Xiong v. Commissioner of Social Security
Filing
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FINAL JUDGMENT and ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 04/03/2018. CASE CLOSED.(Flores, E)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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KA YING XIONG,
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Plaintiff,
v.
Case No. 1:17-cv-00107-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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This matter is before the Court on Plaintiff’s complaint for judicial review of an
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unfavorable decision of the Commissioner of the Social Security Administration regarding her
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application for Supplemental Security Income. The parties have consented to entry of final
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judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with
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any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 8, 9).
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The Court, having reviewed the record, administrative transcript, the briefs of the parties,
the applicable law, and having heard oral argument, finds as follows:
Plaintiff claims that the ALJ erred in discounting three documents entitled “Mental
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Disorder Questionnaire For Evaluation of Ability to Work.” Each was prepared and signed by a
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medical professional that was not a physician, and was also signed by Plaintiff’s treating
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physician. Specifically, the questionnaires at Administrative Record (“AR”) 565-567 and 577-
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579 were prepared and signed by Leslie Chang, Personal Service Coordinator-B. Treating
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Physician Dr. Robert T. Ensom also signed under the notation, “Reviewed by and Agree.” AR
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567, 577. Another such questionnaire was prepare and signed by Ze Vang, MFT Intern, with Dr.
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Ensom again signing under the notation, “Reviewed by and Agree.” AR 650.
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The ALJ addressed these questionnaires in detail in his opinion. He concluded as to them
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that “[t]he Administrative Law Judge gives little weight to these opinions as the Administrative
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Law Judge notes that Dr. Ensom did not prepare any of these three exhibits bearing his signature,
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but rather concurred upon review with the assessments that were made by an MFT intern and a
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personal services coordinator, who are unacceptable medical sources.” AR 15-16.
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Plaintiff argues that the ALJ’s treatment of these questionnaires was legal error. (ECF
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No. 14 at 8) (“[T]he fact that the forms were prepared by Chang and Vang does not mean the
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assessments were not ‘made’ by Dr. Ensom, who is undeniably an acceptable medical source. In
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sum, Dr. Ensom’s involvement makes clear that the ALJ’s rationale for dismissing the treating
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assessments is not a specific and legitimate [reason] supported by substantial evidence.”).
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Plaintiff relies on Benson v. Barnhart, 331 F.3d 1030 (9th Cir. 2003). In that case, the Ninth
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Circuit held that a psychiatrist who oversaw a treatment team could be considered a treating
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source even if he saw claimant only once. However, in that case the physician himself authored
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the opinion at issue. Id. at 1036 (“Dr. Zwiefach completed the mental assessment of Benton
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based on his assessment of information provided by those on the treatment team with more direct
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patient contact . . . .”). Here, in contrast, the physician did not prepare the underlying opinions.
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Instead, he signed opinions prepared by non-physicians.
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The Court has located additional cases addressing this issue. They discuss how there used
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to be a regulation that provided that “[a] report of an interdisciplinary team that contains the
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evaluation and signature of an acceptable medical source is also considered acceptable medical
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evidence,” 20 C.F.R. § 416.913(a)(6) (repealed); however, that regulation was amended in 2000
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to remove that language. Following the amendment, courts have found that opinions of non-
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acceptable medical providers are not transformed into acceptable medical evidence merely by the
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signature of an acceptable medical source. The case of Vega v. Colvin, No. 14CV1485-LAB
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(DHB), 2015 WL 7769663, at *12-13 (S.D. Cal. Nov. 12, 2015), report and recommendation
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adopted, No. 14CV1485-LAB (DHB), 2015 WL 7779266 (S.D. Cal. Dec. 2, 2015) evaluated this
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history and case law in holding that the opinion of a nurse practitioner that was reviewed and
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agreed by a medical doctor was not considered an “acceptable medical source,” explaining at
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length:
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Plaintiff contends that although Ms. Johnson is a nurse practitioner,
the form containing her opinions clearly indicates that it was
reviewed and agreed with by a medical doctor. In so doing, Plaintiff
relies on Taylor v. Comm'r of Soc. Sec. Admin., 659 F.3d 1228 (9th
Cir.2011), in which the Ninth Circuit recognized that “nurse
practitioners are listed among the examples of 'medical sources' ”
contained in the regulations. Taylor, 659 F.3d at 1234. The Ninth
Circuit then found that “[t]o the extent [the] nurse practitioner ...
was working closely with, and under the supervision of [the
doctor], her [i.e., the nurse practitioner] opinion is to be considered
that of an 'acceptable medical source.' ” Id. (citing Gomez v. Chater,
74 F.3d 967, 971 (9th Cir.1996)). This finding was based on the
Ninth Circuit's prior decision in Gomez, which involved a nurse
practitioner, Debra Blaker, which had consulted with the treating
doctor, Dr. Kincade, regarding Gomez's treatment “numerous times
over the course of her relationship with Gomez. NP Blaker worked
closely under the supervision of Dr. Kincade and she was acting as
an agent of Dr. Kincade in her relationship with Gomez. Her
opinion was properly considered as part of the opinion of Dr.
