1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 GREGORY LEWIS BELVIN, Case No. 4:18-cv-02637-KAW

8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 9 v. JUDGMENT AND DENYING DEFENDANT’S CROSS-MOTION FOR 10 NANCY A. BERRYHILL, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 14, 20

12 13 Plaintiff Gregory Lewis Belvin seeks judicial review, pursuant to

(g), of 14 the Commissioner’s final decision, and the remand of this case for an immediate award of 15 benefits. Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 16 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 17 the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and 18 DENIES Defendant’s cross-motion for summary judgment. 19 I. BACKGROUND 20 On May 22, 2014, Plaintiff Gregory Belvin filed a Title XVI application for Supplemental 21 Security Income (“SSI”) Benefits. Administrative Record (“AR”) 25, 200. Plaintiff alleges a 22 disability onset date of February 1, 2014. AR 25. Plaintiff’s claim was initially denied on August 23 11, 2014, and upon reconsideration on December 18, 2014. AR 101, 108. Plaintiff filed a Request 24 for Hearing on February 18, 2015. AR 115-17. A hearing was held before Administrative Law 25 Judge Richard P. Laverdure on December 7, 2016. AR 25-36. 26 Plaintiff is 25 years old. AR 35. He was born and largely raised in Oakland. AR 673. 27 Plaintiff’s parents are divorced, and he witnessed domestic violence in the household prior to their 1 Coast Children’s Clinic indicate that he was placed in protective custody by police in 2010 due to 2 an altercation with his mother and allegations that he was being abused. AR 835, 843. 3 Plaintiff has a family history of mental illness and substance abuse. AR 428, 474. Plaintiff 4 first attempted suicide at age 12 by ingesting a bottle of Advil. AR 430, 469, 688. As a teenager, 5 he exhibited difficulties with affect regulation, problems controlling his anger, problematic social 6 behavior, impulsivity, irritability, and poor insight and judgment. AR 835, 842. Despite poor 7 academic performance in high school, Plaintiff excelled in debate and obtained a partial debate 8 scholarship to University of Western Georgia. AR 428, 468, 673, 852. 9 Plaintiff suffered a psychotic break during his first semester of college. AR 428-30, 468. 10 He told college counselors that he was suffering from chronic insomnia and anxiety, feared that 11 his room was being broken into, and felt like he was being watched, like in The Hunger Games or 12 The Truman Show. AR 428. Counselors noted he exhibited blocking, loose associations, 13 pressured speech, agitated affect, and was not adapting socially. AR 428-30. Campus police also 14 got involved after Plaintiff wrote a conspiracy-laden paper containing “terrorist-type language.” 15 AR 468. After failing all but one of his classes, Plaintiff returned to the Bay Area where his father 16 reported that he was a “totally different person” who neglected his hygiene, got a tattoo in the 17 middle of his forehead, always seemed to be in a “daze,” and was unable to focus or function. AR 18 691. 19 The subsequent years involved numerous emergency psychiatric hospitalizations, 20 including: March 2013 at Alta Bates Hospital for acute psychosis with delusions (AR 457-477); 21 inpatient treatment July 26-29, 2013 at Kaiser and John George Psychiatric Hospital for psychosis 22 and ongoing suicidal ideation (AR 652-655; 685); inpatient treatment September 9-13, 2013 at 23 Alta Bates for auditory hallucinations telling him to hurt himself (AR 480-491); an admission in 24 April 2014 at Alta Bates for severe delusions with doctors determining that he posed a threat to 25 others if placed at a lower level of care (AR 516); inpatient hospitalization May 1-9, 2014 at John 26 George for an intentional overdose on the psychiatric medications Zyprexa and Ativan due to 27 hopelessness and racing thoughts (AR 614-625); two admissions at John George in December 1 April 14-19, 2016 for acute psychosis and paranoia (AR 732-755); and another admission less 2 than a month later for ongoing psychosis (AR 768-775). During most of these hospitalizations, 3 doctors noted that Plaintiff had not been compliant with his psychiatric medications, which have 4 included Zyprexa, Risperdal, Ativan, and Depakote. AR 480, 491, 501, 615. Toxicology reports 5 during these hospitalizations also noted the presence of THC, and sometimes other substances, 6 including cocaine and methamphetamine. AR 458-59, 482, 521, 615, 739, 893. 7 Doctors primarily diagnosed Plaintiff with Schizoaffective Disorder, although he has also 8 been diagnosed with other schizophrenia-spectrum disorders, including undifferentiated 9 schizophrenia and Psychosis NOS. AR 475, 491, 513, 515, 574, 614, 679, 696, 714, 720, 746, 10 826, 856, 862, 1042. In addition, doctors have diagnosed him with polysubstance disorders, 11 including cannabis abuse, cannabis dependence, and amphetamine-type substance disorder. AR 12 491, 513, 515, 655, 862, 919. Beyond emergency hospitalization, Plaintiff also sought outpatient 13 treatment at La Cheim Behavioral Health and Lifelong Clinic. AR 558-81. From January 11 to 14 February 10, 2016, he underwent residential psychiatric treatment at Woodroe Place, where he 15 received intensive treatment and medication monitoring. AR 789-832, 861. The next month, he 16 was admitted to Turning Point, a transitional living facility for young adults with mental health 17 issues, where he received triage support from a nurse practitioner, therapist, and residential 18 counselor. AR 1044, 1055. In May 2016, Plaintiff was placed on a regimen of Cogentin, 19 Zyprexa, and a monthly dose of Invega Sustenna, a long-lasting injectable anti-psychotic. AR 863. 20 At the hearing, Plaintiff testified that doctors had recently replaced the monthly injections with a 21 three-month dosage, which he described as a “more intense shot.” AR 53. 22 Plaintiff’s earnings history is limited, with his most recent earnings report indicating that 23 the most he had made in any one year was a total of $4327.88 from various temp agencies. AR 24 220-21, 246-47. Plaintiff testified at the hearing that he had been employed full time for two 25 months as a municipal sewer inspector for “AIMS PIWC” and moonlighted as a warehouse 26 worker for Macy’s. AR 48-49. However, the new hire wage information report generated by 27 Social Security on December 28, 2016 only reflected $1441 in third-quarter earnings from 1 In a decision dated January 11, 2017, the ALJ found that Plaintiff was not disabled. AR 25- 2 36. On March 2, 2017, Plaintiff requested that the Appeals Council review the ALJ’s decision. 3 AR 197. The ALJ’s decision became the final decision of the Commissioner when the Appeals 4 Council denied review on March 6, 2018. AR 1-6. Plaintiff now seeks judicial review of the 5 Commissioner’s decision pursuant to

