The plaintiff, Ronald Godin ("Godin"), brought this action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision by the Commissioner of the Social Security Administration (the "Commissioner" or "defendant") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). On December 17, 2012, Magistrate Judge William I. Garfinkel issued a Recommended Ruling (doc. # 22) granting Godin's Motion for Order Reversing the Decision of the Commissioner or in the Alternative Motion for Remand and Rehearing (doc. # 17), denying the defendant's Motion for Order Affirming the Decision of the Commissioner (doc. # 20), and remanding the case for further proceedings. The defendant timely objected to the Recommended Ruling (doc. # 25). For the following reasons, the Recommended Ruling (doc. # 22) is ADOPTED in substantial part and MODIFIED in part.

I. Background

The court assumes familiarity with the underlying facts of this case, a detailed explanation of which can be found in Judge Garfinkel's Recommended Ruling (doc. # 22).

On February 17, 2008, Godin applied for DIB and SSI, alleging that he had been disabled since November 30, 2005. The Administrative Law Judge ("ALJ") denied his application on July 13, 2009 (R. 8-20). On April 14, 2011, the Appeals Council denied Godin's request for review (R. 1-3), and the ALJ's decision became the final decision of the Commissioner. Godin subsequently commenced this action on May 31, 2011.

On December 17, 2012, Judge Garfinkel recommended that the Commissioner's decision be remanded based on two of Godin's seven claims—namely, that the ALJ should have (1) afforded greater weight to the opinion of Nurse Practitioner Schling ("Nurse Schling"), included in a DM RFC Questionnaire (Ex. 13F), because Nurse Schling treated Godin on a continuous basis for several years; and (2) reassessed Godin's credibility, particularly his allegations of pain, in light of Nurse Schling's opinion. The Commissioner objects to that recommendation.

II. Standard of Review

The district court makes a de novo determination of the portions of a recommended ruling to which an objection is made. See Fed. R. Civ. P. 72(b)(3) ("The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to."). The district court may adopt, reject, or modify, in whole or in part, the magistrate judge's recommended ruling. Id.; 28 U.S.C. § 636(b)(1).

In reviewing a Social Security disability determination, a court will set aside the decision of an ALJ "only where it is based upon legal error or is not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). Substantial evidence, in this context, means more than a "mere scintilla." Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (internal quotation omitted). Rather, substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. "Where an administrative decision rests on adequate findings sustained by evidence having rational probative force, the court should not substitute its judgment for that of the Commissioner." Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Rather, a court must uphold the ALJ's findings, "so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).

III. Discussion

The Commissioner makes two narrow objections to the Recommended Ruling. First, the Commissioner argues that the ALJ's decision to afford little weight to the opinion of Nurse Schling, despite her longstanding and continuous treatment of the plaintiff, was supported by substantial evidence. Second, and relatedly, the Commissioner argues that the ALJ properly assessed Godin's credibility, taking into account Godin's complaints of pain and Nurse Schling's opinion regarding his capabilities. I address both arguments in turn.

A. Evaluation of Opinion Evidence

The applicable regulations provide that every medical source received by the Commission will be considered in evaluating a disability claim. See 20 C.F.R. §§ 404.1527(b)-(c) and 416.927(b)-(c). Those regulations establish a hierarchy of acceptable medical source opinions. At the top of that hierarchy are treating physicians, who generally have a direct and continuous relationship with their patients. See 20 C.F.R. §§ 404.1527(c)(2) and 416.927(c)(2). It is well-settled that an ALJ must give controlling weight to a treating physician's opinion about "the nature and severity" of a claimant's impairments, so long as the opinion is well supported. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation omitted). Next come examining physicians, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(c)-(d) and 416.927(c)-(d). On the lowest rung of the hierarchy are non-examining physicians, who have little or no direct contact with the claimant. In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(c)-(e) and 416.927(c)-(e); see also SSR 96-6p, 1996 WL 374180, at *2 (S.S.A. July 2, 1996) ("The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.").

Nurse practitioners, physician's assistants, and similar providers are medical professionals, but they are not considered "acceptable medical sources" under the regulations. 20 C.F.R. §§ 404.1513(d)(1) and 416.913(d)(1). Rather, these professionals are considered "other sources." Id. The distinction between "other sources" and "acceptable medical sources" is crucial because "an acceptable medical source" opinion is entitled to special consideration. See, e.g., Balsamo, 142 F.3d at 81.

