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Connolly v. Commissioner of Social Security Administration

United States District Court, D. Arizona

May 8, 2017

Elizabeth Connolly, Plaintiff,
Commissioner of Social Security Administration, Defendant.


          James A. Teilborg Senior United States District Judge

         Pending before the Court is Plaintiff's appeal of Defendant's denial of her application for social security disability benefits. More specifically, Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in not fully crediting the opinions of three of Plaintiff's treating physicians.

         I. Legal Standard

         A. Review of ALJ's Decision

         The decision of Administrative Law Judge (“ALJ”) to deny benefits will be overturned “only if it is not supported by substantial evidence or is based on legal error.” Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted). “Substantial evidence” means more than a mere scintilla, but less than a preponderance. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

         “The inquiry here is whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether there is substantial evidence to support a decision, the Court considers the record as a whole, weighing both the evidence that supports the ALJ's conclusions and the evidence that detracts from the ALJ's conclusions. Reddick, 157 F.3d at 720. “Where evidence is susceptible of more than one rational interpretation, it is the ALJ's conclusion which must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is because “[t]he trier of fact and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

         B. Medical Testimony

         With respect to medical testimony specifically, the Ninth Circuit Court of Appeals distinguishes between the opinions of three types of physicians: (1) those who treat the claimant (“treating physicians”); (2) those who examine but do not treat the claimant (“examining physicians”); and (3) those who neither examine nor treat the claimant (“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). As a general rule, the opinion of an examining physician is entitled to greater weight than the opinion of a non-examining physician, but less than a treating physician. Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995).

         An “ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)).

Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002). However, the ALJ can reject the opinion of a treating physician in favor of the conflicting opinion of another examining physician “if the ALJ makes 'findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.'” Id. at 957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

Connert v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003).

         An “ALJ need not accept the opinion of any physician . . . if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Further, “incongruity between [a doctor's opinion] and [his] medical records” is a “specific and legitimate reason for rejecting” the doctor's opinion. Tommasetti, 533 F.3d at 1041.

         When reviewing an ALJ's determination, the Court must uphold an ALJ's decision-even if the ALJ could have been more specific in the opinion-if the Court can reasonably infer if and why the ALJ rejected an opinion. Magallanes, 881 F.2d at 755; see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“Even when an agency explains its decision with less than ideal clarity, we must uphold it if the agency's path may reasonably be discerned.”) (internal quotations omitted). Moreover, “if evidence exists to support more than one rational interpretation, [the Court] must defer to the [ALJ's] decision” Batson, 359 F.3d at 1193; see also Osenbrock v. Apel, 240 F.3d 1157, 1162 (9th Cir. 2001).

         II. Treating Physicians

         Plaintiff argues on appeal that the ALJ failed to give adequate reasons for discrediting the testimony of three of her doctors: Dr. Ong-Veloso; Dr. Premaratne; and Dr. Ramadan.

         A. Dr. Ong-Veloso

         On this record, it appears that only Dr. Ong-Veloso's physician's assistant examined Plaintiff and completed an assessment of Plaintiff. (Doc. 10-11 at 125-137). Included in the records submitted by the physician's assistant are two documents titled “medical assessment of ability to do work related activities.” One is dated October 29, 2012. (Doc. 10-11 at 135-137). The other is dated August 7, 2013. (Doc. 10-11 at 132-133).

         The ALJ gave little weight to these assessments because they were not from an acceptable medical source. (Doc. 10-3 at 23). The ALJ “may discount testimony from [non-acceptable medical sources] if the ALJ gives reasons germane to each witness for doing so.” Molina, 674 F.3d at 1111 (internal quotation marks omitted) (quoting Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)); see also 20 C.F.R. § 404.1512; 20 C.F.R. § 404.1527 (a)(2).

         Plaintiff does not dispute that the ALJ can discredit a non-acceptable medical source if the ALJ gives germane reasons. In this case the ALJ gave two reasons: 1) the assessment is not supported by objective evidence; and 2) it is inconsistent with the record as a whole. (Doc. 10-3 at 23). Instead, Plaintiff argues the ALJ erred in treating this as a non-acceptable medical source because the latter report was “cosigned” by Dr. Ong-Veloso, which Plaintiff argues transmutes the report into Dr. Ong-Veloso's opinion.

