Register v. Astrue

Filing 19

ORDER that the Commissioner's decision denying Plaintiff's application for disability benefits is AFFIRMED. The Clerk of Court is kindly directed to terminate this action. Signed by Magistrate Judge Lawrence O Anderson on 12/20/11. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner of the)
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Social Security Administration,
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Defendant.
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David Eugene Register,

No. CV-10-2749-PHX-LOA
ORDER

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Plaintiff has filed a Complaint seeking judicial review of the Commissioner of Social

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Security’s denial of his application for disability insurance benefits and supplemental security

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income benefits. 2 U.S.C. § 405(g). The parties have consented to proceed before a United

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States Magistrate Judge. In accordance with Local Rule of Civil Procedure 16.1, the parties

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have filed briefs addressing Plaintiff’s claims. (Docs. 16, 17, 18) Based on the record as a

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whole and the applicable law, the decision of the Commissioner is affirmed.

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I. Procedural Background

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On March 13, 2006, Plaintiff applied for Disability Insurance Benefits and

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Supplemental Social Security Income under Titles II and XVI of the Social Security Act (the

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“Act”), 42 U.S.C. §§ 401-433 and §§ 1381-1383c. (Tr. 122-29, 152, 1561) Plaintiff alleged

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disability with an onset date of July 5, 2004 due to cardiac problems, depression, and anxiety.

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(Tr. 122-29, 152, 156) Plaintiff’s applications were denied initially, on August 8, 2006, and on

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Citations to “Tr.” are to the administrative transcript which appears at docket 15.

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reconsideration, on August 10, 2007. (Tr. 48-66) On October 16, 2007, Plaintiff requested a

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hearing before an administrative law judge. (Tr. 67) Before the hearing, on May 26, 2009,

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Plaintiff filed a letter with the “Office of Disability Adjudication and Review”, requesting to

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amend the disability onset date to May 4, 2007. (Tr. 19) On June 3, 2009, a hearing was held

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before Administrative Law Judge (“ALJ”) M. Kathleen Gavin. (Tr. 9) On August 6, 2009, the

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ALJ denied Plaintiff’s application for social security benefits. (Tr. 9-18) This decision became

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the final decision of the Commissioner of Social Security when the Social Security

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Administration Appeals Council denied Plaintiff’s request for review. (Tr. 1-4) Plaintiff then

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brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the Commissioner’s

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final decision. This matter is fully briefed and ripe for review.

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II. Applicable Legal Standards

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A. Sequential Evaluation Process

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Under the Social Security Act, a “disability” is defined as an “inability to engage in

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any substantial gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or can be expected to

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last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). An

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individual is determined to be under a disability if his “physical or mental impairment or

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impairments are of such severity that he is not only unable to do his previous work but cannot,

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considering his age, education, and work experience, engage in any other kind of substantial

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gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). The claimant

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bears the initial burden of proving that he is disabled. 42 U.S.C. § 423(d)(5); Burch v.Barnhart,

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400 F.3d 676, 679 (9th Cir. 2005). If the claimant shows that he is unable to perform past

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relevant work, the burden shifts to the Commissioner to show that the claimant “can perform

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other substantial gainful work that exists in the national economy.” Takcett v. Apfel, 180 F.3d

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1094, 1098 (9th Cir. 1999).

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An ALJ determines an applicant’s eligibility for disability benefits by following the
five steps listed below:

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(1) determine whether the applicant is engaged in “substantial gainful
activity”;

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(2) determine whether the applicant has a “medically severe impairment or
combination of impairments”;
(3) determine whether the applicant’s impairment equals one of a number of
listed impairments that the Commissioner acknowledges as so severe as to
preclude the applicant from engaging in substantial gainful activity;
(4) if the applicant’s impairment does not equal one of the “listed
impairments,” determine whether the applicant has the residual functional
capacity to perform his or her past relevant work;
(5) if the applicant is not capable of performing his or her past relevant work,
determine whether the applicant “is able to perform other work in the national
economy in view of his age, education, and work experience.”

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Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citing 20 C.F.R. §§ 404.1520(b)-(f)). At the

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fifth step, the burden of proof shifts to the Commissioner. Bustamante v. Massanari, 262 F.3d

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949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098).

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Applying the five-step analysis, the ALJ found that Plaintiff has severe impairments:

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cardiomyopathy, depression, and anxiety which prevent him from performing past relevant

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work. (Tr. 11, 16) However, the ALJ concluded that Plaintiff has the residual functional

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capacity to perform the full range work at all exertional levels but with the following

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nonexertional limitations: “Claimant is capable of performing simple, unskilled work with

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minimum contact with the general public and on a mostly individualized basis, or in other words

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not a part of a team or group of co-workers.” (Tr. 13) The ALJ concluded that Plaintiff was not

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disabled as defined in Social Security Act. (Tr. 17)

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B. Standard of Review

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This Court must affirm the Commissioner’s findings if they are supported by

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substantial evidence and are free from reversible legal error. Sandgathe v. Chater, 108 F.3d 978,

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980 (9th Cir. 1997) (per curiam); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

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Substantial evidence means more than a mere scintilla, but less than a preponderance; it is “such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

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Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted); see also Reddick v. Chater,

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157 F.3d 715, 720 (9th Cir. 1998). In determining whether substantial evidence supports a
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decision, the court considers the record as a whole, weighing both the evidence that supports

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and that which detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. The ALJ is

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responsible for resolving conflicts, determining credibility, and resolving ambiguities. Andrews

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v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Magallanes v. Bowen, 881 F.2d 747, 750 (9th

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Cir. 1989). If sufficient evidence supports the ALJ’s determination, the Court cannot substitute

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its own determination. Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990). Therefore, if on

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the whole record before the Court substantial evidence supports the Commissioner’s decision,

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this Court must affirm it. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); 42 U.S.C.A.

