Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Melissa E.,
Plaintiff,
v.
Frank Bisignano, Commissioner of Social
Security Administration,
Defendant.
No. 24-cv-4438 (DLM)
ORDER
Pursuant to 42 U.S.C. § 405(g), Plaintiff Melissa E. seeks judicial review of the final
decision 	of 	the 	Commissioner 	of 	Social 	Security 	(“Commissioner”) 	denying 	her
application for benefits. This matter is before the Court on Plaintiff’s brief seeking
judgment on the administrative record. (Doc. 10.) The Commissioner filed his response
brief seeking affirmance of the Commissioner’s decision on June 3, 2025. (Doc. 16.)
Plaintiff filed her reply brief on June 17, 2025. (Doc. 17.) This matter is now ripe for the
Court’s decision. For the reasons stated below, the Court affirms in part and reverses in
part the Commissioner’s decision, and remands this matter to the Commissioner for further
proceedings consistent with this Order.
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BACKGROUND
On April 15, 2021, Plaintiff applied for Supplemental Security Income (“SSI”),
alleging disability beginning on April 12, 2021. (Tr.1 at 450-58.) The Social Security
Administration (“SSA”) denied Plaintiff’s claim initially and upon reconsideration. (Tr. at
358-62 (initial denial), 366-68 (reconsideration).) Plaintiff then timely requested a hearing
before an Administrative Law Judge (“ALJ”), and the ALJ held a hearing on this matter on
October 4, 2023. (Tr. at 374 (hearing request), 176-205 (hearing transcript).) Plaintiff was
represented by counsel, appeared at the hearing, and testified on her own behalf. (Tr. at
178-86, 193-98.) The ALJ also called Dr. Ken Berger,2 to provide his expert medical
opinion regarding Plaintiff’s physical health condition and any associated functional
restrictions. (Tr. at 186-193.) Dr. Berger testified that Plaintiff suffered from a number of
severe physical impairments and conditions, including: degenerative disc disease of the
lumbar spine with moderate spinal stenosis; impingement on a right lumbar nerve root3;
asthma; chronic obstructive pulmonary disease; diabetes; hepatitis C; migraines; a history
of discectomy and a fusion of the neck; and trochanteric bursitis of the hips. (Tr. at 187.)
Based on these conditions and the remainder of Plaintiff’s medical records, Dr. Berger
opined that Plaintiff would need several manipulative and postural work restrictions
including—most relevant to this review—time limits on walking (roughly two hours at one
1 The Commissioner filed the consecutively paginated transcript of the administrative
record on February 10, 2025. (Docs. 6, 6-1.) For ease of reference, citations to the transcript
will identify the page number listed on the lower right corner of the cited document.
2 Dr. Berger is erroneously identified in the transcript of Plaintiff’s hearing as Dr. Timothy
Burger. (Compare Tr. at 186 with Tr. at 1341-51.)
3 See also Tr. at 584.
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time, no more than four hours in an eight-hour day) and standing (three hours straight, no
more than six hours in an eight-hour workday). (Tr. at 188.) “So, combined walking and
standing it would be no more than six hours.” (Tr. at 189.)
The ALJ also heard testimony from Eric Pruitt, a vocational expert. (Tr. at 198-204.)
The ALJ posed hypotheticals to Mr. Pruitt regarding the availability of jobs in the national
economy for someone with manipulative, postural, and mental limitations similar to
Plaintiff, limited solely to “light” work.4 (Tr. at 200-01.) Among the specific limitations
for the hypothetical worker were that she stand no more than a total of six hours in an eight-
hour day (only three continuous standing hours), and walk no more than a total of four
hours in an eight-hour day (only two continuous standing hours). (Tr. at 199.) Mr. Pruit
opined, based on the entirety of limitations in the ALJ’s hypothetical, that there were
significant jobs in the national economy across three representative occupations listed in
the Dictionary of Occupational Titles (“DOT”), each of which this hypothetical person
could perform: mail clerk, (DOT No. 209.687-026); collator operator (DOT No. 208.685-
010); and routing clerk (DOT No. 222.687-022). (Tr. at 201-02.) Plaintiff’s counsel asked
Mr. Pruitt if these jobs would still be available if the hypothetical person were only able to
4 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg controls.
