Connolly v. Colvin

Filing 17

ORDER - The decision of the ALJ is affirmed and the Clerk shall enter judgment accordingly. Signed by Senior Judge James A Teilborg on 05/08/2017. (KAS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Elizabeth Connolly,

No. CV-16-01011-PHX-JAT

Plaintiff,

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v.

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Commissioner
Administration,

ORDER

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of

Social

Security

Defendant.

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Pending before the Court is Plaintiff’s appeal of Defendant’s denial of her

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application for social security disability benefits. More specifically, Plaintiff argues that

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the Administrative Law Judge (“ALJ”) erred in not fully crediting the opinions of three of

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Plaintiff’s treating physicians.

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I.

Legal Standard

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A.

Review of ALJ’s Decision

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The decision of Administrative Law Judge (“ALJ”) to deny benefits will be

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overturned “only if it is not supported by substantial evidence or is based on legal error.”

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Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (quotation omitted).

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“Substantial evidence” means more than a mere scintilla, but less than a preponderance.

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Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

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“The inquiry here is whether the record, read as a whole, yields such evidence as

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would allow a reasonable mind to accept the conclusions reached by the ALJ.” Gallant v.

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Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citation omitted). In determining whether

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there is substantial evidence to support a decision, the Court considers the record as a

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whole, weighing both the evidence that supports the ALJ’s conclusions and the evidence

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that detracts from the ALJ’s conclusions. Reddick, 157 F.3d at 720. “Where evidence is

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susceptible of more than one rational interpretation, it is the ALJ’s conclusion which

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must be upheld; and in reaching his findings, the ALJ is entitled to draw inferences

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logically flowing from the evidence.” Gallant, 753 F.2d at 1453 (citations omitted); see

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Batson v. Comm’r of the Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). This is

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because “[t]he trier of fact and not the reviewing court must resolve conflicts in the

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evidence, and if the evidence can support either outcome, the court may not substitute its

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judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992);

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see also Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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B.

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With respect to medical testimony specifically, the Ninth Circuit Court of Appeals

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distinguishes between the opinions of three types of physicians: (1) those who treat the

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claimant (“treating physicians”); (2) those who examine but do not treat the claimant

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(“examining physicians”); and (3) those who neither examine nor treat the claimant

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(“non-examining physicians”). Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). As

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a general rule, the opinion of an examining physician is entitled to greater weight than the

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opinion of a non-examining physician, but less than a treating physician. Andrews v.

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Shalala, 53 F.3d 1035, 1040–41 (9th Cir. 1995).

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Medical Testimony

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).
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An “ALJ need not accept the opinion of any physician . . . if that opinion is brief,

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conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278

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F.3d 947, 957 (9th Cir. 2002). Further, “incongruity between [a doctor’s opinion] and

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[his] medical records” is a “specific and legitimate reason for rejecting” the doctor’s

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opinion. Tommasetti, 533 F.3d at 1041.

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When reviewing an ALJ’s determination, the Court must uphold an ALJ’s

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decision—even if the ALJ could have been more specific in the opinion—if the Court can

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reasonably infer if and why the ALJ rejected an opinion. Magallanes, 881 F.2d at 755;

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see also Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) (“Even when an agency

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explains its decision with less than ideal clarity, we must uphold it if the agency’s path

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may reasonably be discerned.”) (internal quotations omitted). Moreover, “if evidence

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exists to support more than one rational interpretation, [the Court] must defer to the

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[ALJ’s] decision” Batson, 359 F.3d at 1193; see also Osenbrock v. Apel, 240 F.3d 1157,

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1162 (9th Cir. 2001).

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II.

Treating Physicians

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Plaintiff argues on appeal that the ALJ failed to give adequate reasons for

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discrediting the testimony of three of her doctors: Dr. Ong-Veloso; Dr. Premaratne; and

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Dr. Ramadan.

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A.

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On this record, it appears that only Dr. Ong-Veloso’s physician’s assistant

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examined Plaintiff and completed an assessment of Plaintiff. (Doc. 10-11 at 125-137).

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Included in the records submitted by the physician’s assistant are two documents titled

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“medical assessment of ability to do work related activities.” One is dated October 29,

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2012. (Doc. 10-11 at 135-137). The other is dated August 7, 2013. (Doc. 10-11 at 132-

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133).

Dr. Ong-Veloso

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The ALJ gave little weight to these assessments because they were not from an

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acceptable medical source. (Doc. 10-3 at 23). The ALJ “may discount testimony from

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[non-acceptable medical sources] if the ALJ gives reasons germane to each witness for

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doing so.” Molina, 674 F.3d at 1111 (internal quotation marks omitted) (quoting Turner

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v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)); see also 20 C.F.R. §

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404.1512; 20 C.F.R. § 404.1527 (a)(2).

