Perrigin v. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER: it is ORDERED that, pursuant to 42 USC 405(g), the decision of the Commissioner is REVERSED and the case is REMANDED with instructions to (1) re-evaluate the opinions contained in the Medical Source Statement completed b y Nurse Kilcrease and, if they are again rejected, discuss the specific evidence supporting this conclusion; and (2) conduct any further proceedings deemed proper; copies mailed to SSA Chief Judge and SSA Office of Hearings and Appeals. Signed by Honorable Judge Gray M. Borden on 12/15/2016. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
LYNNETTE DARLENE PERRIGIN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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CASE NO.: 1:15-cv-552-GMB

MEMORANDUM OPINION AND ORDER
On June 23, 2012, Plaintiff Lynette Darlene Perrigin (“Perrigin”) applied for
disability insurance benefits under Title II of the Social Security Act, alleging a disability
onset date of March 1, 2012. Perrigin’s claim was denied at the initial administrative
level. Perrigin then requested and received a hearing before an Administrative Law
Judge (“ALJ”). On September 20, 2013, the ALJ held a hearing, and denied Perrigin’s
claim on December 27, 2013. Perrigin requested review of the ALJ’s decision by the
Appeals Council and that request was denied on May 29, 2015. As a result, the ALJ’s
decision became the final decision of the Commissioner of Social Security (the
“Commissioner”).
The case is now before the court for review pursuant to 42 U.S.C. § 405(g).
Pursuant to 28 U.S.C. § 636(c)(1) and Rule 73.1 of the Local Rules for the United States
District Court for the Middle District of Alabama, the parties have consented for the
undersigned United States Magistrate Judge to conduct all proceedings in this case and to

enter a final judgment. Based on the court’s review of the record and the relevant case
law, the court finds that the decision of the Commissioner is due to be REVERSED and
this case REMANDED to the Commissioner for further proceedings consistent with this
decision.
I. STANDARD OF REVIEW
The court reviews a social security case to determine whether the Commissioner’s
decision “is supported by substantial evidence and based upon proper legal standards.”
Lewis v. Callahan, 125 F.3d 1436, 1439 (11th Cir. 1997). The court “may not decide the
facts anew, reweigh the evidence, or substitute its judgment for that of the
Commissioner,” but rather it “must defer to the Commissioner’s decision if it is
supported by substantial evidence.” Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1997)
(internal quotations omitted). Indeed, the court must affirm the Commissioner’s decision
“if it is supported by substantial evidence and the correct legal standards were applied.”
Kelly v. Apfel, 185 F.3d 1211, 1213 (11th Cir. 1999) (citing Graham v. Apfel, 129 F.3d
1420, 1422 (11th Cir. 1997)).
“Substantial evidence is more than a scintilla—i.e., the evidence must do more
than merely create a suspicion of the existence of a fact, and must include such relevant
evidence as a reasonable person would accept as adequate to support the conclusion.”
Jones ex rel. T.J.J. v. Astrue, 2011 WL 1706465, at *1 (M.D. Ala. May 5, 2011) (citing
Lewis, 125 F.3d at 1440). The court must scrutinize the entire record to determine the
reasonableness of the decision reached. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.
1987). “If the Commissioner’s decision is supported by substantial evidence, the district
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court will affirm, even if the court would have reached a contrary result as a finder of
fact, and even if the court finds that the evidence preponderates against the
Commissioner’s decision.” Jones, 2011 WL 1706465 at *2 (citing Edwards v. Sullivan,
937 F.2d 580, 584 n.3 (11th Cir. 1991)). The court will reverse the Commissioner’s
decision on plenary review if the decision applies incorrect law, or if the decision fails to
provide the court with sufficient reasoning to determine that the Commissioner properly
applied the law. Id. (citing Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064,
1066 (11th Cir. 1994)). There is no presumption that the Commissioner’s conclusions of
law are valid. Id.
II. STATUTORY AND REGULATORY FRAMEWORK
To qualify for disability benefits, a claimant must show the “inability to engage in
any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 416(i),
423(d)(1)(A). A physical or mental impairment is “an impairment that results from
anatomical, physiological, or psychological abnormalities which are demonstrated by
medially acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C.
§ 423(d)(3).

