United States District Court, W.D. Wisconsin
THOMAS A. SCHUELKE, Plaintiff,
ANDREW SAUL, Commissioner, Social Security Administration,  Defendant.
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE.
Thomas A. Schuelke seeks judicial review of a final decision
of defendant Nancy Berryhill, Acting Commissioner of Social
Security, partially denying his application for disability
benefits. The administrative law judge (ALJ) found that
Schuelke was disabled between November 1, 2008 and January
25, 2011, but Schuelke appeals the ALJ's the decision to
deny him benefits between January 26, 2011 and December 31,
2012, the date Schuelke was last insured. The ALJ's
decision was supported by substantial evidence and Schuelke
has failed to identify any reversible error. So the court
will deny Schuelke's motion for summary judgment and
affirm the commissioner's decision.
applied for disability insurance benefits on November 27,
2010, alleging a disability onset date of November 1, 2008.
The commissioner initially denied his application, and this
court upheld her decision in June 2015. See Schuelke v.
Colvin, No. 14-cv-139-jdp, 2015 WL 3539659 (W.D. Wis.
June 5, 2015). Schuelke appealed to the Seventh Circuit, but
before that court issued a ruling, the commissioner agreed to
voluntarily remand the case based on evidence submitted after
this court's decision.
remand, Schuelke submitted additional evidence and had a
second hearing before a new ALJ in April 2018. In a July 25,
2018 decision, ALJ Charles J. Thorbjornsen determined that
Schuelke had two severe impairments: degenerative disc
disease of the lumbar spine, status post fusion; and chronic
pain disorder. He found that between November 1, 2008 and
January 25, 2011, “the severity of [Schuelke's]
degenerative disc disease medically equaled the criteria of
section 1.04 of 20 CFR Part 404, Subpart P, Appendix
1.” R. 900. This refers to section 1.04 in the Listing
of Impairments, which identifies certain impairments that, if
shown, create a presumption of disability. Minnick v.
Colvin, 775 F.3d 929, 935 (7th Cir. 2015); 20 C.F.R.
§§ 404.1520(d), 416.920(d). Section 1.04 of the
Listing refers to disorders of the spine, including
degenerative disc disease, that result in compromise of a
nerve root or the spinal cord.
concluded that Schuelke did not meet the section 1.04 listing
after January 26, 2011 until December 31, 2012
(Schuelke's date last insured). He based this
determination on evidence that Schuelke's December 9,
2010 lumbar fusion surgery had corrected the nerve root
impingement. The ALJ relied heavily on a January 25, 2011
treatment note from one of Schuelke's providers
indicating that, six weeks post-surgery, there was
“improvement of [Schuelke's] back pain” and
resolution of his right leg pain, but some continuing
“left leg pain with tingling and numbness down into the
foot.” R. 859 and R. 1855. The ALJ concluded that by
January 26, Schuelke's symptoms had improved to the point
that he had the residential functional capacity (RFC) to
perform sedentary work, with certain exceptions and some
postural limitations. Based on this RFC and testimony from a
vocational expert, the ALJ determined that, in 2011 and 2012,
Schuelke could have performed jobs that exist in significant
numbers in the national economy, such as a call out operator,
a document preparer, and an addresser. The ALJ therefore
deemed Schuelke “not disabled” and denied his
application for benefits for the period between January 26,
2011 and December 31, 2012. This appeal followed.
challenges the ALJ's decision on three grounds: (1) the
ALJ's residual functional capacity (RFC) determination
was not supported by substantial evidence because it was
based on medical evidence that the ALJ was not qualified to
interpret, and because it did not account for medical
evidence that supported greater restrictions; (2) the ALJ
failed to consider Schuelke's subjective reports of pain;
and (3) the ALJ failed to adequately consider a previous
decision by the Veterans Administration giving Schuelke a 90%
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's RFC determination was not
supported by substantial evidence for two reasons. First, he
says that the ALJ improperly “played doctor” by
drawing his own conclusions from medical evidence that he
wasn't qualified to interpret. He says that the ALJ
“interpreted the CT scan, the EMG and the MRI, ”
which were “well outside the [purview] of an
ALJ.” Dkt. 10, at 20. An ALJ may not act as his own
medical expert. See, e.g., Akin v.
Berryhill, 887 F.3d 314, 317 (7th Cir. 2018)
(“[W]ithout an expert opinion interpreting the MRI
results in the record, the ALJ was not qualified to conclude
that the MRI results were ‘consistent' with his
assessment.”). But that's not what the ALJ did.
explaining why he did not include greater restrictions in the
RFC, the ALJ noted that the sedentary-work restriction took
into consideration “that the  CT scan showed no
obvious etiology for [Schuelke's] ongoing leg pain,
” his “EMG showed evidence of chronic left
peroneal mononeuropathy but no definite evidence of an L5
radiculopathy, ” and his “MRI showed nothing to
explain the leg pain.” R. 905 (citing R. 866, R. 868).
But the ALJ's record citations show that he was relying
on opinions from Schuelke's treating physicians, who
analyzed these scans and test results. He was not looking at
the raw images and test results and analyzing them himself.
The court will not remand the case on that basis.
second argument is that the ALJ ignored evidence in the
record that “shows that Schuelke's condition did
not improve” post-surgery. Dkt. 10, at 20. But this
assertion is directly contradicted by the record evidence
Schuelke cites. Indeed, in the very next line of his brief,
Schuelke acknowledges that he reported “improvement of
his back pain, and, in fact, his right leg pain had
resolved.” Id. (citing R. 587). And many of
the documents that Schuelke cites (without elaboration) in
support of his assertion that Schuelke's impaired
walking, leg weakness, and low back pain persisted
post-surgery do not relate to any issues on appeal and appear
to be mis-citations. See Id. at 20-21 (citing R.
268, 201, 198, 189, 180, 174, 167, 150, 144, 141, and R.
record does reflect that Schuelke continued to experience
left leg pain and weakness, along with some low back pain,
even after his fusion surgery. The ALJ acknowledged this and
he adjusted the RFC accordingly. For example, the ALJ
concluded that “limiting [Schuelke] to sedentary work
account[ed] for the reduced strength in the lower left
extremity, the diminished sensation, the limping gait, and
the complaints of pain, ” and the postural limitations
account[ed] for Schuelke's “reduced strength on the
left, the diminished sensation, and [Schuelke's] reports
that he had fallen a few times.” R. 905. Schuelke does
not explain why this RFC was inadequate or what additional
restrictions should have been included, so he is not entitled
to a remand on that basis. See ...