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anxiety, and needed a therapist to resolve his issues. AR 704.

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He told his counselor that he applied for SSI because he could not find a job (AR 707); he
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believed he would be able to obtain benefits because he had been in prison for a long time and had

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a history of depression (AR 708). His clinician opined Plaintiff did not “seem willing to work and

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he would rather pretend to have a mental illness to collect SSI,” based on the fact he did not follow

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her suggestion to call the Port of Oakland to apply for a job. AR 707. He also stopped working

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for Caltrans because crew members did not want him around; he decided to avoid conflicts and

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quit. AR 708.

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In July 2013, SSA consultant Elizabeth Covey, Psy. D., reviewed Plaintiff’s records and

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concluded his psychiatric symptoms were mild. AR 100-105. She acknowledged Plaintiff’s

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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

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paroled. AR 101. She also noted he had no problems with activities of daily living, but that

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Plaintiff indicated he had a poor response to stress. Id. She opined the evidence in the file showed

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no more than mild limitations in work functioning due to mood disorder. Id. Having reviewed his

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parole records and CDCR records, and given Plaintiff’s overall history and some documentation

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of psychological symptoms including irritability, Covey suggested it was reasonable to assess

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moderate social limitations; she found Plaintiff appeared capable of complex work in a suggested

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limited public contact environment. Id. In terms of social limitations, she opined Plaintiff’s

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ability to do the following was moderately limited: he could interact appropriately with the general

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public; ask simple questions or request assistance; accept instructions and respond appropriately to

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criticism from supervisors; get along with coworkers or peers without distracting them or

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exhibiting behavioral extremes; and respond appropriately to changes in work settings. AR 103.

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She opined Plaintiff could interact appropriately with supervisors, interact briefly and superficially

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with coworkers, and could only have limited public contact. Id.

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In August 2013, Plaintiff was evaluated by Dr. Laura Jean Catlin, Psy. D., at the request of

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his attorney in connection with SSA proceedings. AR 743-750. She conducted a clinical

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interview, and administered a Beck Depression Inventory (“BDI”), Burns Anxiety Scales, and

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Brief Symptom Inventory. AR 744. Dr. Catlin opined Plaintiff “appeared to be a credible

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historian.” Id. She noted that Plaintiff’s mood was depressed and anxious and his affect flat and

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restricted; he reported some suicidal thoughts but had no plan or intent to follow through on them;

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he reported having tactile hallucinations for the past year; was anxious about his current financial

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situation and depressed because he felt wrongly accused; his insight and judgment were impaired;

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his memory and concentration poor. AR 747. Plaintiff scored 37 on the BDI, which indicated

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“severe depression.” Id. The results of his Burns Anxiety test also showed he was experiencing

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high levels of anxiety. Id. Dr. Catlin opined that Plaintiff was “experiencing high levels of

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psychological distress. He [was] experiencing high levels of anxiety, interpersonal sensitivity, and

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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

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results, and any available accompanying documents.” Id. She diagnosed major depressive

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disorder—severe; generalized anxiety disorder; social anxiety; and PTSD. Id. She opined

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Plaintiff’s ability to work was severely impaired, including his ability to maintain attention for a

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two hour segment, to work in coordination with or in proximity to others, to work a complete

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workday and workweek without interruptions from his symptoms, to maintain adequate pace and

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persistence to perform complex or detailed basis, to adapt to changes in job routine, to withstand

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the stress of a routine workday, to accept instruction and respond appropriately to criticism from

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supervisors, to get along with co-workers and peers without unduly distracting them or exhibiting

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behavioral extremes, his ability to interact appropriately with co-workers, supervisors or the

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public, and his ability to use public transportation. AR 749-50. She further opined Plaintiff had

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marked difficulties in maintaining social functioning and that his deficiencies of concentration,

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persistence and pace were in the extreme range. AR 750.

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C.

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Medical Expert Testimony
Dr. Calvin VanderPlate did not examine Plaintiff. He reviewed Plaintiff’s records and

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testified the diagnoses most supported by the record were mood disorder NOS, personality

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disorder NOS, and anxiety disorder NOS. AR 50. He opined the treatment records suggested

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Plaintiff’s depression appeared relatively mild, and that anxiety was “not really” mentioned in the

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record. Id. He opined the anxiety and depression appeared to be situational and frequently related

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to present circumstances or legal issues. Id.

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Dr. VanderPlate opined that Dr. Catlin’s conclusions were “quite at odds with the rest of

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the record.” AR 50-51. He suggested that the severity of Dr. Catlin’s assessment “was based on

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the checklist testing” she used: “the examiner gave a number of paper and pencil tests and they are

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basically symptom checklists. They are not really tests per s[e]. That is sort of a misnomer. It is

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a list of symptoms and you either circle or check symptoms or you rate yourself in terms of the

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severity of each symptom that is present . . . . [Y]ou can best think of them as a structured

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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

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credence on those assessments.” AR 51-52. Dr. VanderPlate found that “frankly there are no

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examples in the record of decompensation under stress. There is no psych hospitalizations and

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the record appears fairly consistent . . . demonstrating moderate or low – demonstrating mild to

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low moderate symptoms.” AR 52 (emphasis added).