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§ 405(g).

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III. Factual Background

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A. Plaintiff’s Background

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Plaintiff was born on November 29, 1960 and was 48 years old at the time of the

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administrative decision. (Tr. 161) Plaintiff has a high school education, and one year of college

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education. Plaintiff’s past relevant work includes truck loader, meat cutter, and office worker.

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(Tr. 28, 122, 157)

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B. Medical Evidence

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Plaintiff was diagnosed with cardiac arrhythmia and had a defibrillator implanted in

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his heart in February 2003. (Tr. 256, 283) Because Plaintiff’s claims pertain to his mental

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health, the Court will only address his physical impairments as necessary to provide context.

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On June 5, 2006, Plaintiff saw Minette Doss, Ed.D, a licensed psychologist, for a

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consultative mental examination. Plaintiff reported that he could care for his personal needs,

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felt best when working, and had been soliciting “odd jobs . . . for cash on a daily basis.” (Tr.

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268, 270) He also watched television and did crossword puzzles. Plaintiff reported getting along

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with family, having good friends, and socializing daily. (Tr. 286-71) Dr. Doss noted that

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Plaintiff was distressed, worried, and concerned that his heart defibrillator would “go off”, was

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“unrealistically concerned about having a titanium defibriallator in his body,” but was otherwise

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well grounded in reality. On examination, Plaintiff avoided eye contact and “exhibited little
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positive affect,” but was fully oriented, answered questions in a logical and coherent manner,

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and carried on “an adequate conversation.” (Tr. 271) He had adequate grooming and hygiene,

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average-appearing intelligence, adequate memory, very good common sense judgment, and

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good insight as long as the situation did not involve his defibrillator. Plaintiff was unable to

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adequately perform concentration tasks. Dr. Doss noted that Plaintiff seemed to be “poorly

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educated about how the defibrillator works,” and had not had any “follow-up [care for the

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defibrillator] since it was implanted.” (Tr. 271) She concluded that, “[i]n essence, this man is

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scared to death over his physical illness. He is not clinically depressed.” (Tr. 268)

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On June 23, 2006, Dr. Doss completed a “Mental Source Statement of Ability to do

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Work Related Activities (Mental).” (Tr. 263) Dr. Doss opined that Plaintiff had no limitations

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or was not significantly limited in all areas of work-related mental functioning, except Plaintiff

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had moderate limitations in his ability to maintain attention and concentration for extended

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periods because he is distracted by his physical condition, and had moderate limitations in his

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ability to set realistic goals or make plans independently of others due to “obsessive worry over

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[his] heart defibrillator.” (Tr. 263-67) Dr. Doss diagnosed Plaintiff with “anxiety disorder due

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to physical cond[ition].” (Tr. 263)

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On August 1, 2006, Paul Tangeman, M.D., a state agency physician, reviewed the

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medical record and completed a Mental Residual Functional Capacity Assessment. (Tr. 275)

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Dr. Tangeman found that Plaintiff was moderately limited in his ability to carry out detailed

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instructions and set realistic goals or make plans independently of others. (Tr. 275-76) Dr.

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Tangeman concluded that Plaintiff’s “anxiety may interfere with his ability to concentrate and

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attend at times[, however,] the overall record does not show marked problems resulting from

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this condition. Claimant retains the ability to sustain basic work activities.” (Tr. 277)

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On May 25, 2007, Plaintiff saw Lawrence Allen, Ph.D, a psychologist, for a

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consultative mental evaluation. (Tr. 310) Plaintiff drove himself to the evaluation. He reported

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spending his days looking for odd jobs, doing crossword puzzles, visiting friends, watching

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television, and reading. Plaintiff stated that he tended to his personal needs, vacuumed, made

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his bed, prepared two simple meals a day, and shopped twice a month. He also reported that he
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liked to repair broken appliances. (Tr. 311-12) On examination, Plaintiff appeared unclean and

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had a “slumped” posture, a hypoactive motor level, and a dysphoric2 mood with an affect

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congruent to his mood. (Tr. 312) He was fully oriented and had good eye contact, a normal gait,

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normal sensorium, verbose but normal speech, logical associations, and no unusual mannerisms

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or physiological responses. He was able to recall three items immediately and after five minutes,

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calculate 17 times 3 without difficulty, properly interpret a proverb, and spell “world” forward

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and backward. He reported panic attacks and “dreams of the defibrillator.” (Tr. 312) Plaintiff

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said that a previous therapist had diagnosed him with post-traumatic stress disorder (“PTSD”),

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and was upset when Dr. Allen said Plaintiff did not meet the criteria for PTSD. (Id.) Dr. Allen

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diagnosed an adjustment disorder with mixed anxiety and depressed mood, possible panic