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Plaintiff does not dispute that the ALJ can discredit a non-acceptable medical

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source if the ALJ gives germane reasons. In this case the ALJ gave two reasons: 1) the

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assessment is not supported by objective evidence; and 2) it is inconsistent with the

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record as a whole. (Doc. 10-3 at 23). Instead, Plaintiff argues the ALJ erred in treating

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this as a non-acceptable medical source because the latter report was “cosigned” by Dr.

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Ong-Veloso, which Plaintiff argues transmutes the report into Dr. Ong-Veloso’s opinion.

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With regard to the first, October 29, 2012, report, it is undisputedly from a non-

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acceptable medical source, and the ALJ gave adequate reasons for not fully crediting it.

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With regard to the second, August 7, 2013, report, the physician’s assistant handwrote at

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the bottom, “Cosign- Dr. Ong Veloso, MD supervising phys.” followed by a blank line

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with a “J” signed on it. (Doc. 10-11 at 133). For purposes of this Order, the Court will

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assume the “J” is the signature of Dr. Ong-Veloso.

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As indicated above, Plaintiff argues that this “cosigning” converts the physician’s

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assistant’s examination and opinion into the examination and opinion of Dr. Ong-Veloso,

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who is a treating physician. (Doc. 13 at 6). Plaintiff cites nothing for this argument.

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However, a district court in California has addressed Plaintiff’s theory. That district

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court explained:

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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
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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. Rather, there must be evidence of
such close supervision that the “other source” becomes the agent of the
“acceptable medical source.”

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Garcia v. Astrue, No. 1:10-CV-00542-SKO, 2011 WL 3875483, at *12–13 (E.D. Cal.

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Sept. 1, 2011).

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On this record, the Court cannot determine how much interaction the

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“supervising” doctor had with Plaintiff. Every document in exhibit 18F, as cited by the

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ALJ, is signed exclusively by the physician’s assistant, with the one additional supervisor

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signature on the August 7, 2013 form. Plaintiff has pointed to no evidence that Dr. Ong-

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Veloso did anything other than co-sign this form.

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indicated, mere supervision is not enough to transform a non-acceptable medical source

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into a treating physician. Accordingly, the Court finds that the ALJ did not err in treating

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the August 7, 2013 report as being from a non-acceptable medical source. Additionally,

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the Court finds the ALJ gave germane reasons for rejecting this assessment.

As the district court in Garcia

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Alternatively, even if the August 7, 2013, assessment could be converted by the

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co-signing to the opinion of a treating physician, the ALJ articulated why he did not fully

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credit the opinion.

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convincing standard or the specific and legitimate standard governs the reasons the ALJ

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must give to not fully credit this opinion.

Preliminarily, the Court must determine whether the clear and

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Plaintiff makes an ambiguous argument about whether she thinks the “clear and

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convincing” standard applies or the “specific and legitimate” standard. First she argues

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that a non-examining physician’s opinion, which is not corroborated by an examining

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physician, cannot be substantial evidence to support the ALJ’s decision. (Doc. 13 at 8).

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Plaintiff cites no legal authority for this legal conclusion. Presumably because Plaintiff

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has completely disregarded the non-examining physician’s opinions for the reason stated

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above, Plaintiff then says that Plaintiff’s treating physician opinions regarding her

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physical limitations are not contradicted in this case. (Doc. 13 at 8). Plaintiff never

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reaches a conclusion to these arguments. However, the Court will assume that Plaintiff is

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advocating for the clear and convincing standard, which is applicable if the treating

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physician’s opinions are not contradicted. (See generally Doc. 13 at 8).

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The Court finds the specific and legitimate standard applies in this case because

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the opinions of the treating physicians regarding Plaintiff’s physical limitations are

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contradicted in this record.

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argument that a non-examining physician’s opinion must be completely disregarded as

Specifically, the Court rejects Plaintiff’s unsupported

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evidence of record.1 Further, the ALJ expressly stated that, “I have considered and give

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great weight to physical State agency review physicians who opined light limitations.”

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(Doc. 10-3 at 23). The ALJ then cited to the reports of Dr. Myron Watkins, M.D. and K.

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Glass, medical consultant. (Doc. 10-3 at 23). The ALJ then detailed the qualifications of

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these doctors and the breadth of the documents they reviewed. (Doc. 10-3 at 23-24).

