Tarwater v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: August 15, 2022
• Docket: 4:21-cv-00124
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Mark C Tarwater, No. CV-21-00124-TUC-JCH

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff Mark C. Tarwater (“Plaintiff” or “Tarwater”) filed this action for review of 16 the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. §§ 405(g), 17 1383(c)(3). (Doc. 1.) This action was referred to United States Magistrate Judge Lynnette 18 C. Kimmins for Report and Recommendation (“R&R”). (Doc. 12.) On July 1, 2022, 19 Magistrate Judge Kimmins issued her R&R finding that the ALJ did not commit reversible 20 error as to Plaintiff’s claims and recommending that this Court deny Plaintiff’s appeal. 21 (Doc. 38 at 9.) Plaintiff objected to Judge Kimmins’s recommendation. (Doc. 31.) The 22 Commissioner filed his response. (Doc. 32.) As explained below, the Court will grant in 23 part Plaintiff’s objection and remand this matter for further proceedings. 24 I. FACTUAL AND PROCEDURAL BACKGROUND1 25 Tarwater filed an application for Supplemental Security Income (“SSI”) in May 26 2018, alleging disability from February 21, 2018. (Administrative Record (“AR”) 249.) He 27 was born in September 1982 and was 35 years of age at the alleged onset date of his

28 1 No objection has been made to the R&R’s Factual and Procedural Background section. (Doc. 31, 32.) Finding no clear error, the Court adopts it in full as set forth below. 1 disability. (AR 249.) He previously held various short-term jobs, earning $6,000 to $16,000 2 per year until 2013. (AR 259, 270.) Tarwater's application was denied upon initial review 3 (AR 81-94) and on reconsideration (AR 95-111). A telephonic hearing was held on August 4 27, 2020. (AR 35-64.) The ALJ found Tarwater had severe impairments of obesity, PTSD, 5 anxiety disorder, major depressive disorder, bipolar disorder, and poly-substance 6 dependence and abuse disorder. (AR 17.) The ALJ concluded that, including Tarwater's 7 substance use, he met a listed impairment and was disabled; however, if he stopped the 8 substance use, the ALJ found he would not meet a listed impairment. (AR 18, 21.) The 9 ALJ determined that, absent substance use, Tarwater had the Residual Functional Capacity 10 (“RFC”) to perform work at the medium exertional level, but he was limited to simple, 11 routine, repetitive tasks, no public interaction, and occasional casual interaction with 12 coworkers and supervisors. (AR 22.) The ALJ decided at Step Five, based on the testimony 13 of a vocational expert, that Tarwater could perform the jobs of health2 worker, janitor, and 14 hand packager. (AR 26.) The Appeals Council denied Tarwater's request for review of that 15 decision. (AR 2.) 16 II. STANDARD OF REVIEW 17 The Court reviews de novo any objected-to portions of the R&R. See 28 U.S.C. § 18 636(b)(1); Fed. R. Civ. P. 72(b). The Court reviews for clear error any unobjected-to 19 portions of the R&R. Id. See also, Johnson v. Zema Systems Corp., 170 F.3d 734, 739 (7th 20 Cir. 1999); Conley v. Crabtree, 14 F. Supp. 2d 1203, 1204 (D. Or. 1998). 21 III. ANALYSIS 22 Plaintiff raises two issues on appeal: (1) that the ALJ failed to properly evaluate the 23 opinion evidence of treating Nurse Practitioner (“NP”) Lisa Robertson; and (2) the RFC 24 failed to account for Plaintiff’s moderate limitations in concentration, persistence, and 25 pace. (Doc. 25 at 16-23.) 26 Regarding the opinion of NP Robertson, Judge Kimmins found that NP Robertson’s 27 opinion was not supported by her treating records and that NP Robertson’s finding that

