The opinion of the court was delivered by: Thomas W. Phillips United States District Judge
On May 19, 2008, the Honorable C. Clifford Shirley, United States Magistrate Judge, issued a twelve-page report and recommendation ("R&R"), in which he recommended that plaintiff's Motion for Summary Judgment [Doc. 12] be denied and that the Commissioner's Motion for Summary Judgment [Doc. 15] be granted.
This matter is now before the court on plaintiff's timely objections to the R&R [Doc. 19]. As required by 28 U.S.C. § 636(b)(1) and Federal Rule of Procedure 72(b), the court has undertaken a de novo review of those portions of the R&R to which plaintiff objects. Plaintiff has failed to make "specific ... objections to the proposed findings and recommendations," Fed. R. Civ. Pro. 72(b)(2), as her objections are virtually verbatim the arguments made in her Brief in Support of Motion for Summary Judgment [Doc. 13] addressed by Judge Shirley. Nevertheless, the court finds it necessary to expound briefly on Judge Shirley's well-reasoned opinion regarding the first of plaintiff's objections. The latter two of plaintiff's objections, however, were fully addressed by Judge Shirley, and it would be unnecessarily duplicative for this court to readdress these objections herein.
A. Weight Accorded the Opinion of a Nurse Practitioner
In her objections to the R&R, plaintiff reiterates the arguments first raised in her Motion for Summary Judgment, namely, that the ALJ failed to give proper weight to plaintiff's "treating source," Nurse Practitioner Alice L. King. If Nurse Practitioner King is to be considered a "treating source," then her determination is to be given controlling weight if "well-supported by medically acceptable clinical and laboratory techniques and is not inconsistent with other substantial evidence."
20 C.F.R. § 404.1527(d)(2). If the ALJ determines, however, that a treating source is not to be accorded controlling weight based on the above standard, he must give specific reasons for the weight he accords the source. Id. Finally, if Nurse Practitioner King is not a "treating source," then her opinion is not entitled to controlling weight, although the ALJ must consider it in determining whether plaintiff is disabled.
Plaintiff first asserts the conclusory statement that "[t]he ALJ erred in failing to accord proper weight to the opinion of Plaintiff's treating source, Nurse Practitioner King." [Doc. 19 at 1 (emphasis added)]. Later, however, plaintiff seemingly concedes that by definition, Nurse Practitioner King is not a "treating source"; rather, she is, by definition, an "other source." Plaintiff argues that Nurse Practitioner King should nevertheless be considered a treating source because she was working closely under the supervision of plaintiff's treating physician.
The term "treating source" is a legal term of art defined in the regulations. "Treating source" is defined as "your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you." 20 C.F.R. § 404.1502. "Acceptable medical source" in turn is defined in the regulations via specific enumeration of five such sources.20 C.F.R. § 404.1502 ("Acceptable medical source refers to one of the sources described in § 404.1513(a) who provides evidence about your impairments."); id. § 404.1513(a) ("acceptable medical source" includes licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists). Nurse practitioners, however, are absent from the definition of "acceptable medical source."
Accordingly, the first major flaw in plaintiff's argument is that a nurse practitioner is not a treating source accorded such controlling weight. Rather, as plaintiff later concedes, a nurse practitioner is defined by the regulations as a so-called "other source" that may provide evidence on the severity of plaintiff's impairments. 20 C.F.R. § 404.1513(d)(1) ("In addition to evidence from the acceptable medical sources listed in paragraph (a) of this section, we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include ... nurse-practitioners ...."); see also Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007). Sources listed as "other sources" under 20 C.F.R. § 404.1513(d)(1) are not included in the definition of "treating source," as that definition contemplates that a "treating source" may only be an "acceptable medical source" as defined by 20 C.F.R. § 404.1513(a). Accordingly, a nurse practitioner's opinion, as "other source" evidence, is not given the same controlling weight as a "treating source." See 20 C.F.R. § 404.1527(d).
As aforementioned, plaintiff attempts to overcome this impediment by arguing that "[i]f a nurse practitioner works closely under the supervision of an accepted medical source, his or her opinion is properly considered as part of the opinion of the acceptable medical source" and can therefore be considered a "treating source." [Doc. 19 at 4]. In support, plaintiff cites a Ninth Circuit opinion, Gomez v. Chater, 74 F.3d 967 (9th Cir. 1996).
This court need not address the substance of the Ninth Circuit's construction in Gomez of the relevant regulations because that opinion does not bind this court. In what is binding precedent on this court, however, in Cruse v. Commissioner of Social Security, the Sixth Circuit recently discussed a 2006 Social Security ruling, S.S.R. 06-03P, that "clarifies how the Commissioner is to consider opinions and other evidence from sources who are not 'acceptable medical sources.' " Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007).
The ruling states in pertinent part, With 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 ... have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed "acceptable medical sources" under our rules, are important and should ...