Opinion
CV-21-00124-TUC-JCH (LCK)
07-01-2022
Mark C. Tarwater, Plaintiff, v. Acting Commissioner of the Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
HONORABLE LYNNETTE C. KIMMINS, UNITED STATES MAGISTRATE JUDGE
Plaintiff Mark Tarwater brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of Social Security (Commissioner). Plaintiff filed an opening brief, Defendant responded, and Plaintiff filed a reply, which he subsequently amended. (Docs. 25, 27, 29.) Pursuant to the Rules of Practice of the Court, this matter was referred to Magistrate Judge Kimmins for Report and Recommendation. Based on the pleadings and administrative record, the Magistrate Judge recommends the District Court, after its independent review, deny the appeal.
FACTUAL AND PROCEDURAL HISTORY
Tarwater filed an application for Supplemental Security Income (SSI) in May 2018, alleging disability from February 21, 2018. (Administrative Record (AR) 249.) He was born in September 1982 and was 35 years of age at the alleged onset date of his disability. (Id.) He previously held various short-term jobs, earning $6000 to $16,000 per year until 2013. (AR 259, 270.) Tarwater's application was denied upon initial review (AR 81-94) and on reconsideration (AR 95-111). A telephonic hearing was held on August 27, 2020. (AR 35-64.)
The ALJ found Tarwater had severe impairments of obesity, PTSD, anxiety disorder, major depressive disorder, bipolar disorder, and poly-substance dependence and abuse disorder. (AR 17.) The ALJ concluded that, including Tarwater's substance use, he met a listed impairment and was disabled; however, if he stopped the substance use, the ALJ found he would not meet a listed impairment. (AR 18, 21.) The ALJ determined that, absent substance use, Tarwater had the Residual Functional Capacity (RFC) to perform work at the medium exertional level, but he was limited to simple, routine, repetitive tasks, no public interaction, and occasional casual interaction with coworkers and supervisors. (AR 22.) The ALJ decided at Step Five, based on the testimony of a vocational expert, that Tarwater could perform the jobs of health worker, janitor, and hand packager. (AR 26.) The Appeals Council denied Tarwater's request for review of that decision. (AR 2.)
STANDARD OF REVIEW
The Commissioner employs a five-step sequential process to evaluate SSI claims. 20 C.F.R. § 416.920; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) claimant's RFC precludes him from performing his past work. 20 C.F.R. § 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, she does not proceed to the next step. 20 C.F.R. § 416.920(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
Tarwater argues the ALJ committed two errors: (1) she failed to properly evaluate opinion evidence by a treating nurse practitioner; and (2) the RFC failed to account for his moderate limitations in concentration, persistence, and pace.
Opinion of Lisa Robertson, AGNP-C
Tarwater argues the ALJ failed to address the required factors when evaluating the opinion of treating Nurse Practitioner Lisa Robertson. Specifically, that she failed to discuss supportability and consistency with respect to NP Robertson's opinion. See 20 C.F.R. § 416.920c.
On July 30, 2019, treating Nurse Practitioner Robertson diagnosed Tarwater with bipolar disorder, anxiety, and PTSD. (AR 2247.) She forecast that he would experience anxiety and depression daily and hallucinations twice a month. (Id.) NP Robertson found that Tarwater experienced the following quite a bit or most of the time: flashbacks, feeling detached from self/body/surroundings, avoiding thoughts of stressful experiences, being easily startled, irritability or anger, emotional upset when reminded of stressful experiences, believing stressful events occurred due to his wrong choices, a very negative emotional state following a stressful experience, lack of interest in activities; thoughts of rejection, humiliation, or other bad things; panic attacks; and sleep disturbances. (AR 225152.) The nurse practitioner also found that Tarwater experienced other symptoms moderately or about half the time: distress when reminded of stressful situations, being "super alert," moments of sudden terror, muscle tension/sweat/trouble breathing/faint/ shakiness, using distraction to avoid thinking about unpleasant situations; and he occasionally required additional help to cope with a situation or reassurance due to worries. (Id.) NP Robertson determined Tarwater experienced significant depression symptoms on more than half his days. (AR 2253, 2255.) She indicated most of his symptoms of psychosis were mild, but that he had frequent manic symptoms. (AR 2254-55.)
The nurse practitioner opined that Tarwater had moderate limitations in activities of daily living and maintaining concentration, persistence, or pace; and marked difficulties in social functioning. (AR 2256.) She also noted four or more episodes of decompensation within a 12-month period. (Id.) She believed Tarwater would miss two days per month of work (on average) due to his impairments, and he was not capable of working 8 hours a day, 5 days per week. (AR 2256, 2260.) When completing a section of the form in which she was to identify the level of difficulty Tarwater experienced in completing various routine tasks, it appears NP Robertson may have made an error with respect to the numbering system. She circled that Tarwater would be moderately limited in carrying out detailed instructions but markedly limited in carrying out merely simple instructions. (AR 2257.) In other categories, she found marked limitations in interacting with the public and asking questions; and moderate limitations in sustaining an ordinary routine, completing a normal day and week without psychological interruptions, getting along with coworkers, maintaining socially appropriate behavior, and taking precautions for hazards. (AR 2258.) She concluded Tarwater's impairments were not caused by his substance abuse. (AR 2259.) She opined that his impairments were consistent with his symptoms and limitations, but he was a malingerer. (Id.)