28 2 The ALJ’s reference to health worker appears to be a typo. The vocational expert testified that Plaintiff could perform the occupation of warehouse worker. (AR 61.) 1 Plaintiff was a malingerer was inconsistent with her finding that Plaintiff had moderate and 2 marked limitations. (Doc. 30 at 5-6.) Plaintiff objects to these findings claiming that Judge 3 Kimmins “rubber stamped the decision of the ALJ without showing how the ALJ properly 4 considered the supportability and consistency factors under 20 C.F.R. § 416.920c(b)(2).” 5 (Doc. 31 at 2.) She urges that Judge Kimmins “exceeds her authority and re-weighs the 6 evidence to reach a conclusion . . . that was not explained in the ALJ’s decision.” Id. 7 Regarding the ALJ’s RFC determination, Judge Kimmins found that Plaintiff’s case 8 is controlled by Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008), and upon 9 application of Stubbs-Danielson, the ALJ’s RFC determination was sufficient. (Doc. 30 at 10 7-9.) Plaintiff objects to this finding. (Doc. 31 at 3.) 11 a. The Opinion of NP Robertson 12 The Commissioner promulgated revised regulations concerning how ALJs must 13 evaluate medical opinions for claims filed on or after March 27, 2017. See 20 C.F.R. §§ 14 404.1520c, 416.920c. These new regulations, which include 20 C.F.R. § 416.920c(b)(2) 15 relied upon by Plaintiff, apply to the instant claim which was filed in May 2018. Section 16 416.920c(b)(2), Title 20, Code of Federal Regulations, provides in relevant part:

17 (b) How we articulate our consideration of medical opinions and prior 18 administrative medical findings. We will articulate in our determination or decision how persuasive we find all of the medical 19 opinions and all of the prior administrative medical findings in your 20 case record. Our articulation requirements are as follows:

21 . . . 22 (2) Most important factors. The factors of supportability (paragraph 23 (c)(1) of this section) and consistency (paragraph (c)(2) of this 24 section) are the most important factors we consider when we determine how persuasive we find a medical source's medical 25 opinions or prior administrative medical findings to be. Therefore, we 26 will explain how we considered the supportability and consistency factors for a medical source's medical opinions or prior administrative 27 medical findings in your determination or decision . . .

28 (c) Factors. We will consider the following factors when we consider 1 the medical opinion(s) and prior administrative medical finding(s) in your case: 2

3 (1) Supportability. The more relevant the objective medical evidence and supporting explanations presented by a medical source are to 4 support his or her medical opinion(s) or prior administrative medical 5 finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be. 6

7 (2) Consistency. The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other 8 medical sources and nonmedical sources in the claim, the more 9 persuasive the medical opinion(s) or prior administrative medical finding(s) will be. 10 11 20 C.F.R. § 416.920c(b)(2). 12 Plaintiff claims that Judge Kimmins failed to show how the ALJ properly 13 considered both factors of supportability and consistency in evaluating the opinion of NP 14 Robertson. (Doc. 31 at 2.) Other district courts in the Ninth Circuit have recognized that “[b]eyond abrogating the treating physician rule, it is not yet clear how much the new 15 regulations affect other Ninth Circuit principles governing Social Security review, as 16 appeals of decisions governed by the new regulations are only just beginning to reach the 17 district courts.” See Thompson v. Comm’r of Soc. Sec., No. 2:20-cv-3-KJN, 2012 WL 18 1907488, at *3 n.3 (E.D. Cal. May 11, 2021). Accordingly, this Court will follow other 19 district courts in finding that longstanding general principles of judicial review still apply 20 to cases filed on or after March 27, 2017. See Id. (citations omitted). 21 Here, in finding the opinion of NP Robertson unpersuasive, the ALJ determined: 22 Lisa Robertson, AGNP-C, opined on July 30, 2019, that the claimant had 23 moderate and marked limitations in his mental work-related abilities that 24 were not related to his substance abuse. However, she inconsistently noted that the claimant was a malinger [Exhibit B22F]. The undersigned finds the 25 opinion of Ms. Robertson to be unpersuasive because the extent of the 26 limitations assessed are not supported without substance abuse and the record does support that the claimant is a malingerer. Ms. Robertson does not give 27 a sufficient explanation for her opinion.

