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Tubolino v. Berryhill

United States District Court, N.D. California, Eureka Division

September 25, 2019

JEFFREY TUBOLINO, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 23, 24

          ROBERT M. ILLMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Jeffrey Tubolino, seeks judicial review of an administrative law judge (“ALJ”) decision denying his application for supplemental security income payments under Title XVI of the Social Security Act. Plaintiff’s request for review of the ALJ’s unfavorable decision was denied by the Appeals Council, thus, the ALJ’s decision is the “final decision” of the Commissioner of Social Security which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge (dkts. 10, 16), and both parties have moved for summary judgment (dkts. 23, 24). For the reasons stated below, the court will grant Plaintiff’s motion for summary judgment, and will deny Defendant’s motion for summary judgment.

         LEGAL STANDARDS

         The Commissioner’s findings “as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner’s findings are supported by substantial evidence, ” a district court must review the administrative record as a whole, considering “both the evidence that supports and the evidence that detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The Commissioner’s conclusion is upheld where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         PROCEDURAL HISTORY

         As to the application before this court, in September of 2012, Plaintiff applied for supplemental security income payments based on disability, with the alleged onset date of September 28, 2012. See Administrative Record[1]AR” at 114. The claim was denied initially and on reconsideration, and then denied again following a hearing before the ALJ. See Def.’s Mot. (dkt. 24) at 4. After a remand from the Appeals Council for a new hearing and a new decision, the ALJ conducted the second hearing, and then denied the application in a second decision dated January 11, 2017. AR at 19-31. Subsequently, the Appeals Council denied Plaintiff’s request for any further review in a decision dated March 1, 2018. Id. at 1-3.

         SUMMARY OF THE RELEVANT EVIDENCE

         Plaintiff raises four closely related issues to the effect that the ALJ’s improper rejection of the opinions of Plaintiff’s treating and examining doctors, as well as the improper rejection of Plaintiff’s testimony and that of his father, culminated in a Step-4 error where the ALJ incorrectly found that Plaintiff was capable of performing his past relevant work as a fish packer. See Pl.’s Mot. (dkt. 23) at 6. Accordingly, the following is a summary of the evidence relevant to the disposition of those claims.

         Medical Evidence from Treating Physicians

         On September 27, 2012, Plaintiff, who was homeless, sought treatment from Dana Romalis, M.D., at Santa Clara Valley Medical Center, and was diagnosed with a mood disorder not otherwise specified, with Dr. Romalis noting, “mental illness appears severe.” AR at 467-68. Dr. Romalis suspected that Plaintiff was either suffering from bipolar syndrome, or schizophrenia, or schizoaffective disorder, and in addition to referring Plaintiff for psychiatric consultation, Dr. Romalis prescribed Plaintiff with Depakote, which is intended to treat bipolar mania or epilepsy.[2]Id. at 468. One month later, Dr. Romalis observed problems with Plaintiff’s judgment, insight, orientation, memory, as well as his mood and affect. Id. at 464. The same day, Plaintiff was treated by Viet Le, M.D., Ph.D., a psychiatrist at the Santa Clara Valley Medical Center. Id. at 465. Noting that Plaintiff had been chronically homeless since 2006, Dr. Le observed Plaintiff’s affect as “mildly expansive” and characterized his insight as “limited.” Id. Following an examination in December of 2012, Dr. Romalis expressed a suspicion that Plaintiff may be suffering from delusional disorder. Id. at 462. During the following months, in the first half of 2013, Dr. Le continued to treat Plaintiff and would renew the prescription for Depakote more than once, noting Plaintiff’s mild hypomanic symptoms as well his limited insight and fluctuating affect. Id. at 506-15.

         On the basis of his treatment relationship with Plaintiff, Dr. Le submitted a medical source statement on July 12, 2013, in which he opined as to Plaintiff’s limitations due to his impairments. Id. at 501-04. Dr. Le wrote that he had been treating Plaintiff for the past nine months, and that examinations would take place every two to three months. Id. at 501. Noting that Plaintiff had reported having previously been diagnosed as suffering from bipolar disorder in 2006, Dr. Le wrote that he had observed, through mental status examinations, that Plaintiff was symptomatic for hypomanic mood and racing thoughts. Id. Dr. Le added these symptoms affect Plaintiff’s behavior and his interactions with others, as well as being responsible for his poor adherence to treatment. Id. On the basis of these observations, Dr. Le assessed Plaintiff with an Axis-I diagnosis of bipolar disorder not otherwise specified, deferring his Axis-II and Axis-III evaluations, and evaluating Plaintiff with an Axis-IV assessment of chronic homelessness. Id. at 502.

