United States District Court, D. Arizona
DAVID G. CAMPBELL, District Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff Lezley Marisol Pineda seeks judicial review of the Commissioner's decision finding her not disabled within the meaning of the Social Security Act. Doc. 18. For the reasons that follow, the Court will remand this case for further proceedings.
Plaintiff applied for disability insurance benefits and supplemental security income on February 2010, alleging disability beginning in January 2010. Doc. 19 at 2. After a hearing on July 19, 2011, an administrative law judge ("ALJ") issued an opinion on August 11, 2011 finding Plaintiff not disabled. Id. at 2; A.R. 24. A request for review was denied by the Appeals Council and the ALJ's opinion became the Commissioner's final decision. Doc. 19 at 2.
II. Legal Standard.
Defendant's decision to deny benefits will be vacated "only if it is not supported by substantial evidence or is based on legal error." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). "Substantial evidence' means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. In determining whether the decision is supported by substantial evidence, the Court must consider the record as a whole, weighing both the evidence that supports the decision and the evidence that detracts from it. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). If there is sufficient evidence to support the Commissioner's determination, the Court cannot substitute its own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).
Determining whether a claimant is disabled involves a sequential five-step evaluation. The claimant must show (1) he is not currently engaged in substantial gainful employment, (2) he has a severe physical or mental impairment, and (3) the impairment meets or equals a listed impairment or (4) his residual functional capacity ("RFC") precludes him from performing his past work. If at any step the Commissioner determines that a claimant is or is not disabled, the analysis ends; otherwise it proceeds to step five. If the claimant establishes his burden through step four, the Commissioner bears the burden at step five of showing that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. See 20 C.F.R. § 404.1520(a)(4)(i)-(v).
Plaintiff advances three arguments as to why the ALJ's decision was erroneous. First, she argues that the ALJ erred by rejecting or ignoring assessments from a doctor and a nurse practitioner who treated Plaintiff. Doc. 18 at 1. Next, Plaintiff contends that the ALJ erred by rejecting her symptom testimony without providing clear and convincing reasons supported by substantial evidence. Id. Finally, she argues that the ALJ erred by relying on "the medical-vocational guidelines of Appendix 2 of the disability regulations" in determining that Plaintiff was not disabled. Id. at 2. The Court will consider each argument in turn.
A. Treating Source Opinions.
In weighing medical source opinions in Social Security cases, the Ninth Circuit distinguishes among three types of physicians: (1) treating physicians, who actually treat the claimant; (2) examining physicians, who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, more weight should be given to the opinion of a treating physician than to the opinion of a non-treating physician. Id. A treating physician's opinion is afforded great weight because such physicians are "employed to cure and [have] a greater opportunity to observe and know the patient as an individual." Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The controverted opinion of a treating or examining physician "can only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record." Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995)). "The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988) (citing Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)).
Nurse Practitioners are not an "acceptable medical source" for documenting a medical impairment under 20 C.F.R. § 404.1513(a). Rather, they are considered "other sources" that the Commissioner may use to show the severity of a claimant's impairments and how these impairments may affect his ability to work. 20 C.F.R. § 404.1513(d). "The ALJ may discount testimony from these other sources' if the ALJ gives reasons germane to each witness for doing so." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (internal quotation marks and citations omitted).
As to Nurse Practitioner Letellier's assessment, Plaintiff asserts that the ALJ "impermissibly engaged in a selective analysis of that evidence without offering justification for doing so." Doc. 18 at 19. The ALJ was required to provide "germane" reasons for discounting the testimony of NP Letellier. See Molina, 674 F.3d at 1111. The ALJ noted that full weight was not given to NP Letellier's opinion "because her estimation that the claimant has moderately severe mental limitations is inconsistent with the substantial evidence described above." A.R. 33. The evidence referred to by the ALJ was "the mental opinions of the psychological consultative examiner, the State agency medical consultant on reconsideration, and [NP Letellier], " which the ALJ found were "generally consistent in that they all assess the claimant is able to perform a range of work that is limited to simple repetitive tasks." Id. The ALJ further noted that "the conservative course of care for the claimant's mental impairment" and "the claimant's improved status and the report that she was doing well on a very low dose' of medication" supported his assessment of the evidence. Id. Although Plaintiff argues that "logically the same standard that applies to treating physicians assessments should apply to treating nurse practitioner assessments, " ( id. at 17), this is not the standard applied by the Ninth Circuit. 20 C.F.R. § 404.1513(a). The Court will not depart from established law. The ALJ provided "germane" reasons for discounting portions of NP Letellier's opinion, and the Court accordingly finds no legal error.
With regard to Dr. Varns's opinion, Plaintiff argues that "the ALJ failed to even acknowledge Dr. Varns's assessment of the effect that pain would have on [Plaintiff]'s ability to function: there would be frequent interference with attention and concentration, leading to frequent failure to complete tasks in a timely manner." Doc. 18 at 18. The report she cites as ignored by the ALJ is the same report to which the ALJ stated he gave "significant weight." See id. (citing A.R. 590-91); A.R. 32 (citing A.R. 587-91). Although the ALJ stated that he gave "significant" and "controlling" weight to Dr. Varns's opinion (A.R. 32-33), he does not appear to have explicitly discussed the final two pages of the opinion wherein Dr. Varns opines that Plaintiff experiences pain that is "moderately severe, " that her pain would "frequently" interfere with attention and concentration, and that she would "frequently" experience deficiencies of concentration, persistence, or pace. A.R. 590-591. The ALJ concluded that Dr. Varns's opinion ...