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disorder without agoraphobia3, and a possible specific situational phobia. (Tr. 310-13)

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Dr. Allen opined that Plaintiff had no limitations or was not significantly limited in

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all areas of work-related mental functioning, except that he had moderate limitations in his

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ability to accept instructions and respond appropriately to criticism from superiors, and had

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moderate limitations in his ability to maintain socially appropriate behavior and adhere to basic

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standards of neatness and cleanliness. (Tr. 314-18)

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In early May 2007, Plaintiff presented at Mohave Mental Health Clinic (Mohave) with

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intake therapist Jettie Blanton, MSW, LSW, LADC, and Vera Gaspar, LSCW, BHP. At that

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time, he was taking Zoloft and Xanax for his mental impairments. (Tr. 338-39) He arrived for

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his appointment on time, denied suicidal ideation, and reported having a good support system.

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He said he had anxiety about his defibrillator and was concerned that he could no longer

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perform his past jobs. The therapists discussed job alternatives and coping skills. Plaintiff was

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A state of feeling unwell or unhappy. Merriam-webster.com online dictionary (last
viewed December 19, 2011)

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An abnormal fear of being helpless in an embarrassing or unescapable situation that is
characterized especially by the avoidance of open or public places. Merriam-webster.com online
dictionary (last viewed December 19, 2011)

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diagnosed with a mood disorder and anxiety due to cardiac problems and was assessed a GAF

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score of 52. (Tr. 338-40, 343-57, 394-96, 399-419)

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On June 12, 2007, Plaintiff saw therapist Gaspar for his first individual therapy

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session. Plaintiff continued counseling sessions with Ms. Gaspar during June 2007. (Tr. 336,

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341-42, 386-87, 392, 397-98) On June 27, 2007, Plaintiff reported no progress, but admitted

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that he had not tried breathing, meditation, or other coping tools discussed at his previous

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appointment. Ms. Gaspar assessed a GAF score of 52. (Tr. 386-87)

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On June 29, 2007, Grace Fletcher, Ph.D., a state agency psychologist, reviewed the

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record and found Plaintiff’s mental impairments did not meet a Listing and caused, at most,

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“mild” limitations. (Tr. 364-77) Dr. Fletcher found that the opinions of Drs. Doss and Allen

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“were consistent in describing virtually no mental problems, except anxiety that is at present

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focused on his heart defibrillator.” (Tr. 376)

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On July 19, 2007, Plaintiff saw Lisa Garcia, PA-C, a physician’s assistant at Mohave.

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(Tr. 483-84) Plaintiff said he had been trying to cope with anxiety and depressive symptoms

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since having a defibrillator implanted in 2003, and that Xanax had previously helped. (Tr. 483-

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84) On examination, Plaintiff was alert and fully-oriented with a disheveled appearance, a sad

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and helpless demeanor, very poor eye contact, a “down” mood, and a congruent and depressed

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affect. (Tr. 485) He had coherent and organized thoughts, fair judgment and insight, and no

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suicidal ideation. Ms. Garcia diagnosed depressive disorder and assessed a GAF score of 45.

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She prescribed Zoloft, Xanax, and a sleep medication. (Tr. 483-86) Ms. Garcia recommended

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that Plaintiff continue individual counseling with Ms. Gaspar. (Tr. 485)

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On August 20, 2007, Plaintiff’s representative contacted Mohave and requested that

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Ms. Garcia’s treatment notes pertaining to Plaintiff be cosigned by a psychiatrist because the

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Social Security Administration would not otherwise accept them. (Tr. 463)

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During an August 22, 2007 appointment, Ms. Garcia noted that Plaintiff was still

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depressed and having episodes of anxiety, and did not feel a big difference on Zoloft. (Tr. 481)

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She also noted that his claim for disability benefits had been denied, and that he was going to

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start looking for a job that he would be able to do, such as, working with computers. He said he
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was still concerned about his defibrillator, but had not followed up with his cardiologist. On

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examination, Plaintiff was alert and oriented with diminished grooming and hygiene, poor eye

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contact, slightly diminished psychomotor activity, a depressed mood, normal speech, coherent

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and redirectable thought processes, fair judgment and insight, and no suicidal ideation. Ms.

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Garcia diagnosed a mood disorder due to cardiac condition with depressive features, and

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assessed a GAF score of 51. She increased Plaintiff’s dosage of Zoloft and encouraged him to

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follow up with his cardiologist. (Tr. 480, 481)

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During a September 17, 2007 appointment, Plaintiff reported no progress to Ms.

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Gaspar. (Tr. 461) Ms. Gaspar reviewed coping skills with Plaintiff, such as, breathing,

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meditation, and stress-relieving stretches. (Tr. 461)

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On October 2, 2007, Plaintiff reported to Ms. Garcia that he doing “okay” and that he

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felt his medications were helping. (Tr. 478-79) Plaintiff said that he did not think “his

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debrillator has gone off and he has not had any problems with his anxiety.” (Tr. 479) On

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examination, Plaintiff was alert, oriented, and appropriately groomed and dressed. He had

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improved eye contact, normal psychomotor activity, and “alright” mood with congruent affect,

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coherent and redirectible thoughts, improved judgment and insight, and no suicidal ideation.