Kincade, an acceptable medical source.” Gomez, 74 F.3d at 971.
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Here, there are no opinions from any of the physicians at Project
Enable that Ms. Johnson's opinion could properly be considered a
part of. Moreover, there is no evidence in the record suggesting that
Ms. Johnson consulted with or worked closely under the
supervision of any of the Project Enable physicians, let alone the
doctor that agreed with her September 2013 report. In fact, as noted
above, see supra note 4, although Ms. Johnson's opinion contains a
handwritten note from a doctor expressing agreement with her
report, it is unclear who this doctor was. What is clear is that this
doctor was neither Dr. Flanagan nor Dr. Jaurigue, the two doctors at
Project Enable that had also treated Plaintiff. Thus, the principle set
forth in Gomez and Taylor that a nurse practitioner's opinions may
be considered as part of a treating physician's opinion based on that
physician's close supervision with the nurse practitioner does not
apply in this case. See Farnacio v. Astrue, No. 11–CV–065–JPH,
2012 U.S. Dist. LEXIS 130913, at *18–19 (E.D.Wash. Sept. 12,
2012) (finding Gomez inapplicable where “there is no evidence that
[physician's assistant] consulted with or worked as closely with any
other physician as the evidence reflected in Gomez.”).
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The Gomez decision was also based on the Ninth Circuit's reading
of 20 C.F.R. § 416.913(a)(6), which at the time of the decision
provided that “[a] report of an interdisciplinary team that contains
the signature of an acceptable medical source is also considered
acceptable medical evidence.” Gomez, 74 F.3d at 971. The Ninth
Circuit went on to state that “[w]hile nowhere in the regulations is
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the term 'interdisciplinary team' expressly defined, a plain reading
... 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. However, as
numerous district courts in the Ninth Circuit have recognized, both
before and after Taylor, the regulation relied on in Gomez regarding
“interdisciplinary teams” involving “other sources” such as nurse
practitioners and physician assistants has since been amended, and
“interdisciplinary teams” are no longer considered “acceptable
medical sources.” See, e.g., Harrison v. Comm'r of Soc. Sec.
Admin., No. 3:13–cv–8177–HRH, 2014 U.S. Dist. LEXIS 52623, at
*17–18 (D. Ariz. April 16, 2014) (“[T]here is nothing in the record
that indicates that Dr. Sadowski supervised [physician assistant]
Barnes or was involved in plaintiff's mental health treatment in any
way. Dr. Sadowski's signature on the mental capacities form does
not transform Barnes' opinion into evidence from an 'acceptable
medical source' because the opinion was based on Barnes' treatment
of plaintiff, not Dr. Sadowski's treatment of plaintiff.” (citing
Garcia v. Astrue, No. 1:10–CV–00542–SKO, 2011 U.S. Dist.
LEXIS 98299, at *15 (E.D.Cal. Sept. 1, 2011) (doctor's signature
on reports authorized by physician assistant did not transform
reports into evidence from an “acceptable medical source” when the
physician assistant prepared the reports following his examination
of claimant))); Wellington v. Colvin, No. 1:11–cv–00008–REB,
2014 U.S. Dist. LEXIS 45786, at *22–25 (D.Idaho Mar. 31, 2014)
(rejecting argument that opinion of physician's assistant working in
conjunction with physician constitutes “acceptable medical source”
and stating that “[a]lthough the Court recognizes that there are good
reasons for recognizing the opinion of a physician's assistant who
provides regular treatment to a patient, the regulations at this time
do not require an ALJ to treat a physician assistant's medical
opinion the same as that of a treating physician.”); Curtis v. Colvin,
No. CV 12–00396–TUC–JGZ (DTF), 2014 U.S. Dist. LEXIS
20510, at *15–16 n.3 (D.Ariz. Jan. 24, 2014) (“[T]he Gomez
rationale was based on a regulatory provision that was repealed in
2000.”); Olney v. Colvin, No. 12–CV–0547–TOR, 2013 U.S. Dist.
LEXIS 122105, at *10-11 (E.D.Wash. Aug. 27, 2013) (recognizing
that, following 2000 amendment to 20 C.F.R. § 416.913(a), Gomez
's conclusion that a physician assistant who works in conjunction
with a physician constitutes an acceptable medical source “is no
longer good law.”); Casner v. Colvin, 958 F.Supp.2d 1087, 1097
(C.D.Cal.2013); Farnacio, 2012 U.S. Dist. LEXIS 130913, at *6
(“The subsection of the regulation which was the basis of the
Gomez finding regarding nurse practitioners as acceptable medical
sources when part of an interdisciplinary team was deleted by
amendment in 2000. 65 Fed.Reg. 34950, 34952 (June 1, 2000)....