         Additionally, assessing a GAF score of 47, Dr. Le opined that Plaintiff had marked[3]impairment-related limitations in a number of categories of functioning. Id. As to understanding and memory, Dr. Le found that Plaintiff had marked limitations in his ability to understand, remember, or carry out detailed instructions; maintain attention and concentration for the four 2hour segments constituting the typical workday; perform within a schedule and maintain regular attendance; sustain an ordinary routine without special supervision; work in proximity to others without being unduly distracted by them; and, to complete a normal workday without interruptions from psychologically based symptoms. Id. at 502-03. By way of explanation, Dr. Le added that he had also found “evidence of cognitive impairment from chronic untreated symptoms.” Id. at 503. Regarding social interaction, Dr. Le found that Plaintiff had marked limitations in his ability to interact appropriately with the general public; or to accept instructions and respond appropriately to criticism from supervisions; or to get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes; or to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness. Id. By way of explanation here, Dr. Le noted Plaintiff’s “[o]dd and gnarled affect.” Id. While Dr. Le found Plaintiff to be moderately limited in activities of daily living, he found marked limitations in Plaintiff’s ability to maintain social functioning, as well as his concentration, persistence, and pace. Id. Lastly, Dr. Le opined that as a result of his impairments or treatment, Plaintiff could be expected to be absent from work more than four days per month. Id. at 504. Dr. Le then signed and dated the statement, including his address and telephone number alongside his signature. Id.

         Medical Evidence from Examining Professionals

         On March 21, 2013, Plaintiff underwent a consultative psychological examination by Sara Bowerman, Ph.D., based on a referral by the state agency for social services and disability evaluation. Id. at 490. Following a full psychological examination, and the administering of a battery of diagnostic testing regarding visual-motor functioning, developmental disorders, neurological impairments, as well as memory and intelligence, Dr. Bowerman produced a detailed report. See id. at 490-98. When delving into Plaintiff’s psychiatric history, Dr. Bowerman wrote that Plaintiff reported “his psychiatric history began in 2004, when he was involved in a severe car accident and sustained a significant head injury, ” after which he was described by family and friends as, “out there” and “different.” Id. at 490-91. Asked to describe a typical day in his life, Plaintiff noted that his days largely consist of “meal hopping, ” spending time in the library, and looking for a place to sleep. Id. at 492. In relation to the fact that Plaintiff reported vacillating between homelessness and “staying with his parents part-time, ” Dr. Bowerman observed that “[d]uring the interview, Mr. Tubolino gave the impression that he was having marked difficulty adjusting to his current circumstances, ” namely, difficulty adjusting to the psychological examination itself. Id. at 491. Further, Dr. Bowerman also observed that “[i]nformation obtained from Mr. Tubolino regarding interpersonal relationships indicated that his ability to relate [to others] is markedly impaired by his psychiatric symptoms.” Id.

         As to the mental status examination, Dr. Bowerman examined Plaintiff and found that his attention, insight, and concentration were poor, his affect was constricted, his thought processes were tangential and his memory appeared to be moderately to markedly impaired. Id. at 492. Dr. Bowerman administered the Wechsler Adult Intelligence Scale (4th Ed.) (“WAIS-IV”), which yielded a full-scale IQ score of 90, reflecting intellectual functioning in the average range. Id. at 493. As to Plaintiff’s results on the Wechsler Memory Scale (4th Ed.) (“WMS-IV”), Dr. Bowerman found that Plaintiff’s delayed memory index (“DMI”), which measures the ability to listen to oral information or view visual information and recall the information after delay of 20 to 30 minutes, operated in the extremely low range, alongside the bottom 1% of individuals in his age group. Id. at 494. In the measure of his immediate memory, auditory memory, and visual memory, Dr. Bowerman assessed Plaintiff as falling in the borderline range in each of these categories, placing him in the bottom three or four percent of individuals in his age group. Id. Likewise, as to logical memory, Dr. Bowerman found that Plaintiff scored in the bottom two percent of individuals in his age group. Id. at 495.

         Given the results of the diagnostic testing, Dr. Bowerman noted a series of diagnoses and opinions. First, that Plaintiff’s “scores suggest that he has difficulty remembering and carrying out simple tasks.” Id. Second, that Plaintiff suffered from four Axis-I psychological disorders: amnestic disorder not otherwise specified, bipolar disorder not otherwise specified, social phobia, alcohol dependence, and amphetamine abuse. Id. at 496. At Axis-IV, Dr. Bowerman assessed Plaintiff as also being afflicted with problems relating to social environment, health problems, financial problems, access to housing problems, and recent involvement with the legal system. Id. Plaintiff was then assessed at Axis-V as having a GAF score of 43. Third, as to functional limitations, Dr. Bowerman opined that Plaintiff is moderately to markedly impaired in his ability to understand, remember, and carry out complex instructions due to his mood, memory, and anxiety disorders. Id. at 497. Regarding his ability to respond appropriately to co-workers, supervisors, and the public in either a work-setting, or even in other settings, Dr. Bowerman found that “[h]is memory, mood, and anxiety disorders markedly impair his ability to interact with others in socially acceptable ways.” Id.