Perrigin bears the burden of proving that she is disabled, and she is

responsible for producing evidence to support her claim. Ellison v. Barnhart, 355 F.3d
1272, 1276 (11th Cir. 2003).
Determination of disability under the Social Security Act requires a five-step
analysis. 20 C.F.R. § 404.1520(a) (2012).
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Specifically, the Commissioner must

determine in sequence:
(1) Is the claimant presently unemployed?
(2) Is the claimant’s impairment severe?
(3) Does the claimant’s impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the claimant unable to perform his or her former occupation?
(5) Is the claimant unable to perform any other work within the economy?
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative answer to
any of the above questions leads either to the next question, or, on steps three and five, to
a finding of disability. A negative answer to any question, other than step three, leads to
a determination of ‘not disabled.’” Id. at 1030 (quoting 20 C.F.R. § 416.920(a)−(f)).
“Once the finding is made that a claimant cannot return to prior work the burden of proof
shifts to the Secretary to show other work the claimant can do.” Foote v. Chater, 67 F.3d
1553, 1559 (11th Cir. 1995) (citing Gibson v. Heckler, 762 F.2d 1516 (11th Cir. 1985)).
III. DISCUSSION
A.

Facts
Perrigin was 44 years old at the time of the ALJ’s decision. R. 32. She has a high

school education and past work experience as an apartment/property manager and front
office manager. R. 21.
After reviewing the record and the testimony presented during an administrative
hearing, the ALJ found that Perrigin suffers from the following severe impairments:
lumbosacral degenerative disc disease status post laminectomy and fusion of L5-S1;
obesity; asthma; diabetes mellitus; peripheral neuropathy; arthropathies; vitamin B12 and
iron deficiency; degenerative disc disease and facet arthropathy of the cervical spine;

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fibromyalgia; and depression. R. 15. The ALJ further found that Perrigin suffers from
the following non-severe impairments: gastroesophageal reflux; dysphasia; gastroparesis;
gastric polyps; hiatal hernia; heartburn; and elevated cholesterol. R. 15–16. Despite these
impairments, after undertaking a review of the entire record, the ALJ found that Perrigin
did not have an impairment or combination of impairments that meets or medically
equals the severity of one of those listed in the applicable regulations. R. 16. The ALJ
further found that Perrigin had the residual functional capacity to perform sedentary work
but that she is unable to perform any past relevant work. R. 18-21. Ultimately, the ALJ
concluded that Perrigin was not disabled within the meaning of the Social Security Act
from March 1, 2012, her alleged disability onset date, through the date of the ALJ’s
decision, and her claim was denied. R. 21-22.
B.

Issues Presented
Perrigin presents the following issues for the court’s review: (1) whether the ALJ

erred in failing to give any weight to the opinion of Perrigin’s treating nurse practitioner
since she was supervised by a physician; and (2) whether the ALJ erred as a matter of law
in finding that fibromyalgia is not an objectively determinable medical condition that can
reasonably be expected to produce disabling pain. After reviewing the record, the court
finds that, for the reasons explained below, the ALJ’s decision is due to be reversed and
remanded on the issue of whether the ALJ properly evaluated the opinion of Perrigin’s
treating nurse practitioner. In light of this remand, the court pretermits a discussion and
decision on the second issue concerning whether fibromyalgia is an objectively

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determinable medical condition that can reasonably be expected to produce disabling
pain.
The ALJ’s decision contains a brief paragraph discussing the “opinion evidence”
presented in Perrigin’s case. R. 21. The ALJ gave substantial weight to the opinions of
Drs. Samuel D. Williams and Thomas Thomson, two non-examining, reviewing
physicians. R. 62-72 & 489-90. However, with respect to the opinions contained in the
Medical Source Statement completed by Perrigin’s treating nurse practitioner, Lauren
Kilcrease, R.N., D.N.P. (“Nurse Kilcrease”), the ALJ gave those opinions no weight
because they were (1) “offered by a nurse, not an ‘acceptable medical source,’” and (2)
were “not consistent with the treatment evidence.” R. 21. The ALJ’s decision does not
elaborate any further on his reasoning for giving the Medical Source Statement no
weight.
The court finds that the ALJ erred in failing to assign any weight to the Medical
Source Statement. Nurse Kilcrease provided the majority of Perrigin’s care, and she did
so under the supervision of Dr. Charles Wood, Perrigin’s primary care physician. Dr.
Wood electronically signed Nurse Kilcrease’s notes documenting her office visits with
Perrigin,1 and the parties agree that he initialed the Medical Source Statement that the
ALJ rejected. R. 30, 384–488, 664-67; Docs. 15, 16 at 4. Considering this evidence in

