United States District Court, E.D. California
ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF
PLAINTIFF JASON McROBERTS AND AGAINST
DEFENDANT NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL
S. AUSTIN UNITED STATES MAGISTRATE JUDGE
Jason McRoberts (“Plaintiff”) seeks judicial
review of a final decision of the Commissioner of Social
Security (“Commissioner” or
“Defendant”) denying his application for
Supplemental Social Security Benefits pursuant to Title XVI
of the Social Security Act. The matter is currently before
the Court on the parties' briefs which were submitted
without oral argument to the Honorable Gary S. Austin, United
States Magistrate Judge. (See, Docs. 10, 14, and 16).
Upon a review of the entire record, the Court finds that the
decision is not supported by substantial evidence.
Accordingly, the Court reverses the agency's
determination to deny benefits and grants Plaintiff's
appeal in part.
FACTS AND PRIOR PROCEEDINGS
filed an application for Supplemental Security Income
(“SSI”) under Title XVI of the Act on February 1,
2008, alleging an onset of disability beginning July 28,
2007. AR 78. On June 9, 2010, after holding an administrative
hearing, Administrative Law Judge (“ALJ”) Laura
Speck Havens issued a decision denying the application. AR
78-89. The Appeals Council upheld that decision on September
23, 2010. AR 95-97. This decision was not appealed to
March 15, 2012, Plaintiff filed a second application for SSI
alleging disability beginning on the date of filing. AR
199-205. The application was denied initially and again on
reconsideration after which Plaintiff requested a hearing
before an ALJ. AR 136-40; 146-50; 153-55. A hearing was held
on September 18, 2014 in Stockton, California before ALJ
Evangelina P. Hernandez. AR 42-74; 97-98. On December 9,
2014, ALJ Hernandez issued a written decision finding that
although the Chavez presumption of continued
non-disability had been overcome in light of evidence of
changed circumstances, Plaintiff nonetheless retained the
capacity to perform a reduced range of light work, and was
therefore not disabled. AR 24-36. Plaintiff requested that the
Appeals Council review the ALJ's unfavorable decision,
submitting additional medical evidence and legal arguments in
support of his claim. AR 19; 683-714; 332-37. On November 20,
2015, the Council denied the appeal, making that decision the
final decision of the Commissioner. Plaintiff sought judicial
review by commencing the instant action pursuant to 42 U.S.C.
§§ 405(g), 1383(c)(3).
Summary of the Medical Record
Court has reviewed the entire medical record. AR 338-714. The
summary below focuses on Plaintiff's psychological
condition as this is the most relevant for purposes of this
Plaintiff's Treatment at Stanislaus County Behavioral
January 31, 2012, Plaintiff began treatment at Stanislaus
County Behavioral Health and Recovery Services (“County
Behavioral Health”) after his probation officer
referred him for a mental health assessment. AR 369-73.
Plaintiff was evaluated by a licensed social worker. At that
time, Plaintiff reported symptoms of depression, including
feelings of sadness, hopelessness, worthlessness, disrupted
sleep, irritability, frustration, poor concentration, and
intermittent thoughts of suicide. AR 369. He admitted that he
recently burned himself and that he “sticks pins in his
arms.” AR 369. He had “given up on life”
and had lost fifteen pounds in the preceding few months. AR
369. He also made “unusual statements” including
that “he is stuck magnetically to the ground [and] he
can't leave his house at times” AR 373. He also
felt that he was a puppet and that someone else was
controlling him. AR 373.
also reported a long history of substance abuse including
using cocaine, marijuana, and methamphetamine, although he
stated he had not used methamphetamine or marijuana for
fourteen months or cocaine in several years. AR 373. During
school, he was enrolled in special education classes due to a
learning disability and attention deficit and hyperactivity
disorder (“ADHD”) and quit school in the eleventh
grade. AR 373. He reported that he had been physically abused
by his parents as a child. AR 370. He also had a history of
multiple arrests (20 ) and was currently on probation until
2016. AR 373. Relatedly, he completed domestic violence
classes three times in the past, and was ordered to begin
another class in February 2012. AR 373.
mental status examination revealed a suspicious attitude, a
dysphoric mood, diminished sleep, self-mutilation in the form
of burning himself, reports of auditory hallucinations, fair
concentration, impaired remote memory, below average
intellectual function, poor judgment, poor impulse control,
and feelings of helplessness and worthlessness. AR 371. He
was provisionally diagnosed with major depressive disorder
with psychotic features, methamphetamine dependence in full
remission, cluster B traits, and the need to rule out bipolar
disorder, with a GAF of 50. AR 372.
