United States District Court, W.D. Wisconsin
MARETT L. GILBERTSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE.
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.
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.
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.
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.
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.
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
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.
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
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. 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.
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 ...