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The final pages of the office notes documenting Perrigin’s office visits with Nurse Kilcrease typically
contain the following language: “I have seen, evaluated, and provided care for this patient. I agree with
the observations noted in this summary. Charles A. Wood, M.D. Electronically signed by Charles Wood,
M.D.,” followed by the date and time Dr. Wood affixed his electronic signature. R. 384-488. Nurse
Kilcrease’s signature is typically affixed below Dr. Wood’s electronic signature on these medical records.
R. 384-488.

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conjunction with the Social Security regulations, the court finds that the Medical Source
Statement completed by Nurse Kilcrease and signed by Dr. Wood, a licensed physician,
was an “acceptable medical source” for providing evidence to establish an impairment
and, therefore, the opinions contained therein should have been considered or at least
addressed in some meaningful way by the ALJ. See 20 C.F.R. § 404.1513(a)(1); King v.
Astrue, 493 F. Supp. 2d 1232 (S.D. Ala. 2007).
A district court in the Southern District of Alabama addressed a similar issue in
King v. Astrue, ultimately reversing the decision of the ALJ and remanding for further
proceedings. In King, the ALJ rejected a Residual Functional Capacity Questionnaire
that was completed by the claimant’s treating nurse practitioner and a physician during
the course of their treatment of the claimant at their health center because the form had
been completed by a nurse, who was not an “acceptable medical source” to render an
opinion on the claimant’s diagnosis, and because the claimant had not been seen by a
“medical physician” at the health center. Id. at 1234. The court noted that, contrary to the
ALJ’s findings, the medical records showed that physicians regularly monitored the
course of the claimant’s treatment at the health center. Id. The questionnaire was also
signed by a doctor of osteopathic medicine, which, according to the court, made the
questionnaire “an acceptable medical source for providing evidence to establish an
impairment” even though it was completed by a nurse practitioner. Id. Finally, while the
government argued that any error by the ALJ in rejecting the opinions contained in the
questionnaire was harmless because the doctor had merely “signed off” on it, the court
squarely rejected that argument because “the ALJ made a conscious decision to ignore
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the [physician’s] signature” despite the fact that the physician’s signature conveyed her
approval of the questionnaire’s contents. Id. at 1234–35.
The court finds the decision in King persuasive. Here, like the claimant in King,
Perrigin’s treatment by Nurse Kilcrease was regularly monitored by Dr. Wood. The ALJ
also consciously ignored the fact that Dr. Wood electronically signed Nurse Kilcrease’s
notes from her office visits with Perrigin and initialed the Medical Source Statement that
Nurse Kilcrease completed, indicating his approval of its contents.

Thus, like the

questionnaire in King, the Medical Source Statement submitted in Perrigin’s case is an
“acceptable medical source for providing evidence to establish an impairment,” id. at
1234, and the opinions contained therein should have been given substantial or
considerable weight by the ALJ unless good cause was shown to the contrary. Lewis v.
Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997) (“The law of this circuit is clear that the
testimony of a treating physician must be given substantial or considerable weight unless
‘good cause’ is shown to the contrary.”). Because the ALJ admittedly gave no weight to
the Medical Source Statement, and because a review of his decision shows that he did not
articulate good cause for failing to consider the Medical Source Statement,2 the court
finds that the ALJ committed reversible error. See Reliford v. Barnhart, 444 F. Supp. 2d
2

