Daniel Hipolito v. Carolyn W. Colvin

Filing 22

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered REVERSING the Commissioner's decision and REMANDING this case for further proceedings consistent with this Decision and Order; and The Clerk of the Court shall file this Decision and Order, serve copies upon counsel for the parties, and CLOSE this case, without prejudice to a timely application for attorneys' fees and costs. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 2:16-CV-02472 (VEB)

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DANIEL HIPOLITO,

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DECISION AND ORDER

Plaintiff,

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vs.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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I. INTRODUCTION

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In October of 2011, Plaintiff Daniel Hipolito applied for Disability Insurance

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Benefits and Supplemental Security Income Benefits under the Social Security Act.
The Commissioner of Social Security denied the applications.1 Plaintiff, represented
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 On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The

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Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant
in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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by Roger David Drake, Esq. and Erika Bailey Drake, Esq., commenced this action

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seeking judicial review of the Commissioner’s denial of benefits pursuant to 42

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U.S.C. §§ 405 (g) and 1383 (c)(3).

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The parties consented to the jurisdiction of a United States Magistrate Judge.

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(Docket No. 9, 18). On April 21, 2017, this case was referred to the undersigned

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pursuant to General Order 05-07. (Docket No. 21).

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II. BACKGROUND
Plaintiff applied for benefits on October 5 and 6 of 2011, respectively. (T at

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17).2

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requested a hearing before an Administrative Law Judge (“ALJ”). On July 16, 2014,

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a hearing was held before ALJ Mark Greenberg. (T at 38). Plaintiff appeared with

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his attorney and testified. (T at 40-67, 75-83). The ALJ also received testimony

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from David Van Winkle, a vocational expert (T at 67-75, 83-86).

The applications were denied initially and on reconsideration.

Plaintiff

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On July 29, 2014, the ALJ issued a written decision denying the applications

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for benefits. (T at 14-34). The ALJ’s decision became the Commissioner’s final

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decision on March 11, 2016, when the Appeals Council denied Plaintiff’s request for

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review. (T at 1-6).

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 Citations to (“T”) refer to the administrative record at Docket No. 12.
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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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On April 11, 2016, Plaintiff, acting by and through his counsel, filed this

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action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The

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Commissioner interposed an Answer on September 19, 2016. (Docket No. 11). The

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parties filed a Joint Stipulation on February 17, 2017. (Docket No. 20).

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After reviewing the pleadings, Joint Stipulation, and administrative record,

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this Court finds that the Commissioner’s decision should be reversed and this case

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remanded for further proceedings.

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III. DISCUSSION
A.

Sequential Evaluation Process

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The Social Security Act (“the Act”) defines disability as the “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a

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claimant shall be determined to be under a disability only if any impairments are of

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such severity that he or she is not only unable to do previous work but cannot,

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considering his or her age, education and work experiences, engage in any other

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substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether the claimant has a

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medically severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If the claimant does not have a severe impairment or combination of

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impairments, the disability claim is denied. If the impairment is severe, the

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evaluation proceeds to the third step, which compares the claimant’s impairment(s)

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with a number of listed impairments acknowledged by the Commissioner to be so

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severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or

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equals one of the listed impairments, the claimant is conclusively presumed to be

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disabled. If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step, which determines whether the impairment

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prevents the claimant from performing work which was performed in the past. If the

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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claimant is able to perform previous work, he or she is deemed not disabled. 20

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C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual

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functional capacity (RFC) is considered. If the claimant cannot perform past relevant

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work, the fifth and final step in the process determines whether he or she is able to

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perform other work in the national economy in view of his or her residual functional

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capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),

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416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden

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is met once the claimant establishes that a mental or physical impairment prevents

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the performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” that the

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claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

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“The [Commissioner’s] determination that a plaintiff is not disabled will be

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upheld if the findings of fact are supported by substantial evidence.” Delgado v.

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Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial

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evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119

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n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d

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599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and

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conclusions as the [Commissioner] may reasonably draw from the evidence” will

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also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review,

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the Court considers the record as a whole, not just the evidence supporting the

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decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

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1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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of either disability or non-disability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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The ALJ determined that Plaintiff had not engaged in substantial gainful

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activity since May 1, 2010 (the alleged onset date) and met the insured status

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requirements of the Social Security Act through December 31, 2015 (the date last

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insured). (T at 19). The ALJ found that Plaintiff’s diabetes mellitus, degenerative

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disc disease, hypertension, history of obesity, coronary artery disease, varicose

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veins, depression, and posttraumatic stress disorder were “severe” impairments

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under the Act. (Tr. 20).