(g). 6 On October 10, 2018, Plaintiff filed his motion for summary judgment. (Pl.’s Mot., Dkt. 7 No. 14.). On December 26, 2018, Defendant filed its opposition and cross-motion for summary 8 judgment. (Def.’s Opp’n, Dkt. No. 20.) On February 5, 2019, Plaintiff filed a reply. (Pl.’s 9 Reply, Dkt. No. 23.) 10 II. LEGAL STANDARD 11 A court may reverse the Commissioner's denial of disability benefits only when the 12 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 13 evidence in the record as a whole.

(g); Tackett v. Apfel,

, 1097 14 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 15 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 16 support a conclusion.” Tackett,

; Smolen v. Chater,

(9th 17 Cir. 1996). In determining whether the Commissioner's findings are supported by substantial 18 evidence, the Court must consider the evidence as a whole, weighing both the evidence that 19 supports and the evidence that detracts from the Commissioner's conclusion.

“Where 20 evidence is susceptible to more than one rational interpretation, the ALJ's decision should be 21 upheld.” Ryan v. Comm'r of Soc. Sec.,

(9th Cir. 2008). 22 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 23 according to a five-step sequential evaluation. Reddick v. Chater,

(9th Cir. 24 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 25 substantial gainful activity.

If so, the claimant is not disabled.

(b). At 26 step two, the Commissioner determines whether the claimant has a “medically severe impairment 27 or combination of impairments,” as defined in

(c). Reddick,

at 1 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 2 under

, Subpart P, Appendix 1.

(d). If this requirement is 3 met, the claimant is disabled. Reddick,

. 4 If a claimant does not have a condition which meets or equals a listed impairment, the 5 fourth step in the sequential evaluation process is to determine the claimant's residual functional 6 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 7 despite the claimant’s impairment or impairments.

(e). If the claimant can 8 perform such work, she is not disabled.

(f). RFC is the application of a legal 9 standard to the medical facts concerning the claimant's physical capacity.

(a). 10 If the claimant meets the burden of establishing an inability to perform prior work, the 11 Commissioner must show, at step five, that the claimant can perform other substantial gainful 12 work that exists in the national economy. Reddick,

at 721. The claimant bears the 13 burden of proof in steps one through four. Bustamante v. Massanari,

(9th 14 Cir. 2001). The burden shifts to the Commissioner in step five.

