Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Gentry M.,
Plaintiff,
v.
Frank Bisignano,
Commissioner of Social Security,1
Defendant.
No. 24-cv-4550 (LMP/DLM)
REPORT AND
RECOMMENDATION
Plaintiff Gentry M. seeks judicial review of the final decision of the Commissioner
of Social Security (“Commissioner”) denying his application for disability insurance
benefits (“DIB”). See 42 U.S.C. § 405(g). This matter is before the Court on the parties’
briefs seeking judgment on the administrative record. (Docs. 7 (Plaintiff’s brief), 9
(Commissioner’s brief).) The case has been referred to the undersigned magistrate judge
for a Report and Recommendation pursuant to 28 U.S.C. § 636 and District of Minnesota
Local Rule 72.1.
Plaintiff asserts that three errors infected his proceedings: (1) the Administrative
Law Judge (“ALJ”) failed to properly evaluate Plaintiff’s hearing testimony; (2) the ALJ
failed to determine whether Plaintiff had been disabled for a closed period from roughly
March 1, 2019 through May 19, 2021; and (3) the ALJ’s determination of Plaintiff’s
Residual Functional Capacity (“RFC”) was unsupported because it did not account for
1 The Court substitutes this Defendant automatically pursuant to Federal Rule of Civil
Procedure 25(d).
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Plaintiff’s use of a cane. Having carefully reviewed the record, this Court finds no error in
the ALJ’s evaluation of Plaintiff’s subjective complaints; substantial evidence supports the
conclusion that Plaintiff was not disabled for the closed period identified above; and the
ALJ appropriately considered Plaintiff’s use of a cane in formulating the RFC.
Accordingly, the Court recommends that judgment be granted for the Commissioner.
BACKGROUND
On April 13, 2023, Plaintiff applied for DIB2 alleging that he had been disabled
since March 1, 2019. (Tr.3 at 10, 167-68.) The Social Security Administration (“SSA”)
denied his claim initially (Tr. at 91-95), and upon reconsideration (Tr. at 97-100). Plaintiff
then timely requested a hearing before an ALJ. (Tr. at 105-06.) The ALJ held a hearing on
August 21, 2024. (Tr. at 34-64.) Counsel represented Plaintiff at the hearing, and Plaintiff
testified on his own behalf. (Tr. at 40-57.) A vocational expert also testified at the hearing,
answering questions posed both by the ALJ and Plaintiff’s attorney. (Tr. at 57-63.)
On September 4, 2024, the SSA sent Plaintiff notice of its unfavorable decision. (Tr.
at 7-9 (notice), 10-20 (decision).) The ALJ found that Plaintiff suffered from a number of
severe impairments, including arthritis of the knees with bilateral knee replacements;
2 In his brief, Plaintiff asserts that he filed concurrent applications for DIB as well as
Supplemental Security Income (“SSI”). (Doc. 7 at 4.) However, Plaintiff cites only to the
ALJ’s decision for this proposition, and that decision makes clear that Plaintiff only filed
for DIB benefits. (Tr. at 10.) On this Court’s independent review, there appears to be no
evidence that Plaintiff made application for SSI benefits. Regardless, the Court’s analysis
and conclusions would be the same as to SSI benefits.
3 The Commissioner filed the consecutively paginated transcript of the administrative
record on February 14, 2025. (Doc. 5.) For ease of reference, citations to the transcript will
identify the page number listed on the lower right corner of the document rather than the
exhibit number.
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arthritis of the right hip; degenerative disc disease of the lumbar spine; chronic pain
syndrome; and left plantar fasciitis. (Tr. at 12-13.) The ALJ also considered Plaintiff’s
other impairments, including vitreous degeneration of his eyes, myopia, and a lipoma of
the right shoulder, but determined these were not severe because they were either
adequately treated or did not cause more than a minimal limitation in the ability to perform
work. (Tr. at 13.)
Despite Plaintiff’s impairments, the ALJ found he was not disabled. (Tr. at 19-20.)
In doing so, the ALJ determined that Plaintiff retained the RFC4 to perform light work5
with the following additional limitations: standing and/or walking only 4 hours in an 8-
hour day; no crawling or climbing ladders, ropes or scaffolds; only occasional balancing,
stooping, kneeling, crouching, and climbing ramps and stairs; only occasional exposure to
extreme cold, wetness, and vibration; and no exposure to unprotected heights and
dangerous moving machinery. (Tr. at 14.) The ALJ credited the testimony of the vocational
expert that with these limitations, Plaintiff could still perform jobs in the national economy,
including as a storage facility rental clerk (Dictionary of Occupational Titles (“DOT”) No.
295.367-026), mail clerk (DOT No. 209.687-026), and parking lot attendant (DOT No.
915.473-010). (Tr. at 19, 59.)
4 “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).