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However, the ALJ concluded that Plaintiff did not have an impairment or

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combination of impairments that met or medically equaled one of the impairments

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set forth in the Listings. (T at 20).

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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The ALJ determined that Plaintiff retained the residual functional capacity

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(“RFC”) to perform medium work as defined in 20 CFR § 416.967 (c), with the

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following limitations: he is limited to occasional postural activities; he cannot have

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concentrated exposure to extreme heat; he can only perform unskilled, nonpublic

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work involving simple repetitive tasks; he can have only occasional interaction with

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co-workers and supervisors; he must be in a habituated work setting; and there can

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be no requirement of fast paced work (e.g. an assembly line). (T at 21).

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The ALJ found that Plaintiff could not perform his past relevant work as an

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inventory clerk or machine operator. (T at 28). Considering Plaintiff’s age (49 on

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the alleged onset date), education (at least high school), work experience, and

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residual functional capacity, the ALJ determined that there were jobs that exist in

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significant numbers in the national economy that Plaintiff can perform. (T at 29).

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As such, the ALJ found that Plaintiff was not entitled to benefits under the

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Social Security Act from May 1, 2010 (the alleged onset date) through July 29, 2014

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(the date of the ALJ’s decision). (T at 30). As noted above, the ALJ’s decision

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became the Commissioner’s final decision when the Appeals Council denied

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Plaintiff’s request for review. (T at 1-6).

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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D.

Disputed Issues

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As set forth in the parties’ Joint Stipulation (Docket No. 20), Plaintiff offers

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three (3) main arguments in support of his claim that the Commissioner’s decision

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should be reversed. First, he contends that the ALJ did not properly weigh the

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medical evidence and develop the record concerning his VA rating.

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Plaintiff challenges the ALJ’s credibility determination. Third, he argues that the

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ALJ’s step five findings were flawed. This Court will address each argument in

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turn.

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Second,

IV. ANALYSIS
A.

Medical Evidence/VA Rating

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There is no question that “the ALJ has a duty to assist in developing the

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record.” Armstrong v. Commissioner of Soc. Sec. Admin., 160 F.3d 587, 589 (9th

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Cir. 1998); 20 C.F.R. §§ 404.1512(d)-(f); see also Sims v. Apfel, 530 U.S. 103, 110-

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11, 147 L. Ed. 2d 80, 120 S. Ct. 2080 (2000) (“Social Security proceedings are

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inquisitorial rather than adversarial. It is the ALJ’s duty to investigate the facts and

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develop the arguments both for and against granting benefits . . . .”).

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In addition, it is well-settled that although a Veteran’s Administration (“VA”)

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rating of disability is not binding on the Commissioner of Social Security, “the ALJ

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must consider the VA’s finding in reaching his decision,” and, indeed, “the ALJ

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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‘must ordinarily give great weight to a VA determination of disability.” McLeod v.

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Astrue, 640 F.3d 881, 886 (9th Cir. 2011)(quoting McCartey v. Massenari, 298 F3d

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1072 (9th Cir. 2002)). If the record “suggests a likelihood that there is a VA

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disability rating, and does not show what it is, the ALJ has a duty to inquire.” Id.

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In the present case, Plaintiff served in the Army and was deployed to Iraq and

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Kuwait before receiving an honorable discharge. (T at 43-44, 826, 913). During the

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hearing, Plaintiff testified that he was receiving compensation for a service-related

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disability. (T at 53, 76-77). However, the ALJ made no further inquiry to determine

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the nature and extent of the compensation and/or to ascertain what Plaintiff’s VA

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disability rating was.

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Plaintiff presented evidence of his VA rating to the Appeals Council. VA

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records indicated that Plaintiff has a 70% disability rating due to his major

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depressive disorder. (T at 846, 913). The Appeals Council considered this evidence

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and decided it did not provide a basis for changing the ALJ’s decision. (T at 2).

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The Appeals Council is required to consider “new and material” evidence if it

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“relates to the period on or before the date of the [ALJ's] hearing decision.” 20

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C.F.R. § 404.970(b); see also § 416.1470(b). The Appeals Council “will then

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review the case if it finds that the [ALJ]'s action, findings, or conclusion is contrary

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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to the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b); see §

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416.1470(b).”

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In the Ninth Circuit, when the Appeals Council considers new evidence in the

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context of denying the claimant’s request for review, the reviewing federal court

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must “consider the rulings of both the ALJ and the Appeals Council,” and the record

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before the court includes the ALJ’s decision and the new evidence. Ramirez v.

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Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993); Gomez v. Chater, 74 F.3d 967, 971 (9th

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Cir. 1996).

