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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
September L.,
Plaintiff,
v.
Frank Bisignano,1
Commissioner of Social Security,
Defendant.
Case No. 25-cv-00331 (LMP/ECW)
REPORT AND RECOMMENDATION
This matter is before the Court on September L.’s (“Plaintiff”) Complaint seeking
judicial review of a final decision by the Commissioner of Social Security (“the
Commissioner”) denying her application for disability insurance benefits (“DIB”). (See
generally Dkt. 1.) Plaintiff has filed a brief asking the Court to vacate the denial of
benefits by the Commissioner and remand this case to the Commissioner for further
proceedings.2 (See Dkt. 8.)
1 	The Complaint named Leland Dudek, who was the Acting Commissioner of the
Social Security Administration when Plaintiff filed her Complaint. (See Dkt. 1.) Frank
Bisignano became the Commissioner of Social Security on May 7, 2025. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, Frank Bisignano has been substituted
as the defendant in this suit. No further action need be taken to continue this suit by
reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C.
§ 405(g).
2 	As of December 1, 2022, Social Security Actions under 42 U.S.C. § 405(g) are
“presented for decision on the parties’ briefs,” rather than summary judgment motions.
Supplemental Rules for Social Security Actions under 42 U.S.C. § 405(g), Rule 5.
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The Commissioner has filed a brief opposing Plaintiff’s request for relief and
asking the Court to affirm the Commissioner’s decision. (Dkt. 10.) Plaintiff then filed a
reply in support of her request for remand. (Dkt. 11.)
For the reasons stated below, the Court recommends granting Plaintiff’s request
for remand of the Commissioner’s decision (Dkts. 8, 11) and denying the
Commissioner’s request (Dkt. 10) for dismissal of the Complaint.
I. 	BACKGROUND
Plaintiff protectively filed an application for DIB on April 30, 2020 alleging that
her disability began on September 30, 2017. (R. 14, 278-80, 281-82).3 Plaintiff claimed
disability due to her back issues, low back pain, chronic Lyme disease, and Grierson-
Gopalan Syndrome (pain in feet). (R. 367.) 	Her claim was denied initially and on
reconsideration. (R. 109, 130.) Plaintiff requested a hearing, and on February 25, 2022,
Plaintiff appeared for hearing before Administrative Law Brenda Rosen (“ALJ Rosen”).
(R. 43-89.)
On May 4, 2022, ALJ Rosen issued an unfavorable decision, finding that Plaintiff
was not disabled (R. 14-28), and the Appeals Council denied Plaintiff’s request for
review on March 20, 2023. (R. 1-4).
On November 9, 2023, the District Court for the District of Minnesota issued an
Order for Remand on a Joint Stipulation for Remand, ordering that:
On remand, the case will be remanded to an Administrative Law Judge who
will acquire additional vocational evidence, at a new hearing and/or via
interrogatories; resolve any conflicts between the vocational testimony and
3 	The Social Security Administrative Record (“R.”) is available at Docket 6.
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the Dictionary of Occupational Titles, per Social Security Ruling 00-4p; and
issue a new decision.
(R. 1306-07, 1317 (Case No. 23-cv-1392 (KMM/ECW).)
The Appeals Council remanded accordingly on December 20, 2023. (R. 1318-19.)
The Appeals Council ordered that on remand, the ALJ was to:
Obtain supplemental evidence from a vocational expert to clarify the effect
of the assessed limitations on the claimant’s occupational base (Social
Security Rulings 83-14). The hypothetical questions should reflect the
specific capacity/limitations established by the record as a whole. The
Administrative Law Judge will ask the vocational expert to identify examples
of appropriate jobs and to state the incidence of such jobs in the national
economy (20 CFR 404.1566). Further, before relying on the vocational
expert evidence, the Administrative Law Judge will identify and resolve any
conflicts between the occupational evidence provided by the vocational
expert and information in the Dictionary of Occupational Titles (DOT) and
its companion publication, the Selected Characteristics of Occupations
(Social Security Ruling 00-4p).
(R. 1320-22).
On September 23, 2024, Plaintiff appeared for a hearing before Administrative
Law Judge Stanley Chin (“the ALJ” or “ALJ Chin”), who also took testimony from a
vocational expert (“VE”). (R. 1259-74.) The ALJ issued an unfavorable decision on
September 30, 2024, finding Plaintiff was not disabled. (R. 1238-50.)