To be considered capable of performing a full or wide range of light work, you must have
the ability to do substantially all of these activities. If someone can do light work, we
determine that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R.
§ 416.967(b).
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walk and/or stand for a total of four hours per workday, and Mr. Pruit replied, “In my
opinion, yes.” (Tr. at 203.)
On November 16, 2023, the Commissioner sent a notice of unfavorable decision to
Plaintiff. (Tr. at 8-37.) The ALJ recognized that Plaintiff suffered from each of the
conditions identified by Dr. Berger, as well as the following additional severe and non-
severe impairments: chronic pain syndrome; bipolar disorder; generalized anxiety disorder;
personality disorder/borderline personality 	disorder by history; 	post-traumatic stress
disorder; gastroesophageal reflux disease (“GERD”); obesity; essential hypertension; fatty
liver; and hyperlipidemia. (Tr. at 13-14.)
Despite these impairments, the ALJ determined that Plaintiff retained the residual
functional 	capacity 	(“RFC”)5 to 	perform 	light 	work 	with 	the 	following 	additional
limitations:
stand for six (6) hours in an eight hour day but no continuous standing of
more than three (3) hours; walk for four (4) hours in an eight hour day but no
continuous walking of more than two (2) hours; push and pull same as lift
and carry; frequently reaching overhead to the left, and frequently reaching
overhead to the right. For all other reaching she can reach frequently to the
left and can reach frequently to the right. She can handle items frequently
with the left hand and can handle items frequently with the right hand. She
has fingering limitations frequently with the left hand and has fingering
limitations frequently with the right hand. The claimant has feel limitations
frequently on the left and has feel limitations frequently on the right. The
claimant can climb ramps and stairs occasionally, never climb ladders, ropes,
or scaffolds, balance occasionally - as that term is defined in the “Selected
Characteristics 	of 	Occupations” 	(“SCO”), 	stoop 	occasionally, 	kneel
occasionally, crouch occasionally, and never crawl. The claimant can never
work at 	unprotected 	heights, 	never 	moving mechanical 	parts, 	and no
5 “RFC is defined as the most a claimant can still do despite his or her physical or mental
limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting Leckenby v.
Astrue, 487 F.3d 626, 631 n.5 (8th Cir. 2007)) (cleaned up).
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commercial driving. No work in humidity and wetness. Indoor work will be
in a well-ventilated HVAC controlled setting. No indoor or outdoor work
requiring direct exposure to concentrated sources of pulmonary irritants. No
work in extreme cold or extreme heat. No use of hand power tools or similar
direct and sustained physical contact with heavy vibrating machinery and in
a moderate noise level. No working in bright sunlight. Indoor work will be
in lighting conditions no brighter than found in ordinary and typical office
settings. Can understand, carry out, and remember and use judgment
necessary to complete simple, routine and repetitive tasks, can adapt to can
respond appropriately to the public, supervision and coworkers in usual work
situations, but no complex teamwork or other social interaction requiring a
code lower than an eight (8) on the People Scale of Appendix B to the
“Dictionary of Occupational Titles”, 1991 Revised Edition, able to meet the
production standards of simple, routine, repetitive work but no assembly line
work or other work similarly requiring an unvarying fast pace.
(Tr. at 17-18.)
Even with these significant restrictions, the ALJ concluded Plaintiff was not
disabled. (Tr. at 32.) In doing so, the ALJ credited the testimony of Vocational Expert Pruitt
that Plaintiff could perform the jobs of mail clerk, collator operator, and routing clerk. (Tr.
at 31.) The ALJ recognized that “[t]hese are all light jobs per the vocational expert,” but
did not address the vocational expert’s opinion that each of these jobs would be available
even if Plaintiff could only stand or walk for a total of four hours out of an eight-hour day.
(Tr. at 31.)
