United States District Court, D. Arizona
A. Teilborg Senior United States District Judge
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
Review of ALJ's Decision
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).
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).
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.
“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.
Connert v. Barnhart, 340 F.3d 871, 874
(9th Cir. 2003).
“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.
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.
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.
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).
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).
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
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.
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
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.