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Dr. VanderPlate opined that Plaintiff could perform complex work, ideally with no public

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contact but that he probably is capable of occasional public contact; Dr. VanderPlate imposed no

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limitation on Plaintiff’s contact with supervisors and coworkers, but opined Plaintiff could do well

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with infrequent contact with them; he also found maybe mild to possibly low moderate limitations

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in terms of pace, concentration and persistence. AR 52-54. He clarified that Plaintiff may have

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“intermittent problems” dealing with supervisors if “excessive demands” were placed on him: “[i]t

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is the intensity of the interaction and what he perceives as how they are relating to him that creates

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the problem.” AR 55. Regular work demands and routine evaluations and monitoring would not

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likely cause a conflict. AR 56. Dr. VanderPlate testified that there “really is no indication in the

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record of any ongoing suspiciousness or distrust or ongoing conflicts.” Id. (emphasis added).

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Dr. VanderPlate acknowledged Plaintiff’s 2009 diagnosis of delusional disorder, persecutory type

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based on “when he was talking about the spirits making him have bad dreams and that is not

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repeated again in the record. That is a onetime event. You know, frankly, the spirits causing

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the bad dreams is rather idiosyncratic and peculiar and quite atypical as a delusion, and a paranoid

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delusion . . . . [W]e do know that it does not reappear in the record and therefore based on

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the written record, if it is there it is well controlled or it is not an issue.” AR 57 (emphasis

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added).

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D.

The ALJ’s Findings
The regulations promulgated by the Commissioner of Social Security provide for a five-

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step sequential analysis to determine whether a Social Security claimant is disabled.2 20 C.F.R. §

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404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or

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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

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inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r

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Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the

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Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v.

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Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

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The ALJ must first determine whether the claimant is performing “substantial gainful

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activity,” which would mandate that the claimant be found not disabled regardless of medical

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condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ

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determined that Plaintiff had not performed substantial gainful activity since July 11, 2006. AR

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At step two, the ALJ must determine, based on medical findings, whether the claimant has

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a “severe” impairment or combination of impairments as defined by the Social Security Act. 20

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C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20

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C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe

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impairments: mood disorder NOS, anxiety disorder NOS, and personality disorder NOS. AR 14-

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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).
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If the ALJ determines that the claimant has a severe impairment, the process proceeds to

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the third step, where the ALJ must determine whether the claimant has an impairment or

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combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt.

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P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s

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impairment either meets the listed criteria for the diagnosis or is medically equivalent to the

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criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age,

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education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff

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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

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Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work

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setting, despite mental or physical limitations caused by impairments or related symptoms. 20

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C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the

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claimant’s medically determinable impairments, including the medically determinable

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impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff

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had the RFC to perform a full range of work at all exertional levels; was capable of performing

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complex tasks; was limited to frequent but not constant contact with co-workers and supervisors,

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and with no public contact. AR 16.

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The fourth step of the evaluation process requires that the ALJ determine whether the

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claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv);

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404.1520(f). Past relevant work is work performed within the past 15 years that was substantial

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gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. §

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404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not

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disabled. 20 C.F.R. § 404.1520(a)(4) (iv). Here, the ALJ determined that Plaintiff could perform

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past relevant work as a systems analyst. AR 19.

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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
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that he is also able to perform.”). In the fifth step of the analysis, the burden shifts to the

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Commissioner to prove that there are other jobs existing in significant numbers in the national

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economy which the claimant can perform consistent with the claimant’s RFC, age, education, and

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work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this

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burden by relying on the testimony of a vocational expert or by reference to the Medical-

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Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d

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1111, 1114 (9th Cir. 2006). Here, based on the testimony of a vocational expert, Plaintiff’s age,

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education, work experience, and RFC, the ALJ determined Plaintiff could perform jobs as a

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cleaner or a machine feeder. AR 20.

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E.

ALJ’s Decision and Plaintiff’s Appeal
On February 20, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was

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not disabled. AR 12-21. This decision became final when the Appeals Council declined to review

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it on April 18, 2016. AR 1. Having exhausted all administrative remedies, Plaintiff commenced

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this action for judicial review pursuant to 42 U.S.C. § 405(g). On February 21, 2017, Plaintiff

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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

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The issue presented on appeal is whether the ALJ weighed the medical evidence correctly;

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specifically, whether the ALJ erred in giving great weight to the opinion of Dr. VanderPlate and

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no weight to that of Dr. Catlin. See Mot.

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A.

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Standards for Evaluating Medical Opinions
Physicians may render medical opinions, or they may “render opinions on the ultimate

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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.

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2007) (citing 20 C.F.R. § 404.1527(d)(1)-(2)).

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In order to reject the “uncontradicted opinion of a treating or examining doctor, an ALJ

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must state clear and convincing reasons that are supported by substantial evidence.” Ryan v.

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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

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“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

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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

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and conscientiously probe into, inquire of, and explore for all relevant facts.” Widmark v.

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Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006) (citation and quotation marks omitted); Smolen v.

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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

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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)).

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B.

19

The ALJ’s Evaluation of Medical Evidence
The ALJ gave “great weight” to Dr. VanderPlate’s opinion, holding it was consistent with

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Plaintiff’s testimony and the records indicating Plaintiff was observed to be well groomed and

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oriented with organized speech and no evidence of depression as of October 2012. AR 18. The

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ALJ further concurred with Dr. VanderPlate’s assessment of Dr. Catlin’s psychological evaluation

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as being “at odds with the remaining record” and thus gave her evaluation “no weight.” AR 18-

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19. Instead of giving any weight to the opinion of the psychologist who examined and

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interviewed Plaintiff, the ALJ adopted Dr. VanderPlate’s analysis, which he found well-reasoned

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and supported by the longitudinal medical evidence. AR 19. The Court finds the ALJ’s

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evaluation is not based on substantial evidence.

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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,

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United States District Court
Northern District of California

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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.

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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

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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

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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.

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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

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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,

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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

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United States District Court
Northern District of California

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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.

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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

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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

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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.

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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

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