Plaintiff does not contest that the ALJ followed the five-step sequential process laid
out in 20 C.F.R. § 416.920(a)(4)6 for evaluating SSI claims. Rather, she asserts that the
6 Step one of this process involves determining whether a claimant is engaged in substantial
gainful activity. If not, the ALJ must next decide (in step two) whether the claimant’s
impairments are severe, and of a duration of least 12 continuous months. At step three, the
ALJ determines whether the claimant’s impairments are severe enough to equal a listed
impairment under appendix 1 to subpart P of part 404. If so, the claimant is considered
disabled without further inquiry. If not, the ALJ must determine the claimant’s RFC, and
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ALJ’s RFC finding is not based on substantial evidence for essentially two reasons: (1) the
ALJ discounted Plaintiff’s subjective complaints of pain associated with standing and
walking without conducting an appropriate analysis of those complaints; and (2) the RFC,
as written, suggests Plaintiff could stand and walk for a complete eight-hour workday, for
which there is no evidentiary basis.7
The Court finds no error in the ALJ’s analysis of Plaintiff’s subjective complaints
of pain. The ALJ thoughtfully and carefully conducted that analysis, consistent with the
applicable regulatory framework. Indeed, the ALJ’s decision as a whole reflects a deep and
considered analysis of Plaintiff’s circumstances. However, the Court agrees with Plaintiff
that the RFC does not clearly reflect any aggregate limitation on Plaintiff’s ability to stand
and walk; that is, the RFC suggests Plaintiff could tolerate standing and walking throughout
the entire workday so long as there were limits on how long she was doing one before
resorting to the other. Substantial evidence does not support that component of the RFC.
And the error is not harmless: the DOT’s description of each of the representative
occupations indicates they all involve light work, which by definition requires “a good deal
of walking or standing.” 20 C.F.R. § 416.967(b). The vocational expert’s opinion that each
of the representative jobs could be performed with only a half-day’s worth of standing
determine (at step four) whether the claimant can still do their past work given their
limitations. Finally, if the ALJ concludes a claimant cannot perform their prior work, step
five requires the ALJ to determine whether they can do other work considering their RFC,
age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(i-v), (d-e).
7 Plaintiff does not object to the ALJ’s analysis of her other mental and physical
impairments and restrictions. (Doc. 17 at 2.)
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and/or walking presents a conflict with the DOT which was left unresolved. As a result,
the matter must be remanded.
ANALYSIS
This Court reviews the ALJ’s denial-of-benefits decision to determine whether it is
supported by substantial evidence in the record as a whole, and whether the decision was
infected by legal error. 42 U.S.C. § 405(g); Austin v. Kijakazi, 52 F.4th 723, 728 (8th Cir.
2022). Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1138, 1154
(2019) (cleaned up) (further citation omitted); see also Nash v. Comm’r, Soc. Sec. Admin,
907 F.3d 1086, 1090 (8th Cir. 2018) (characterizing “substantial evidence” as “less than a
preponderance, but enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusions”). Courts reviewing ALJ decisions must look to the entire
administrative record to determine whether it contains sufficient evidence to support the
ALJ’s conclusion. Biestek, 139 S. Ct. at 1154; Grindley v. Kijakazi, 9 4th 622, 627 (8th
Cir. 2021). When substantial evidence supports the ALJ’s decision, the Court will not
reverse, even if substantial evidence also supports a contrary outcome. Nash, 907 F.3d at
1089.
I. 	THE ALJ APPROPRIATELY ANALZYED PLAINTIFF’S SUBJECTIVE
COMPLAINTS OF PAIN.
Plaintiff’s first assertion is that the ALJ committed error in evaluating and ultimately
discounting Plaintiff’s testimony about the intensity, persistence, and limiting effects of
her symptoms. An ALJ must consider a Plaintiff’s subjective claims of limiting symptoms
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according to the entirety of the evidence, Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir.