The ALJ found the opinion of NP Robertson unpersuasive, because she did not offer a sufficient explanation for her opinion and the level of limitations she found were not supported by the evidence. (AR 25.) Further, the ALJ agreed with NP Robertson that Tarwater was a malingerer and determined that finding was inconsistent with the nurse practitioner's conclusion that Tarwater had severe limitations. (AR 25-26.)
The ALJ correctly stated that NP Robertson did not include any written explanation for her opinion. There were various spots in which she could have provided additional remarks and did not do so. (AR 2247-60.) However, if NP Robertson's opinion is supported by her treating records, then it would have been error for the ALJ to reject her medical opinion as unsupported. See Garrison, 759 F.3d at 1013 (giving weight to an unexplained medical opinion because it was based on a significant treating relationship and supported by extensive records); Esparza v. Colvin, 631 Fed.Appx. 460, 462 (9th Cir. 2015). NP Robertson appears to have been Tarwater's primary care provider for about one year. The first appointment, on February 13, 2019, was coded as an "[e]ncounter for general adult medical examination without abnormal findings." (AR 1953.) At this annual assessment, the exam was normal including the psychiatric review and mental status exam. (AR 195253.) NP Robertson next saw him for dental pain, and the exam was normal other than his dental issues. (AR 1954.) During an appointment to sign forms for his SSI proceeding, the exam was normal although Tarwater was tearful. (AR 2308.) NP Robertson prescribed a medication for hypertension. (Id.) The last appointment the Court identified was on February 25, 2020; the exam was normal, his hypertension medication was increased, and labs were ordered. (AR 2968.) NP Robertson's opinion is not based on any somatic impairments. (AR 2247, 2248.) Yet, Tarwater's psychiatric medications were prescribed by a different provider. (AR 2309.) The normal exams conducted by NP Robertson, which were not focused on Tarwater's mental health impairments, do not support the substantial psychiatric limitations in her opinion.
Plaintiff erroneously identified NP Robertson as her counselor. (Doc. 25 at 12.) He had an initial therapy session with Shannon Barefield on July 24, 2019. (AR 2273.) In a September 9, 2019 letter for Plaintiff's SSI application, Barefield identified herself as Plaintiff's therapist. (AR 2310.)
NP Robertson found that Tarwater was a malingerer; the ALJ agreed and determined that conclusion was inconsistent with the nurse practitioner's finding of moderate and marked limitations. The ALJ cited treatment notes indicating Tarwater reported physical pain and anxiety, but neither was observed by staff; he cited suicidal ideation as the reason for one hospitalization but admitted he went because he had no housing; and some of Tarwater's hospitalizations were related to drug-seeking behavior. (AR 18-20.) The record documents multiple other occasions on which hospital staff disbelieved Tarwater's statements and found he was malingering. (See, e.g., AR 356, 450, 1893). The ALJ's finding of inconsistency was supported by more than substantial record evidence. See Hegel v. Astrue, 325 Fed.Appx. 580, 581 (9th Cir. 2009) (rejecting examining physicians' opinions that found limitations but also malingering); Leon v. Astrue, No. 1:10-CV-0077 SKO, 2011 WL 1077679, at *9 (E.D. Cal. Mar. 21, 2011) (upholding the ALJ's discounting of a medical opinion by a doctor that determined the claimant was a malingerer).
Concentration Persistence, and Pace
Tarwater argues that the ALJ's RFC failed to account for the moderate limitations in concentration, persistence, and pace found by the ALJ. He contends that the mental limitations in the RFC - only simple, routine, repetitive tasks - failed to accommodate his limitations in concentrating over a period of time, persisting at tasks, or maintaining a certain pace.
At the initial review level, agency reviewing psychologist, Dr. Eblen, determined that Tarwater was moderately limited in his ability to concentrate, persist, or maintain pace (AR 88, 91-92.) With those limitations, he concluded Tarwater still could perform simple, 1-to-2-step instructions in a competitive work environment. (AR 92.) At the reconsideration level, agency reviewing psychologist, Dr. Kaz, determined that Tarwater had moderate limitations in his ability to concentrate, persist, or maintain pace (AR 104, 108.) Despite those limitations, Dr. Kaz concluded he could perform simple, 1-to-2-step instructions in a competitive work context. (AR 109.) Impartial medical expert, Dr. Peterson, estimated that Tarwater had a moderate limitation in his ability to concentrate, persist, or maintain pace (but recommended psychological testing in this area). (AR 2337.) He concluded that, in the absence of substance use, Tarwater could perform simple, repetitive tasks on a sustained basis in a work setting. (AR 2339.) The ALJ adopted the opinions of Drs. Peterson, Eblen, and Kaz that Tarwater had a moderate limitation in concentration, persistence, and pace. (AR 21.) The RFC further reflected their opinion that Tarwater had sufficient concentration, persistence, and pace for simple, repetitive, routine tasks. (AR 2.)