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Ms. Garcia noted that Plaintiff had improved since his last visit, and was able to make a joke.

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She assessed a GAF score of 55. Ms. Garcia recommended that Plaintiff continue individual

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counseling, and suggested that Plaintiff explore vocational groups. Plaintiff said he might try

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to look for a job with computers or non-labor jobs. (Tr. 478, 479)

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The following day, Ms. Gaspar noted that Plaintiff had demonstrated progress in

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coping and utilizing tools of distraction - such as laughing and doing puzzles. (Tr. 460) In

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December 2007, Ms. Gaspar noted continued progress, Tr. 459, and in January 2008, she noted

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that Plaintiff “believes he is coping as well as possible with his medical situation.” (Tr. 458)

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On January 18, 2008, Plaintiff told Ms. Garcia that he had recently “been more

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himself,” but was dealing with a recall of his defibrillator and wanted a new cardiologist. (Tr.

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476) He said he was proud of himself for having helped his sister through a recent break-up

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with her boyfriend, and said that he might be going to Hawaii with his girlfriend in February.
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On examination, Plaintiff was alert and oriented with good hygiene, fair eye contact, normal

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speech, an “okay” mood, an apprehensive but much improved affect, coherent thought process,

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fair judgment and insight, and no suicidal ideation. Dr. Garcia noted that Plaintiff was doing

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well since the increase in Zoloft. (Tr. 476, 477)

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During a February 25, 2008 appointment with Ms. Garcia, Plaintiff reported having

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declined his daughter’s invitation to move to Las Vegas to live with her because he did not “feel

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that he is disabled and does not want his daughter to be taking care of him.” (Tr. 475) On

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examination, Plaintiff was fully alert and oriented. He was dressed adequately, but had

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diminished hygiene. Plaintiff had normal speech, fair eye contact, an “okay” mood, a concerned

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affect, coherent and redirectible thought processes, fair judgment, and insight, and no suicidal

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ideation. (Id.) Ms. Garcia prescribed medication to help Plaintiff sleep. She diagnosed “mood

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disorder due to cardiac condition with depressive features, in partial remission,” and a GAF

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score of 55. (Tr. 475, 477)

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At his next appointment on April 24, 2008, Ms. Garcia noted that Plaintiff was fully

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oriented and had fair eye contact and rapport, normal psychomotor activity, normal speech,

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coherent thought processes, an apprehensive affect, an “I am here” mood, no suicidal ideation

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and no anxiety attacks. (Tr. 474) On April 25, 2008, Ms. Garcia completed a Supplemental

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Residual Functional Capacity Questionnaire for the SSA.4 (Doc. 456) Ms. Garcia found that

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Plaintiff was moderately limited in his ability to understand, remember, and carry out short,

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simple instructions; understand detailed instructions; make judgment on simple work-related

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decisions; interact appropriately with the public and co-workers; and respond appropriately to

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changes in routine work setting. (Tr. 456-57) She found that Plaintiff was markedly limited in

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his ability to interact appropriately with supervisors, and respond appropriately to work pressure

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in a usual work setting. (Tr. 457)

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The Supplemental Questionnaire defines “moderate” as “moderate limitations, claimant
can function well,” and defines “marked” as “serious limitations, ability to function is severely
limited.” (Tr. 444, 456)
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On July 15, 2008, Ms. Garcia noted that Plaintiff was fully oriented with good eye

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contact and rapport, normal psychomotor activity, normal speech, logical and goal-directed

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thought process, a stable and bright affect, a good mood, no suicidal ideation, and no anxiety

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attacks. (Tr. 471) Ms. Garcia was assessed a GAF score of 60. (Id.) Ms. Garcia noted that

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Plaintiff was “doing well,” and therefore continued his medications. (Id.)

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During a September 12, 2008 appointment with Ms. Garcia, Plaintiff was fully

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oriented, had good eye contact and rapport, normal psychomotor activity, normal speech, bright

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affect, an“alright” mood, goal-oriented and logical thought process, no suicidal ideation, and

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no anxiety attacks. Ms. Garcia assessed a GAF score of 60. (Tr. 470) Ms. Garcia again noted

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that Plaintiff was “doing well,” and continued his medications. (Id.)

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On November 21, 2008, Plaintiff continued to be fully oriented with good eye contact

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and rapport, normal psychomotor activity, normal speech. (Tr. 469) Plaintiff had a “bothered”

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affect, and a “distraught” mood because his defibrillator had been “beeping” regularly at 3:00

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a.m. Plaintiff had a coherent thought process, no suicidal ideation, and no anxiety attacks. (Id.)

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Ms. Garcia assessed a GAF score of 60. (Id.)

