United States District Court, E.D. California
FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF'S
SOCIAL SECURITY COMPLAINT
matter is before the Court on Plaintiff's complaint for
judicial review of an unfavorable decision of the
Commissioner of the Social Security Administration regarding
her application for Supplemental Security Income. The parties
have consented to entry of final judgment by the United
States Magistrate Judge under the provisions of 28 U.S.C.
§ 636(c), with any appeal to the Court of Appeals for
the Ninth Circuit. (ECF Nos. 8, 9).
Court, having reviewed the record, administrative transcript,
the briefs of the parties, the applicable law, and having
heard oral argument, finds as follows:
claims that the ALJ erred in discounting three documents
entitled “Mental Disorder Questionnaire For Evaluation
of Ability to Work.” Each was prepared and signed by a
medical professional that was not a physician, and was also
signed by Plaintiff's treating physician. Specifically,
the questionnaires at Administrative Record
(“AR”) 565-567 and 577-579 were prepared and
signed by Leslie Chang, Personal Service Coordinator-B.
Treating Physician Dr. Robert T. Ensom also signed under the
notation, “Reviewed by and Agree.” AR 567, 577.
Another such questionnaire was prepare and signed by Ze Vang,
MFT Intern, with Dr. Ensom again signing under the notation,
“Reviewed by and Agree.” AR 650.
addressed these questionnaires in detail in his opinion. He
concluded as to them that “[t]he Administrative Law
Judge gives little weight to these opinions as the
Administrative Law Judge notes that Dr. Ensom did not prepare
any of these three exhibits bearing his signature, but rather
concurred upon review with the assessments that were made by
an MFT intern and a personal services coordinator, who are
unacceptable medical sources.” AR 15-16.
argues that the ALJ's treatment of these questionnaires
was legal error. (ECF No. 14 at 8) (“[T]he fact that
the forms were prepared by Chang and Vang does not mean the
assessments were not ‘made' by Dr. Ensom, who is
undeniably an acceptable medical source. In sum, Dr.
Ensom's involvement makes clear that the ALJ's
rationale for dismissing the treating assessments is not a
specific and legitimate [reason] supported by substantial
evidence.”). Plaintiff relies on Benson v.
Barnhart, 331 F.3d 1030 (9th Cir. 2003). In that case,
the Ninth Circuit held that a psychiatrist who oversaw a
treatment team could be considered a treating source even if
he saw claimant only once. However, in that case the
physician himself authored the opinion at issue. Id.
at 1036 (“Dr. Zwiefach completed the mental assessment
of Benton based on his assessment of information provided by
those on the treatment team with more direct patient contact
. . . .”). Here, in contrast, the physician did not
prepare the underlying opinions. Instead, he signed opinions
prepared by non-physicians.
Court has located additional cases addressing this issue.
They discuss how there used to be a regulation that provided
that “[a] report of an interdisciplinary team that
contains the evaluation and signature of an acceptable
medical source is also considered acceptable medical
evidence, ” 20 C.F.R. § 416.913(a)(6)
(repealed); however, that regulation was amended in 2000 to
remove that language. Following the amendment, courts have
found that opinions of non-acceptable medical providers are
not transformed into acceptable medical evidence merely by
the signature of an acceptable medical source. The case of
Vega v. Colvin, No. 14CV1485-LAB (DHB), 2015 WL
7769663, at *12-13 (S.D. Cal. Nov. 12, 2015), report and
recommendation adopted, No. 14CV1485-LAB (DHB),
2015 WL 7779266 (S.D. Cal. Dec. 2, 2015) evaluated this
history and case law in holding that the opinion of a nurse
practitioner that was reviewed and agreed by a medical doctor
was not considered an “acceptable medical source,
” explaining at length:
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
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
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 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).
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
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
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.
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 ...