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Because the Appeals Council’s decision to deny the claimant’s request for

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review is not a “final decision” by the Commissioner, the federal courts have no

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jurisdiction to review it. Rather, the question presented is whether “the ALJ’s

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decision is supported by substantial evidence after taking into account the new

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evidence.” Acheson v. Astrue, No. CV-09-304, 2011 U.S. Dist. LEXIS 25898, at *11

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(E.D. Wash. Mar. 11, 2011). If the new evidence creates a reasonable possibility

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that it would change the outcome of the ALJ’s decision, then remand is appropriate

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to allow the ALJ to consider the evidence. Mayes v. Massanari, 276 F.3d 453, 462

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(9th Cir. 2001).

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Here, there is no question that the ALJ did not satisfy the duty of inquiry with

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regard to the VA disability rating. Under the circumstances, the ALJ clearly should

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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have developed the record further and erred by failing to do so. The remaining

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question is whether the error was harmless. This is, essentially, what the Appeals

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Council concluded – that the ALJ would have reached the same conclusion even if

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he had developed the record and considered the VA disability rating.

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This Court finds that the circumstances show a substantial likelihood of
prejudice and, as such, a remand is required. See McLeod, 640 F.3d at 888.
The medical opinion evidence was divided and the record contained

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significant documentation of disabling limitations.

Dr. Samantha Case, a

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consultative examiner, diagnosed major depressive disorder (moderate to mild) and

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generalized anxiety disorder. (T at 518). She opined that Plaintiff could perform one

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or two simple and repetitive tasks on a regular basis; had “fair limitations” with

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regard to maintaining attendance, accepting supervision, and interacting with the

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public and co-workers; and had an “impaired” ability to deal with stress in the

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competitive work environment. (T at 519).

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Dr. Flynn, Plaintiff’s treating psychiatrist, assessed extreme limitation with

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regard to all aspects of work-related activity, including working with supervisors,

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co-workers, and the public; maintaining attention and concentration; and dealing

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with stress. (T at 428).

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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Dr. John Petzelt, a non-examining State Agency review consultant, found that

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Plaintiff could maintain attention and perform at an adequate pace with respect to

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simple and detailed tasks with normal breaks, although he might have difficulty with

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complex tasks infrequently. (T at 118). Dr. Sandip Sen, another non-examining

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State Agency review consultant, opined that Plaintiff could “meet the basic mental

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and emotional demands of simple, repetitive and detailed work of low complexity.”

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(T at 137).

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The ALJ gave little weight to Dr. Flynn’s assessment, some weight to Dr.

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Case’s opinion, and great weight to the findings of the State Agency review

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consultants. (T at 24-25).

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Given that the assessments of Plaintiff’s treating and examining physicians

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were at odds with the non-examining consultants, and given that resolution of that

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discrepancy was material to the ALJ’s decision, this Court finds that the failure to

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develop the record and evaluate Plaintiff’s VA disability rating was prejudicial to

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Plaintiff.

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In sum, as a general matter, failure to address a VA disability rating is

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considered a serious error. Courts are reluctant to entertain post-hoc arguments that

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seek to retroactively justify an ALJ’s decision that failed to properly account for the

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VA rating. Where, as here, the medical opinion evidence was divided and there is

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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compelling evidence of disability, the failure to address a VA disability rating

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cannot be considered harmless. See Stebbins v. Colvin, SACV, 14-1309, 2015 U.S.

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Dist. LEXIS 90776, at *13-14 (C.D. Cal. July 13, 2015); see also Courtney v.

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Colvin, No. EDCV 15-510, 2016 U.S. Dist. LEXIS 92415, at *4-11 (C.D. Cal. July

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15, 2016). A remand is therefore required.

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B.

Credibility

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A claimant’s subjective complaints concerning his or her limitations are an

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important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d

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1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the

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claimant’s credibility must be supported by specific cogent reasons. Rashad v.

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Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of

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malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear

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and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General

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findings are insufficient: rather the ALJ must identify what testimony is not credible

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and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834;

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Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993).

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However, subjective symptomatology by itself cannot be the basis for a

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finding of disability. A claimant must present medical evidence or findings that the

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existence of an underlying condition could reasonably be expected to produce the

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R.

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§ 404.1529(b), 416.929; SSR 96-7p.

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In this case, the ALJ concluded that Plaintiff’s medically determinable

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impairments could reasonably be expected to cause the alleged symptoms, but that

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his statements concerning the intensity, persistence, and limiting effects of the

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symptoms were not fully credible. (T at 22).

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This Court finds that the ALJ’s credibility determination is flawed and should

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be revisited on remand.