2016), including factors sometimes referred to as the “Polaski factors.” See Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (requiring ALJ to consider (1) the plaintiff’s
daily activities; (2) the duration, frequency, and intensity of the plaintiff’s pain; (3) any
precipitating and aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; 	and 	(5) 	the 	plaintiff’s 	functional 	restrictions). 	This 	aligns 	with 	the
requirements set forth by the SSA in SSR 16-3p. See SSR 16-3p, 2017 WL 5180304, at
*7-8 (S.S.A. Oct. 25, 2017) (discussing the factors an ALJ must use to evaluate the
intensity, persistence, and limiting effects of an individual’s symptoms). An ALJ need not
“explicitly discuss each Polaski factor.” Strongson v. Barhnart, 361 F.3d 1066, 1072 (8th
Cir. 2004) (further citation omitted). But they must, at the least, “acknowledge[] and
consider[] those factors before discounting a claimant’s subjective complaints.” Id.; see
also Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (“This court has long required
an ALJ to consider the [Polaski] factors when evaluating a claimant’s credibility[.]”). If an
ALJ discredits a claimant’s testimony, and gives a good reason for doing so, courts will
generally defer to that ALJ’s credibility findings. Hensley v. Colvin, 829 F.3d 926, 934 (8th
Cir. 2016).
Plaintiff contends that the ALJ’s evaluation of her subjective complaints was
deficient because it did not consider her activities of daily living, and because it
misrepresented Plaintiff’s conservative course of treatment without mention of why
Plaintiff did not more aggressively treat her back and neck ailments. Plaintiff admits that
the ALJ conducted some analysis of her daily activities, but states that none of that analysis
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related to her core contention of limitations with standing and walking. (Doc. 17 at 7-9.)
Plaintiff also contends that the ALJ cherrypicked record evidence to conclude that she
failed to optimize the benefits of treatment for her back and neck pain by missing
appointments and rejecting therapeutic interventions. According to Plaintiff, the ALJ erred
here by not honoring SSR 16-3’s mandate to consider reasons why the claimant might not
have chosen a more aggressive course of treatment. See SSR 16-3, 2017 WL 5180304, at
*9.
Plaintiff is correct that the ALJ found that her statements about “the intensity,
persistence, and limiting effects of [her] symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” (Tr. at 24.) But Plaintiff is incorrect
that the ALJ did not adequately explain his reasoning. First, the ALJ correctly noted that
Plaintiff had reported some benefits from medications. (Tr. at 25.) The records cited by the
ALJ support this conclusion. On February 12, 2021, Plaintiff informed her doctor that she
had significant, persistent back pain, but that “the gabapentin helps some and she is taking
quite a bit of ibuprofen daily as well.” (Tr. at 659.) And during an August 2, 2023
appointment about her neck pain, Plaintiff told her doctor that she gets “some relief from
topical lidocaine,” resulting in Plaintiff’s doctor calling in a prescription for her. (Tr. at
1295.) Plaintiff complains that the ALJ’s few citations paint an incomplete picture of her
medication benefits, and that increasing the aperture to the entire record would reveal
“poorly controlled pain” throughout the disability period. (Doc. 10 at 26.) But the ALJ did
consider other evidence of Plaintiff’s pain, medication use, and medication seeking
behavior. (See Tr. at 23-25 (citing Tr. at 1331 (August 2, 2022 appointment noting
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Plaintiff’s high doses of pain medication and refusing additional medication), Tr. at 1290
(September 1, 2023 appointment noting back pain and prescribing short term prescription
of oxycodone “contingent on patient actively participating in physical therapy”), Tr. at 763
(December 3, 2021 appointment noting Plaintiff was on maximum dose of gabapentin and
was using more than prescribed).) There is no error here.