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The ALJ gave additional specific and legitimate reasons, supported by substantial

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evidence, to reject the opinion of the physician’s assistant (as co-signed by Dr. Ong-

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Veloso). Specifically, the ALJ noted that the opinions/limitations were inconsistent with

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the record as a whole (Doc. 10-3 at 23) including the global assessment of functioning

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score (Doc. 10-3 at 24). The ALJ also found the limitations were inconsistent with the

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claimant’s testimony regarding her daily activities. (Doc. 10-3 at 23). Further, the ALJ

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found that the opinions were not supported by objective evidence. (Doc. 10-3 at 23).

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Because the ALJ gave specific and legitimate reasons to not fully credit the assessment

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co-signed by Dr. Ong-Veloso, even assuming this assessment should be considered as

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one by a treating physician, the ALJ did not commit error.

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B.

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Next Plaintiff argues that the ALJ erred for only giving little weight to the opinion

Dr. Premaratne

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The Ninth Circuit Court of Appeals has held that “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). However, in that same opinion, the Court
stated, “We have, in some cases, upheld the Commissioner’s decision to reject the
opinion of a treating or examining physician, based in part on the testimony of a
nonexamining medical advisor.” Id. Specifically, the Court of Appeals has stated, “The
opinions of non-treating or non-examining physicians may also serve as substantial
evidence when the opinions are consistent with independent clinical findings or other
evidence in the record.” Thomas, 278 F.3d at 957.
Based on the foregoing, the Court finds two flaws in Plaintiff’s argument. First,
nothing in Lester purports to hold that a non-examining medical source is never a
contradicting medical opinion that would necessitate the use of the clear and convincing
standard rather than the specific and legitimate standard. Second, Plaintiff overstates the
holding of Lester. While the Court does state that the opinion of a non-examining
physician cannot be the only substantial evidence of record, the Court of Appeals clearly
states that the opinion of the non-examining physician is nonetheless evidence on which
the ALJ can rely in reaching a decision. Thus, this Court rejects Plaintiff’s argument that
the opinions of the non-examining physicians cannot be considered as conflicting
medical opinions.
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of rheumatologist Dr. Premaratne.

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committed error because “there is no evidence in the record to support the assumption

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that … Dr. Premaratne relied only on [Plaintiff’s] complaints to complete the

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assessment.” (Doc. 13 at 9). Plaintiff further argues that the ALJ committed error

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because the ALJ found that Dr. Premaratne’s opinions/limitations were inconsistent with

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the objective findings; and Plaintiff argues that looking to objective findings is error with

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a fibromyalgia diagnosis because it is a disease that “eludes such measurement.” (Doc.

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13 at 11-12 (quoting Green-Young v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003)).

(Doc. 13 at 6).

Plaintiff argues that the ALJ

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First, the Court notes that the Green-Young court found error for an ALJ to require

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objective findings to confirm a fibromyalgia diagnosis. 335 F.3d at 108. In this case, the

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ALJ found that the limitations found by Dr. Premaratne were inconsistent with the

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objective findings of record, which is not the equivalent of requiring objective findings to

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support a diagnosis. (Doc. 10-3 at 23) (The ALJ found that Dr. Premaratne’s opinion, “is

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inconsistent with the objective findings already discussed above in this decision, which

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show mild to moderate [limitations]”.).

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The ALJ’s conclusion in this regard is a specific and legitimate reason and is

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supported by substantial evidence of record. Specifically, the ALJ referenced the opinion

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of Dr. Glassmire (Doc. 10-3 at 22-23) finding only mild to moderate symptoms. The

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ALJ also referenced the findings of examining physician Dr. Doss which found almost no

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limitations. (Doc. 10-3 at 22). These objective findings taken together are substantial

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evidence of record to support the ALJ’s decision.

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Second, the Court is a bit confused as to how Plaintiff can argue both that Dr.

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Premaratne’s diagnosis cannot be supported by objective findings, and that it was not

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based on Plaintiff’s self-reported symptoms. In other words, if Plaintiff is correct that Dr.

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Premaratne did not rely only on Plaintiff’s self-reported symptoms and Dr. Premaratne

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did not rely on any objective findings or tests (because there are none), what method is

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Plaintiff claiming Dr. Premaratne employed to determine Plaintiff’s limitations? Given

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that Plaintiff spent three pages of her brief explaining that fibromyalgia cannot be

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supported by objective findings, the Court finds Plaintiff has waived any argument that

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the ALJ erred in concluding that Dr. Premaratne based his opinion/limitations on

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Plaintiff’s self-reported symptoms.

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In this regard, the ALJ gave little weight to Dr. Premaratne’s opinions/limitations

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because those opinions were based on Plaintiff’s subjective complaints, and the ALJ

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found that Plaintiff’s subjective complaints were so inconsistent with her reported daily

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activities and medical history that Plaintiff’s self-reported symptoms were not credible.

