Herrera v. Astrue, CIV S-10-1317 GGH

Decision Date09 June 2011
Docket NumberCIV S-10-1317 GGH
PartiesANTHONY M. HERRERA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
CourtU.S. District Court — Eastern District of California

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is denied, and the Commissioner's Motion for Summary Judgment is granted. The Clerk is directed to enter judgment for the Commissioner.


Plaintiff, born August 5, 1956, applied for disability benefits on October 24, 2006. (Tr. at 106, 111.) Plaintiff alleged he was unable to work since September 27, 2006, due to personality disorders, substance addiction/dependence disorders, equilibrium problems, moodswings, plastic jaw, anger issues, behavioral problems, forgetfulness, and plastic knee caps in both knees. (Tr. at 106, 64, 72, 80.) In a decision dated July 25, 2008, ALJ Daniel Heely determined that plaintiff was not disabled. The ALJ made the following findings:1

1. The claimant met the insured status requirements of the Social Security Act through June 30, 2006.
2. The claimant has not engaged in substantial gainful activity since October 1, 2005, the alleged onset date (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and 416.971 et seq.).
3. The claimant has the following severe impairment: antisocial personality disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following exertional limitations: he can perform only simple, routine, repetitive tasks; he can have only occasional contact with the general public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on August 5, 1956 and was 49 years old, which is defined as a younger individual age 45-49, on the alleged disability onset date. The claimant attained age 50, which is defined as approaching advanced age, on August 4, 2006 (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and 416.966).
11. The claimant has not been under a disability, as defined in the Social Security Act, from October 1, 2005 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 14-21.)


Plaintiff has raised the following issues: A. Whether the ALJ Improperly Rejected the Examining Psychologist's Opinion Without Articulating a Legitimate Basis; B. Whether the Appeals Council Failed to Properly Evaluate Dr. Forehand's Treating PsychiatricOpinion; C. Whether the ALJ Improperly Rejected Plaintiff's and Lay Witness Testimony; and D. Whether the ALJ Failed to Credit the Vocational Expert's Testimony in Response to a Hypothetical Which Accurately Reflected Plaintiff's Functional Limitations.

This case involves plaintiff's alleged mental health issues only.


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

A. Rejection of Examining Psychologist's Opinion

Plaintiff contends that the ALJ rejected the November 29, 2006 opinion of Dr. Morse (actually Deborah Von Bolschwing, Ph.D) without a legitimate basis.

The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir.1990); Gallant v. Heckler, 753 F.2d 1450 (9th Cir.1984). As is the case with the opinion of a treating physician, the Commissioner must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining physician. . . . And like the opinion of a treating doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record.

Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996).

This case centers around plaintiff's mental impairment, antisocial personality disorder, as there are no physical ailments at issue. The mental health records consist of plaintiff's California Department of Corrections ("CDC") records from 2000 through 2005, a mental health evaluation by Deborah Von Bolschwing, Ph.D.,2 a mental RFC assessment by Dr. Middleton, an SSA state agency psychologist, and a report by Dr. Forehand, M.D., submitted only to the Appeals Council. Not having this last report before him, the ALJ relied primarily on the non-examining report of the state agency psychologist who in turn had not given Dr. Von Bolschwing great weight.

Dr. Middleton assessed plaintiff's residual functional capacity on December 19, 2006, diagnosing plaintiff with anti-social personality disorder. (Tr. at 204.) He found that plaintiff was "capable of understanding, remembering and carrying out simple and less complex tasks. He could interact appropriately with supervisors but needed reduced coworker and public contact. There was no limitation in maintaining attention, persistence and pace, and plaintiff could adapt to changes in the work setting. This state agency psychologist did not give great weight to Dr. Von Bolschwing's report "as not supported by normal exam, with lack of corroborating evidence." (Tr. at 198.)

Dr. Von Bolschwing's report diagnosed plaintiff with heroin dependence in sustained full remission (Axis I) and antisocial personality disorder (Axis II). (Id. at 194.) This diagnosis was based on plaintiff's view that violence was the way for him to survive, having spent most of his adult life in prison. (Id. at 195.) The psychological assistant had no medical records for review but instead relied on plaintiff for all information. She did, however, providethe following caveat to her exam: "[I]t should be noted that the present evaluation was limited in scope. It was based on only one session of client contact, in a structured environment, with pre-authorized tests. Background and correlative information was considered to be limited. With these restrictions in mind, the following clinical and functional impressions are offered." (Id. at 195.)

Various tests were administered to plaintiff, including the WAIS-III, WMS-III, Trail Making Test, and the Bender-Gestalt Test-II, all of which yielded normal results. (Id. at 193-94.) Plaintiff "appeared to" be able to understand, remember, and carry out simple one or two step instructions, as well as complex instructions. "He may have moderate to marked difficulty relating to and interacting with supervisors and co-workers and the public in general due to personality volatility, anger and lack of behavioral control." He "appear[ed]" to be incapable of functioning well under the stress of work. He "appear[ed] to be unable to function satisfactorily during an eight-hour work day and five day work week." (Id. at 195.) Dr. Von Bolschwing used the aforementioned conditional and qualifying words as quoted to describe plaintiff's functional capacity, which fails to instill confidence in the reader of the report. Furthermore, the fact that this evaluator was a Ph.D. but also a psychological assistant is confusing. The subject area of her doctorate degree is not clear. If Dr. Von Bolschwing was not a licensed psychologist, her opinion would be entitled to lesser weight, despite the fact that she was supervised by a licensed psychologist, Dr. Morse.3 See also Armstrong v. Astrue, 2010 WL 1643238, n. 5 (C.D. Cal. 2010) (relying on state agency psychiatrist who opined that there had been no real psychological testing because evaluator was not licensed psychologist but onlypsychological assistant).

The ALJ was correct in relying on Dr. Middleton's opinion that the aforementioned report was not supported by normal examination results and the lack of corroborating evidence. (Tr. at 20.) First, Dr. Von Bolschwing had no medical records at her disposal for review, but...

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