United States District Court, N.D. California, Eureka Division
ORDER ON CROSS MOTIONS FOR SUMMARY JUDGMENT RE: DKT.
NOS. 23, 24
M. ILLMAN UNITED STATES MAGISTRATE JUDGE.
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
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.
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
“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.
OF THE RELEVANT EVIDENCE
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.
Evidence from Treating Physicians
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.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
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.
assessing a GAF score of 47, Dr. Le opined that Plaintiff had
markedimpairment-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.
Evidence from Examining Professionals
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.
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.
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.
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.
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.
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.
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.
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. ...