Fudge v. Berryhill

Filing 19

REPORT AND RECOMMENDATION re 15 Cross MOTION for Summary Judgment filed by Nancy A. Berryhill, 14 MOTION for Summary Judgment filed by Carmine B Fudge. Any party having objections to the Courts proposed findings and rec ommendationsshall serve and file specific written objections within 14 days after being served with a copy of this Report and Recommendation. A party may respond to the other partys objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 6/25/2018.(jao)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10
11

Case No.: 17-cv-01423-W (RNB)

CARMINE B. FUDGE,
Plaintiff,

12
13

v.

14

REPORT AND
RECOMMENDATION REGARDING
CROSS-MOTIONS FOR SUMMARY
JUDGMENT

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

15
16

Defendant.

(ECF Nos. 14, 15)

17
18

This Report and Recommendation is submitted to the Honorable Thomas J. Whelan,

19

United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule

20

72.1(c) of the United States District Court for the Southern District of California.

21

On July 13, 2017, plaintiff Carmine B. Fudge filed a Complaint pursuant to 42

22

U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social

23

Security denying his application for Supplemental Security Income (“SSI”). (ECF No. 1.)

24

Now pending before the Court and ready for decision are the parties’ cross-motions

25

for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that

26

plaintiff’s motion for summary judgment be GRANTED, that the Commissioner’s cross-

27

motion for summary judgment be DENIED, and that Judgment be entered reversing the

28
1
17-cv-01423-W (RNB)

1

decision of the Commissioner and remanding this matter for further administrative

2

proceedings.

3
4

PROCEDURAL BACKGROUND

5

On February 18, 2014, plaintiff filed an application for SSI, alleging onset of

6

disability on November 1, 2011. (Certified Administrative Record [“AR”] 141-49.)

7

Plaintiff stated that he was unable to work due to the following: loss of vision to left eye,

8

bipolar, psychosis, brain damage from fight, memory problems, hallucinations, and hearing

9

voices. (AR 50.) The application was denied initially and upon reconsideration. (AR 50-

10

62, 63-76.)

11

On August 29, 2014, plaintiff requested a hearing. (AR 93-95.) A hearing was held

12

before an administrative law judge (“ALJ”) on February 8, 2016. (AR 32-49.) Plaintiff

13

testified at the hearing, along with a Vocational Expert (“VE”), Gloria Lasoff. (AR 32-

14

49.) Plaintiff was represented at the administrative hearing. (AR 32-49.) The ALJ issued

15

a decision on May 31, 2016, finding that plaintiff was not disabled.

16

Thereafter, plaintiff requested a review of the decision by the Appeals Council. (AR 139.)

17

The ALJ’s decision became the final decision of the Commissioner on May 15, 2017, when

18

the Appeals Council denied plaintiff’s request for review. (AR 1-6.) This timely civil

19

action followed.

(AR 14-31.)

20
21

SUMMARY OF THE ALJ’S FINDINGS

22

In rendering his decision, the ALJ followed the Commissioner’s five-step sequential

23

evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that

24

plaintiff had not engaged in substantial gainful activity since February 18, 2014.1 (AR 20.)

25
26
27
28

1

SSI is not payable prior to the month following the month in which the
application is filed. See 20 C.F.R. § 416.335.
2
17-cv-01423-W (RNB)

1

At step two, the ALJ found that plaintiff had the following severe impairments:

2

chronic alcohol abuse, marijuana abuse, a psychotic disorder, a bipolar disorder, and an

3

anxiety disorder. (AR 20.)

4

At step three, the ALJ found that plaintiff did not have an impairment or combination

5

of impairments that met or medically equaled the severity of one of the impairments listed

6

in the Commissioner’s Listing of Impairments. (AR 21-22.)

7

Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”)

8

to perform a full range of work at all exertional levels, but with the following non-

9

exertional limitations: he could perform simple, repetitive tasks in a non-public work

10

environment. (AR 22.) Additionally, the ALJ determined that plaintiff should have no

11

exposure to workplace hazards, such as unprotected heights, dangerous or fast-moving

12

machinery, etc. (AR 22-25.)

13

At step four, the ALJ determined that plaintiff had no past relevant work. (AR 25.)

14

The ALJ then proceeded to step five of the sequential evaluation process. Based on the

15

VE’s testimony that a hypothetical person with plaintiff’s vocational profile could perform

16

the requirements of occupations that existed in significant numbers in the national economy

17

(i.e., hand packager, kitchen helper, or cleaner), the ALJ found that plaintiff was not

18

disabled from February 18, 2014 through May 31, 2016. (AR 27-28.)