The ALJ did state that he assigned the Medical Source Statement no weight because it was “not
consistent with the treatment evidence.” R. 21. This finding, however, is conclusory and does not
“clearly articulate the reasons for giving less weight” to the Medical Source Statement. Lewis, 125 F.3d at
1440; see also Duncan v. Astrue, 2008 WL 1925091, at *3 (M.D. Fla. Apr. 29, 2008) (finding that the
ALJ’s refusal to consider opinions of treating physician assistant because they were “not consistent with
her own progress notes” and “inconsistent with the evidence of record when considered in its entirety” did
not provide the court with sufficient information from which it could determine how the ALJ reached this
decision); Morrison v. Barnhart, 278 F. Supp. 2d 1331, 1336 (M.D. Fla. 2003) (noting that statement that
treating physician opinion is inconsistent with record as a whole, including the doctor’s own examination
findings, “is too general to permit meaningful judicial review”).

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1182, 1186 (N.D. Ala. 2006) (“It is firmly established that the medical opinion of a
treating physician must be accorded greater weight than those of physicians employed by
the government to defend against a disability claim. . . . If the Commissioner ignores or
fails to properly refute a treating physician’s testimony, as a matter of law that testimony
must be accepted as true.”) (internal quotation marks omitted).
Even if it were not error for the ALJ to ignore Dr. Wood’s initials on (and thus
tacit approval of) the Medical Source Statement, he should have still considered and
meaningfully addressed the opinions of Nurse Kilcrease contained in that statement.
Nurse practitioners are considered “other sources” under the regulations, and while their
opinions are not entitled to the same controlling weight given to acceptable medical
sources such as doctors, their opinions are still relevant to show the severity of the
claimant’s impairment and how it affects his or her ability to perform work-related
activities. See 20 C.F.R. 404.1513(d)(1).

The Social Security Administration now

recognizes that nurse practitioners “play an important role in health care delivery” and
that “their opinions should be evaluated ‘on key issues such as impairment, severity and
functional effects, along with other relevant evidence in the file.’”3 Wright v. Astrue,
3

To this end, Social Security Rule 06-03P, which clarifies the Administration’s policies on how to
consider opinions from sources other than “acceptable medical sources,” recognizes that, in some
circumstances, an opinion from a source who is not an “acceptable medical source” may even outweigh
the opinion of an “acceptable medical source.” SSR 06-03P, 2006 WL 2329939 at *5. Rule 06-03P
explains:
[D]epending on the particular facts in a case, and after applying the factors for weighing
opinion evidence, an opinion from a medical source who is not an “acceptable medical
source” may outweigh the opinion of an “acceptable medical source,” including the
medical opinion of a treating source. For example, it may be appropriate to give more
weight to the opinion of a medical source who is not an “acceptable medical source” if he
or she has seen the individual more often than the treating source and has provided better
supporting evidence and a better explanation for his or her opinion. Giving more weight

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2010 WL 988844, at *3 (N.D. Miss. Mar. 15, 2010) (quoting SSR 06-03P, 2006 WL
2329939 at *3); see also 20 C.F.R. § 404.1513(d)(1). The SSA advises that the opinions
of nurse practitioners should be evaluated using the same factors applied to “acceptable
medical sources,” including: (1) how long the source has known and how frequently the
source has seen the individual; (2) how consistent the opinion is with other evidence; (3)
the degree to which the source presents relevant evidence to support an opinion; (4) how
well the source explains the opinion; (5) whether the source has a specialty or area of
expertise related to the individual’s impairments; and (6) any other factors that tend to
support or refute the opinion. See SSR 06-03P, 2006 WL 2329939 at *4-5.
The record does not show that the ALJ engaged in a meaningful analysis of the
Rule 06-03P factors. Rather, the ALJ summarily rejected Nurse Kilcrease’s opinions
because they were from “a nurse” and were “not consistent with the treatment evidence.”
But an ALJ “‘is not free to disregard the opinions of health care professionals simply
because they are not medical doctors.’” Turner v. Astrue, 2008 WL 4489933, at *13 (S.D.
Ala. Sept. 30, 2008) (quoting O’Connor v. Barnhart, 2004 WL 2192730, at *5 (N.D.
Iowa Sept. 28, 2004)). Indeed, “the fact that [a nurse practitioner] is not a medical doctor
is not a sufficient basis for rejecting [her] opinions on key issues such as impairment
severity and functional effects.” Id. at *14.

to the opinion from a medical source who is not an “acceptable medical source” than to
the opinion from a treating source does not conflict with the treating source rules in 20
CFR 404.1527(d)(2) and 416.927(d)(2) and SSR 96-2p, “Titles II and XVI: Giving
Controlling Weight To Treating Source Medical Opinions.”
Id.

