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Schmitz v. Berryhill

United States District Court, W.D. Wisconsin

February 15, 2017

KATHY J. SCHMITZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER

          JAMES D. PETERSON District Judge

         Plaintiff Kathy J. Schmitz seeks judicial review of a final decision of defendant Nancy A. Berryhill, Acting Commissioner of Social Security, finding Schmitz not disabled under the Social Security Act.[1] The court heard oral argument on February 7, 2017. For the reasons explained during the hearing and summarized here, the court will remand the case.

         Schmitz applied for disability insurance benefits alleging a variety of impairments, particularly enduring back pain, which resulted from back surgeries in 2003 and 2009. The administrative law judge found that Schmitz suffers from two severe impairments: back disorders, status post back surgeries; and pain syndrome. The ALJ deemed her other impairments to be non-severe, a decision that Schmitz does not challenge on appeal. The ALJ found that, as of the date last insured, Schmitz had the residual functional capacity (RFC) to perform sedentary work with many additional restrictions relating to exertion, posture, and the environment. This RFC led to the conclusion that Schmitz was not disabled because the ALJ found that, even with this restrictive RFC, Schmitz could perform her past work as a data entry clerk, or at least some other jobs in the economy.

         In reaching his decision, the ALJ discounted Schmitz's credibility because he thought her statements about the severity of her symptoms were not supported by the record. He also discounted the opinion of a nurse practitioner who was Schmitz's primary care provider, because the nurse practitioner was a “nonacceptable medical source” and her opinions lacked medical support.

         On appeal, Schmitz raises three issues: (1) whether the ALJ gave proper weight to the nurse practitioner's opinion; (2) whether the ALJ properly discredited Schmitz's statements about her symptoms; and (3) whether substantial evidence supports the ALJ's finding on Schmitz's RFC. The court will remand the case because the ALJ did not adequately explain why she discounted Schmitz's credibility statements about her symptoms. Schmitz's statements about her symptoms necessarily affect the ALJ's RFC determination.

         A. Opinion of Mary Karl

         Schmitz contends that the ALJ should have given greater weight to the opinion of Mary Karl, a nurse practitioner, who opined that Schmitz was disabled. R. 319-22.[2] The ALJ could not give controlling weight to Karl's opinion because a nurse practitioner is not a treating source. Turner v. Astrue, 390 F. App'x 581, 586 (7th Cir. 2010). A nurse practitioner is also not an “acceptable medical source” as that term is used in social security regulations. See 20 C.F.R. § 416.913. Non-acceptable medical sources cannot establish the existence of a medically determinable impairment. SSR 06-03p. Nevertheless, “information from such ‘other sources' may be based on special knowledge of the individual and may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function.” Id.

         The ALJ's consideration of Karl's opinion is somewhat superficial and conclusory. R. 18. The ALJ indicates that Karl's opinion includes extreme limitations that are not supported by the medical evidence. But Karl cites recent pain evaluation and PT and OT evaluations among the medical findings that support her conclusions. R. 321. The ALJ did not address those.

         But the ALJ's decision, particularly when viewed as a whole, provides sound reasons to discount Karl's opinion. As the ALJ points out, Karl's opinion says that Schmitz should avoid all exposure to the environmental irritants listed on the form and that there is no evidence in the record that would support that limitation. R. 322. On appeal, Schmitz says that X-rays of her neck from July 2013, support Karl. Dkt. 13, at 7. But the physician who reviewed the X-rays noted that Schmitz's “subjective symptoms appear to far exceed objective findings on physical examination” R. 482-83.

         Because Karl was Schmitz's primary care provider (presumably for financial reasons, which the ALJ did not consider), Karl's opinion warrants consideration, perhaps more careful consideration than the ALJ gave it. But the ALJ did give Karl's opinion little weight only because it was from a non-acceptable medical source. The ALJ gave reasons for discounting the opinion, and the reasoning was not so conclusory as to warrant remand.

         B. Schmitz's credibility

         Schmitz's main impairment is debilitating back pain. She's had two back surgeries, in 2003 and 2009. Medical imaging from 2014 showed degenerative changes that had been stable since 2009. But surgically installed hardware obscured the view of a portion of her spine. There is nothing in the medical imaging, however, that would provide an organic explanation for her pain. Thus, the credibility of her subjective reports of pain is critical to her case.

         The ALJ found her only partially credible. A district court affords broad deference to an ALJ's credibility determination, overturning the credibility determination only if it is “patently wrong.” Prochaska v. Barnhart, 454 F.3d 731, 738 (7th Cir. 2006). But the ALJ must still consider the entire record and provide an adequate explanation of her conclusions. Myles v. Astrue, 582 F.3d 672, 678 (7th Cir. 2009) (vacating and remanding for lack of explanations as to the claimant's credibility even though “[t]he record does not command a determination that [the claimant] should be awarded benefits”). The ALJ need not mention every piece of evidence in her opinion, but she must provide more than a “selective discussion of the evidence” or “cursory analysis of symptoms, ” Myles, 582 F.3d at 678, and build a “logical bridge” from the evidence to her conclusions, Getch v. Astrue, 539 F.3d 473, 480 (7th Cir. 2008).

         One of the main reasons that the ALJ gave for discounting Schmitz's credibility was the lack of confirming medical imaging. The ALJ points this out directly, but it also comes through the state agency reports, to which the ALJ assigns “some weight” and “more weight.” There is nothing wrong with considering the medical images, but social security regulations and many court decisions make it clear that claims of persistent pain cannot be denied merely because ...


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