Following the five-step sequential evaluation process, the ALJ first determined at
step one that Plaintiff had not engaged in substantial gainful activity since the alleged
onset date of September 30, 2017, through her date last insured of June 30, 2023. (R.
1241.)
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At step two, the ALJ determined that Plaintiff had the following severe
impairments: degenerative disc disease; neuropathy; fibromyalgia; Lyme’s disease;
burning foot syndrome; and arthritis in her feet. (R. 1241.)
At the third step, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. (R. 1242.)
At step four, after reviewing the entire record, the ALJ concluded that Plaintiff had
the residual functional capacity (“RFC”) to:
[P]erform sedentary work as defined in 20 CFR 404.1567(a) except the
claimant can lift and carry ten pounds; stand and/or walk for two of eight
hours; and sit for six of eight hours. The claimant can occasionally climb
ladders, ropes, and scaffolds. The claimant can frequently climb ramps and
stairs, balance, stoop, kneel, crouch, and crawl. The claimant can have
occasional exposure to extreme heat and cold, wetness, humidity, vibration
and occasional exposure to moving mechanical parts and unprotected
heights.
(R. 1244.)
The ALJ concluded, based on the above RFC, and the testimony of the vocational
expert, that Plaintiff could not perform past relevant work as a mail carrier. (R. 1247-48.)
The ALJ also determined that given Plaintiff’s age, education, work experience, and
RFC, there were other jobs that existed in significant numbers in the national economy
that she could perform, including:
• 	Preparer, which has a Dictionary of Occupational Titles (DOT) code of 700.687-
062, 	and 	is 	sedentary, 	unskilled 	work 	with 	a 	SVP 	of 	2, 	and 	there 	are
approximately 11,000 such jobs in the national economy;
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• 	Touch up inspector, which has a DOT code of 726.684-110, and is sedentary,
unskilled work with a SVP of 2, and there are approximately 11,000 such jobs
in the national economy; and
• 	Polisher, which has a DOT code of 713.684-038, and is sedentary, unskilled
work with a SVP of 2, and there are approximately 8,500 such jobs in the
national economy.
(R. 1249.)
Accordingly, the ALJ deemed Plaintiff not disabled from September 30, 2017, the
alleged onset date, through June 30, 2023, the date last insured. (R. 1249-50.)
Plaintiff then commenced this action for judicial review. (Dkt. 1.)
The Court has reviewed the entire administrative record, giving particular
attention to the facts and records the parties cited. The Court will recount the facts of
record to the extent they are helpful for context or necessary for resolution of the specific
issues presented in the parties’ motions.
II. 	RELEVANT RECORD
On August 11, 2017, Plaintiff was seen for several complaints, including
depression as the result from the loss of her father. (R. 414-15, 598.) Plaintiff also had a
history of posttraumatic distress disorder (“PTSD”). (R. 415.) Plaintiff hoped to get
back on medication for her depression and reported taking Prozac in the past that had
worked well. (R. 415.) Plaintiff also complained of tailbone pain and some pain in her
muscle and joints, as well as fatigue. (R. 415.) Plaintiff represented that she was
working as a mail carrier at the time, but had thought about quitting due to the pain. (R.
415.) Plaintiff was concerned about Lyme’s disease. (R. 415.) The examination of
Plaintiff’s neck showed it was supple. (R. 417.) Plaintiff’s mood and affect were
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appropriate. (R. 417.) Plaintiff was given Prozac and medication to aid with her sleep.
(R. 417.) Plaintiff was also suspected to have fibromyalgia based on her symptoms. (R.
418.)
On October 3, 2018, Plaintiff was seen due to swollen glands. (R. 431.)
Plaintiff’s examination showed that she had good range of motion of her neck. (R. 432.)
On October 29, 2018, Plaintiff was seen for her ongoing myalgias. (R. 439, 580.)
Plaintiff underwent a CT scan for her neck, which was negative for abnormalities. (R.
439-40.) Plaintiff was not in any acute distress and her neck was supple upon
examination. (R. 441.)
On December 19, 2018, Plaintiff reported that her back injections for pain, which
had provided her with relief, were wearing off, and she was looking for an additional
injection. (R. 576.)
