United States District Court, D. Arizona
before the Court is a Report and Recommendation issued by
United States Magistrate Judge Eric J. Markovich. (Doc. 21.)
Judge Markovich recommends the Court remand this matter to
the Social Security Administration (SSA) for payment of
benefits. Defendant filed an objection to the Report and
Recommendation, to which Plaintiff replied. (Docs. 22, 23.)
After reviewing the Report and Recommendation and considering
the arguments raised in Defendant's objection, the Court
will overrule the objection and adopt Judge Markovich's
Report and Recommendation.
party files objections to a magistrate judge's report and
recommendation, a “judge of the court shall make a de
novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.” 28 U.S.C. § 636(b)(1); see
Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999). The “district judge may accept, reject, or
modify the recommended disposition; receive further evidence;
or return the matter to the magistrate judge with
instructions.” Fed.R.Civ.P. 72(b)(3); 28 U.S.C. §
636(b)(1). If no objection or only partial objection is made,
the district court judge reviews those unobjected-to portions
for clear error. Johnson, 170 F.3d at 739;
Conley v. Crabtree, 14 F.Supp.2d 1203, 1204 (D. Or.
Nurse Practitioner Kading is an acceptable medical
the record shows that Dr. Tanya Underwood supervised Nurse
Practitioner (N.P.) Valerie Kading at CODAC, where Plaintiff
was treated, and co-signed N.P. Kading's medical
opinions, N.P. Kading qualifies as an “acceptable
medical source.” Under current SSA regulations,
evidence of an impairment must come from an “acceptable
medical source, ” which includes licensed physicians
(M.D. or D.O.) and licensed or certified psychologists. 20
C.F.R. § 416.913(a); see also 20 C.F.R. §
404.1527. The agency also accepts evidence from “other
sources” to show the severity of the applicant's
impairment and how it affects the ability to work. 20 C.F.R.
§ 416.913(d). Nurse practitioners are considered
“other sources.” Id.
practitioner working closely with and under the supervision
of an acceptable medical source qualifies as an acceptable
medical source. See Molina v. Astrue, 674 F.3d 1104,
1112 n.3 (9th Cir. 2012) (physician's assistant did not
qualify as a medically acceptable treating source because the
record did not show she worked under a physician's
supervision and she otherwise “acted alone”);
Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d
1228, 1234 (9th Cir. 2011) (nurse practitioner's opinion
considered that of an acceptable medical source where she
worked closely with and under the supervision of physician);
Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (a
nurse practitioner working in conjunction with a physician
constitutes an acceptable medical source, while a nurse
practitioner working on his or her own does
the record reflects that (1) Dr. Underwood, a D.O. and a
board certified psychiatrist, is an acceptable medical source
under 20 C.F.R. § 416.913(a); (2) Dr. Underwood is N.P.
Kading's supervising psychiatrist at CODAC; (3) Dr.
Underwood co-signed two letters from CODAC, including the
medical source statement rejected by the ALJ; and (4)
although Dr. Underwood did not initially sign the June 20,
2013 Mental Impairment Questionnaire that was completed by
N.P. Kading, when this questionnaire was resubmitted to the
agency with CODAC's second letter, Dr. Underwood cosigned
and dated it at that time. (See AR 701-18.) This
evidence suggests some degree of continuity as to the
supervisory relationship between N.P. Kading and Dr.
Underwood and the involvement of Dr. Underwood in
Swanson's care. Cf. Knapp v. Colvin, No.
1:14-CV-3189-FVS, 2015 WL 6511614, at *12 (E.D. Wash. Oct.
28, 2015) (finding mental health therapist did not qualify as
an acceptable medical source where treatment team leader was
not an acceptable medical source, the record contained no
evidence that therapist was supervised by doctor, and
doctor's signature did not appear on the team's
medical opinion or otherwise in the record). It further
suggests that the opinions of N.P. Kading were adopted by Dr.
Underwood, such that N.P. Kading was, in effect, working as
Dr. Underwood's agent. Accordingly, the Court agrees with
the Magistrate Judge that the ALJ erred in failing to
consider N.P. Kading's opinion as that of an acceptable
ALJ erred in failing to give specific and legitimate reasons
for discrediting the opinions of Plaintiff's treating and
erred in assigning the greatest weight to the opinion of the
nonexamining physician, Dr. Kieth McKee, while rejecting the
opinions of the treating provider, Valerie Kading, N.P., and
the examining consultant, Dr. Noelle Rohen, without giving
specific and legitimate reasons for doing so.
the opinion of a treating physician must be given more weight
than the opinion of an examining physician, and the opinion
of an examining physician must be afforded more weight than
the opinion of a reviewing physician.” Ghanim v.
Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014).
