James R Tarlton v. Commissioner of Social Security, No. 5:2014cv02220 - Document 20 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff James R. Tarlton filed this action on November 18, 2014. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. Nos. 1 1, 12.) On July 23, 2015, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
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James R Tarlton v. Commissioner of Social Security Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES R. TARLTON, 12 13 14 15 Plaintiff, v. CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 14-2220 AGR MEMORANDUM OPINION AND ORDER Plaintiff James R. Tarlton filed this action on November 18, 2014. Pursuant to 28 18 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge. (Dkt. 19 Nos. 11, 12.) On July 23, 2015, the parties filed a Joint Stipulation (“JS”) that 20 addressed the disputed issues. The court has taken the matter under submission 21 without oral argument. 22 23 Having reviewed the entire file, the court affirms the decision of the Commissioner. 24 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND Tarlton filed an application for supplemental security income and alleged an onset 3 4 date of June 1, 2009.1 AR 179-99. The application was denied initially and on 5 reconsideration. AR 83, 97. Tarlton requested a hearing before an ALJ. AR 134. On 6 April 9, 2014, the ALJ conducted a hearing at which Tarlton and a vocational expert 7 testified. AR 36-59. On April 25, 2014, the ALJ issued a decision denying benefits. AR 8 17-29. On August 26, 2014, the Appeals Council denied the request for review. AR 1- 9 6. This action followed. 10 II. 11 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 12 13 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 14 supported by substantial evidence, or if it is based upon the application of improper 15 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 16 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 17 “Substantial evidence” means “more than a mere scintilla but less than a 18 preponderance – it is such relevant evidence that a reasonable mind might accept as 19 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 20 substantial evidence exists to support the Commissioner’s decision, the court examines 21 the administrative record as a whole, considering adverse as well as supporting 22 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 23 one rational interpretation, the court must defer to the Commissioner’s decision. 24 Moncada, 60 F.3d at 523. 25 26 1 27 28 Tarlton was found to be not disabled in a June 26, 2008 Administrative Law Judge (“ALJ”) decision based on a prior application for supplemental security income filed on May 12, 2006. Administrative Record (“AR”) 64-71. 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 9 2d 333 (2003) (citation and quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Tarlton met the insured status requirements through 12 September 28, 2012. AR 19. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),2 14 the ALJ found that Tarlton had the severe impairments of wedge compression deformity 15 of the lumbar spine, multilevel degenerative disc disease of the lumbar spine, and 16 spondylosis of the lumbar spine. Id. His impairments did not meet or equal a listing. 17 AR 23. The ALJ found that Tarlton had the residual functional capacity (“RFC”) to 18 19 perform light work. He could lift and/or carry 20 pounds occasionally and 10 pounds 20 frequently; and sit, stand and/or walk for six hours out of an eight-hour workday with 21 customary breaks. He could frequently climb ladders, ropes, scaffolds, ramps, and 22 stairs. He could frequently balance, stoop, kneel, crouch, and crawl. He was limited to 23 24 25 26 27 28 2 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 semiskilled work. He was capable of performing past relevant work as a home 2 attendant as actually performed.3 AR 23-29. 3 C. Step Two of the Sequential Analysis 4 At step two of the sequential analysis, the claimant bears the burden of 5 demonstrating a severe, medically determinable impairment that meets the duration 6 requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 7 (1987). To satisfy the duration requirement, the severe impairment must have lasted or 8 be expected to last for a continuous period of not less than 12 months. Id. at 140. 9 Your impairment must result from anatomical, physiological, or 10 psychological abnormalities which can be shown by medically 11 acceptable clinical and laboratory diagnostic techniques. A 12 physical or mental impairment must be established by medical 13 evidence consisting of signs, symptoms, and laboratory 14 findings, not only by your statement of symptoms. 