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(Doc. 10-3 at 23; 19-20). Specifically, Plaintiff’s robust daily activities include:

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getting her daughters ready for school;

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getting her daughters off to school;

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interacting with her daughters regularly;

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doing some chores;

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talking with her girlfriend;

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showering;

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grocery shopping;

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working up to 20 hours per week;

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getting her daughters ready for camp;

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driving her daughters to school;

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driving her daughters to camp;

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doing laundry;

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cleaning the house;

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meeting her daughters for lunch at school;

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going to the food bank;

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preparing meals;

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going to church;

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caring for her dog;

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watching movies;

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doing her hair;

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putting on makeup;

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going out daily;

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driving regularly;

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going out alone;

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handling her finances;

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having an active social life and spending time with other people;

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talking on the phone; and

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having guests over to her house.

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(Doc. 10-3 at 19-20). With respect to Plaintiff’s medical history, Plaintiff:
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self-reported significant fatigue at the hearing, but did not report fatigue to

her doctors; further she denied fatigue to her doctors.

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received only non-emergency treatment;

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received only conservative treatment; and

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received only routine treatment.

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(Doc. 10-3 at 20).

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Against this record of Plaintiff’s history, the ALJ giving little weight to the

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opinions and limitations arrived at by Dr. Premaratne based on Plaintiff’s self-reported

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symptoms is an additional specific and legitimate reason supported by substantial

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evidence of record to not credit Dr. Premaratne’s opinion. Accordingly, the ALJ did not

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err in not fully crediting Dr. Premaratne’s opinion.

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C.

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Plaintiff claims the ALJ also erred in not fully crediting the opinion of her treating

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psychologist, Dr. Ramadan. (Doc. 13 at 6). Although there is an examining physician’s

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opinion relied on by the ALJ (Dr. Doss (Doc. 10-3 at 22, 24)), Plaintiff argues that the

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clear and convincing standard applies because Dr. Doss’s opinion does not contradict Dr.

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Ramadan’s opinion.

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physician’s opinion relied on by the ALJ (Dr. Glassmire (Doc. 10-3 at 22-24)), Plaintiff

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argues such opinion cannot be considered as substantial evidence that would support the

Dr. Ramadan

(Doc. 13 at 10).

Further, although there is a non-examining

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specific and legitimate reasons standard; therefore, the clear and convincing standard

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would apply.

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For the reasons discussed above (see footnote 1 supra), the Court rejects the latter

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argument. Further, the Court finds that examining physician Doss’s opinion contradicts

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Dr. Ramadan’s opinion such that the specific and legitimate reasons supported by

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substantial evidence test governs the ALJ’s failure to fully credit Dr. Ramadan’s opinion

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in this case.

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Specifically, the ALJ cited to Dr. Ramadan’s residual functional capacity check-

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box form (Doc. 10-3 at 23 citing Exhibit 20F (Doc. 10-12 at 33-34 in this Court’s file))

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and rejected it because it was based on Plaintiff’s subjective complaints and not on

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objective findings or diagnostic reasons to support the Doctor’s functional assessment.

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See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[An] ALJ may permissibly

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reject check-off reports that do not contain any explanation of the bases of their

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conclusions.”) (internal punctuation and citations omitted). And, as indicated above, the

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Plaintiff’s subjective complaints lacked credibility due to the inconsistency between her

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complaints and her activities. (Doc. 10-3 at 23). Thus, the ALJ rejected Dr. Ramadan’s

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conclusions because they were inconsistent with Plaintiff’s testimony regarding the

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breadth and complexity of her daily activities.

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The foregoing are all specific and legitimate reasons supported by substantial

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evidence of record for the ALJ to not credit the opinions and limitations found by Dr.

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Ramadan. Therefore, the ALJ did not commit error as to this doctor.

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D.

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As alluded to above, Plaintiff spends the last 3 pages of her brief arguing that the

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ALJ erred in his treatment of fibromyalgia. (Doc. 13 at 11-13.). For the reasons stated

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above, the Court finds that the ALJ gave specific and legitimate reasons supported by

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substantial evidence of record to not fully credit the opinions and limitations of each of

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Plaintiff’s treating physicians, including the one (Dr. Premaratne) who diagnosed her

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with fibromyalgia. Therefore, the Court finds no global error regarding this particular

Fibromyalgia

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diagnosis.

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that the decision of the ALJ is affirmed and the Clerk of the

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Court shall enter judgment accordingly.2

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Dated this 8th day of May, 2017.

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To the extent a mandate is required, the judgment shall serve as the mandate.
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