The ALJ found Plaintiff’s activities of daily living

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inconsistent with his claims of disabling limitations. (T at 22). However, the ALJ

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cited Plaintiff’s activities (personal care, meal preparation, shopping, visiting

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family), without addressing the supports required and limitations present with regard

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to this activities. For example, Plaintiff needs reminders to attend to personal care

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(T at 342-343, 423-24), including basic hygiene. (T at 344).

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“disability claimants should not be penalized for attempting to lead normal lives in

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the face of their limitations,” the Ninth Circuit has held that “[o]nly if [her] level of

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activity were inconsistent with [a claimant’s] claimed limitations would these

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activities have any bearing on [her] credibility.” Reddick v. Chater, 157 F.3d 715,

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722 (9th Cir. 1998)(citations omitted); see also Bjornson v. Astrue, 671 F.3d 640, 647

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(7th Cir. 2012)(“The critical differences between activities of daily living and

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Recognizing that

DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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activities in a full-time job are that a person has more flexibility in scheduling the

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former than the latter, can get help from other persons . . ., and is not held to a

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minimum standard of performance, as she would be by an employer. The failure to

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recognize these differences is a recurrent, and deplorable, feature of opinions by

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administrative law judges in social security disability cases.”)(cited with approval in

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Garrison v. Colvin, 759 F.3d 995, 1016 (9th Cir. 2014)).

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The ALJ also found that the medical evidence contradicted Plaintiff’s

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subjective reports. (T at 22-23). However, this finding was impacted by the ALJ’s

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failure to develop the record concerning Plaintiff’s VA rating, as discussed above.

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Moreover, the ALJ cited to periodic points of improvement, without accounting for

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the wax and wane of symptoms. For example, although Plaintiff had some periods

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of relative improvement, he was hospitalized on multiple occasions with severe

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symptoms, including suicidal ideation. (T at 404, 407, 435, 449, 470, 650). The

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Ninth Circuit has cautioned against relying too heavily on the “wax and wane” of

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symptoms in the course of mental health treatment. See Garrison v. Colvin, 759 F.3d

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995, 1017 (9th Cir. 2014). “Cycles of improvement and debilitating symptoms are a

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common occurrence, and in such circumstances it is error for an ALJ to pick out a

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few isolated instances of improvement over a period of months or years and to treat

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them as a basis for concluding a claimant is capable of working.” Id.; see also

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001) (“[The treating

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physician's] statements must be read in context of the overall diagnostic picture he

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draws. That a person who suffers from severe panic attacks, anxiety, and depression

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makes some improvement does not mean that the person's impairments no longer

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seriously affect her ability to function in a workplace.”).

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In particular, the ALJ must interpret evidence of improvement “with an

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awareness that improved functioning while being treated and while limiting

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environmental stressors does not always mean that a claimant can function

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effectively in a workplace.” Id.
This Court finds the ALJ’s credibility analysis flawed for the reasons outlined

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above.

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C.

Step Five Analysis

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The ALJ’s step five analysis will likewise need to be revisited after the record

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has been further developed and reconsidered in light of the concerns identified

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above.

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D.

Remand

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In a case where the ALJ's determination is not supported by substantial

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evidence or is tainted by legal error, the court may remand the matter for additional

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proceedings or an immediate award of benefits. Remand for additional proceedings

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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is proper where (1) outstanding issues must be resolved, and (2) it is not clear from

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the record before the court that a claimant is disabled. See Benecke v. Barnhart, 379

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F.3d 587, 593 (9th Cir. 2004).

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Here, this Court finds that remand for further proceedings is warranted. The

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State Agency Review consultants rendered opinions consistent with the ALJ’s RFC

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determination. The VA disability rating, although entitled to great weight, is not

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controlling. There is some evidence of improvement and successful management of

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Plaintiff’s symptoms. While this evidence is not sufficient to sustain the ALJ’s

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decision, it does raise some question as to the nature and extent of Plaintiff’s

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limitations, making a remand for calculation of benefits inappropriate at this stage of

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the proceedings. See Strauss v. Comm’r of Soc. Sec., 635 F.3d 1135, 1138 (9th Cir.

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2011)(“Ultimately, a claimant is not entitled to benefits under the statute unless the

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claimant is, in fact, disabled, no matter how egregious the ALJ’s errors may be.”).

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB

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V. ORDERS

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IT IS THEREFORE ORDERED that:

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Judgment be entered REVERSING the Commissioner’s decision and

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REMANDING this case for further proceedings consistent with this Decision and

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Order; and

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The Clerk of the Court shall file this Decision and Order, serve copies upon

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counsel for the parties, and CLOSE this case, without prejudice to a timely

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application for attorneys’ fees and costs.

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DATED this 11th day of September, 2017,
/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – HIPOLITO v BERRYHILL 2:16-CV-02472-VEB