15 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. “[T]he impairment must be one that 16 ‘significantly limits your physical or mental ability to do basic work activities.’”4 Yuckert, 17 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 F.3d at 1290 (“[A]n 18 impairment is not severe if it does not significantly limit [the claimant’s] physical ability to 19 do basic work activities.”) (citation and quotation marks omitted). 20 21 22 23 24 25 26 27 28 3 The ALJ appears to have made a typographical error when he stated that Tarlton was capable of performing past relevant work as “generally” performed, as he correctly cited and relied on the VE’s testimony that a hypothetical person with Tarlton’s RFC could perform Tarlton’s past relevant work only as “actually” performed. AR 29, 57. 4 The ability to do basic work activities includes “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling,” “[c]apacities for seeing, hearing, and speaking,” “[u]nderstanding, carrying out, and remembering simple instructions,” “[u]se of judgment,” “[r]esponding appropriately to supervision, co-workers, and usual work situations,” and “[d]ealing with changes in a routine work setting.” Yuckert, 482 U.S. at 168 n.6 (citation and internal quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 4 “An impairment or combination of impairments may be found ‘not severe only if 1 2 the evidence establishes a slight abnormality that has no more than a minimal effect on 3 an individual’s ability to work.’” Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) 4 (emphasis in original, citation omitted). Step two is “a de minimis screening device 5 [used] to dispose of groundless claims” and the ALJ’s finding must be “clearly 6 established by medical evidence.” Id. at 687 (citations and internal quotation marks 7 omitted). The ALJ found that Tarlton has medically determinable mental impairments of 8 9 schizophrenia, borderline intellectual functioning, alcohol dependence and marijuana 10 dependence. The ALJ concluded that these mental impairments, alone or in 11 combination, were nonsevere because they did not cause more than a minimal 12 limitation on his ability to perform basic mental work activities. AR 20. The ALJ found 13 no limitation in activities of daily living and social functioning, mild limitation in 14 concentration, persistence or pace, and no episodes of decompensation. AR 20-21. 15 The ALJ therefore found the mental impairments to be nonsevere. 20 C.F.R. § 16 416.920a(d)(1). The ALJ limited Tarlton to semi-skilled work and found that he could 17 perform his past relevant work of home attendant with a SVP of 3.5 AR 23, 29. Semi- 18 skilled work corresponds to a specific vocational preparation (SVP) level of 3-4 in the 19 Dictionary of Occupational Titles (DOT). Social Security Ruling (SSR) 00-4p.6 20 21 22 23 24 25 26 27 28 5 The ALJ’s finding contains a typographical error. The ALJ correctly noted that the vocational expert testified Tarlton could perform his past relevant work as actually performed. AR 29, 57. The ALJ proceeded to find that Tarlton could perform his past relevant work “as generally performed based on the testimony of the vocational expert.” AR 29. 6 Social Security rulings do not have the force of law. Nevertheless, they “constitute Social Security Administration interpretations of the statute it administers and of its own regulations,” and are given deference “unless they are plainly erroneous or inconsistent with the Act or regulations.” Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 5 1 The ALJ stated that he did not completely adopt the assessment of any single 2 medical source. AR 28. As the ALJ noted, Tarlton made inconsistent statements and 3 presented inconsistent subjective complaints to the mental health providers. AR 21. 4 5 6 1. Treating Physician’s Opinion Tarlton argues that the ALJ improperly considered the opinion of Dr. Messinger, a treating psychiatrist. 7 An opinion of a treating physician is given more weight than the opinion of 8 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an 9 uncontradicted opinion of a medically acceptable treating source, an ALJ must state 10 clear and convincing reasons that are supported by substantial evidence. Bayliss v. 11 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician’s opinion is 12 contradicted by another doctor, “the ALJ may not reject this opinion without providing 13 specific and legitimate reasons supported by substantial evidence in the record. This 14 can be done by setting out a detailed and thorough summary of the facts and conflicting 15 clinical evidence, stating his interpretation thereof, and making findings.” Orn, 495 F.3d 16 at 632 (citations and quotation marks omitted). “When there is conflicting medical 17 evidence, the Secretary must determine credibility and resolve the conflict.” Thomas v. 18 Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002). 