         Nearly three years later, in February of 2016, Plaintiff underwent a second consultative psychological examination, this time by Janine Marinos, Ph.D., and again, the purpose was “to provide diagnostic impressions to the Social Services Administration.” Id. at 592-596. Like Dr. Bowerman, Dr. Marinos also wrote a detailed report which was based on a comprehensive review of Plaintiff’s prior medical records, Dr. Marinos’s own independent psychological evaluation, and her administration of the same diagnostic instruments used by Dr. Bowerman, namely, the WAIS-IV, the WMS-IV, and both parts of the Trail-Making Tests. Id. at 592. Given that Plaintiff had experienced homelessness “for some seven to eight years, after losing his job, ” Dr. Marinos also noted that Plaintiff largely spent his time seeking out churches where he can have a meal and then looking for places to sleep for the night. Id. When asked why he was applying for disability benefits, Plaintiff responded that he was “[s]eeking relief in everyday life, such as cleaner clothes, public transportation, healthier cooked foods, communication(s) (phone bill), hygiene, survival equipment (backpack, shoes, sleeping bag), [and] possibly housing if I can cope indoors.” Id.

         As to the diagnostic testing, Dr. Marinos measured Plaintiff as having a full scale IQ score of 93; finding him moderately impaired as to immediate and delayed recall for short stories, and mildly impaired as to his delayed visual memory. Id. at 595. On the basis of her examination, review of Plaintiff’s records, and diagnostic testing, Dr. Marinos diagnosed Plaintiff with two Axis-I psychological disorders, namely, alcohol abuse in early remission and mood disorder not otherwise specified. Id. Dr. Marinos deferred diagnostic impressions at Axis-II and Axis-III; assessed chronic homelessness at Axis-IV; and assessed Plaintiff as having a GAF score of 50 at Axis-V. Id. Based on these limitations, and because Plaintiff “seems to have settled into a homeless lifestyle, ” Dr. Marinos opined that “it seems unlikely that he would respond appropriately to usual work situations, e.g., maintaining regular attendance . . . [and] he may require assistance in managing his funds should he be granted benefits.” Id. at 596.

         Function Reports

         Plaintiff’s father, David Tubolino, completed and submitted two third-party function reports in relation to Plaintiff’s disability application. See id. at 293-301, 348-56. In the first report, dated December 26, 2012, Mr. Tubolino stated that he has occasion to see Plaintiff for about one week every other month, and that otherwise Plaintiff lives and sleeps at “various outdoor locations and in someone’s vehicle on occasion.” Id. at 293. Mr. Tubolino also noted that Plaintiff is easily frustrated or annoyed, has difficulty focusing, does not handle stress well, and is unable “to work or stay in one place for average periods of time, ” and that Plaintiff “[h]as been this way since childhood, but [it is] more evident now.” Id. at 293-94, 298. Mr. Tubolino described Plaintiff’s hobbies and interests as reading, watching movies, and spirituality, which ordinarily engage Plaintiff’s interests on a daily basis “unless in [a] depressed state.” Id. at 297. Explaining that “[c]oncentrating and talking [] can be challenging at times, causing [Plaintiff] to be unsociable . . . [and] to become solitary, ” Mr. Tubolino added that Plaintiff has difficulty remembering spoken instructions, and that he sometimes finds Plaintiff “gazing off into space, like not being in the moment.” Id. at 298-99.

         In the second report, dated September 24, 2013, Mr. Tubolino reported that his son continued to be homeless, and that his difficulty with instructions and his inability to “remain in situations very long” continue to interfere with his ability to work. Id. at 348. Mr. Tubolino described a typical day in Plaintiff’s life as still involving “taking a shower somewhere, going to the library for long periods . . . [then] to various churches for food . . . [and then to] find[] a place to sleep somewhere outside.” Id. at 349. He also related that Plaintiff’s condition has “worsened over time, ” and that he remains “[p]hysically capable of doing things, but not mentally.” Id. at 349-50, 353. As to Plaintiff’s ability to follow instructions, Mr. Tubolino noted that Plaintiff “get’s (sic) about half of what is instructed, on a good day.” Id. at 353. In short, Mr. Tubolino reiterated that Plaintiff “[c]an’t stay anywhere for very long, ” and that when experiencing stress, Plaintiff simply “shuts down.” Id. at 354.

         Hearing Testimony

         Plaintiff appeared at a hearing before the ALJ on September 30, 2014 (id. at 77-106); and, following remand from the Appeals Council, Plaintiff appeared at a second hearing on July 27, 2016 (id. at 41-73). The second hearing began with the ALJ announcing that, Dr. Richard Cohen, a psychiatrist and an editor of a book on alcoholism, was appearing by telephone as a medical advisor. Id. at 40-41, 50-51. The ALJ then asked Plaintiff, “[d]o you have an address where you’re living or are you living in a car or under a bridge” – Plaintiff responded, “I’m homeless and I’m nomadic and I don’t have a camp. I sleep outside.” Id. at 41. With that, the ALJ proceeded to question the medical expert, establishing first that Dr. Cohen had never met Plaintiff. Id. Based on his review of Plaintiff’s medical records, Dr. Cohen somehow opined that Plaintiff’s only medically determinable impairment was alcohol abuse. Id. at 42-43. Dr. Cohen explained that “it looks like . . . alcohol abuse . . . and it’s important to understand that alcohol abuse causes mood instability. He’s been diagnosed with the records (sic) with an independent bipolar disorder. ...


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