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Gilbertson v. Berryhill

United States District Court, W.D. Wisconsin

June 26, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION & ORDER


         Plaintiff Marett Gilbertson seeks judicial review of a final decision of Nancy A. Berryhill, Acting Commissioner of Social Security, finding her not disabled within the meaning of the Social Security Act. Gilbertson contends that the Administrative Law Judge (ALJ) erred by: (1) failing to give proper weight to certain medical opinions; (2) failing to make proper findings regarding certain specific limitations in determining her residual functional capacity (RFC); and (3) improperly assessing Gilbertson's subjective complaints regarding her symptoms.

         The case is scheduled for an oral argument on June 26, 2018, but the court concludes that no oral argument is needed in light of the relatively straightforward nature of the claims. The court concludes that Gilbertson has failed to identify any reversible error and that the ALJ's decision applies the proper standards and is supported by substantial evidence. The court will deny Gilbertson's motion for summary judgment and affirm the Commissioner's decision.


         Gilbertson applied for social security benefits on April 1, 2013. Her claim was denied both initially and upon reconsideration, so she filed a written request for a hearing, which was held before ALJ John H. Pleuss on April 5, 2016. The ALJ determined that Gilbertson's date last insured (DLI) was June 30, 2013, and that she therefore had to “establish disability on or before that date to be entitled” to benefits. R. 15.[1]

         The ALJ found that Gilbertson suffered from the following severe impairments: obesity, fibromyalgia, back impairment, peripheral artery disease, and arthritis. He determined that as of her DLI she had the RFC to perform sedentary work with the following additional restrictions: no crawling, kneeling, or climbing ladders, ropes, or scaffolds; no more than occasional stooping, bending, crouching, or climbing stairs or ramps; and no working at temperature or humidity extremes or around workplace hazards.

         In determining Gilbertson's RFC, the ALJ gave great weight to the opinions of state agency physicians Margaret Fountain, M.D. and Mina Khorshidi, M.D. But the ALJ gave little weight to the opinion of treating nurse practionioner Sheryl Schulte, and very little weight to the opinion of treating physician Amy Muminovic, D.O. The ALJ also found that Gilbertson's testimony regarding her symptoms and limitations prior to her DLI was not fully consistent with the evidence of record.

         Based on the testimony of a vocational expert (VE), the ALJ found that although Gilbertson could not return to her past cashiering work, her RFC would allow her to perform the jobs of an order clerk, assembler, and hand packer. He therefore found her not disabled prior to her DLI and denied her claim for benefits.


         The court reviews the final decision of an ALJ “to determine whether it applies the correct legal standard and is supported by substantial evidence.” Summers v. Berryhill, 864 F.3d 523, 526 (7th Cir. 2017). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Stephens v. Berryhill, 888 F.3d 323, 327 (7th Cir. 2018). The court reviews the record as a whole, but it cannot reconsider facts, weigh the evidence, decide questions of credibility, or otherwise substitute its own judgment for that of the ALJ. Id.

         A. Medical Opinions

         1. Sheryl Schulte

         Gilbertson contends that the ALJ improperly weighed the opinion of nurse practitioner Sheryl Schulte, because he did not consider proper regulatory factors or support his decision with substantial evidence. Schulte opined that Gilbertson needed to walk with a cane and had enough limitations on her ability to sit, stand, walk, and reach and manipulate objects to render her disabled. R. 682-87. The ALJ assigned this opinion little weight.

         Under the regulations applicable to Gilbertson's claim, an ALJ cannot give controlling weight to Schulte's opinion because a nurse practitioner is not considered a treating source or an acceptable medical source. See Schmitz v. Berryhill, No. 16-cv-371, 2017 WL 605325, at *1 (W.D. Wis. Feb. 15, 2017); SSR 06-03p.[2] Still, the ALJ has a duty to explain his reasons for assigning a specific evidentiary weight to Schulte's opinion and to support his findings with substantial evidence in the record. See Lareau v. Colvin, No. 14-cv-611, 2015 WL 4509131, at *6 (W.D. Wis. July 24, 2015). Among the factors that the ALJ may consider in assigning weight to an opinion are its supportability and consistency with the record as a whole. SSR 06-03p.

         Here, the ALJ discounted Schulte's opinion because it was issued “well after” Gilbertson's DLI. R. 23. He determined that Schulte's opinion “significantly exceed[ed] any symptom-related limitations noted in [Schulte's] medical treatment notes” and that there was a “lack of overall consistency between the treating records and the opinions of Ms. Schulte.” R. 24. He then pointed out multiple ...

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