19 According to a report dated August 1, 2013, Dr. Messinger had seen Tarlton 20 since January 10, 2013. Tarlton was diagnosed with Psychotic Disorder, NOS, and was 21 prescribed Paxil, Trazodone, and Risperdal. Tarlton had clearly organized and 22 paranoid thoughts; delusions and auditory psychosis; intact memory; impaired 23 judgment; and had depression, anxiety, isolation, social withdrawal and flattened affect. 24 Tarlton did not have the ability to maintain a sustained level of concentration, sustain 25 repetitive tasks for an extended period, or adapt to new or stressful situations. He could 26 not interact appropriately with strangers. He needed assistance with medications. He 27 could not complete a 40 hour work week without decompensating. AR 330. 28 6 1 The ALJ gave “little weight” to Dr. Messinger’s opinion because it was conclusory, 2 inadequately supported by clinical findings, inconsistent with the objective medical 3 evidence as a whole, and inconsistent with Tarlton’s statements. AR 21. The ALJ 4 correctly noted that the record does not contain any clinical findings to support Dr. 5 Messinger’s one-page opinion. An ALJ may reject a treating physician’s opinion that is 6 conclusory and inadequately supported by clinical findings. Bray v. Comm’r, 554 F.3d 7 1219, 1228 (9th Cir. 2009); Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004). As 8 the ALJ noted, Dr. Messinger primarily listed Tarlton’s subjective complaints, which the 9 ALJ properly determined to be less than fully credible, a finding that Tarlton does not 10 challenge. AR 21, 26. See Morgan v. Comm’r, 169 F.3d 595, 602 (9th Cir. 1999) (ALJ 11 may properly reject treating physician’s opinion based on subjective complaints when 12 ALJ properly discounts claimant’s credibility); see also Tommasetti v. Astrue, 533 F.3d 13 1035, 1041 (9th Cir. 2008) (ALJ may discount treating physician’s opinion that rehashes 14 claimant’s own statements). 15 The ALJ could reasonably conclude that Dr. Messinger’s opinion was inconsistent 16 with the medical evidence as a whole. AR 21. While in prison for fraud in July 2011 17 (AR 40-41), Tarlton reported to the Department of Corrections and Rehabilitation a long 18 history of depression, with auditory and visual hallucinations. AR 300. The mental 19 status examination indicated Tarlton was well groomed and fully oriented with normal, 20 clear and coherent speech. Tarlton’s affect was constricted and his mood was 21 “fine”/mildly depressed. Tarlton’s concentration and attention were within normal limits, 22 and he had problems with short term memory. His thought processes and thought 23 content were within normal limits, his insight was limited and his judgment was fair. He 24 reported auditory and visual hallucinations but showed no evidence of delusions, 25 obsessions or magical thinking. AR 301. It appeared that Tarlton was exaggerating his 26 symptoms and providing inconsistent information. AR 300. His Global Assessment of 27 28 7 1 Functioning (“GAF”) was 58.7 He was treated with medication and transferred to 2 CCCMS for care.8 AR 300, 302. 3 In July 2012, Tarlton’s mental health annual review indicated mildly impoverished 4 speech and thought processes, but normal orientation, mood, sleep/appetite, cognition, 5 intellectual functioning, concentration, attention and memory. AR 297-98. In August 6 2012, Tarlton asked to resume Remeron to relieve agitation, and denied other 7 psychiatric complaints. His mental status examination indicated he was calm, 8 cooperative, coherent and logical. He reported that he no longer heard voices while on 9 medication. His affect was appropriate, and his insight and judgment were intact. AR 10 289. Tarlton was diagnosed with schizoaffective disorder, depressed type, 11 polysubstance dependence, institutional remission, and antisocial personality disorder 12 features. His GAF was 60. AR 299. The ALJ could reasonably conclude that Tarlton’s testimony was inconsistent with 13 14 Dr. Messinger’s opinion. Whereas Dr. Messinger reported auditory delusions, Tarlton 15 testified at the hearing (consistent with prison medical records), that he does not hear 16 voices “at all” because he takes his medications.9 “It’s been a while” since he heard 17 voices; “I’m not really hearing them, right.” AR 47. To the extent Tarlton argues that Dr. Messinger’s opinion was “entirely 18 19 consistent” with the opinion of Dr. Unwalla, a consultative examiner, his argument is not 20 21 22 23 24 25 26 27 28 7 A GAF of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers).” Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). 8 Correctional Clinical Case Management System (“CCCMS”) is the lowest level of mental health care for inmates who are stable and functioning, exhibit symptom control or are in partial remission, and usually have a GAF of 50 or above. http://www.cdcr.ca.gov (search “CCCMS”) (last visited Oct. 20, 2015). 9 Impairments that can be controlled effectively with medication are not considered disabling. Warre v. Comm’r, 439 F.3d 1001, 1006 (9th Cir. 2006). 8 1 entirely accurate. Unlike Dr. Unwalla, Dr. Messinger found that Tarlton’s memory was 2 intact and that he was able to handle his own funds. AR 324, 330. 3 4 5 6 7 8 9 The ALJ articulated specific and legitimate reasons, supported by substantial evidence in the record, for discounting Dr. Messinger’s opinion. 2. Examining Physician’s Opinion Tarlton argues that the ALJ failed to properly consider the opinion of Dr. Unwalla, a consultative examining psychiatrist. An examining physician’s opinion constitutes substantial evidence when it is based on independent clinical findings. Orn, 495 F.3d at 631. When an examining 10 physician’s opinion is contradicted, “it may be rejected for ‘specific and legitimate 11 reasons that are supported by substantial evidence in the record.’” Carmickle v. 12 Comm’r, 533 F.3d 1155, 1164 (9th Cir. 2008) (citation omitted). 13 Dr. Unwalla performed a psychiatric evaluation on December 20, 2013. AR 320- 14 24. During the mental status examination, Tarlton was suspicious and guarded, 15 exhibited severe thought blocking, had problems processing information, appeared to 16 be slow to understand and observe, and had some psychomotor retardation. Tarlton’s 17 speech was slowed, his mood was described as depressed and his affect was blunted. 18 AR 322. Tarlton reported hearing voices. His family and friends helped with activities 19 of daily living, and he did not perform chores or errands. AR 321-22. He was able to 20 register 3 out of 3 items at 0 minutes, and 0 out of 3 items at 5 minutes. He could not 21 do serial sevens or threes, and was unable to spell any five letter words forward and 22 backward. His insight and judgment were described as “poor.” AR 322. 23 Dr. Unwalla diagnosed with schizophrenia, paranoid type and borderline 24 intellectual functioning, and assessed a GAF of 58. Tarlton “continues to hear voices 25 mumbling” and “[i]f he runs out of medications he starts decompensating.” AR 323. 26 Tarlton had moderate difficulties in concentration, persistence and pace; maintaining 27 composure and even temperament; and maintaining social functioning. Tarlton was 28 intellectually and psychologically incapable of performing activities of daily living. Dr. 9 1 Unwalla concluded that Tarlton would have moderate limitations in performing simple 2 and repetitive tasks, performing work activities on a consistent basis without special or 3 additional supervision, and handling the usual stresses of gainful employment. He 4 would have moderate limitations completing a normal workday or work week due to his 5 mental condition, and interacting with supervisors, coworkers or the public. Tarlton 6 could not appropriately handle funds. AR 323-24. Dr. Unwalla assessed marked or 7 extreme limitations in all areas of functioning. AR 325-26. Dr. Unwalla identified severe 8 thought blocking; problems with attention, memory and auditory hallucination; and 9 problems with information processing as factors supporting his assessment. AR 325- 10 11 26. He stated that Tarlton was unable to drive/follow directions. AR 326. The ALJ gave “little weight” to Dr. Unwalla’s opinion because Dr. Unwalla 12 examined Tarlton only once and did not have the opportunity to review the entire 13 record, including Tarlton’s hearing testimony. The ALJ found that Dr. Unwalla’s opinion 14 was inconsistent with Tarlton’s treatment records, which indicated his psychological 15 symptoms were well controlled with medication, and with Tarlton’s testimony. The ALJ 16 also noted the prior ALJ decision, which discussed malingering and Tarlton’s 17 unreasonably low IQ scores that were found to be invalid. AR 22. The ALJ gave “great 18 weight” to the opinions of the State Agency psychological consultants, who concluded 19 that Tarlton had no mental functional limitations. AR 22, 78-79, 91-92. A 20 non-examining physician’s opinion may serve as substantial evidence when it is 21 supported by other evidence in the record and is consistent with it. Andrews v. Shalala, 22 53 F.3d 1035, 1041 (9th Cir. 1995); see also Thomas, 278 F.3d at 957. 