March 5, 2012, Plaintiff was examined by staff psychiatrist
Dr. Tomonori Fukui, M.D. at County Behavioral Health. AR
429-430. Plaintiff reported hearing voices that “talk
about [him] all day long” and reported that he gets
paranoid around others. AR 429. The hallucinations and
paranoia had worsened since running out of his medications
about a month-and-a-half ago. He also suffered from anxiety.
AR 429. Plaintiff reported two prior psychiatric
hospitalizations, a history of overdosing with crystal
methamphetamine, a history of methamphetamine use from the
age of seventeen until a the age of thirty-seven, a history
of cannabis dependence from age sixteen until the age of
nineteen, and opioid medication abuse until four years ago.
AR 429. However, Plaintiff reported being “clean for 14
months.” AR 429. By way of history, Plaintiff reported
being married for nineteen years and that he had multiple
incarcerations with more than “fifteen [sic] in the
jail” and forty-two months in prison. AR 429.
mental status examination on that day revealed a kempt
appearance; cooperative behavior; fine mood; broad affect;
oriented times four; cognition and concentration intact;
auditory hallucinations and paranoid thoughts; and fair
insight and judgment. AR 430. Dr. Fukui diagnosed paranoid
schizophrenia; a history of polysubstance abuse; and
antisocial personality disorder; with a current GAF of
AR 430. Plaintiff was prescribed Haldol (to treat his
hallucinations), Cogentin (to treat involuntary movements
caused by the Haldol), and Ativan (for anxiety). AR. 358,
March 30, 2012, social worker Debra Taylor assessed Plaintiff
and developed a treatment plan. She identified his
“target problems” as auditory and visual
hallucinations, anxiety, paranoia, poor anger management, and
lack of empathy. AR 360. It was again noted that Plaintiff
had spent forty-two months in prison, had been in jail
multiple times, and had a history of domestic violence. AR
359. His wife was encouraged to attend co-dependency support
groups. AR 359. The treatment plan required that Plaintiff
meet with a case manager one to two times per month for
support and education for the next year. AR 360. Ms. Taylor
assessed Plaintiff's GAF at 50 and diagnosed him with
chronic paranoid schizophrenia, methamphetamine dependence in
full remission, and antisocial personality disorder. AR 359.
Plaintiff's goals were to learn how to reality test,
learn coping skills for anxiety, complete anger management,
and identify the feelings of others. AR 360. It was noted
that Plaintiff was at a high risk for decompensation without
intense case management. AR 359. Plaintiff's
prescriptions for Ativan, Cogentin, and Haldol were ordered
refilled in April and May of 2012. AR 358.
April 3, 2012, Plaintiff reported to Dr. Fukui that he
“hears many voices” but he had not filled his
prescriptions because he was unable to afford the co-payment.
AR 431. He noted that he had spent four days of the preceding
week in jail before a three-day stay in outpatient treatment.
AR 431. On examination, Dr. Fukui reported that
Plaintiff's auditory hallucinations were not affecting
his behavior and that he was not experiencing visual
hallucinations or delusions. AR 431. Plaintiff restarted his
medications. AR 431.
a May 2, 2012 visit with Dr. Fukui, Plaintiff reported
sleeping from 5:00 a.m. to 9:30 a.m. and noted that he then
naps for four hours during the day. AR 380; 433. He
“hear[s] a little bit of [his] sister's
voices.” AR 380; 433. He had not filled the Cogentin
prescription “because he could not afford it.” AR
380; 433. Dr. Fukui noted that Plaitniff's auditory
hallucinations were “not affecting his mood or
behavior.” AR 380; 433. An examination revealed
euthymic mood, no visual hallucinations or
delusions, no suicidal or homicidal ideology, oriented times
four, and no reported medication side effects. AR 380; 433.
Plaintiff's prescription for Congentin, Ativan, and
Haldol was continued. AR 358; 380; 433.
5, 2012, Plaintiff reported hearing “4 to 5
voices” that “get louder around 3:30 p.m.”
He also indicated that he had been sober for fifteen months
and that he sleeps from 3:00 a.m. to 7:30 a.m. AR 435. Dr.
Fukui noted auditory hallucinations, a euthymic mood, no
suicidal or homicidal ideation, and no side effects from the
medication. AR 435.
3, 2012, Plaintiff told Dr. Fukui that he had been staying in
a motel for the preceding four days and that the voices were
still “ask[ing him] questions.” AR. 436. He
admitted to smoking marijuana a couple of days earlier but
otherwise he takes care of himself. AR 436. On examination,
Dr. Fukui again noted auditory hallucinations, a euthymic
mood, no suicidal or homicidal ideation, and no side effects
from medications. AR 436. He also noted that Plaintiff's
auditory hallucinations were not affecting his mood or
behavior. AR 436.