28 (AR 24-25.) Plaintiff argues that Judge Kimmins improperly considered evidence in the 1 record that was not incorporated into “any of the ALJ’s decision of the rejection of NP 2 Robertson’s opinion.” (Doc. 31 at 2.) However, applying existing Ninth Circuit principles 3 governing Social Security review, Judge Kimmins properly recognized that if NP 4 Robertson’s opinion is supported by her treating records, then the ALJ would have erred 5 in rejecting her medical opinion as unsupported. (Doc. 30 at 5, citing Garrison v. Colvin, 6 759 F.3d 995, 1013 (9th Cir. 2014); Esparza v. Colvin, 631 F. App.’x 460, 462 (9th Cir. 7 2015).) In other words, Judge Kimmins properly consulted the medical evidence of record 8 to determine whether the ALJ’s decision to reject NP Robertson’s opinion was supported. 9 Accordingly, upon her review of NP Robertson’s records of her examination of Plaintiff, 10 Judge Kimmins found that the “normal exams conducted by NP Robertson, which were 11 not focused on [Plaintiff’s] mental health impairments, do not support the substantial 12 psychiatric limitation in her opinion.” (Doc. 30 at 3-5, citing AR 1952-1954, 2247-2248, 13 2308, 2968.) 14 The ALJ also found that NP Robertson “consistently noted that claimant was a malinger[er].” (AR 24.) In her R&R, Judge Kimmins found that “the ALJ cited treatment 15 notes indicating Tarwater reported physical pain and anxiety, but neither was observed by 16 staff; he cited suicidal ideation as the reason for one hospitalization but admitted he went 17 because he had no housing; and some of Tarwater’s hospitalizations were related to drug- 18 seeking behavior. (AR 18-20.)” Judge Kimmins thus found that “[t]he ALJ’s finding of 19 inconsistency was supported by more than substantial record evidence.” (Doc. 30 at 6.) 20 The Court finds that Judge Kimmins properly applied existing Ninth Circuit 21 principles governing Social Security review. This Court rejects Plaintiff’s argument that 22 Judge Kimmins “rubber stamped” the decision of the ALJ and conducted a post hoc 23 rationalization of the evidence. 24 b. The RFC Finding 25 The ALJ found that if Plaintiff were to stop his substance abuse, he has the RFC to 26 perform medium work as defined in 20 C.F.R. § 416.967(c) except that he is limited to 27 simple, routine, repetitive tasks; no public interaction; and occasional casual interaction 28 with coworkers and supervisors. (Doc. 20-3 at 23.) Judge Kimmins found that Stubbs- 1 Danielson v. Astrue, controlled and compelled a finding that the ALJ’s RFC formulation 2 was sufficiently supported. (Doc. 30 at 8-9.) In his objection, Plaintiff urges that his 3 argument “included an additional prong that was not addressed in Stubbs-Danielson which 4 prevents that case from controlling the current set of facts.” (Doc. 31 at 3.) He urges that 5 the ALJ’s finding that he is moderately limited in concentration, persistence and pace 6 requires the ALJ to explain how his moderate limitation is accounted for with an RFC 7 limitation to simple tasks. Id. He also argues that “[a] limitation to simple, routine, 8 repetitive tasks is not completely the same as being limited to simple, 1-to-2 step 9 instruction.” Id. The Court agrees with Plaintiff his last point of claimed error. 10 “A number of district courts in [the Ninth] Circuit have reversed ALJ decisions 11 imposing a ‘simple, repetitive tasks’ RFC limitation where the ALJ failed to address and 12 distinguish conclusions by doctors that claimants can perform one-and-two step 13 instructions.” See Wilson v. Colvin, No. 16-CV-01971-WHO, 2017 WL 1861839, at *6 14 (N.D. Cal. May 9, 2017). For example, Wilson recognized that Rounds v. Comm’r of Soc. Sec., 807 F.3d 996, 1003 (9th Cir. 2015), made clear the distinction between a limitation 15 to one-and-two-step instructions and the ability to perform simple, repetitive tasks. See 16 Wilson, 2017 WL 1861839, at *6. As also recognized by Wilson, the district court in Burton 17 v. Berryhill, No. 15-CV-04991-DMR, 2017 WL 1065140, at *4 (N.D. Cal. Mar. 20, 2017), 18 held “[t]o the extent that the ALJ accepted the opinion that [the p]laintiff is limited to one– 19 and two–step instruction work, the ALJ's RFC assessment does not account for that 20 limitation . . . To the extent that the ALJ rejected that portion of Dr. Bailey's opinion, he 21 erred by failing to provide any reasons for doing so.”); see also Banales v. Berryhill, No. 22 EDCV 16-1247 AGR, 2017 WL 651941, at *2 (C.D. Cal. Feb. 16, 2017) (remanding where 23 ALJ acknowledged a doctor's functional assessment that claimant could perform one–or 24 two-step instructions, but did not expressly discount that conclusion and instead limited 25 claimant to performing “simple repetitive tasks”); Garcia v. Colvin, No. CV 16-00652- 26 JEM, 2016 