Additionally, and contrary to Plaintiff’s assertion, the ALJ did not misrepresent the
record regarding Plaintiff’s relationship with physical therapy. It is true that Plaintiff went
to physical therapy once, on September 28, 2023.8 (Tr. at 128-33.) But it is also true, as the
ALJ noted, that the entirety of Plaintiff’s medical records reflect a regular and consistent
pattern of declining physical therapy, despite the recommendation of several providers over
several years. (Tr. at 25 (citing Tr. at 658 (February 15, 2021 treatment notes referring
Plaintiff to physical therapy but indicating Plaintiff would only attend if she received
additional pain medication), Tr. at 644 (April 1, 2021 treatment notes indicating Plaintiff
had previously declined physical therapy), Tr. at 769 (October 21, 2021 treatment notes
indicating referral to physical therapy), Tr. at 1295 (August 2, 2023 treatment notes
indicating Plaintiff referred to physical therapy but refused); see also Tr. at 622 (May 25,
2021 treatment notes that Plaintiff “no showed” for appointment with “physical medicine
and rehab” because she felt she could not walk there).) Additionally, the ALJ referenced a
8 Plaintiff notes that she returned to physical therapy again in November 2023. (Doc. 10 at
9.) This second appointment occurred on November 15, 2023—the day before the ALJ
issued his decision. There is no indication the ALJ was aware of this appointment.
Regardless, treatment notes for this appointment support the notion that Plaintiff was
engaged in conservative treatment, since Plaintiff returned to therapy after “a 48 day gap
in her treatment due to several cancellations.” (Tr. at 137.)
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September 1, 2023 appointment during which Plaintiff’s doctor issued a short term
prescription for oxycodone “contingent on patient actively participating in physical
therapy.” (Tr. at 24 (citing Tr. at 1290).) This supports the inference that the ALJ was aware
that while Plaintiff had not participated in physical therapy for several years of her
disability period, she may be undertaking it soon. Against this backdrop, reversing the ALJ
for failing to identify Plaintiff’s single physical therapy appointment would amount to the
nitpicking not commensurate with this Court’s review of ALJ decisions. See Lane v.
O’Malley, No. 23-1432, 2024 WL 302395, at *1 (8th Cir. Jan. 26, 2024) (per curiam) (“We
decline to nitpick [the ALJ’s] well-reasoned decision.”) (citing Chismarich v. Berryhill,
888 F.3d 978, 980 (8th Cir. 2018) (per curiam)); Rachel H. v. Kijakazi, No. 22-cv-1634
(JRT/DLM), 2023 WL 4374165, at *5 (D. Minn. June 12, 2023) (“The Eighth Circuit
instructs lower courts to ‘harmonize statements where possible,’ and to avoid nitpicking
when reviewing ALJ determinations.”) (quoting Tasha W. v. Berryhill, 17-cv-4933
(KMM), 2019 WL 1170666, at *3 (D. Minn. Mar. 13, 2019)), R. & R. adopted, 2023 WL
4373922 (D. Minn. July 6, 2023).
Likewise, the Court finds no error in the ALJ’s analysis of Plaintiff’s activities of
daily living. There is no requirement that the ALJ conduct an extensive analysis of whether
each and every one of a Plaintiff’s daily activities are consistent (or inconsistent) with the
claims of impairment. On the contrary, an ALJ need not “explicitly discuss each factor,
and we will defer to credibility determinations that are supported by good reasons and
substantial evidence.” Schwandt v. Berryhill, 926 F.3d 1004, 1012 (8th Cir. 2019) (citation
omitted); see also Ross v. O’Malley, 92 F.4th 775, 780 (8th Cir. 2024). Here, the ALJ
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provided several reasons for discounting Plaintiff’s self-assessment. Most notably, that
assessment was inconsistent with the observations of Plaintiff’s medical providers and her
course of treatment. This alone is sufficient to satisfy this Court’s “good reasons and
substantial evidence” review. Accord Schwandt, 926 F.3d at 1012. But the ALJ did, in fact,
detail Plaintiff’s daily activities in his decision. As the ALJ noted, Plaintiff cares for her
dog and cat, cooks, cleans, uses the laundromat, and does other mostly sedentary activities.9
(Tr. at 25, 30; see also Tr. at 1116.) At bottom, Plaintiff’s complaint here does not appear
to be that the ALJ did not consider her activities of daily living, but rather that the ALJ did
not conclude, based on her activities of daily living, that Plaintiff’s testimony must be
credited. But not all Polaski factors must weigh one way or another; a person may well
have mostly sedentary days and still be found to have exaggerated their pain and
symptomology based on other record evidence. Where, as here, that seems to be the case,
the Court defers to the ALJ’s credibility determination.