August 17, 2012, Plaintiff reported, “I still hear all
kinds of things, but I control myself.” AR 437. He
indicated that had been “in a transitional
living” arrangement for the preceding month. AR 437.
Dr. Fukui indicated that the auditory hallucinations were not
affecting Plaintiff's mood or behavior. AR 437. Dr. Fukui
increased Plaintiff's dosage of Haldol. AR 437.
September 28, 2012, Plaintiff reported that the voices had
been “less loud” but that he only sleeps from
2:00 a.m. or 4:00 a.m. until about 7:00 a.m. and watches TV
all night long. AR 439. He reported increased energy with
“more thoughts in the night” and was visiting
with friends during the day. AR 439. Dr. Fukui reported that
Plaintiff's hallucinations were not affecting his mood or
behavior, and Plaintiff presented with a euthymic mood. AR
439. Depakote was added to Plaintiff's prescription
regimen. AR 439.
November of 2012, Plaintiff indicated that he was seeing
shadows that disappear after a second, and he was still
hearing voices that wake him up in the night. AR 438. He
reported that he was sleeping from 9:00 p.m. until 6:30 a.m.
Plaintiff presented with a euthymic mood, denied delusions,
suicidal or homicidal ideation, and was oriented times four.
Dr. Fukui increased Plaintiff's Haldol dosage. AR 438.
a follow-up with Dr. Fukui on January 2, 2013, Plaintiff
reported not sleeping the night before because he ran out of
Depakote and Ativan four days previously, and he did not have
money for the co-payment. AR 440. He was still seeing shadows
of people passing by for a few seconds, but he had not been
hearing voices for the preceding two weeks. AR 440. His
hallucinations were still not affecting his mood, which was
euthymic. AR 440. He denied delusions and suicidal and
homicidal ideation. AR 440.
February 7, 2013, Plaintiff reported hearing “a little
bit of voices” but that he was “O.K.” AR
441. Dr. Fukui noted less auditory hallucinations and
paranoia, no suicidal or homicidal ideation, and Plaintiff
was oriented times four. AR 441. His medications were
continued without adjustment AR 441.
April of 2013, Plaintiff reported seeing more shadows than
hearing voices, but he admitted to not having the money for
the co-payments for his medications aside from the Cogentin
and Depakote. AR 442. Plaintiff reported he had moved into a
new house. Examination revealed a mild tremor in his hands,
and Dr. Fukui noted that Plaintiff's auditory and visual
hallucinations were not affecting Plaintiff's mood or
behavior. AR 442. Plaintiff presented with a euthymic mood,
denied delusions and suicidal and homicidal ideation, and was
oriented times four. Cogentin as needed was added to
Plaintiff's prescription regimen. AR 442.
30, 2013, Plaintiff stated, “I heard voices [sic] told
me to jump into the ocean, of course, I would not do
that.” He also reported “seeing rocks” but
that he was taking care of himself and was cleaning his
house. AR 443. Dr. Fukui indicated Plaintiff's auditory
and visual hallucinations were not affecting his mood or his
behavior. Plaintiff was oriented times four, had a euthymic
mood, and denied suicidal and homicidal ideation. AR 443.
September 19, 2013, Plaintiff reported hearing
“weird” voices telling him “to burn things,
” but he was able to “control[ ] himself against
the voices.” AR 444. He had also been sleeping poorly
for the previous four nights “feel[ing] like that
somebody is outside of the door.” AR 444. He reported
that he missed his prior appointment for a Haldol injection
and had not taken an injection since July of 2013. AR 444.
Dr. Fukui noted Plaintiff had auditory hallucinations and
delusions/paranoia which were not affecting his behavior or
mood which he described as euthymic. AR 444. Plaintiff was
oriented times four and denied suicidal or homicidal
tendencies. AR 444.
October 2013 session, Plaintiff again admitted to missing the
last appointment for a Haldol injection, reporting that the
voices had been telling him to “go outside.” AR
445. He was still “control[ing] himself against the
voices, ” and had taken care of himself. AR 445. Dr.
Fukui noted Plaintiff had auditory hallucinations which were
not affecting his mood or behavior, Plaintiff denied visual
hallucinations, had a euthymic mood, was oriented times four,
and denied suicidal or homicidal ideas or plans. AR 445.
December of 2013, Plaintiff reported hearing “three or
four voices talking to [him]” but that he had last
received his Haldol injection on October 31, 2013, which was
overdue. AR 446. He was trying to control the voices by
watching TV or smoking cigarettes, and was taking care of
himself. AR 446. Dr. Fukui reported noted auditory
hallucinations were not affecting his mood or behavior.
Plaintiff had a euthymic mood, denied visual hallucinations,
and denied suicidal and homicidal hallucinations. AR 446.
