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McRoberts v. Berryhill

United States District Court, E.D. California

May 30, 2017

JASON DANIEL McROBERTS, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          ORDER DIRECTING ENTRY OF JUDGMENT IN FAVOR OF PLAINTIFF JASON McROBERTS AND AGAINST DEFENDANT NANCY BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY

          GARY S. AUSTIN UNITED STATES MAGISTRATE JUDGE

         I. INTRODUCTION

         Plaintiff 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.[2] (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.

         II. FACTS AND PRIOR PROCEEDINGS[3]

         A. Background

         Plaintiff 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 district court.

         On 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.[4] 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).

         B. Summary of the Medical Record

         The 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 appeal.

         1. Plaintiff's Treatment at Stanislaus County Behavioral Health

         On 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.

         Plaintiff 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.

         A 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.[5] AR 372.

         On 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.

         A 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 55.[6] 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, 430.

         On 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.

         On 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.

         During 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[7] 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.

         On June 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.

         On July 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.

         On 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.

         On 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.

         In 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.

         During 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.

         On 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.

         By 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.

         On May 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.

         On 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.

         At his 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.

         In 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.

         On 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.

         In a 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.

         In av 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.

         On 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.

         On 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 ...


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