. 15 III. THE ALJ’S DECISION 16 The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity 17 since May 22, 2014, the application date. AR 27. At step two, the ALJ found that Plaintiff had the 18 following severe impairments: paranoid schizophrenia, and polysubstance abuse. AR 27. At step 19 three, the ALJ concluded that Plaintiff’s impairments, including the substance use disorders, met 20 or medically equaled a listed impairment in

, Subpart P, Appendix 1. AR 27. The 21 ALJ found that if Plaintiff stopped the substance use, he would not have an impairment or 22 combination of impairments that met or medically equaled a listing in

, Subpart P, 23 Appendix 1. AR 32. 24 Before considering step four, the ALJ determined that if Plaintiff stopped the substance 25 use, he would have the residual functional capacity to perform a full range of work at all exertional 26 levels, except that he would be limited to simple, repetitive tasks with no public interaction 27 required. AR 33. At step four, the ALJ concluded that Plaintiff had no past relevant work 1 of unskilled work at all exertional levels. AR 36. 2 Lastly, the ALJ found that the substance use disorder was a contributing factor material to 3 the determination of disability, because Plaintiff would not be disabled if he stopped the substance 4 use. AR 36. Thus, Plaintiff was not disabled pursuant to the Social Security Act.

5 IV. DISCUSSION 6 Plaintiff makes three arguments in his motion for summary judgment: (1) that the ALJ 7 erred in determining that his substance use was material to a finding of disability; (2) that the ALJ 8 erred in evaluating the medical evidence by not giving sufficient weight to the opinions of the 9 examining and treating doctors; and (3) that the ALJ erred in evaluating Plaintiff’s credibility. 10 A. Whether Plaintiff’s substance use was material 11 Plaintiff argues that the ALJ erred in finding that his use of drugs was material to the 12 disability determination. (Pl.’s Mot. at 8.) A claimant is not eligible for disability benefits if 13 alcohol or drug addiction is a “contributing factor material to” the disability determination. 42

(d)(2)(C);

(describing how the agency assesses materiality of 15 drugs and alcohol); Social Security Ruling, SSR 13-2p.; Titles II and XVI: Evaluating Cases 16 Involving Drug Addiction and Alcoholism (DAA),

-01. 17 Under SSR 13-2p, the ALJ must evaluate the disabled effects of all medically determinable 18 impairments, including substance use disorders, and if they find the claimant disabled, they must 19 then conduct a second sequential evaluation to determine whether they would be disabled if they 20 were not using drugs or alcohol.

. If claimant has another medically 21 determinable impairment and that other impairment is disabling by itself while the claimant is 22 dependent upon or abusing drugs or alcohol, Drug Addiction and Alcoholism (“DAA”) is not 23 material.

If DAA causes or effects the claimant’s other medically determinable impairments, 24 but the other impairment is irreversible or could not improve to the point of nondisability, DAA is 25 not material.

If the record is fully developed and the evidence does not establish that the 26 claimant’s co-occurring mental disorders would improve to the point of non-disability in the 27 absence of DAA, DAA is not material to the determination of disability.

. 1 polysubstance abuse, and that his mental impairments, including the substance use disorders, meet 2 the criteria for Section 12.03 (Schizophrenia spectrum and other psychotic disorders), 12.04 3 (Depressive, bipolar and related disorders) and 12.09 (Substance–related Disorders) of the 4 impairments in 20 CFR Part 404, Subpart P, Appendix 1, or the “listings.” AR 27-32. At the 5 second step, however, the ALJ determined that if Plaintiff stopped his substance use, he would 6 continue to have severe impairments, but those impairments would not render him “disabled” 7 within the meaning of the Social Security Act. AR 32-35. In making these findings, the ALJ 8 largely relied on the testimony of the non-treating, non-examining medical expert, Dr. Strahl, 9 because he was “the only medical source who has had the opportunity to hear reports of claimant’s 10 functionality during periods of abstinence and medical compliance.” AR 31-32. 11 Plaintiff argues that the ALJ erred in assigning the most weight to Dr. Strahl’s opinion, 12 because Dr. Strahl’s testimony “did not demonstrate the separate effects of Plaintiff’s treatment for 13 substance abuse and treatment for his co-occurring mental disorders in accounting for Plaintiff’s 14 reported functional improvement by the time of the hearing, [due to his reported abstinence,] 15 including new evidence of medication compliance in a structured care setting.” (Pl.’s Mot. at 10.) 16 Indeed, under SSR 13-2p, a claimant’s