5 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.”
20 C.F.R. § 404.1567(b).
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Plaintiff appealed the ALJ’s decision to the SSA’s Appeals Council, but the Appeals
Council denied his request for review on October 23, 2024 (Tr. at 1-6), making the ALJ’s
determination the final decision of the Commissioner. Plaintiff then filed this lawsuit
seeking judicial review of the SSA’s decision.
Plaintiff does not contest that the ALJ followed the five-step sequential process laid
out in 20 C.F.R. § 404.1520(a)(4) for evaluating DIB claims.6 Rather, he asserts the ALJ
committed reversible errors by failing to properly evaluate Plaintiff’s testimony as elicited
at the administrative hearing, and by failing to consider whether Plaintiff qualified for
benefits for a 12-month or longer time starting from March 1, 2019 through May 19, 2021.
Finally, Plaintiff asserts that the ALJ crafted an unsupported RFC because it did not
account for his use of a cane to ambulate.
DISCUSSION
This Court reviews an 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 is
infected by legal error. 42 U.S.C. § 405(g); Austin v. Kijakazi, 52 F.4th 723, 728 (8th Cir.
6 Step one of this process involves determining whether a claimant is engaged in substantial
gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i). 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. Id. §§ 404.1520(a)(4)(ii). At step three, an ALJ determines whether the
claimant’s impairments are severe enough to equal a listed impairment under Appendix 1
to Subpart P of Part 404. Id. §§ 404.1520(a)(4)(iii). If so, the claimant is considered
disabled without further inquiry. If not, the ALJ must determine the claimant’s RFC and
decide (at step four) whether the claimant can still do their past work given their limitations.
Id. §§ 404.1520(a)(4)(iv). 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. Id. §§ 404.1520(a)(4)(v).
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2022). Substantial evidence means “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019)
(internal quotations omitted); see also Nash v. Comm’r, Soc. Sec. Admin, 907 F.3d 1086,
1089 (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 decide whether it contains sufficient evidence to support the ALJ’s conclusion.
Grindley v. Kijakazi, 9 F.4th 622, 627 (8th Cir. 2021). If 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. But if an ALJ uses the wrong legal standard or
incorrectly applies the law, those may be reversible legal errors. Joel M. B. v. Kijakazi, No.
21-cv-1660 (PAM/ECW), 2022 WL 1785224, at *2 (D. Minn. June 1, 2022) (citing Collins
v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011)); Michael B. v. Kijakazi, No. 21-cv-1043
(NEB/LIB), 2022 WL 4463901, at *1 (D. Minn. Sept. 26, 2022). “In other words, there are
two standards a court uses: whether the ALJ followed applicable federal regulations (a
legal error challenge requiring a legal error review), and whether substantial evidence
supports the ALJ’s conclusions (a substantial evidence challenge requiring a substantial
evidence review).” Branson A. L. v. Kijakazi, No. 23-cv-15 (MJD/DLM), 2023 WL
9111437, at *5 (D. Minn. Nov. 7, 2023), R. & R. adopted, 2024 WL 69945 (D. Minn. Jan.
5, 2024).
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I. THE ALJ PROPERLY EVALUATED PLAINTIFF’S HEARING
TESTIMONY.
Plaintiff first asserts that the ALJ committed error in evaluating and ultimately
discounting his testimony about the intensity, persistence, and limiting effects of his
symptoms. He concedes that the ALJ summarized the governing law, but asserts the ALJ’s
decision did little to actually evaluate Plaintiff’s complaints by reference to those legal
principle and instead was a “conclusory statement” that Plaintiff was overstating his
limitations. (Doc. 7. at 12-17.) For his part, the Commissioner contends that the ALJ need
not mechanistically recite and analyze every morsel contained in the record so long as the
RFC based on substantial evidence. (Doc. 9 at 8-13 (citing SSR 96-8p, 1996 WL 374184
(S.S.A. July 2, 1996).)
In a sense, the Commissioner is right—an ALJ must, of course, consider all relevant
evidence in determining a person’s RFC. But that does not end matters. Part of that
responsibility includes the ALJ’s distinct obligation to consider a Plaintiff’s subjective
claims of limiting symptoms according to 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). To the extent
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that the Commissioner is suggesting that an ALJ satisfies their obligation to consider the
accuracy of a person’s subjective complaints by merely crafting an RFC supported by
substantial evidence, that is wrong. After all, the substantial-evidence test assumes a proper
evaluation of record evidence—a determination of what evidence should be credited and
what should be disregarded—before relying on that evidence to determine a person’s RFC.
Of course, it is just as true that an ALJ need not “explicitly discuss each Polaski
factor.” Strongson v. Barhnart, 361 F.3d 1066, 1072 (8th Cir. 2004). 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[.]”). And if the ALJ discredits a claimant’s testimony, and give 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).