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Andrea Burris telephoned Plaintiff on March 2, 2009, to check his status and Plaintiff
reported that he was “doing fine.” (Tr. 447)

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Ms. Garcia completed another Supplemental Questionnaire as to Residual Functional

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Capacity on May 6, 2009. (Tr. 444) She found that Plaintiff was moderately limited in his

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ability to understand, remember, and carry out short, simple instructions; interact appropriately

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with co-workers; and respond appropriately to changes in a routine work setting. (Tr. 444-45)

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Ms. Garcia found that Plaintiff has marked limitations in his ability to understand and remember

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detailed instructions; make judgments on simple work-related decisions; and interact

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appropriately with supervisors. (Id.) Finally, she noted that Plaintiff had extreme5 limitations

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in his ability to interact appropriately with the public; and respond appropriately to work

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The Supplemental Questionnaire as to Residual Functional Capacity defines “extreme”
as “major limitation, no useful ability to function.” (Tr. 444)
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pressures in a ususal work setting. (Tr. 445) In support of her assessment, Ms. Garcia noted that

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Plaintiff “continue[d] to have [illegible] due to his mental illness,” and had mood disorder due

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to his cardiac condition. (Tr. 445)

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IV. Hearing Testimony

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Plaintiff and vocational expert, Nathan Dean, testified at the June 3, 2009

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administrative hearing. Plaintiff testified that he is divorced and lives with his sister. (Tr. 25)

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Plaintiff said he had anxiety, depression, difficulty sleeping, and fatigue. (Tr. 34, 38, 40)

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Plaintiff stated that he has not worked since 2004 because of anxiety about his defibrillator. (Tr.

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27, 29-30) Plaintiff explained that his brain could not handle the electrical impulses from the

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defibrillator, and that it made him anxious and irritable. (Tr. 29, 30, 32, 36, 37) Plaintiff said

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he had been told his defibrillator was working properly, although it had gone off 21 times in

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three years. (Tr. 31) Plaintiff said he takes medication and attends counseling sessions. (Tr. 35-

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36) He said his medications cause drowsiness, nausea, and disorientation. (Tr. 40-41)

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Plaintiff testified that he regularly showers, brushes his teeth, changes his clothes,

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looks through “want ads,” visits neighbors, mows the lawn, goes to the grocery store, and takes

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care of his sister’s “two little dogs.” (Tr. 33-35) Plaintiff said he likes to read, but loses his

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place when he tries to read. (Tr. 39) Plaintiff said he did not think there was any kind of work

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he could do because he could not control or predict his “episode[s].” (Tr. 36)

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The vocational expert testified in response to a hypothetical question by the ALJ that

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assumed a person who could perform work at any exertional level with the following

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limitations: simple work, minimum contact with the general public, work in proximity to others

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- but not as part of a team. (Tr. 43) The vocational expert testified that such a person could

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perform unskilled work existing in the national economy, including hand packager, small

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product assembler, and packing line worker. (Tr. 44-45) In response to questioning from

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Plaintiff’s attorney, the vocational expert testified that a person with moderate limitations

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following short, simple instructions, marked limitations dealing with supervisors, and marked

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limitations responding to work pressures would preclude all work. (Tr. 46)

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V. The ALJ’s Decision
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The ALJ denied Plaintiff’s application for benefits. At the first step of the sequential

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analysis, the ALJ found that Plaintiff had not performed any substantial gainful activity since

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the disability onset date. (Tr. 11) The ALJ then found that Plaintiff had the following severe

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impairments: cardiomyopathy, depression, and anxiety. (Tr. 11) At the third step, the ALJ

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found that none of Plaintiff’s impairments, or a combination of impairments, met or medically

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equaled a presumptively disabling impairment in the Listing of Impairments, 20 C.F.R. Part

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404, Appendix 1, Subpart P. (Tr. 11-13)

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After considering the record, the ALJ found that Plaintiff’s subjective complaints were

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not fully credible, and that he had the residual functional capacity to perform simple, unskilled

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work with minimum contact with the public, and work mostly on an individualized basis (i.e.

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not part of a team or group of co-workers). (Tr. 13-16) At steps four and five, the ALJ found

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that Plaintiff could not perform his past relevant work, but could perform other work existing

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in significant numbers in the national economy, including hand packer, small products

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assembler, and packaging line worker. (Tr. 16-17) Thus, the ALJ concluded that Plaintiff was

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not disabled within the meaning of the Act. (Tr. 17)

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VI. Analysis

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In support of his request for relief, Plaintiff argues that (1) the ALJ erred by failing

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to afford adequate weight to the opinion of Plaintiff’s treating interdisciplinary psychiatric

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team; and (2) the ALJ erred by failing to recognize the amended onset date in considering

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incomplete medical evidence from a non-treating source, including records from approxi-

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mately one year before the amended onset date. (Doc. 16 at 2) Plaintiff argues that the

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Court should remand for payment of disability benefits.

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A. Acceptable Medical Source

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Plaintiff argues that the ALJ erred in evaluating the opinions of nurse practitioner

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Lisa Garcia regarding his mental limitations. Plaintiff argues that the ALJ ignored the

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assessment of the “interdisciplinary treating source,” Ms. Garcia, at Mohave Mental Health

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Clinic and incorrectly determined that Plaintiff’s mental impairment did not cause at least

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“two marked limitations or one marked limitation and repeated episodes of decompensation
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each of an extended duration.” (Doc. 16 at 4) Plaintiff argues that Ms. Garcia’s opinion

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constitutes an acceptable medical source opinion because she was part of a treatment team

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led by Dr. Andrezj Honory. Plaintiff explains that on July 19, 2007, a psychiatric evaluation

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and record of review was conducted at Mohave Mental Health. Ms. Garcia wrote the report

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“that was co-signed by Dr. Andrezj Honory, M.D.” (Doc. 18 at 2) The July 19, 2007 report

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assessed Plaintiff with a GAF of 45. Plaintiff asserts that “Dr. Honory’s signature on the

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report satisfies the requirement of a signature of an acceptable medical source.” (Id.)