Defendant argues that the RFC sufficiently encompassed Tarwater's limitations and conformed to the medical opinion evidence. The Ninth Circuit has looked at this issue in only one published opinion. In Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008), two doctors identified that the claimant had a limitation in pace. One of the doctors concluded that, despite that limitation, the claimant retained the ability to do simple tasks. Id. The Ninth Circuit found it was proper for the ALJ to restrict the claimant to simple, routine work because that was the only concrete restriction offered by a doctor. Id. at 1174, 1175 (finding that the ALJ explained his decision to omit the claimant's pace deficiencies by referencing the doctor's opinion).
Tarwater's case is controlled by Stubbs-Danielson. The doctors upon which the ALJ relied found that, despite Tarwater's limitations in concentration, persistence, and pace, he could perform simple tasks at a competitive level. Thus, the ALJ's conclusions were consistent with the medical opinions upon which he relied. Tarwater cited to the unpublished Ninth Circuit opinion of Lubin v. Comm'r of Soc. Sec. Admin., 507 Fed.Appx. 709 (9th Cir. 2013), but it is not analogous. In Lubin, the ALJ improperly rejected uncontradicted medical opinions that the claimant could not work due to limitations in concentration, persistence, and pace. Id. at 711-12. Thus, the ALJ's failure to include in the RFC moderate limitations in concentration, persistence and pace was inconsistent with the medical opinion evidence. Id. at 712. The three district court decisions cited by Tarwater do not override the controlling holding of Stubbs-Danielson, and they are not directly analogous. For example, in Woodward v. Colvin, No. ED-CV-15-247-PLA, 2015 WL 8023227, at *7 (C.D. Cal. Dec. 4, 2015), the court distinguished Stubbs-Danielson because the ALJ found Woodward had a more substantial limitation in concentration, persistence, and pace than the doctors; therefore, the ALJ's RFC was not consistent with the medical testimony.
Tarwater also relies upon the cases of Bentancourt v. Astrue, No. ED-CV-10-0196 CW, 2010 WL 4916604, at *3 (C.D. Cal. Nov. 27, 2010), and Melton v. Astrue, No. 09-CV-1000-BR, 2010 WL 3853195, at *8 (D. Or. Sept. 28, 2010), affd sub nom. on other grounds, Melton v. Comm'r of Soc. Sec. Admin., 442 Fed.Appx. 339 (9th Cir. 2011). In those cases, the courts relied upon Brink v. Comm'r of Soc. Sec. Admin., 343 Fed.Appx. 211, 212 (9th Cir. 2009), in finding that the ALJ erred in failing to include the claimant's concentration, persistence, and pace limitations in the RFC. Bentancourt, 2010 WL 4916604, at *3; Melton, 2010 WL 3853195, at *8. However, in Brink, the court distinguished Stubbs-Danielson by adopting the erroneous finding that "[t]he medical testimony in Stubbs-Danielson . . . did not establish any limitations in concentration, persistence, or pace." 343 Fed.Appx. at 212. Bentancourt actually is factually analogous to Stubbs-Danielson in that two doctors determined Bentancourt had moderate limitations in concentration, persistence, and pace, but that she retained the ability to perform simple tasks; in adopting those findings, the ALJ's RFC was consistent with the medical evidence. Id. at *4. The decision in Melton does not state what functional limitations, if any, were identified in the medical opinions. Further, Brink is distinguishable because, in that case, the ALJ found a claimant with a moderate limitation in concentration, persistence or pace could perform assembly-line work, despite the vocational expert's testimony that such a limitation precluded that type of work. Brink, 343 Fed.Appx. at 212 (failing to include whether any medical opinions found a limitation in concentration, persistence, and pace and addressed its impact on the claimant's RFC). This Court has previously pointed out that Brink has been criticized by various courts. See Shaffer v. Comm 'r of Soc. Sec. Admin., No. CV-16-04047-PHX-DLR, 2018 WL 1556279, at *4 (D. Ariz. Mar. 30, 2018) (collecting cases). Because the Court does not find the cases cited by Tarwater persuasive, and Tarwater's facts are sufficiently comparable to those in Stubbs-Danielson, the Court finds the RFC as found by the ALJ was sufficient. It was consistent with the medical opinion evidence upon which she relied, which concluded that Tarwater's limitations in concentration, persistence, and pace did not prevent him from performing simple, repetitive work at a competitive level. Therefore, Stubbs-Danielson dictates that the Court uphold the ALJ's decision.
CONCLUSION AND RECOMMENDATION
A federal court may affirm, modify, reverse, or remand a social security case. 42 U.S.C. § 405(g). The Court concludes the ALJ did not err as to the claims raised by Plaintiff. Therefore, the Magistrate Judge recommends that the District Court deny Plaintiff's appeal.
Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the district court. If objections are not timely filed, they may be deemed waived. If objections are filed, the parties should use the following case number: CV-21-124-TUC-JCH.