WL 6304626, at *6 (C.D. Cal. Oct. 27, 2016) (“the ALJ's simple, repetitive 27 tasks RFC limitation is consistent with Dr. Deaver's ‘simple, routine non-stressful work’ 28 opinion (AR 63) but plainly inconsistent with his ‘easy 1, 2 step directions’ limitation 1 which the ALJ decision never mentions. The ALJ necessarily rejected the latter limitation 2 without any explanation as required by Social Security regulations.”); Wells v. Colvin, No. 3 1:15-CV-0285-JLT, 2016 WL 4744668, at *8 (E.D. Cal. Sept. 13, 2016) (remanding where 4 ALJ purported to accept doctor's opinion “who reviewed the medical evidence and 5 concluded Plaintiff could ‘sustain simple one-two step repetitive tasks,” but “did not adopt 6 this limitation in the RFC, instead limiting Plaintiff to “simple, routine, and repetitive 7 tasks.”); cf. Navarro v. Astrue, No. CV 10-217-PLA, 2010 WL 5313439, at *5 (C.D. Cal. 8 Dec. 16, 2010) (concluding that the “ALJ's determination that plaintiff can do simple work 9 . . . did not adequately encompass” the doctor's conclusion that plaintiff could perform one- 10 and-two step instructions). 11 Here, the ALJ adopted the opinions of Drs. Person, Kaz and Eblen, and two of these 12 physicians, Drs. Kaz and Eblen, limited Plaintiff to performing simple, one to two step 13 tasks. (Doc. 20-3 at 25 (ALJ decision noting that Dr. Peterson opined the claimant was 14 “capable of simple, repetitive tasks”; that Dr. Kaz opined the claimant was “able to perform simple, 1 to 2 step instructions”; and that Dr. Eblen opined the claimant was “able to 15 perform simple, 1 to 2 step instructions”)). The ALJ specifically relied on Drs. Kaz and 16 Eblen’s opinions in formulating the RFC limiting Plaintiff to simple, routine, repetitive 17 tasks, yet he failed to account for any distinction between these physicians’ limitation of 18 Plaintiff to one to two step tasks and the RFC’s limitation simple, routine, repetitive tasks. 19 (Doc. 20-3 at 23-26.) This was error. See Rounds, 807 F.3d at 1004 (holding, where the 20 claimant was expressly limited to one to two step tasks and there was no explanation in the 21 record as to why the VE or the ALJ should not have taken this restriction “at face value,” 22 the record did not support a conclusion that the ALJ's failure to resolve this apparent 23 conflict was harmless error). 24 The Court finds the caselaw relied upon by the Commissioner distinguishable. (Doc. 25 32 at 5-6 n.1.) None of the cases cited by the Commissioner require the Court to depart 26 from the Ninth Circuit’s holding in Round. See Corwin v. Kijakazi, No. 1:20-CV-00394- 27 GSA, 2021 WL 5771658, at *4 (E.D. Cal. Dec. 6, 2021) (“if Plaintiff can perform not only 28 simple one to two step tasks but also simple and routine tasks, it is appropriate for the RFC 1 || to reflect only the latter”) (remanded on other grounds); Nyberg v. Comm'r of Soc. Sec., 2|| No. 2:20-CV-0338-DMC, 2021 WL 1295378, at *6 (E.D. Cal. Apr. 7, 2021) (physician opined the most that the plaintiff could do is simple repetitive work with no mention of a 4|| limitation to one to two step tasks). 5 An error is harmless if it is “inconsequential to the ultimate nondisability 6 || determination.” Stout v. Comm’r Soc. Sec., 454 F.3d 1050, 1055 (9th Cir. 2006). “[A] reviewing court cannot consider [an] error harmless unless it can confidently conclude that 8 || no reasonable ALJ, when fully crediting the testimony, could have reached a different || disability determination.” Jd. at 1056. Here, the RFC was formulated based upon the ALJ improperly equating a one to two step limitation with a simple, routine, repetitive task 11 || limitation. Additionally, the RFC was formulated without proper input from VE testimony || On a one to two step task limitation. The Court cannot confidently conclude that no reasonable ALJ could have reached a different determination if the identified errors had 14 || not occurred. 15 With harmful error established, the Court has the discretion to remand or reverse 16 and award benefits. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989). Plaintiff 17 seeks remand. (Doc. 31 at 4.) Remand for further administrative proceedings 1s appropriate. 18 IV. CONCLUSION 19 For the reasons set forth above, 20 IT IS HEREBY ORDERED WITHDRAWING the reference to the Magistrate Judge (Doc. 12) and GRANTING IN PART AND REJECTING IN PART Plaintiff's 59 objection (Doc. 31). 33 IT IS FURTHER ORDERED ACCEPTING IN PART AND REJECTING IN

PART the R&R (Doc. 30), REVERSING the decision of the Commissioner and

35 REMANDING this matter pursuant to sentence four of 42 U.S.C. § 405(g). The Clerk of the Court is directed to enter judgment accordingly and close this case. Dated this 12th day of August, 2022.

onorable John C. Hinderaker =~

United States District Judge