In his brief, Plaintiff identifies the many physical ailments he testified about at his
hearing: his back, hip and knee pain have forced him to have multiple surgeries that include
a patella fracture repair, an ACL repair, an MCL repair, discectomy, and a total right hip
arthroplasty; he is likely to be facing a left hip replacement soon, as well as a back fusion
surgery; and he is essentially immobile until his medication takes effect each day. (Tr. at
43-48.) Plaintiff also testified that he uses a knee brace and a cane, and that he applies ice
to his knees until they are completely numb each day. (Tr. at 49-53.) The ALJ recognized
these complaints, as well as others to which Plaintiff testified: his inability to drive long
distances; his inability to squat or kneel; his inability to get comfortable; locking of knee
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joints; the difficulty in concentrating that was caused by Plaintiff’s constant pain; and the
fact that he was confined to his house—sometimes his bed—once or twice a week due to
pain. (Tr. at 15-16.)
Plaintiff is correct that the ALJ found that his statements about “the intensity,
persistence, and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence in the record.” (Tr. at 16.) But Plaintiff is incorrect
that the ALJ did not adequately explain his reasoning. Specifically, the ALJ noted that
Plaintiff’s evidence was reviewed by two state agency medical consultants, both of whom
opined that Plaintiff’s limitations were less severe than Plaintiff’s own description. (Tr. at
16; see also Tr. at 65-72, 74-80 (state agency disability determinations).) Next, the ALJ
detailed at length Plaintiff’s ailments and medical interventions, noting Plaintiff’s ongoing
improvements since the onset date (at least until a fall in 2022). (Tr. at 16-17.) More
precisely, Plaintiff testified that by 2021 he was experiencing debilitating pain that had
progressed so severely that he “absolutely” could not leave the house (Tr. at 57), but
treatment notes from that time frame suggest otherwise. During a January 20, 2021 doctor
visit, Plaintiff reported doing well, not using a cane, and having “immensely better” pain
levels post-hip surgery. (Tr. at 657.) Treatment notes from May of 2021 also indicate
Plaintiff was self-reporting that his pain control was improving and that he was no longer
using a cane for ambulation. (Tr. at 601.) The ALJ referred to such notes (Tr. at 17), leading
the Court to conclude that he was relying on such medical evidence to determine that
Plaintiff’s complaints were overstated
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Plaintiff criticizes the ALJ’s evaluation as superficial. But the Court’s role on review
is not to nitpick what could have been clearer or more thorough in an ALJ’s decision; it is
to ask whether the ALJ followed the governing law and reached a decision that can be
reasonably harmonized with itself and the evidence. 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). The ALJ’s evaluation comported with SSR 16-3p and was supported by substantial
evidence, leaving no room for reversal on this basis.7
II. SUBSTANTIAL EVIDENCE SUPPORTS THE DETERMINATION THAT
PLAINTIFF DID NOT QUALIFY AS DISABLED FOR A CLOSED 12-
MONTH PERIOD FROM MARCH, 2019 THROUGH MAY, 2021.
Plaintiff asserts that even if he were not entitled to benefits during the entire period
beginning on his March 1, 2019 onset date, there is a “clearly defined closed period of
7 While not dispositive, the Court also pauses to note that the ALJ did not blindly rely on
the state agency opinions in determining Plaintiff’s limitations. Rather, the ALJ imposed
greater RFC restrictions based on his independent review of the overall record, “including
taking into account the claimant’s subjective statements.” (Tr. at 16.) This lends further
credence to the notion that the ALJ’s review of evidence was thorough as it related to
Plaintiff’s subjective complaints.
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disability from March 1, 2019 through May 19, 2021” during which Plaintiff was disabled.
(Doc. 7 at 23.) Plaintiff alleges that during this timeframe, he needed to use a cane and
would have excessive absences that the ALJ did not account for, and that these hindrances
would make him unable to work. (Id.)
A disability determination “is not an ‘all or nothing’ proposition; a claimant who is
not entitled to continuing benefits may well be eligible to receive benefits for a specific
period of time.” Harris v. Sec’y of Dep’t of Health & Human Servs., 959 F.2d 723, 724
(8th Cir. 1992). A grant of closed-period benefits requires evidence that the claimant is
unable to engage in substantial gainful activity for at least 12 continuous months. 42 U.S.C.
§ 423(d)(1)(A); see also Devary v. Colvin, 5 F. Supp. 3d 1023, 1032 (N.D. Iowa 2014).