         With regard to the first, October 29, 2012, report, it is undisputedly from a non-acceptable medical source, and the ALJ gave adequate reasons for not fully crediting it. With regard to the second, August 7, 2013, report, the physician's assistant handwrote at the bottom, “Cosign- Dr. Ong Veloso, MD supervising phys.” followed by a blank line with a “J” Dated: it. (Doc. 10-11 at 133). For purposes of this Order, the Court will assume the “J” is the signature of Dr. Ong-Veloso.

         As indicated above, Plaintiff argues that this “cosigning” converts the physician's assistant's examination and opinion into the examination and opinion of Dr. Ong-Veloso, who is a treating physician. (Doc. 13 at 6). Plaintiff cites nothing for this argument. However, a district court in California has addressed Plaintiff's theory. That district court explained:

Physician's assistants, nurse practitioners, and chiropractors (among others) are medical professionals, but they are not “acceptable medical sources” under the Social Security regulatory framework. 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). The evaluations of a claimant by these medical professionals are considered evidence from “other sources.” Id. The distinction between “other sources” and an “acceptable medical source” is important because only an “acceptable medical source” may be considered a “treating source.” See 20 C.F.R. §§ 404.1502, 416.90. … … in the Social Security context, courts are more frequently confronted with disputes as to how evaluations by other medical professionals should be weighed, whether these professionals could be considered “acceptable medical sources” under certain circumstances, and, if so, whether their opinions may be assigned “treating-source” status. As a general rule, medical evaluations of a claimant that are created and signed by medical professionals who are not considered “acceptable medical sources” under SSA regulations will not be ascribed “treating-source” status.
The United States Court of Appeals for the Ninth Circuit has carved out an important exception to this general rule in Gomez v. Chater, 74 F.3d 967 (9th Cir.1996). In Gomez, the court held that the opinion of an NP was properly ascribed to the supervising physician and treated as an opinion from an “acceptable medical source” because the record indicated that the NP worked so closely under the supervision of the physician that she became the agent of the physician. Id. at 971. While the court did not provide particular examples of the type of evidence that established this agency relationship, it did indicate that the NP consulted with the physician regarding the claimant's treatment on numerous occasions. Id. The court also reasoned that, pursuant to 20 C.F.R. § 416.913(a)(6), “[a] report of an interdisciplinary team that contains the evaluation and signature of an acceptable medical source is also considered acceptable medical evidence.” Id. The court concluded that a plain reading of paragraph (a)(6) in conjunction with the definition of “other source” evidence “indicates that 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.” Id.
Since Gomez, district courts have interpreted this exception narrowly. See, e.g., Ramirez v. Astrue, No. ED CV 09-1371-PJW, 2011 WL 1155682, at *4 (C.D. Cal. Mar. 29, 2011) (physician's co-signature on client-plan prepared by a social worker did not indicate that the social worker was under close supervision of the physician in treating or in preparing the reports, thus social worker's evaluation was not from an “acceptable medical source”); Vasquez v. Astrue, No. CV-08-078-CI, 2009 WL 939339, at *6 n. 3 (E.D. Wash. Apr.3, 2009) (PA's report “signed off” by a superior believed to be a doctor did not constitute “acceptable medical source” opinion); Nichols v. Comm'r of Soc. Sec. Admin., 260 F.Supp.2d 1057, 1066-67 (D. Kan.2003) (distinguishing Gomez where physician signed the report of an NP but no evidence indicated that NP consulted with the physician during the course of the patient's treatment and concluding opinion was not from an acceptable medical source).
In application, Gomez does not stand for the proposition that any medical professional, who would not otherwise be considered an “acceptable medical source, ” is transformed into an “acceptable medical source” merely because he or she is supervised to any degree by a physician. As a result, evaluations of a claimant prepared by medical professionals other than the physician, even where the evaluation is reviewed and signed by a supervising physician, will not typically be treated as evidence from “an acceptable medical source.” See, e.g., Ramirez, Vasquez, and Nichols, supra. ...

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