December 12, 2013, Dr. Fukui completed a
Psychiatric/Psychological Impairment Questionnaire and noted
he had been treating Plaintiff since March of 2012 for
paranoid schizophrenia. AR 402-408. He described
Plaintiff's primary symptoms as auditory hallucinations,
delusions, paranoia, and anxiety, with his symptoms having
necessitated two inpatient hospitalizations in the past. AR
404. Dr. Fukui found Plaintiff to be markedly limited
(defined as essentially precluding the given activity (AR
404)) in his ability to understand, remember, and carry out
detailed instructions; to maintain attention and
concentration for extended periods; to perform activities
within a schedule; to maintain regular attendance; to sustain
ordinary routine without supervision; to work in coordination
with or proximity to others; to be aware of normal hazards
and take appropriate precautions; to travel to unfamiliar
places; to set realistic goals; and to make plans
independently. AR 405-406. He added that work or worklike
settings would cause Plaintiff to deteriorate due to the
severity of his auditory hallucinations; that he would be
incapable of tolerating even a “low stress” work
environment; and that he would likely miss more than three
workdays per month due to his impairments. AR 407-408.
January 23, 2014 follow-up with Dr. Fukui, Plaintiff reported
he did not receive his Haldol injections due to his lack of
funds, but he recently learned that the co-payment had been
waived. AR 447. He was again seeing shadows for a few seconds
and was still hearing voices but he was not understanding
what they are saying. AR 447. He was still “controlling
himself against the voices.” AR 447. Dr. Fukui reported
auditory hallucinations which were not affecting
Plaintiff's mood or behavior. Plaintiff had no suicidal
or homicidal ideation, presented with a euthymic mood, and
was oriented times four. AR 447 On March 20, 2014, plaintiff
was seen by psychiatrist Dr. Walter Lampa at County
Behavioral Health. Plaintiff reported that he had been in
jail for seven days and had been off of his medications
during that time but had resumed them the day before. AR 458.
He was in a “bad mood” with poor sleep, okay
appetite, and was again hearing voices, most recently the day
before. AR 458. A mental status exam revealed a self-reported
“bad” mood with a full range of affect and good
insight and judgment. AR 458. Plaintiff had no suicidal or
homicidal ideation, no delusions, and his thought process was
linear. AR 458. Plaintiff continued on Haldol injections,
Cogentin, Depakote, and Ativan. AR 458.
April 3, 2014 follow-up with Dr. Lampa, Plaintiff again
reported an “okay” mood, that he was sleeping
less than eight hours per night, and that he continued to
have auditory hallucinations consisting of voices commenting
on his actions. AR 457. A mental status examination revealed
Plaintiff's mood was congruent, that he had good hygiene,
had no delusions, had a linear thought process, possessed
good insight and judgment, and that he denied suicidal and
homicidal ideation. AR 457. The Haldol dosage was increased
due to “breakthrough auditory hallucinations during the
day.” AR 457.
April 10, 2014, Dr. Fukui completed another Mental Impairment
Questionnaire. AR 448-452. Dr. Fukui again affirmed
Plaintiff's diagnosis of paranoid schizophrenia with a
current GAF of 51, noting Plaintiff's most significant
symptom was auditory hallucinations. AR 448; 450. Dr. Fukui
found Plaintiff had “marked” limitations (defined
as interfering with the given activity more than two-thirds
of an eight-hour workday (AR 451)) in his ability to
understand, remember, and carry out detailed instructions; to
maintain attention and concentration for extended periods; to
perform activities within a schedule; to sustain ordinary
routine without supervision; to work with others; to make
simple work-related decisions; to complete a workday without
interruptions from psychological symptoms; to perform at a
consistent pace without rest periods of unreasonable length
or frequency; to accept instructions and respond
appropriately to criticism from supervisors; to get along
with co-workers; to respond appropriately to workplace
changes; to be aware of hazards and take appropriate
precautions; to travel to unfamiliar places; to set realistic
goals; and to make plans independently. AR 451. He opined
that Plaintiff would likely miss work more than three times
per month, and that his limitations would apply as far back
as June of 2010. AR 452. In a form dated April 10, 2014, Dr.
Fukui also affirmed that Plaintiff was not using drugs or
alcohol and he remained disabled. AR 453.
April 10, 2014, the same day as he completed the health
forms, Dr. Fukui had another follow-up appointment with
Plaintiff. At that time, Plaintiff was still hearing
“many different people's voices” despite
having last taken Haldol by injection on March 10, 2014. AR
456. Plaintiff's next Haldol dosage was accelerated, to
be taken the next day. AR 456. Dr. Fukui noted Plaintiff