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Physician’s assistants, nurse practitioners, and chiropractors and similar providers

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are medical professionals, but they are not considered “acceptable medical sources,” under

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the Social Security regulations. 20 C.F.R. § 404.1513(d)(1), 416.913(d)(1). Rather, these

11

medical professionals are considered “other sources.” Id. The distinction between “other

12

sources” and “acceptable medical sources” is significant because only “an acceptable

13

medical source” may be considered a “treating source.” 20 C.F.R. §§ 404.1502, 416.902.

14

The opinions of treating sources are generally entitled to controlling weight or at least

15

deference by adjudicators. Lester, 81 F.3d at 830. Generally, medical evaluations created

16

and signed by medical professionals who are not considered “acceptable medical sources”

17

under Social Security regulations are not assigned “treating-source” status.

18

However, the Ninth Circuit created an exception in Gomez v. Chater, 74 F.3d 967

19

(9th Cir. 1996). In Gomez, the court held that a nurse practitioner’s opinion was properly

20

credited to the supervising physician and treated as an opinion of an “acceptable medical

21

source” because the record indicated that the nurse practitioner worked so closely with the

22

physician that she became the physician’s agent. Id. at 971. The court noted that the nurse

23

practitioner regularly consulted with the physician regarding claimant’s treatment. Id. The

24

court relied on C.F.R. § 416.913(a)(6), which at that time provided that, “[a] report on an

25

interdisciplinary team that contains the evaluation and signature of an acceptable medical

26

source is also considered acceptable medical evidence.” Id. The court found that reading

27

paragraph (a)(6) in conjunction with the definition of “other source” evidence “indicates that

28

a nurse practitioner working in conjunction with a physician constitutes an acceptable
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1
2

medical source, while a nurse practitioner working on her own does not.” Id.
A subsequent July 2000 revision to § 416.913 removed paragraph (a)(6) and any

3

reference to an “interdisciplinary team.” 65 Fed.Reg. 34950, 34952 (July 3, 2000). The

4

Social Security Administration explained that the revision recognized that paragraph (a)(6)

5

was “redundant and somewhat misleading” because acceptable medical sources are

6

individuals; thus to be evidence from an “acceptable medical source,” the evaluation or

7

report would still have to be provided and signed by the acceptable medical source, regard-

8

less of whether that source was part of an interdisciplinary team. Id.

9
10
11

This clarified the Social Security Administration’s position that a report from an
interdisciplinary team member who is not an acceptable medical source is not
transformed into an evaluation from an acceptable medical source because of
participation on the team. Rather, to be treated as evidence from an acceptable
medical source, the evaluation must be provided by an individual listed in the
regulations as an acceptable medical source.”

12
Garcia v. Astrue, 2011 WL 3875483, at * 13 (E.D.Cal. Sept. 1, 2011) (citing 20 C.F.R. §
13
404.1513(a), 416.913(a)).
14
After § 416.913’s revision, in Buck v. Astrue, 2010 WL 2650038, * 15 (D.Ariz.
15
July 1, 2010), the court noted that § 416.913(a)(6) was amended after Gomez and no longer
16
includes “interdisciplinary team.” Id. However, the court recognized that in the case of an
17
agency relationship with an “acceptable medical source,” evidence from an “other source”
18
may be ascribed to the supervising “acceptable medical source.” Id. Buck recognizes that
19
the exception in Gomez remains following the deletion of paragraph (a)(6), but that there
20
must be an extremely close relationship before evidence from an “other source” may be
21
given “acceptable source” status.
22
Contrary to Plaintiff’s assertion, Gomez does not stand for the proposition that any
23
medical professional, who would not otherwise be considered an “acceptable medical
24
source,” is transformed into such a source merely because she works on a treatment team, or
25
is supervised to any degree by a physician. Rather, Gomez instructs that there must be
26
evidence of such close supervision that the “other source” becomes the agent of the
27
“acceptable medical source.” Ramirez v. Astrue, 2011 WL 1155682, at * 4 (C.D.Cal. March
28
- 14 -

1

29, 2011) (finding that physician’s co-signature on patient plan prepared by a social worker

2

did not indicate that the social worker was closely supervised by the physician in treating or

3

preparing the reports, thus the social worker’s evaluation was not from an “acceptable

4

medical source.”); Vasquez v. Astrue, 2009 WL 939339, at * 6 n. 3 (E.D.Wash. April 3,

5

2009) (finding that physician’s assistant’s report “signed off” by a superior did not constitute

6

an “acceptable medical source” opinion).
Regardless, the narrow exception carved out in Gomez does not apply here. Plain-

7
8

tiff argues that Ms. Garcia authored a report regarding a July 19, 2007 psychiatric evaluation

9

of Plaintiff that was conducted at the Mohave Mental Health Clinic. (Doc. 18 at 2) Plaintiff

10

notes that this report was co-signed by Andrezj Honory, M.D. (Tr. 486) Plaintiff contends

11

that Dr. Honory’s signature on the report “satisfies the requirement of a signature of an

12

acceptable medical source.” (Doc. 18 at 2) Plaintiff further argues that the evaluation should

13

be treated as that of an acceptable medical source, because “[t]here were multiple partici-

14

pants in [Plaintiff’s] care. Clearly they were all working together in treating Plaintiff.” (Id.)