“If a treating physician's opinion is
well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record, [it will
be given] controlling weight.” Orn v. Astrue,
495 F.3d 625, 631 (9th Cir. 2007) (internal quotations
omitted) (alterations in original). “Courts afford the
medical opinions of treating physicians superior weight
because these physicians are in a better position to know
plaintiffs as individuals, and because the continuity of
their treatment improves their ability to understand and
assess an individual's medical concerns.”
Potter v. Colvin, No. 3-14-CV-02562-JSC, 2015 WL
1966715, at *13 (N.D. Cal. Apr. 29, 2015).
“If a treating or examining doctor's opinion is
contradicted by another doctor's opinion, an ALJ may only
reject it by providing specific and legitimate reasons that
are supported by substantial evidence.” Bayliss
v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005);
accord Murray v. Heckler, 722 F.2d 499, 502 (9th
Cir. 1983). “The opinion of a nonexamining physician
cannot by itself constitute substantial evidence that
justifies the rejection of the opinion of either an examining
physician or a treating physician.” Lester v.
Chater, 81 F.3d 821, 831 (9th Cir. 1995), as
amended (Apr. 9, 1996) (citing Pitzer v.
Sullivan, 908 F.2d 502, 506 (9th Cir. 1990)). Rather, in
reviewing the ALJ's decision to reject the opinion of a
treating or examining source, a court may look to other
evidence contained within the record, such as medical
reports, contrary opinions by examining sources, and the
claimant's own testimony. Lester, 81 F.3d at 831
(discussing cases). The ALJ's decision to reject a
treating or examining physician's opinion will be upheld
where that decision is supported by an “abundance of
evidence” in the record. Id.
the ALJ's decision to reject the opinion of the treating
providers N.P. Kading and Dr. Underwood, in favor of the
opinion of a nonexamining physician, Dr. McKee, is not
supported by substantial evidence. The ALJ assigned
“little to no weight” to the medical source
statement submitted by the treating providers, finding that
the opinion was “too restrictive and not supported by
the objective medical evidence or the claimant's reported
daily activities.” (AR 29.) In support of this
conclusion, the ALJ identified two purported inconsistencies.
First, the ALJ found that the Plaintiff's GAF score of
55, “indicative of moderate but not serious symptoms,
” was inconsistent with N.P. Kading's finding that
Plaintiff has “marked functional limitations”
that would poor prognosis, and to impact her ability to
work[.]” (AR 403.) Dr. Rohen further found that
Plaintiff's social interaction skills were
“severely impaired” and that Plaintiff's best
chance for success would be where a suitable environment is
paired with Plaintiff, rather than requiring the adaptation
of the Plaintiff to her environment. (AR 404.) N.P. Kading
similarly found that Plaintiff was “seriously
limited” in many of the areas of mental aptitude and
ability that are necessary to do unskilled work.
(See AR 703.) seriously interfere with her ability
to function independently, appropriately, and effectively on
a sustained basis. Although the ALJ identified this as a
“gross discrepancy, ” this Court agrees with
Magistrate Judge Markovich's conclusion that this is, in
fact, no discrepancy at all. As the Ninth Circuit has
explained, the GAF scale is a “rough estimate of an
individual's psychological, social, and occupational
functioning, ” which “standing alone [does] not
control determinations of whether a person's mental
impairments rise to the level of a disability.”
Garrison v. Colvin, 759 F.3d 995, 1003 n.4 (9th Cir.
2014) (internal citations omitted). Thus, the Court finds
that the ALJ assigned too much weight to this single,
isolated metric. Moreover, although Plaintiff's GAF score
was a “55” at the time the medical source
statement was completed by N.P. Kading in 2013, the record
shows that Plaintiff's score fluctuated over time-at one
point reaching as low as 41, which would indicate
“serious symptoms” and “serious impairment
in social, occupational, or school functioning.”
Id. In light of the well-established treating
relationship between Plaintiff and N.P. Kading and the
general up-and-down nature of Plaintiff's symptoms, the
Court finds that the ALJ erred in rejecting N.P. Kading's
opinion on this ground.
the ALJ found that N.P. Kading had failed to explain
Plaintiff's “damaging admission” that she
once viewed marijuana as a solution and not a problem. (AR
29.) Plaintiff's past marijuana usage has no bearing on
the disability determination at hand. As Magistrate Judge
Markovich noted, in spite of some inconsistency in the
testimony of Plaintiff regarding the last date of her
marijuana usage, Plaintiff consistently testified that she
stopped using drugs when she had her children, which predates
her application for disability benefits. In fact, the record
is replete with evidence that drug usage is not a
contributing factor to Plaintiff's medical and
psychiatric conditions.SeeRubalcava v.
Colvin, No. EDCV 12-1805-DTB, 2013 WL 4013404, at *3
(C.D. Cal. Aug. 5, 2013) (“[T]he ALJ cannot ...