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Dixon v. Berryhill

United States District Court, N.D. Indiana, South Bend Division

September 10, 2018

LARRY DONALD DIXON, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          PHILIP P. SIMON, JUDGE

         Larry Donald Dixon appeals the denial of his application for social security disability benefits. Stephens was 49 years old on the date he alleges he became disabled. An administrative law judge found that Dixon retains the residual functional capacity to perform light work with certain limitations. [AR at 16-17.][1] The ALJ found that Dixon has severe impairments of affective disorder, degenerative joint disease of the left shoulder, degenerative disc disease of the lumbar spine, and uncontrolled hypertension. [AR at 14.] Dixon previously worked as a golf course groundskeeper and a well drill operator helper. [AR at 21.]

         Dixon asks me to reverse the ALJ's decision and remand for further proceedings. My review of the ALJ's decision is deferential. I must affirm it if it is supported by substantial evidence, meaning “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” McKinzey v. Astrue, 641 F.3d 884, 889 (7thCir. 2011) (citation omitted). I can't reweigh the evidence or substitute my judgment for that of the ALJ. Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015). But these standards do not mean that I “will simply rubber-stamp the Commissioner's decision without a critical review of the evidence.” Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).

         When considering the evidence, “an ALJ is not required to provide a complete and written evaluation of every piece of testimony and evidence, but ‘must build a logical bridge from the evidence to his conclusion.'” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015), quoting Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005). This means that an ALJ's decision must offer an explanation of the rationale from the evidence to his or her conclusions “sufficient to allow us, as a reviewing court, to assess the validity of the agency's ultimate findings and afford [the claimant] meaningful judicial review.” Moore v. Colvin, 743 F.3d 1118, 1121 (7th Cir. 2014).

         Discussion

         Mental Health Listings

         A determination of disability results from the conclusion that one or more impairments “meet(s), medically equal(s), or functionally equal(s)” the listed impairments in social security regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1. Impairments meeting the listing criteria conclusively establish disability. See 20 C.F.R. §416.920(a)(4)(iii). Here the ALJ concluded that Dixon “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments.” [AR at 14.] Dixon's first argument is that the ALJ's conclusion in this regard is not supported by substantial evidence.

         The ALJ considered one listing in the area of mental health, namely Listing 12.04 for Affective Disorders and found that Dixon's impairments did not meet or equal its criteria. [AR at 14-16.] Dixon argues that the ALJ erred by failing to consider Listing 12.08 for Personality Disorders, when the medical record contains the medical opinion of treating specialists finding that Dixon met the requirements of the listing.

         At Four County Counseling Center, Dixon was a patient of Gary Allan, a psychiatric mental health nurse practitioner, who is a Doctor of Nursing Practice. Allan worked under the supervision of Dr. Kathleen Miller, a psychiatrist. Allan completed a Psychiatric Review Technique form and a Mental Residual Functional Capacity Assessment which Dr. Miller also signed. [AR at 513-525, 527-529.] That form contains the opinion that Dixon met the requirements of Listing 12.08 for Personality Disorders. [AR at 520, 523.] Dixon argues that the ALJ's failure to make any mention of, let alone analyze, Listing 12.08 is an error that requires reversal.[2] I agree.

         “In considering whether a claimant's condition meets or equals a listed impairment, an ALJ must discuss the listing by name and offer more than perfunctory analysis of the listing.” Minnick v. Colvin, 775 F.3d 929, 935 (7th Cir. 2015), quoting Barnett v. Barnhart, 381 F.3d 664, 668 (7th Cir. 2004). Without any reference to Listing 12.08, the ALJ rejected the opinions he attributed only to Allan, giving them “very little weight.” [AR at 16.] Similarly, before me, the Commissioner ignores the argument that the ALJ failed to consider Listing 12.08. Instead, the Commissioner merely defends the little weight given to the opinions attributed to Allan. [DE 22 at 4-5.]

         The ALJ then, and the Commissioner now, point out that Allan, a nurse practitioner, is not an “acceptable medical source” under applicable regulations, and was not a consultant designated by the Commissioner. [AR at 16; DE 22 at 5.] But Dr. Miller is an acceptable medical source, and the ALJ did not explain or support his failure to attribute the opinions to her. The ALJ construed Dr. Miller's signature as a “countersigning” rather than “co-signing.” To countersign a document is “[t]o write one's own name next to someone else's to verify the other signer's identity.” Black's Law Dictionary, 7th ed., p. 354. In this circumstance, to construe Dr. Miller's signature as a “countersignature” is not sensible. Why would she be verifying Allan's signature? On the contrary, I see no reason to construe Dr. Miller's signature as anything other than reflecting her adoption of Allan's analysis and conclusions concerning Dixon's mental health.

         Understood in that way, the ALJ had opinion evidence of a treating physician which he ignored in making critical findings concerning the disability listings. This supports a remand for further consideration. In any event, even without the signature of Dr. Miller, the governing regulations and the caselaw in this circuit recognize that the opinions of treating nurse practitioners are “important and should be evaluated on key issues such as impairment severity and functional effects.” Gerstner v. Berryhill, 879 F.3d 257, 262 (7th Cir. 2018) quoting SSR 06-03P, 2006 WL 2329939 (Aug. 9, 2006). I next consider whether the ALJ gave good reasons for discounting the opinions expressed by Allan and adopted by Dr. Miller.

         The most petty of reasons given by the ALJ for assigning little weight to Allan's and Miller's opinions is that a portion of the form (relating to the ‘paragraph C' criteria of the Listings) was completed when it was unnecessary. [AR at 16.] But there is no inconsistency in the additional information and opinions recorded in that portion of the form, and no reasonable basis for discounting the views expressed because more than the requisite information was given.

         More substantively, the ALJ says that Allan's opinion is “inconsistent with the claimant's reported functioning by himself and others, and it is inconsistent with his psychiatric treatment and response to such treatment.” [AR at 16.] The ALJ's only examples are observations in the Four County treatment notes that on May 12, 2015 Dixon reported “doing pretty good with medicine” and that he went mushroom hunting [AR at 20, 657], and that on December 12, 2014 Dixon reported “better energy and more ambition/energy to accomplish tasks when taking medication” [AR at 20, 580]. But in the later of these two visits, NP Allan also noted a number of symptoms and conditions entirely supportive of his assessment of Dixon's overall mental state, including that he was dysthymic with restricted affect, had negativistic thought process, occasional fleeting suicidal ideations, marginal attention and concentration, marginal insight and judgment, continued to avoid social contacts, and his self-esteem remained low. [AR at 657.] And on the earlier occasion, Allan's notes also included that Dixon often remained negativistic in his thinking, continued to avoid social interactions, had occasional fleeting suicidal ...


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