On substantial-evidence review, the Court finds no error in the ALJ’s failure to grant
closed-period benefits. Treatment notes from March of 2019 indicate that Plaintiff, then
post-surgery for left knee replacement, was “nearly back to normal” and not taking pain
medication. (Tr. at 761-62.) During a May 21, 2019 checkup, Plaintiff noted knee and hip
pain, but some improvement. (Tr. at 756-57.) While Plaintiff’s knee and hip pain appears
to have worsened as time went on, during a December 3, 2019 doctor’s visit he was
unaccompanied and walked to the patient room without any assistive device (such as a
cane). (Tr. at 749-54.) And while in May of 2020 Plaintiff used a cane “for all mobility”
(Tr. at 734), by December of 2020 he was not using a cane to get around (Tr. at 668-69).
Taken together, these notes suggest that Plaintiff certainly has suffered significant mobility
issues through the disability period, but that the ALJ’s description of those problems
“waxing and waning” (Tr. at 16) was apt, at least as to the closed period Plaintiff identifies.
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Because substantial evidence supports the conclusion that Plaintiff was not disabled for a
continuous, 12-month period between March 1, 2019 and May 19, 2021, the Court finds
no error in the denial of benefits for this term.
III. THE ALJ PROPERLY EVALUATED PLAINTIFF’S USE OF A CANE IN
FORMULATING HIS RFC.
The Court finally addresses Plaintiff’s assertion that the ALJ erred in formulating
the RFC because he did not consider whether Plaintiff needed to use a cane to ambulate.
(Doc. 7 at 17-22.) The Commissioner, for his part, asserts that it was Plaintiff’s burden to
demonstrate that the use of a cane was medically necessary, and that in any event the ALJ’s
analysis indicates that he fully considered Plaintiff’s cane use in formulating the RFC.
(Doc. 9 at 13-19.)
It is Plaintiff’s burden to establish that her RFC should have included greater
limitations than imposed by an ALJ. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). The question before the Court is whether a reasonable mind could accept that no
such limitations are necessary on this record, as the ALJ found. Biestek, 587 U.S. at 102-
03. In considering this question, the Court does not substitute its own judgment for that of
the ALJ by reweighing the evidence; instead, it must consider evidence that supports and
detracts from the ALJ’s decision and affirm the ALJ’s decision where “it is possible to
draw two inconsistent positions from the evidence and one of those positions represents
the ALJ’s findings.” Milam v. Colvin, 794 F.3d 978, 983 (8th Cir. 2015) (quoting Perkins
v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011)).
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An ALJ is required to consider a claimant’s use of a cane in formulating the RFC
where there is evidence such use is medically required. SSR 96-9p, 1996 WL 374185, at
*6-*7 (S.S.A. July 2, 1996). A cane will be deemed medically required where there is
“medical documentation establishing the need for a hand-held assistive device to aid in
walking or standing, and describing the circumstances for which it is needed.” Id., 1996
WL 374185, at *7.
After a careful review of the record, the Court cannot agree with Plaintiff that the
RFC formulation did not properly consider Plaintiff’s use of a cane. It is true, as Plaintiff
notes, that after a period of improvement and ambulation without a cane, he returned to
cane use after a fall in February of 2022. (Tr. at 1045.) It is also true that this cane use
continued for some time. (See, e.g., Tr. at 1043 (March, 2, 2202 treatment note indicating
use of single-point cane).) But the ALJ noted as much in his decision. (See Tr. at 17.) And
as time went on, treatment notes make no mention of cane use. (See, e.g., Tr. at 1032-33
(October 7, 2022 consult for orthotics); Tr. at 1031 (January 5, 2023 fitment for orthotics,
noting Plaintiff’s gait); Tr. at 493 & 1021 (September 15, 2023 visit noting Plaintiff’s
antalgic gait without mention of cane use; also noting ability to transition from seated to
standing without assistance); Tr. at 1009-10 (November 7, 2023 visit with no indication of
cane use).) This aligns with Plaintiff’s own testimony at his hearing before the ALJ.
Plaintiff endorsed using a cane, but when asked by his attorney, “is using the cane a daily
thing?” Plaintiff answered, “No sir.” (Tr. at 53.)
Given this record, the Court cannot fault the ALJ for failing to find Plaintiff’s cane
use medically necessary. Rather, substantial evidence supports the ALJ’s conclusion that
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Plaintiff’s cane use was periodic and often episodic. To the extent that Plaintiff’s cane use
signaled physical impairments, the RFC reflected as much through its postural and
exertional limitations. As such, the Court finds no error in the ALJ’s refusal to single out
Plaintiff’s use of a cane in the RFC in a more fulsome manner than was done.
RECOMMENDATION
Based on the above, as well as the files, records, and proceedings in this case, IT IS
RECOMMENDED that:
1. Plaintiff’s request for judgment on the administrative record (Doc. 7) be
DENIED; and
2. Defendant’s request for judgment on the administrative record (Doc. 9) be
GRANTED.
DATED: January 9, 2026 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge
NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed findings and recommendations within 14 days
after being served with a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).
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