15

Plaintiff’s general conclusions about his care do not provide any insight into Dr. Honory’s

16

role in treating Plaintiff. Plaintiff has offered no evidence, indicating that Dr. Honory closely

17

supervised Ms. Garcia, consulted with Ms. Garcia, or otherwise had an agency relationship

18

with her. But see Gomez, 74 F.3d at 971 (nurse practitioner consulted with physician

19

numerous times regarding the patient and worked closely under physician’s supervision).

20

And, the record suggests that Dr. Honory - who did not add his signature to the July 19,

21

2007 report until August 20, 2007 - may have signed the report at the behest of Plaintiff’s

22

“non-attorney representative for social security benefits,” Linda Lynch.6 (Tr. 231, 463)

23

Indeed, an entry in Plaintiff’s Mohave Mental Health Clinic case notes made by Vera

24

Gaspar on August 20, 2007 - the same date Dr. Honory added his signature to the July 19,

25

2007 evaluation - reads: “T/C (telephone call) from Social Security Disability Advocate

26
6

27
28

In 2007, Linda Lynch was Plaintiff’s “authorized representative” representiving him
for Social Security Benefits. She was affiliated with Helping Hands Disability Advocate, Social
Security Disability Insurance Representatives, in Kingman, Arizona. (Tr. 231)
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1

Linda Lynch. . . requested future app[ointment] notes completed by Ms. Garcia, PAC, be

2

cosigned by a psychiatrist as Social Security Admin[istration] refused to accept her notes

3

without this.” (Tr. 463) The August 20, 2007 case note further states that Linda Garcia was

4

informed of the foregoing request that same day. (Tr. 463, “[s]taffed with PAC Lisa Garcia.

5

Informed her of the above noted request.”).

6

In view of the foregoing, the ALJ correctly concluded that Ms. Garcia was “not an

7

acceptable medical source” and her treatment notes and reports should not be credited to an

8

acceptable medical source. Garcia, 2011 WL 3875483, at * 15 (finding that doctor’s

9

signature on reports authored by physician’s assistant did not transform reports into evidence

10

from an “acceptable medical source” where the evidence indicated that the physicians

11

assistant prepared the reports following his examination of claimant); Freeman v. Astrue,

12

2011 WL 4625334, * 4-5 (E.D.Wash. Oct. 3, 2011) (finding that “interdisciplinary team”

13

approach noted in Gomez did not apply where there was no evidence that nurse practitioner

14

worked closely with doctor who signed nurse’s opinion letter).

15

B. Weight Assigned to Ms. Garcia’s Opinions

16

Although Ms. Garcia, a nurse practitioner, is not an acceptable medical source, she

17

is an “other source” under SSR 06-3p. Pursuant to SSR 06-03p, although nurse practitioners

18

and physician’s assistants are listed alongside laymen under “other sources,” the SSA does

19

not intend their opinions to automatically be given the same weight. Rather, the opinions of

20

medical sources not listed as “acceptable medical sources” are an important part of an

21

evaluation and their assessments should be carefully considered, and given appropriate

22

weight, when making a decision. SSR 06-03p, 2006 WL 2329939, at * 2 (Aug. 9, 2006).

23

When considering how much weight to afford the opinion of an“other source”, the court

24

should consider the following factors: the length and frequency of treatment with the source;

25

the consistency of the opinion with other evidence; the degree to which the source presents

26

relevant evidence to support the opinion; the specialty of the source; and any other factors

27

that tend to support or refute the opinion. SSR 06-03p. Because evidence from a non-

28

acceptable medical source or lay witness “as to a claimant’s symptoms is competent
- 16 -

1

evidence that an ALJ must take into account . . .”, an ALJ errs “unless he or she expressly

2

determines to disregard such testimony and gives reasons germane to each witness for doing

3

so.” Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001).

4

Here, the ALJ found that, “although Ms. Garcia has a treating relationship with

5

[Plaintiff], she is not an acceptable medical source and therefore her opinion is afforded less

6

weight.” (Tr. 15) The ALJ further explained that there was

7

little evidence to support [Ms. Garica’s] restrictive assessment of [Plaintiff’s]
limitations within Ms. Garcia’s treatment records or any other medical evidence
submitted regarding [Plaintiff’s] mental health impairments. As such, the
undersigned gives Ms. Garcia’s opinion very little weight as to the restrictions
on [Plaintiff’s] ability to perform work-related to tasks.

8
9
10
11

(Id.)
The ALJ “expressly determine[d] to disregard” Ms. Garcia’s opinion and gave

12

“reasons germane to [Ms. Garcia] for doing so.” Lewis, 236 F.3d at 511; see also SSR 06-

13

03p (factors for evaluating opinions include how consistent the opinion is with other

14

evidence and the degree to which the source presents relevant evidence to support the

15

opinion); Batson v. Comm. Social Sec., 359 F.3d 1190, 1197 (9th Cir. 2003) (the lack of

16

objective medical evidence supporting claimant’s claims supported the ALJ’s determin-

17

ation). The record contains substantial evidence in support of the ALJ’s determination.