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Moreover, rejecting a treating nurse practitioner’s opinions because they are “not
consistent with the treatment evidence,” without any additional explanation, is not
sufficient. See Davila v. Comm’r of Soc. Sec., 993 F. Supp. 2d 737, 758 (N.D. Ohio 2014)
(remanding ALJ decision rejecting opinion of nurse practitioner as inconsistent with
treatment records because the ALJ did not provide any explanation of these
inconsistences). An adjudicator must instead “explain the weight given to opinions from
these ‘other sources,’ or otherwise ensure that the discussion of the evidence . . . allows a
claimant or subsequent reviewer to follow the adjudicator’s reasoning.” SSR 06-03P,
2006 WL 2329939 at *6. While the ALJ in this case explained the weight given to the
Medical Source Statement (i.e., no weight), he did not ensure that the discussion of the
evidence allowed the court to follow his reasoning or undertake meaningful judicial
review. To the contrary, the ALJ’s rejection of the Medical Source Statement on the
basis that it is “not consistent with the treatment evidence,” without any additional
explanation or elaboration, leaves the court “unable to discern what exactly the ALJ
relied on in reaching his conclusion that significant probative evidence should be
rejected.” Duncan v. Astrue, 2008 WL 1925091, at *3 (M.D. Fla. Apr. 29, 2008). Thus,
the court finds that the ALJ’s refusal to give any weight to Nurse Kilcrease’s opinions
and to explain adequately his reasons for doing so constitutes reversible error. See
Turner, 2008 WL 4489933 at *14 (rejecting the ALJ’s decision to ignore a Residual
Functional Capacity Form on the basis that it was inconsistent with the medical records
because the ALJ “did not explain or elaborate on the alleged inconsistencies”).4
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In fact, the explanation provided in Turner, which was found to be insufficient, contained greater detail

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IV. CONCLUSION
For the foregoing reasons, it is ORDERED that, pursuant to 42 U.S.C. § 405(g),
the decision of the Commissioner is REVERSED and the case is REMANDED with
instructions to (1) re-evaluate the opinions contained in the Medical Source Statement
completed by Nurse Kilcrease and, if they are again rejected, discuss the specific
evidence supporting this conclusion; and (2) conduct any further proceedings deemed
proper.
A final judgment will be entered separately.
DONE this 15th day of December, 2016.
/s/ Gray M. Borden
UNITED STATES MAGISTRATE JUDGE

than the ALJ’s explanation for rejecting Nurse Kilcrease’s opinions in this case. In Turner, the ALJ
stated the following with respect to the opinions of the nurse practitioner:
The Administrative Law Judge recognizes that Jimmy White, CRNP, completed a
Residual Functional Capacity Form on which he stated the claimant has marked
estimated degree of difficulty in maintaining social functioning and frequent estimated
deficiencies of concentration, persistence or pace resulting in frequent failure to complete
tasks in a timely manner. Additionally, Mr. White found the claimant has marked
limitations in her ability to understand, carry out and remember instruction in a work
setting (Exhibit 22-F). The Administrative Law Judge does not give any weight to the
residual functional capacity completed by Mr. White because he is not a medical doctor.
In addition, his limitations conflict with the rest of the medical reports, including those
from Mobile Mental Health. As stated above, in the treatment note dated January 5,
2006, the therapist noted the claimant was currently managed on medication.
Turner, 2008 WL 4489933 at *14. In this case, however, with respect to Nurse Kilcrease’s opinions, the
ALJ stated only:
[T]he opinion evidence in Exhibit 16F [the Medical Source Statement] was offered by a
nurse, not an “acceptable medical source.” It is not consistent with the treatment
evidence. It merits no weight.
R. 21.

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