19
20

PLAINTIFF’S CLAIM OF ERROR

21

Plaintiff claims that the ALJ erred when he failed to discuss in his decision the 2015-

22

2016 progress notes of one of plaintiff’s treating physicians, John Donnelly, M.D., and

23

plaintiff’s hospitalization records from 2015. (See ECF No. 14-1 at 9-10.) The parties do

24

not dispute that the ALJ failed to discuss the 2015-2016 progress notes of Dr. Donnelly or

25

plaintiff’s 2015 hospitalization records. (See ECF No. 14-1 at 9-10; AR 15-1 at 10-13; AR

26

21-25.) Rather, the parties dispute whether this evidence was significant and probative,

27

thus requiring the ALJ to discuss it. (See id.)

28
3
17-cv-01423-W (RNB)

1

STANDARD OF REVIEW

2

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

3

determine whether the Commissioner’s findings are supported by substantial evidence and

4

whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846

5

(9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a

6

preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of

7

Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is

8

“such relevant evidence as a reasonable mind might accept as adequate to support a

9

conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole

10

and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-

11

30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation,

12

the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452

13

(9th Cir. 1984).

14
15

DISCUSSION

16

“In making a determination of disability, the ALJ must develop the record and

17

interpret the medical evidence.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012

18

(9th Cir. 2003). “However, in interpreting the evidence and developing the record, the ALJ

19

does not need to ‘discuss every piece of evidence.’” Id. (citing Black v. Apfel, 143 F.3d

20

383, 386 (8th Cir. 1998)). “[T]he ALJ is not required to discuss evidence that is neither

21

significant nor probative.” Id.; see also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th

22

Cir. 1984) (affirming where ALJ had failed to mention testimony from lay witness which

23

was not significant and probative).

24

In his decision, the ALJ only discussed the following medical records: a hospital

25

visit to Tri-City Medical Center in February 2011, a visit to Exodus Recovery Center in

26

May 2011, an evaluation at Tri-City Medical Center in June 2011, and a consultative

27

psychiatric evaluation in March 2014. (See AR 21-25.) He did not discuss any other

28

medical records. Thus, the ALJ did not discuss plaintiff’s hospitalization records from his
4
17-cv-01423-W (RNB)

1

May 2015 admission to Tri-City Medical Center for “suicidal ideation and auditory

2

hallucinations with a plan to shoot himself”; his June 2015 admission to Tri-City Medical

3

Center with complaints “of auditory hallucinations of a demon telling him to kill himself”;

4

or his August 2015 admission to Tri-City Medical Center due to “increased auditory

5

hallucinations and suicidal ideation and not feeling safe in the community.” (See AR 446-

6

81.) Nor did the ALJ discuss the progress notes of Dr. Donnelly at MHS North Coastal

7

Clinic for visits on November 9, 2015, December 23, 2015, and February 3, 2016. Dr.

8

Donnelly described significant difficulties in memory function, verbalization, the need to

9

rule out dementia, and significant delays in function. (See AR 482-89.)

10

The Commissioner contends that these medical records from 2015 and 2016 were

11

not probative because they were generally duplicative of the evidence the ALJ explicitly

12

discussed. According to the Commissioner, plaintiff’s 2011 records established a “pattern

13

of behavior,” in that “[p]laintiff would seek treatment while off his medication, and then

14

his symptoms would improve with treatment.” The Commissioner asserts that “the more

15

recent treatment notes indicate a continuing pattern of non-compliance with prescribed

16

treatment.” (ECF No. 15-1 at 10-11.)

17

Dr. Donnelly’s progress notes reflect that plaintiff has “schizoaffective disorder—

18

bipolar type.” (AR 483, 485, 487.) During his November 2015 visit to Dr. Donnelly,

19

plaintiff reported the following: having irritability and anxiety and feeling “like [he’s]

20

gonna come out of [his] skin; having “racing thoughts”; having “trouble focusing and easily

21

get[ting a] sense of feeling bombarded by input”; feeling “like they’re having a

22

cheerleading competition, theres like too much action”; hearing “voices talking down on

23

me” which are “kind of” “present daily” and tell him he’s “schizophrenic and [he] should

24

kill [him]self because [he’s] sick”; he does not feel compelled to do what the voices say;