23 The ALJ erred in discounting Dr. Unwalla’s opinion on the ground that, as an 24 examining physician, he examined Tarlton once. See Brown v. Colvin, 2015 WL 25 3823938, at *8 n.9 (C.D. Cal. June 19, 2015) (citing Henderson v. Astrue, 634 F. Supp. 26 2d 1182, 1192 (E.D. Wash. 2009) (ALJ erred in discounting examining physician’s 27 opinion based on one examination). 28 10 1 This error is harmless because the ALJ’s other reasons for discounting Dr. 2 Unwalla’s opinion are supported by substantial evidence. Dr. Unwalla stated that 3 “[t]here were no specific mental health records available for review.” AR 320. 4 Substantial evidence supports the ALJ’s finding that Dr. Unwalla’s opinion was 5 inconsistent with Tarlton’s treatment records. As discussed above, Tarlton’s mental 6 status examinations indicated generally mild findings. Tarlton’s psychological 7 symptoms of hearing voices were well-controlled with medication according to treatment 8 records and Tarlton’s testimony. AR 46-47, 289, 297-98, 301, 306, 321. 9 Tarlton contends that the ALJ rejected Dr. Unwalla’s opinion based on “extra- 10 record evidence,” namely, an ALJ’s prior opinion regarding an earlier time period. The 11 prior ALJ decision is part of the record. AR 64-71. In that decision, the ALJ noted that 12 the examining psychologist found that Tarlton’s test results were invalid. Not only was 13 Tarlton’s Rey 15 II score “suspicious of malingering or dissimulation,” but Tarlton’s 14 memory performance was significantly lower than an individual with Alzheimer’s or 15 Korsakoffs disease and his test scores were much lower than his presentation or history 16 could support. AR 69. 17 Read in context, the ALJ’s point was that Dr. Unwalla examined Tarlton without 18 the benefit of seeing Tarlton’s inconsistent presentations to mental health providers. 19 Contrary to Tarlton’s argument, the inconsistencies were not limited to the time frame of 20 the ALJ’s prior opinion. In July 2011, the treatment record noted that Tarlton reported 21 auditory and visual hallucinations but could not provide sufficient information about his 22 symptoms. It appeared that he was “exaggerating” symptoms and providing 23 “inconsistent information.” AR 300. In a record submitted to the Appeals Council and 24 made a part of the record (AR 5), there is indication that the clinic refused to give 25 Tarlton narcotic medications after he denied previously picking up medications from the 26 pharmacy and denied that the signature was his. AR 355. The ALJ did not err in 27 discounting Dr. Unwalla’s opinion. 28 11 1 D. Harmless Error 2 Even assuming the ALJ committed legal error by finding the mental impairments 3 nonsevere at step two of the sequential analysis, “‘we uphold the decision where that 4 error is harmless,” meaning that “it is ‘inconsequential to the ultimate nondisability 5 determination,’” or ‘if the agency’s path may reasonably be discerned,’ even if the 6 agency ‘explains its decision with less than ideal clarity.’” Treichler v. Comm’r, 775 F.3d 7 1090, 1099 (9th Cir. 2014) (citation omitted). 8 An error at step two is harmless when the ALJ considers the impairment at a later 9 step in the sequential analysis. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 10 (assuming ALJ erred at step two by failing to list bursitis, error was harmless when ALJ 11 considered limitations from bursitis at step four); Burch v. Barnhart, 400 F.3d 676, 682 12 (9th Cir. 2005) (because step two was decided in claimant’s favor, any error in failing to 13 find that obesity was severe impairment at step two was harmless unless claimant 14 shows error at later step). 15 As discussed above, the ALJ limited Tarlton to semiskilled work at step four. 16 Semi-skilled work “needs some skills but does not require doing the more complex work 17 duties.” 20 C.F.R. § 416.968. The ALJ found Tarlton could perform his past relevant 18 work of home attendant with a SVP of 3. AR 28-29. Tarlton does not identify any 19 mental functional limitation that the ALJ failed to consider. Burch, 400 F.3d at 684. 20 IV. 21 ORDER 22 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 23 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 24 Judgment herein on all parties or their counsel. 25 26 DATED: October 29, 2015 ALICIA G. ROSENBERG United States Magistrate Judge 27 28 12
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