United States District Court, D. Arizona
ORDER
Douglas L. Rayes United States District Judge
Before
the Court is the Commissioner's motion to amend judgment,
which is fully briefed. (Docs. 23, 25.) For the following
reasons, the Court will deny the Commissioner's motion.
I.
Background[1]
On
August 15, 2019, the Court concluded that the Administrative
Law Judge (“ALJ”) erred by discrediting the
opinions of Plaintiff's treating nurse practitioners,
Stephen Pray and Brandy Hammond. (Doc. 20.) It remanded the
matter to the ALJ for further proceedings to reassess the
nurse practitioners' opinions, and considering this
reassessment, to reevaluate the credibility of
Plaintiff's testimony and to adjust the residual
functional capacity (“RFC”) as necessary.
(Id.) On September 12, 2019, the Commissioner filed
a motion to amend judgment, asserting that the Court
committed clear error by requiring the ALJ to provide
“specific and legitimate reasons, ” rather than
“germane reasons, ” for discounting the opinions
of Pray and Hammond, and by failing to conclude that those
reasons provided were, in fact, germane and supported by
substantial evidence. (Doc. 23.) The motion is now ripe.
II.
Legal Standard
Pursuant
to Federal Rule of Civil Procedure 59(e), amendment or
alteration of a prior order or judgment is proper if
“(1) the district court is presented with newly
discovered evidence, (2) the district court committed clear
error or made an initial decision that was manifestly unjust,
or (3) there is an intervening change in controlling
law.” Zimmerman v. City of Oakland, 255 F.3d
734, 740 (9th Cir. 2001) (citation omitted). To support a
finding of clear error, “[m]ere doubts or disagreement
about the wisdom of a prior decision of this or a lower court
will not suffice[.]” Teamsters Local 617 Pension
and Welfare Funds v. Apollo Group, Inc., 282 F.R.D. 216,
231 (D. Ariz. 2012) (citation omitted). In other words, the
error “must be one that is plain and indisputable, and
that amounts to a complete disregard of the controlling law
or the credible evidence in the record.” Id.
(citation omitted).
III.
Discussion
When
reviewing applications filed before March 27, 2017, an ALJ
may properly discount the opinions of those not classified as
acceptable medical sources, including nurse practitioners, by
providing “germane reasons, ” rather than
“specific and legitimate reasons” for doing so.
Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir.
2012); Shorter v. Saul, 777 Fed.Appx. 209, 211 (9th
Cir. 2019). Therefore, the Court erred in applying the
acceptable medical source standard when requiring the ALJ to
provide specific and legitimate reasons for discounting the
opinions of nurse practitioners Pray and Hammond. However,
this error does not mandate amendment of the judgment because
such error was harmless. Stout v. Comm'r Soc. Sec.
Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (citation
omitted) (“We recognize harmless error applies in the
Social Security context.”). Regardless of whether the
Court applies the “specific and legitimate” or
the “germane” standard in reviewing the ALJ's
rationale, the reasons provided by the ALJ for giving
Pray's opinions little weight are unsupported by
substantial evidence or are insufficient to, in and of
themselves, discount the opinions. As a result, remand for
further proceedings is appropriate. The Court will address
the ALJ's reasons for assigning Pray's opinions
little weight, in turn.
First,
the ALJ gave little weight to Pray's opinions because
they were “simply circle and check sheet type forms not
accompanied by supporting narrative and the provider does not
refer or cite to any medical reports supporting his
assessments.” (Doc. 11-3 at 21.) A non-medically
acceptable treating source's failure to provide
“reasoning or clinical findings” in support of a
check-the-box form opinion is a germane reason for giving the
opinion little weight. Molina, 674 F.3d at 1111.
However, a provider's use of a check-the-box form, in and
of itself, is not a germane reason to assign the opinion
little weight, because “there is no authority that a
‘check-the-box' form is any less reliable than any
other type of form; indeed, agency physicians routinely use
these type of forms[.]” Trevizo v. Berryhill,
871 F.3d 664, 677, n.4 (9th Cir. 2017). Here, although
Pray's opinions are summarized in check-the-box forms, he
included thorough treatment notes immediately preceding and
following the reports in support of his findings. (Doc. 11-9
at 2-64, 100-04, 170-81, 188-98, 201-90.) Therefore, the
ALJ's rejection of Pray's opinions on this basis was
improper.
Second,
the ALJ rejected Pray's opinions because they were
unsupported by other mental status exams from treating
psychiatrists or psychologists. (Doc. 11-3 at 21.) An
opinion's inconsistency with the medical record or the
opinions of providers is a germane reason for discrediting
it. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th
Cir. 2005). In support of this conclusion, the ALJ explained
that, contrary to Pray's opinions, [2] Dr. Stephen
Jaffee, Plaintiff's treating psychiatrist, opined that
Plaintiff maintained logical thought process, associations
and unremarkable stream of thought, reported no delusions or
hallucinations, and demonstrated fair concentration, memory
and fund of knowledge and good insight and judgment.
(Id.)
The
Court is unconvinced that superficial observations made by
Dr. Jaffee largely regarding Plaintiff's functional
thought processes and concentration are necessarily
inconsistent with Pray's opinions generally underscoring
Plaintiff's limited social skills and ability to handle
stress. Regardless, as the Court found in its August 15, 2019
order, (Doc. 20 at 5), the ALJ's reasoning is not
supported by substantial evidence, because it relies on a
mischaracterization of Dr. Jaffee's opinion resulting
from a cherry-picking of the evidence. Holohan v.
Massanari, 246 F.3d 1195, 1207 (9th Cir. 2001) (An
ALJ's reason for rejecting an opinion is not supported by
substantial evidence where the “ALJ selectively relied
on some entries . . . and ignored . . . many
others[.]”); Ghanim v. Colvin, 763 F.3d 1154,
1164 (9th Cir. 2014). Although the ALJ portrays Dr.
Jaffee's opinion positively, citing to his findings of
surface-level mental functioning, he overlooks Dr.
Jaffee's negative conclusions, such as those finding that
Plaintiff exhibited poverty of speech, psychomotor
retardation, a depressed mood/ persistent sadness, socially
isolative tendencies, passive demeanor, and a constricted
affect. (Doc. 11-10 at 3-12.) Accordingly, the ALJ's
rejection of Pray's opinions on this basis was improper.
Third,
the ALJ appears to reject Pray's opinion because he is
not considered an acceptable medical source. (Doc. 11-3 at
21.) An ALJ may not discredit an opinion merely because the
individual providing the opinion is not considered an
acceptable medical source. Fleming v. Astrue, 303
Fed.Appx. 546, 548-49 (9th Cir. 2008). Consequently, the
ALJ's third basis for rejecting Pray's opinions was
improper.
In sum,
although some of the ALJ's stated reasons for assigning
little weight to Pray's opinions are germane, none are
supported by substantial evidence. The Court's error in
applying the “specific and legitimate reasons”
standard therefore was harmless. Having so found, the Court
will deny the Commissioner's motion to amend
judgment.[3]
IT
IS ORDERED that the Commissioner's motion to
amend ...