25

he has a “thing that follows [him] sometimes” that is “pitch black, like a grasshopper” and

26

when he gets “stressed out” he sees it and “thinks it is a demon”; and “thinks the FBI is

27

after him.” (AR 486.) At this time, plaintiff claimed “routine compliance” with his

28

medications, which included Sustenna and Depakote. (AR 487.)
5
17-cv-01423-W (RNB)

1

In December 2015, plaintiff further reported an “ongoing sense of people talking

2

about him and ‘plotting on me’” and “wonders as well if the FBI is plotting on him.” (AR

3

484.) At this time, he reported taking his pills “most of the time.” (AR 484.) He was still

4

taking Depakote, although he was two weeks late on taking his Sustenna. (AR 485.) In

5

February 2016, plaintiff reported that that he “worries that friends are trying to take things

6

from him,” but “denies any recent sense of strangers talking about him.” (AR 482.) He

7

also claimed that he was taking his pills daily. (AR 482.) Based on the foregoing, the

8

Court disagrees with the Commissioner’s characterization of Dr. Donnelly’s progress notes

9

as merely evidencing a continuing pattern of non-compliance with prescribed treatment.

10

Furthermore, plaintiff’s hospitalization records in 2015 are probative of whether

11

plaintiff’s severe disorders could be controlled with medication. The Court notes that

12

plaintiff’s hospitalizations did not follow significant periods of time without medications,

13

thus indicating that even a day without medication would set plaintiff back significantly.

14

(See AR 467-76 (In May 2015, plaintiff was admitted for suicidal ideation and auditory

15

hallucinations with a plan to shoot himself with no clear indication that he had been off his

16

medications for any period of time); AR 455-66 (In June 2015, plaintiff stopped taking his

17

psychiatric medications five days before going to the emergency room complaining of

18

auditory hallucinations of a demon telling him to kill himself and stating that he had been

19

hearing voices for the past five days); AR 446-54 (In August 2015, plaintiff was only off

20

his Depakote for a week, and a few days past due on his injection of Invega Sustenna (given

21

every three weeks) before he started hearing voices and having suicidal ideation)).

22

In addition, plaintiff’s 2015 hospitalization records contain evaluations that are

23

probative of plaintiff’s functioning during the relevant time period. When plaintiff was

24

admitted to the hospital in May and August 2015, his Global Assessment of Functioning

25

(“GAF”) score was 30 on admission and 45 on discharge, and in June 2015, his GAF score

26

was 35. (See AR 468, 446, 460, 472.) A GAF score is “relevant evidence” of a claimant’s

27

ability to function mentally. See Woodsum v. Astrue, 711 F. Supp. 2d 1239, 1255 (W.D.

28

Wash. May 7, 2010) (citing England v. Astrue, 490 F.3d 1017, 1023 n.8 (8th Cir. 2007));
6
17-cv-01423-W (RNB)

1

see also Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (treating the claimant’s

2

GAF score as relevant evidence); Riedinger v. Berryhill, 2017 WL 782753, at *3 (W.D.

3

Wash. Feb. 1, 2017), report and recommendation adopted, 2017 WL 772136 (W.D. Wash.

4

Feb. 28, 2017) (“A GAF score that is assigned by an acceptable medical source is a medical

5

opinion as defined in 20 C.F.R. §§ 404.1527(a)(2) and 416.927(a)(2), and an ALJ must

6

assess a claimant’s residual functional capacity based on all of the relevant evidence in the

7

record, including medical source opinions, 20 C.F.R. §§ 404.1545(a), 416.945(e).”).

8

“A GAF score of 41-50 indicates ‘[s]erious symptoms . . . [or] serious impairment

9

in social, occupational, or school functioning,’ such as an inability to keep a job.” Id.

10

(citing Pisciotta v. Astrue, 500 F.3d 1074, 1076 n. 1 (10th Cir. 2007) (quoting Diagnostic

11

and Statistical Manual of Mental Disorders (Text Revision 4th ed. 2000) (“DSM–IVTR”)

12

at 34)); see also Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir. 2014) (a GAF score

13

between 41 and 50 describes “serious symptoms” or “any serious impairment in social,

14

occupational, or school functioning”); Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

15

2005) (“A GAF of forty indicates some impairment in reality testing or communication, or

16

major impairment in several areas such as work or school, family relations, judgment,

17

thinking, or mood.”); Cox v. Astrue, 495 F.3d 614, 620 n. 5 (8th Cir. 2007) (GAF score in