In the case at bar, because Schling is a nurse practitioner, her opinion, standing alone, is not entitled to the same weight given to the opinion of a treating physician. See 20 C.F.R. § 404.1513(a) (noting that "acceptable medical sources" include physicians, but not nurse practitioners); 20 C.F.R. § 416.913(a) (same). But the ALJ's blanket categorization of the DM RFC Questionnaire as an "other source" opinion is, at the very least, subject to dispute. The Questionnaire was signed not only by Nurse Schling, but also co-signed by Dr. Gil Madison (R. 394), a medical doctor who qualifies as an acceptable medical source. See Lamb v. Astrue, No. CV 12-1605 (AGR), 2012 WL 6618298, at *2 n.1 (C.D. Cal. Dec. 19, 2012) ("Because [the physician assistant's] assessment is co-signed by a medical doctor, this court also considers the opinion as coming from an acceptable source."). In her written decision, however, the ALJ simply referred to the Questionnaire as "the opinion of Phyllis Shilling [sic]" without even acknowledging the co-signature by Dr. Madison (R. 18). If the ALJ adjudged the opinion to be solely that of the nurse, rather than the co-signing physician, she did not offer any explanation for doing so.

In his Recommended Ruling, Judge Garfinkel correctly determined that, because there was nothing in the record to suggest that Dr. Madison ever saw or examined Godin more than once (if at all), the opinion was not entitled to controlling weight under the "treating physician rule." See Recommended Ruling, at 37. But that does not end the matter. As other courts have noted, ignoring the co-signature of a physician "is significant because the opinion of even a non-examining physician is entitled to consideration in accordance with the guidelines for evaluating all medical opinions," whereas the opinion of a nurse, standing alone, is merely entitled to consideration as an "other source." Payne v. Astrue, No. 3:10cv1565 (JCH), 2011 WL 2471288, at *5 (D. Conn. June 21, 2011); see also VanGorden v. Astrue, No. 3:11-cv-1044 (GLS), 2013 WL 420761, at *2-3 (N.D.N.Y. Feb. 1, 2013) (remanding for further administrative proceedings where the ALJ afforded little weight to a medical questionnaire signed by both a physician and a social worker because it was "unclear from the ALJ's discussion of the questionnaire whether he considered the co-signature of [the physician] or that the opinion given was that of [the physician] as well as [the social worker]."); Moreland v. Astrue, No. 2:11-2679-RMG, 2013 WL 271177, at *2 (D.S.C. Jan. 24, 2013) (remanding case where a medical questionnaire was co-signed by a treating nurse practitioner and a treating physician, because the ALJ "evaluated the responses to the questionnaire as if it had only been signed by the nurse practitioner and treated the opinions as if given by a non-medical source"); but see Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir. 2005) (noting that the regulations do not require the ALJ to give controlling weight to a counselor's evaluation merely because it was co-signed by a physician).

Moreover, despite undisputed evidence that Nurse Schling treated Godin regularly over a period of several years, Judge Garfinkel correctly determined that, because there was no evidence to suggest that Schling worked under the supervision of and in close consultation with Dr. Madison, Schling's opinions, standing on their own, could not be considered those of a treating physician. Cf. Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (holding that the opinion of a nurse co-signed by a physician can be considered an opinion of a treating physician where the nurse "worked closely under the supervision" of a physician and "was acting as an agent" of that physician).

Here, as in Payne, there is "no apparent indication that [the] opinion was not independently considered and endorsed by the co-signing physician" and, as a result, the "ALJ should have explained whether or not he considered these opinions to be the opinions of an appropriate medical source, and if not, then why." Payne, 2011 WL 2471288, at *5; see also Garcia v. Astrue, No. 1:10-cv-00542 (SKO), 2011 WL 3875483, at *15 (E.D. Cal. Sept. 1, 2011) ("[E]ven if the ALJ concludes that [the co-signing physician] is a non-treating source, his evaluations are still entitled to more deference than the opinions of non-examining physicians and, to the extent his evaluations are contradicted by other evidence, they may only be rejected with specific and legitimate reasons."). The Commissioner must "evaluate every medical opinion," 20 C.F.R. §§ 404.1527(c) and 416.927(c), and because the ALJ failed to explicitly consider and weigh Dr. Madison's opinion as a medical source, remand for further administrative proceedings is necessary in this case. See, e.g., Burgin v. Astrue, 348 Fed. App'x 646, 649 (2d Cir. 2009); see also Moreland, 2013 WL 271177, at *2 ("Since the Commissioner is obligated to 'evaluate every medical opinion' and to provide special consideration to the opinions of treating physicians, this oversight by the ALJ is not merely a technical or incidental error.") (citing 20 C.F.R. §§ 404.1527(c), 1545)).