There is [currently] no provision for a physician assistant to become
an acceptable medical source when supervised by a physician or as
part of an interdisciplinary team.” (citation omitted)); Hudson v.
Astrue, No. CV–11–0025–CI, 2012 U.S. Dist. LEXIS 154871, at
*13 n.4 (E.D.Wash. Oct. 29, 2012) (recognizing that regulations
underscoring Gomez finding “have been amended since the Gomez
decision, and the Commissioner no longer includes
“interdisciplinary team,” under the definition of acceptable medical
sources.”); Reynolds v. Astrue, No. CV–09–0213–CI, 2010 U.S.
Dist. LEXIS 92701, at *21 (E.D.Wash. Sept. 3, 2010).
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The Court agrees with the conclusions of the many courts that have
considered Gomez 's continuing validity in light of the 2000
amendment to 20 C.F.R. § 416.913(a). Accordingly, the Court finds
that Ms. Johnson's September 2013 report does not rise to the level
of an “acceptable medical source” due to the handwritten note of
agreement from an unidentifiable physician
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Id.
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The Court also takes note of the case Hudson v. Astrue, No. CV-11-0025-CI, 2012 WL
5328786, at *1 (E.D. Wash. Oct. 29, 2012), in which the District Court held that the ALJ did not
commit error in rejecting the opinion of a physician’s assistant, which had been co-signed by the
physician. The Court in that case explained:
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Review of the record shows Dr. Rosekrans’ associate, Sheri
Hoveskeland, interviewed Plaintiff and administered objective
psychological tests in February 2005. In the accompanying form
report, Ms. Hoveskeland found severe functional limitations in
Plaintiff’s ability to perform routine tasks and care for herself and
market limitations in her ability to respond and tolerate pressures in
the work setting. Although Dr. Rosekrans adopted findings in Ms.
Hoveskeland’s narrative report and co-signed the form report, the
findings are treated as those of Ms. Hoveskeland.
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Ms. Hoverskeland is not an acceptable medical source under the
Commissioner’s regulations. Although Dr. Rosekrans adopted Ms.
Hoveskeland’s findings, there is no evidence he observed,
examined, or treated Plaintiff; therefore, he is not considered an
examining psychologist under the Regulations. Further, the record
indicates that Dr. Rosekrans’ signature on the form report serves as
authorization to release the information to the Board of Veteran’s
Appeals.
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Id. at 4 (internal citations omitted). In other words, the District Court declined to treat the opinion
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of a non-acceptable medical professional as the opinion of a physician merely because the
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physician had signed the opinion. It is worth noting, however, that in Hudson the physician had
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not treated the claimant, whereas in the case before this Court, the signing physician had treated
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the claimant.
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With this case law in mind, the Court finds that the questionnaires completed by the
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Personal Service Coordinator and MFT Intern are not entitled to deferential treatment merely
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because they were signed by a treating physician indicating review and agreement. Therefore, the
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ALJ’s reasoning of giving little weight to these opinions based on their authors was not legal
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error.
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The record also reveals that the questionnaire was not in fact based on Dr. Ensom’s own
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treatment of claimant. Although those treatment notes are not uniformly positive, their
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assessments are inconsistent with the severe restrictions in the questionnaires. For example, Dr.
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Ensom’s notes of a May 10, 2012 visit indicates, “she is doing well. Prazosin continues to benefit
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nightmares. Sleep is ok.” AR 418. Mental Status Examinations for appearance, behavior, speech
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and sensorium are all “WNL,” i.e., within normal limits. AR 418. See also AR 419 (“Feeling
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‘good’ mentally,” Mental Status WNL); AR 617-618 (mental status examination within normal
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limits); AR 619 (“States that she is doing well,” and indicating normal mental status
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examinations). In contrast, the MFT Intern’s notes describe more severe symptoms, based on
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what the claimant told the MFT Intern.1 See e.g., AR 429 (“Cl reported she still experiences
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depression including feelings of hopelessness, sadness, low self-esteem, diminished
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interest/pleasure in activities, sleep problems, nightmares, diminished ability to think and
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concentrate, limited social contact, irritability, and anxiety/worry.”). The marked difference
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between these reports indicates that the opinions reflected in the questionnaire at issue were based
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on the observations and treatment of the MFT Intern and Personal Coordinator, and not Dr.
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Ensom’s own observations and treatment. Put another way, the lack of support in Dr. Ensom’s
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notes for the disability opinions in the questionnaires supports the ALJ’s decision to give little
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weight to those questionnaires because they were not prepared by Dr. Ensom.
For those reasons, the Court finds that the decision of the Commissioner of Social
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Security is supported by substantial evidence, and the same is hereby affirmed.
The Clerk of the Court is directed to close this case.
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IT IS SO ORDERED.
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Dated:
April 3, 2018
/s/
UNITED STATES MAGISTRATE JUDGE
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It is worth noting that the ALJ found that “[t]he claimant exhibits malingering behavior,” (AR 17), and Plaintiff did
not challenge this finding.
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