18

forties may be associated with serious impairment in occupational functioning).2 Thus,

19
20
21
22
23
24
25
26
27
28

2

See also Parslow v. Colvin, 2013 WL 6038955, at *7 (W.D. Wash. Nov. 13,
2013) (citing DSM–IVTR at 32-34) (a GAF score of 21-30 indicates “behavior is
considerably influenced by delusions or hallucinations” or “serious impairment in
communications or judgment” or “inability to function in all areas”); Kenner v. Colvin,
2015 WL 736267, at *2 (C.D. Cal. Feb. 20, 2015) (citing DSM–IVTR at 34) (“A GAF
score of 31-40 indicates “[s]ome impairment in reality testing or communication (e.g.,
speech is at times illogical, obscure or irrelevant) or major impairment in several areas,
such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man
avoids friends, neglects family, and is unable to work; child frequently beats up younger
children, is defiant at home, and is failing at school).”).
7
17-cv-01423-W (RNB)

1

even after treatment at the hospital, plaintiff’s GAF scores indicated serious symptoms and

2

impairment.

3

The Court therefore rejects the Commissioner’s characterization of Dr. Donnelly’s

4

2015-2016 progress notes and plaintiff’s 2015 hospitalization records as cumulative of

5

other evidence the ALJ discussed. To the contrary, the Court finds that this evidence was

6

significant and probative and that the ALJ erred in failing to discuss it.

7

The Commissioner argues that even if the ALJ erred, the error was harmless. (See

8

ECF No. 15-1 at 13-17.) Harmless error analysis does apply in this context. See, e.g.,

9

Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015); Garrison, 759 F.3d at 1012. An

10

error is harmless if it is “inconsequential to the ultimate nondisability determination.” Stout

11

v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006).

12

Here, the Court is unable to conclude that the ALJ’s error was harmless. In finding

13

that plaintiff had the RFC to perform a full range of work at all exertional levels, with

14

certain limitations, the ALJ relied on treatment records from 2011 and an evaluation from

15

2014, as well as the 2014 opinions of the State Agency medical consultants, to whose

16

opinions he gave “great weight.” (See AR 22-25.) The ALJ failed to consider evidence

17

that the Court has found qualified as significant and probative. Moreover, as plaintiff

18

points out, the 2014 opinions of the non-examining State Agency medical consultants

19

likewise failed to take into consideration plaintiff’s 2015 hospitalizations or the 2015-2016

20

progress notes of Dr. Donnelly. (See ECF No. 14-1 at 9.)

21

The Commissioner argues that the ALJ’s RFC finding was still supported by

22

substantial evidence. (See ECF No. 16-1 at 13-17.) However, given the complete failure

23

of the ALJ to discuss any medical records from the two years prior to his decision, the

24

Court cannot “confidently conclude” that the error was inconsequential to the ultimate

25

nondisability determination. See Marsh, 792 F.3d at 1172-73 (finding that it could not

26

“confidently conclude” there was harmless error when the ALJ failed to even mention a

27

treating physician’s opinion); Stout, 454 F.3d at 1055-56. This is particularly true because

28

it appears that plaintiff’s condition may have worsened over time, as evidenced by his
8
17-cv-01423-W (RNB)

1

multiple hospitalizations in 2015. See Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)

2

(where the claimant’s “condition [is] progressively deteriorating, the most recent medical

3

report is the most probative”); see also Magallanes v. Bowen, 881 F.2d 747, 754-55 (9th

4

Cir. 1989) (“Where a claimant’s condition becomes progressively worse, medical reports

5

from an early phase of the disease are likely to be less probative than later reports.”).

6
7

CONCLUSION AND RECOMMENDATION

8

For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for

9

summary judgment be GRANTED, that the Commissioner’s cross-motion for summary

10

judgment be DENIED, and that Judgment be entered reversing the decision of the

11

Commissioner and remanding this matter for further administrative proceedings.

12

Any party having objections to the Court’s proposed findings and recommendations

13

shall serve and file specific written objections within 14 days after being served with a

14

copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections

15

should be captioned “Objections to Report and Recommendation.” A party may respond

16

to the other party’s objections within 14 days after being served with a copy of the

17

objections. See id.

18
19
20
21

IT IS SO ORDERED.
Dated: June 25, 2018
_________________________
ROBERT N. BLOCK
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
9
17-cv-01423-W (RNB)