Moreover, even assuming, arguendo, that the Questionnaire was solely the product of Nurse Schling, and therefore qualifies merely as an "other source," Judge Garfinkel was still correct to recommend that this case be remanded for reconsideration of Schling's opinion, given the longstanding and continuous relationship she had with the plaintiff and the lack of other RFC assessments contradicting her opinion. See Mongeur v. Heckler, 722 F.2d 1033, 1039 n.2 (2d Cir. 1983) (explaining that, even though the opinion of an "other" medical source is not entitled to controlling weight, where she treated Plaintiff "on a regular basis, [her] opinion is entitled to some extra consideration"). Indeed, Social Security Ruling 06-03p explains that "[w]ith the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not 'acceptable medical sources,' such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists." SSR 06-03p, 2006 WL 2329939, at *3 (S.S.A. Aug. 9, 2006). Thus, opinions from these types of medical sources, "who are not technically deemed 'acceptable medical sources' under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file." Id. ALJs are instructed to consider the following factors when evaluating opinions from "other sources," like Nurse Schling: (1) whether the source examined the claimant; (2) whether the source had a treating relationship with the claimant; (3) the supportability of the opinions; (4) the consistency of the opinions with the record as a whole; (5) whether the source is a specialist; and (6) other factors. See 20 C.F.R. §§ 404.1527(c)(1)-(6) and 416.927(c)(1)-(6); SSR 06-03p, 2006 WL 2329939, at *4-5 (explaining that these factors apply to the consideration of opinions from "other sources").

Here, the record reflects that Nurse Schling had served as Godin's primary medical provider since 2006, and that she treated him for a variety of conditions, including diabetes, hypertension, hyperlipidemia, asthma, hepatitis, and low back pain (R. 391-94). Yet, despite her continuous treatment relationship with Godin, the ALJ summarily rejected Nurse Schling's opinion as "conclusory" and unsupported by the record (R. 18). That record, however, contains no other RFC assessments upon which to reject Nurse Schling's evaluation. Moreover, the record reveals that Godin was, in fact, prescribed various medications for his lower back pain, which only seems to corroborate Schling's opinion (R. 237-47). For these reasons, I will accept and adopt Judge Garfinkel's recommendation that this case should be remanded so that the ALJ may reevaluate Nurse Schling's opinions in light of her longstanding treatment relationship with the claimant. In addition, I will modify Judge Garfinkel's recommendation to require that the ALJ also reconsider whether the Questionnaire was properly construed as an "other source" in light of the co-signature by Dr. Madison.

B. Assessment of Godin's Credibility

Having determined that the ALJ erred by assigning little weight to the Questionnaire and the opinion of Nurse Schling, Judge Garfinkel went on to find that the error affected the ALJ's assessment of Godin's credibility. Specifically, he concluded that "greater consideration should have been given to the pain medications that were prescribed and to the fact that APRN Schling, who treated Godin for at least three years, indicated that she did not think he was malingering and that his pain would constantly interfere with his ability to perform even simple tasks." Recommended Ruling, at 45. On that basis, Judge Garfinkel recommended that, on remand, the ALJ should re-evaluate Godin's credibility as well. See id.

The Commissioner's objections to this recommendation are premised, in substantial part, on arguments I have already rejected—namely, that the ALJ accurately categorized the DM RFC Questionnaire signed by Nurse Schling and Dr. Madison as an "other source," and that she correctly assigned that opinion little weight. Thus, for the same reasons articulated above, the objections are overruled.

The Commissioner also argues that, although Judge Garfinkel urged the ALJ to consider the various medications that Godin was prescribed, such as Tramadol (a powerful pain reliever), Godin did not include Tramadol in the list of medications he was taking at the time of the hearing. See Def.'s Objections, at 5 (doc. # 25). The record elsewhere reveals, however, that Godin was, in fact, prescribed Tramadol (see R. 237-47).

IV. Conclusion

Following a thorough review of the Recommended Ruling (doc. # 22), the defendant's objection (doc. # 25), the file and the administrative record in this case, and pursuant to 28 U.S.C. § 636(b)(1), the Recommended Ruling is hereby ADOPTED in substantial part and MODIFIED in part. On remand, the ALJ shall not only re-evaluate Nurse Schling's opinion and Godin's credibility, but also reconsider whether the DM RFC Questionnaire, which was signed by both Nurse Schling and Dr. Madison, was accurately categorized as an "other source" opinion.

It is so ordered.

Dated at Bridgeport, Connecticut, this 27th day of March 2013.

/s/ Stefan R. Underhill

Stefan R. Underhill

United States District Judge

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