United States District Court, W.D. Wisconsin
KATHY J. SCHMITZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
D. PETERSON District Judge
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. 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.
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.
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.
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
Opinion of Mary Karl
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. 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.
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.
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”
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.
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.
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).
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 ...