On January 23, 2019, Plaintiff reported no pain relief from her January 1, 2019
back injections, which was depressing to her, and that the pain continued to radiate into
her legs. (R. 576.)
On March 1, 2019, Plaintiff’s mood and affect were appropriate. (R. 572.)
On April 26, 2019, Plaintiff was seen on an orthopedic consult. (R. 948.) Plaintiff
complained of her back pain, but denied any radicular symptoms. (R. 948.) Plaintiff had
used Tylenol for pain relief. (R. 948.) Plaintiff also stated that she had received facet
injections in October of the previous year, which gave her some good symptomatic relief
for several months, but that her more recent injections in January provided her with no
relief of her symptoms. (R. 948.) She had done physical therapy as well as chiropractic
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care with only temporary symptomatic relief. (R. 948.) Plaintiff’s examination showed
she had a normal affect and no neck deformities were noticed. (R. 949.) Plaintiff’s
lumbar spine examination showed good posture, she had a normal gait, and palpitation of
the spine did not reveal any areas of significant muscle tenderness or spasms. (R. 949.)
Her lumbar range of motion was without significant inhibition, and her lower extremity
strength was normal with intact sensation. (R. 949, 950.) In addition, her sacroiliac and
hip examinations were negative. (R. 949.) The impression by the provider was low back
pain likely caused by muscle spasms, without significant changes in the imaging that
would cause her pain. (R. 950.) Plaintiff was given a referral to pain management. (R.
950.)
On June 4, 2019, Plaintiff was seen for her back pain. (R. 564-65.) Plaintiff
maintained she was able to play tennis, although an intense game could make her pain
worse. (R. 565.) Her mood and affect were normal on examination. (R. 567.) Spine
alignment was normal; Plaintiff had no focal tenderness along the lumbar spine but focal
tenderness over the left piriformis; her range of motion was full, but with pain; and there
was no instability or subluxation. (R. 567.) Plaintiff had an altered gait and back pain
due to hip flexion tightness. (R. 568.) Plaintiff was prescribed with physical therapy and
Baclofen as a muscle relaxer. (R. 568.)
During a June 25, 2019, physical therapy session, Plaintiff reported playing tennis
in the morning and rated her back pain at a 5 out of 10. (R. 554.)
On July 9, 2019, Plaintiff reported no pain in her hips since having a hip flexor
release. (R. 546.) Plaintiff reported not playing tennis after having surgery on her left
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calf for melanoma, as the sutures were still in place. (R. 546.) Plaintiff reported her
walking had improved. (R. 546.) Her hobbies included tennis and yard work. (R. 546.)
On July 16, 2019, Plaintiff was seen for a follow-up regarding her lower back
pain. (R. 538.) Plaintiff agreed to under sacroiliac joint injections to alleviate her lower
back pain, as she had received no relief from injections in the lumbar region. (R. 538-
39.) Lumbar flexion was negative for pain reproduction, but lumbar extension appeared
to create moderate pain over the bilateral mid to lower lumbar spine. (R. 540.)
Plaintiff’s psychiatric examination showed that her recent and remote memory were
intact. (R. 540.) Diagnosis for Plaintiff was chronic bilateral low back pain with left-
sided sciatica into the left anterior thigh when pain is most severe in her back, hip flexor
tightness, sacroiliitis, lumbar facet arthropathy, and an altered gait. (R. 540.) Plaintiff
was to trial with Baclofen to see if that helped with her back pain. (R. 541.)
On July 19, 2019, Plaintiff demonstrated poor posture, decreased range of motion,
weakness, and an altered gait during physical therapy. (R. 535.) Plaintiff reported she
had not been playing tennis due to her recent surgery to her left calf, but had been
swimming. (R. 535.)
On July 24, 2019, Plaintiff did not endorse a depressed mood. (R. 533.)
On July 30, 2019, Plaintiff underwent imaging on her lumbar spine that showed no
compression deformities or subluxations, mild generative disc disease, and a hypertrophic
change in the lower thoracic spine and disc space narrowing at L5-S1. (R. 529.) The
findings were characterized as “Nothing acute.” (R. 529.) Plaintiff underwent a lumbar
facet injection. (R. 530.) Her gait showed hip tightness. (R. 530.) Plaintiff’s lumbar
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range of motion showed that her flexion was within normal limits, she showed significant
limitation with increased pain on extension, moderate limitation on rotation and bending,
and she was unable to glide. (R. 530.) Plaintiff’s strength to her lower extremities was
normal. (R. 530.)
