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Swanson v. Commissioner of Social Security Administration

United States District Court, D. Arizona

March 31, 2017

Carrie Deneise Swanson, Plaintiff,
Commissioner of Social Security Administration, Defendant.


         Pending 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.


         If a 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. 1998).


         1. Nurse Practitioner Kading is an acceptable medical source.

         Because 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.

         A nurse 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 not).[2]

         Here, 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.[3] 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 medical source.[4]

         2. The ALJ erred in failing to give specific and legitimate reasons for discrediting the opinions of Plaintiff's treating and examining providers.

         The ALJ 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.

         “Generally, 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.”[5] 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.[6] 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.

         Here, 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.

         Second, 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.[7]SeeRubalcava v. Colvin, No. EDCV 12-1805-DTB, 2013 WL 4013404, at *3 (C.D. Cal. Aug. 5, 2013) (“[T]he ALJ cannot ...

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