18

First, Ms. Garcia’s treatment notes support the ALJ’s decision to give little weight

19

to her opinion. Ms. Garcia began treating Plaintiff in July 2007. Her examinations showed

20

that, although Plaintiff exhibited signs of depression and anxiety, he remained alert and fully

21

oriented with coherent and organized thoughts, normal speech, at least fair insight and

22

judgment, and no suicidal ideation. (Tr. 469-71, 474-76, 479, 481, 485) Moreover, both Ms.

23

Garcia’s and Ms. Gaspar’s treatment notes reflected improvement in Plaintiff’s condition by

24

October 2007, less than twelve months after Plaintiff’s amended onset date in May 2007 -

25

once the correct medications and dosages were determined. (Tr. 459-60, 471, 476, 479)

26

Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (finding that ALJ’s decision was

27

supported, in part, by the fact that claimant’s impairment was controlled with medication).

28

In October 2007, Ms. Garcia encouraged Plaintiff to “possibly look[] into different voca- 17 -

1

tional groups,” and noted that Plaintiff was interested in looking for non-labor jobs such as

2

those working with computers. (Tr. 479) Ms. Gaspar also discussed job alternatives with

3

Plaintiff in 2007. (Tr. 394) In view of the foregoing, there was substantial evidence in the

4

record to support the ALJ’s decision to discount Ms. Garcia’s opinion regarding Plaintiff’s

5

limitations.

6

Additionally, in June 2006, Dr. Doss’s examination showed that Plaintiff avoided

7

eye contact and “exhibited little positive affect,” but was fully oriented and answered all

8

questions in a logical and coherent manner and had adequate grooming and hygiene,

9

average-appearing intelligence, adequate memory skills, very good common sense

10

judgment, and good insight as long as the situation did not involve his defibrillator. (Tr. 270-

11

71) Dr. Doss concluded that Plaintiff had no limitations or was not significantly limited in

12

most areas of work-related mental functioning. (Tr. 263-67)

13

Similarly, Dr. Allen’s examination of Plaintiff in May 2007 showed that Plaintiff

14

had signs of depression and anxiety, but that he was fully oriented and had good eye contact,

15

a normal gait, normal sensorium, verbose but normal speech, logical associations, and no

16

unusual mannerisms or physiological responses. (Tr. 312) He was able to recall three items

17

immediately and after five minutes, calculate 17 times 3 without difficulty, properly

18

interpret a proverb, and spell the word “world” correctly both forward and backward. (Tr.

19

312) Dr. Allen opined that Plaintiff had no limitations or was not significantly limited in

20

most areas of work-related mental functioning. (Tr. 314-18) The ALJ properly gave the

21

opinions of Drs. Doss and Allen “considerable weight” because they were “supported by

22

their clinical observations and are consistent with the rest of the record.” (Tr. 15)

23

Further supporting the ALJ’s decision, Drs. Tangeman and Fletcher, the State

24

agency psychologists who reviewed the record in August 2007 and June 2007, respectively,

25

concluded that Plaintiff’s mental impairments would not preclude unskilled work. (Tr. 277,

26

376) See C.F.R. § 404.1527(f) (stating that ALJ will consider opinions of nonexamining

27

state agency medical sources).

28

Additionally, the degree of limitations found by Ms. Garcia was inconsistent with
- 18 -

1

Plaintiff’s reported daily activities, which included caring for his personal needs, visiting

2

friends, shopping, doing crossword puzzles, doing some housework, preparing simple meals,

3

looking for work on a regular basis, and doing odd jobs such as pulling weeds, mowing the

4

lawn, and helping care for his sister’s dogs. (Tr. 33-35, 271, 311-12) In 2008, Plaintiff

5

dismissed his daughter’s suggestion that he move to Las Vegas to live with her, because he

6

said he did not consider himself disabled. (Tr. 475)

7

Finally, Plaintiff argues that the ALJ erred by failing to mention that Plaintiff

8

amended the alleged onset date from July 5, 2004 to May 4, 2007. (Tr. 19) This argument

9

lacks merit. The ALJ’s decision in this case indicates that she considered all of the evidence

10

in the record, and that she concluded that Plaintiff was not disabled at any time through the

11

date of her decision on August 6, 2009. (Tr. 17) Thus, the ALJ’s failure to specifically

12

mention the amended onset date was, at most, harmless error. Plaintiff has not met his

13

burden of showing that the ALJ’s failure to specifically note the amended onset date was

14

harmful. Shinseki v. Sanders, ___ U.S. ___, 129 S.Ct. 1696, 1706 (2009) (finding that “the

15

burden of showing that an error is harmful normally falls upon the party attacking the

16

agency’s determination.”).

17

VII. Conclusion

18

For the reasons set forth above, the Court finds that the Commissioner’s decision is

19

supported by substantial evidence and is free from harmful legal error. Accordingly, the

20

Commissioner’s decision is affirmed. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th

21

Cir. 2006).

22

Based on the foregoing,

23

IT IS ORDERED that the Commissioner’s decision denying Plaintiff’s

24

application for disability benefits is AFFIRMED. The Clerk of Court is kindly directed to

25

terminate this action.

26

Dated this 20th day of December, 2011.

27
28
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