II. 	THE RFC’S SUGGESTION THAT PLAINTIFF COULD PERFORM JOBS
THAT REQUIRED A COMBINATION OF STANDING OR WALKING
FOR A FULL WORKDAY IS NOT SUPPORTED BY SUBSTANTIAL
EVIDENCE.
Plaintiff next contends that the ALJ’s RFC imposed lesser restrictions on Plaintiff’s
stand and walk abilities than any record evidence would support. Specifically, the ALJ
purported to rely on the expert testimony of Dr. Berger in crafting the RFC. Dr. Berger
opined that Plaintiff could walk only a total of four hours per workday, and could stand for
9 While the ALJ discussed some of these activities in the context of Plaintiff’s mental
limitations, they are nonetheless obviously germane to her physical limitations.
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a total of six hours per workday, but that Plaintiff could only tolerate a combined
stand/walk timeframe of six hours per workday. (Tr. at 19, 188-89.) The RFC, however,
does not clearly reflect the limitation of a combined stand/walk timeframe of six hours per
workday. (Tr. at 17.)
The Commissioner responds with three arguments, none of which carry the day.
First, the Commissioner asserts that the ALJ was not required to adopt Dr. Berger’s
restrictions verbatim, even after finding them persuasive. That is, of course, true. But
divergence is not the issue here; it is unsupported divergence: the Commissioner points to
no record evidence that would have supported the notion Plaintiff could tolerate a
combination of standing and walking for a full workday. Second, the Commissioner
contends that by imposing a “light work” limitation, the ALJ was necessarily limiting
Plaintiff to sitting or standing for a total of six hours of the workday, since that is consistent
with SSR 83-10’s exertional level for “light work.” SSR 83-10, 1983 WL 31251, at *5-6.
But the ALJ did not reference SSR 83-10 in the RFC. Instead, the RFC defined “light work”
by reference to 20 C.F.R. § 416.967(b), which contains no limitation on the amount of time
a person could stand or walk.
Finally, the Commissioner suggests that any error is harmless, since the vocational
expert testified that all three representative jobs could be performed by someone who was
only standing or walking a total of four hours per workday. It is Plaintiff’s burden to
establish an error is harmful by providing some evidence that the ALJ would have decided
differently absent the error. Byers v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012). Plaintiff
has met that burden here. While the vocational expert testified that all three representative
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occupations required only a half-day’s worth of standing and walking, the DOT definition
of those jobs contains no such limitations. And the Eighth Circuit has long held that “before
an ALJ can rely on a vocational expert’s testimony that appears to conflict with a [DOT]
listing, the ALJ must identify and resolve the conflict. Otherwise, the vocational expert’s
testimony is not substantial evidence to support a denial of benefits.” Stanton v. Comm’r,
Soc. Sec. Admin., 899 F.3d 555, 558 (8th Cir. 2018). Here, the ALJ did not resolve the
conflict between the vocational expert’s opinion that all three representative jobs were
available to a person who could only walk or stand half of a workday and the DOT’s
absence of such a limitation.10 As such, it is unclear from the record whether the DOT jobs
identified by the vocational expert would remain available to Plaintiff if the RFC was
properly limited consistent with record evidence. This necessitates remand.
ORDER
Based on the above findings, as well as the files, records, and proceedings above,
IT IS ORDERED that:
1. 	Plaintiff’s request for judgment on the administrative record (Doc. 10) is
GRANTED IN PART and DENIED IN PART;
2. 	Defendant’s request for judgment on the administrative record (Doc. 16) is
GRANTED IN PART and DENIED IN PART; and
3. 	This case is REMANDED to the Commissioner under sentence four of 42
U.S.C. § 405(g), for further administrative proceedings consistent with this
Order.
10 The Court does not fault the ALJ for not identifying and resolving the conflict, here,
since this component of the vocational expert’s testimony did not underpin the ALJ’s
decision.
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DATED: March 9, 2026 	s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
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