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Schuelke v. Saul

United States District Court, W.D. Wisconsin

June 18, 2019

ANDREW SAUL, Commissioner, Social Security Administration, [1] Defendant.



         Plaintiff 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.


         Schuelke 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.

         On 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.[2] 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.

         The ALJ 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.


         Schuelke 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% disability rating.

         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. RFC deficiencies

         Schuelke 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.

         In explaining why he did not include greater restrictions in the RFC, the ALJ noted that the sedentary-work restriction took into consideration “that the [2011] 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.

         Schuelke's 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. 152).

         But the 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 ...

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