17 [i]mprovement in a co-occurring mental disorder in a highly structured treatment setting, such as a hospital or substance abuse 18 rehabilitation center, may be due at least in part to treatment for the co-occurring mental disorder, not (or not entirely) the cessation of 19 substance use. We may find that DAA is not material depending on the extent to which the treatment for the co-occurring mental disorder 20 improves the claimant's signs and symptoms. If the evidence in the case record does not demonstrate the separate effects of the treatment 21 for DAA and for the co-occurring mental disorder(s), we will find that DAA is not material…. 22 23

. In opposition, Defendant argues that the period of sobriety is more than 24 sufficient to support a finding of materiality, because Plaintiff was able to hold down a full-time 25 job. (Def.’s Opp’n at 2-3.) 26 At the time of the hearing, in December 2016, Plaintiff testified that he had been employed 27 full-time for approximately two months as a municipal sewer inspector, and held a part-time 1 on a monlty dose of Invega Sustenna, a long-lasting injectable anti-psychotic. AR 863. Shortly 2 before the hearing, Plaintiff testified that his medication was switched from the monthly injection 3 to a three-month injection cycle. AR 53. At the hearing, Dr. Strahl opined that the injection 4 medications obviated Plaintiff’s prior compliance problems, wherein Plaintiff would stop taking 5 his medication once he felt better. AR 60. Dr. Strahl believed that Plaintiff’s mental condition was 6 “much improved because compliance has improved, and the use of substances is minimized 7 because he gets drug tested….” AR 60. Even so, Dr. Strahl does not solely attribute Plaintiff’s 8 apparent ability to function to not using drugs. Rather, Dr. Strahl acknowledged that Plaintiff had 9 at times met “a listing” before he ever used illicit substances. AR 61. Thus, in assigning great 10 weight to Dr. Strahl’s opinion, there is no way to separate Plaintiff’s schizophrenia from his 11 substance use, which the medical professionals agree was a product of his mental disorder. See AR 12 60-62. 13 Lastly, Dr. Strahl testified that, while Plaintiff was doing “better” on the injectable 14 medication, he could not say that Plaintiff would not suffer another psychotic break even if he 15 continues with his injections. AR 60. The Court also notes that, at the time of the hearing, 16 Plaintiff was residing in a highly structured treatment setting, which undoubtedly improved the 17 symptoms of his co-occurring mental disorder. See

. 18 SSR 13-2p requires a finding that DDA is not material “[i]f the evidence in the case record 19 does not demonstrate the separate effects of the treatment for DAA and for the co-occurring 20 mental disorder(s).”

. Here, it is impossible to separate the effects of 21 Plaintiff’s medication compliance and his residential placement from his abstinence, which, 22 pursuant to SSR 13-2p, requires a finding of immateriality. As a result, the ALJ erred in finding 23 Plaintiff’s drug use material, and the case must be remanded. 24 B. Remaining arguments 25 In light of the finding that the ALJ erred in concluding that Plaintiff’s drug use material, 26 the Court need not address Plaintiff’s remaining arguments. 27 C. Remand for an award of benefits is appropriate 1 there are no outstanding issues that must be resolved before a determination of disability can be 2 made. Smolen v. Chater,

(9th Cir. 1996) (citations omitted). 3 Meeting a “listing” at step three entitles a claimant to benefits. Reddick,

at 4 || 721. Here, the ALJ found that Plaintiffs impairments, including the substance use disorders, met 5 || or medically equaled a listed impairment in

, Subpart P, Appendix 1. AR 27. 6 || Since the ALJ’s only reason for finding that Plaintiff did not meet a listing was due to an 7 erroneous finding that his DDA was material, the Court finds that remand for an award of benefits 8 is proper, since Plaintiff otherwise meets the listings for Section 12.03 (Schizophrenia spectrum 9 and other psychotic disorders), 12.04 (Depressive, bipolar and related disorders) and 12.09 10 (Substance—related Disorders) in 20 CFR Part 404, Subpart P, Appendix 1, and satisfies the 11 paragraph B duration requirement. AR 27-32. 12 V. CONCLUSION 5 13 In light of the foregoing, Plaintiff's motion for summary judgment is GRANTED, and this 14 action is REMANDED to the Commissioner, pursuant to sentence four of

(g), for 3 15 an immediate award of benefits. Defendant’s cross-motion for summary judgment is DENIED. a 16 IT IS SO ORDERED. 3 17 Dated: September 30, 2019 '

19 United States Magistrate Judge 20 21 22 23 24 25 26 27 28