On September 20, 2019, Plaintiff was seen for her back pain and a sacroiliac joint
injection, which provided her no benefit. (R. 523-24.) Plaintiff had been taking Baclofen
with no relief. (R. 523.) Plaintiff displayed a non-antalgic, non-ataxic, and mildly wide-
based gait pattern with increased anterior pelvic rotation. (R. 525.) Use of steroid
injections and a TENS unit was discussed, and Plaintiff was to take ibuprofen for muscle
pain. (R. 525.)
On September 30, 2019, Plaintiff was seen for osteopathic manipulation in
conjunction with her lower back pain. (R. 519.) Plaintiff’s examination showed her gait
was normal, she had full sensation to touch, and she had full strength to her upper and
lower extremities bilaterally. (R. 520.)
On October 15, 2019, Plaintiff as seen related to her back pain and claimed no
relief from her treatment. (R. 516-17.) Plaintiff’s examination showed her gait was
normal, she had full sensation to touch, and she had full strength to her lower extremities
bilaterally. (R. 517.) 	Plaintiff was to continue using conservative measures for the relief
of pain. (R. 517.)
On November 7, 2019, Plaintiff was seen with complaints of a “2-1/2-year history
of episodic low back pain” that she described as “locking up.” (R. 1010.) 	She claimed
episodic back pain extending into the left anterior thigh, occurring multiple
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times per day, lasting anywhere from several minutes to hours to multiple days in
duration. (R. 1010.) Onset of pain seemed to be triggered with prolonged standing and
forward flexion maneuvers, but asserted that symptoms could be triggered by essentially
any position or any activity. (R. 1010.) Pain increased especially with standing and
forward bending, and increased with prolonged sitting, walking, lying down, bending,
lifting, sleeping, and driving. (R. 1010.) Plaintiff was taking NSAIDs for pain. (R.
1011.) Plaintiff exercised 5 days a week by playing tennis, walking, and biking. (R.
1011.) Plaintiff had a depressed mood. (R. 1011.) Lumbar spine range of motion was
mildly reduced in forward flexion. (R. 1012.) Lumbar extension was also reduced with
reproduction of low back pain. (R. 1012.) Plaintiff’s strength was normal and sensation
to light touch was present. (R. 1012.) Hip rotation was within normal limits. (R. 1012.)
There was no evidence of radicular symptoms. (R. 1012.) Physical therapy was
prescribed, and lumbar facet injections were discussed. (R. 1012.)
On December 10, 2019, Plaintiff was seen for her neck pain. (R. 513.) Plaintiff
complained that she had been experiencing neck pain, which had been lasting for about a
month. (R. 513.) Pain was made worse with certain positions, such as extension, and felt
better with not moving. (R. 513.) Plaintiff had tried some heat as well as chiropractic
work on multiple occasions with minimal relief. 	(R. 513.) Pain did not radiate from the
neck. (R. 513.) Plaintiff denied any lower extremity weakness or an unsteady gait. (R.
513.) Plaintiff’s examination showed that her cervical range of motion was intact as it
related to flexion and extension, as well as side bending and rotation; her gait was
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normal; she had full sensation to touch; and she had full strength to her upper extremities
bilaterally. (R. 512-13.)
On December 17, 2019, Plaintiff was seen for her chronic bilateral low back and
left anterior thigh pain. (R. 506.) Most activities made her pain worse. (R. 506.)
Standing was worse than sitting. (R. 506.) A TENS unit was helpful and allowed her to
grocery shop and walk for over an hour. (R. 506.) Walking at a regular pace did not
worsen her pain. (R. 506.) Plaintiff had been taking Baclofen with no relief. (R. 506.)
Plaintiff’s mood and affect were normal upon examination. 	(R. 508.) It was noted that
Plaintiff’s September 20, 2018 imaging of Plaintiff’s lumbar spine was significant for
mild facet arthropathy at L4-L5 and L5-S1, disc degeneration at L4-5 and L5-S1 with
midline disc protrusion in the L4-5 disc, and broad-based disc bulge at L5-S1 with small
right paramedian annular fissure at this level. (R. 508.) The plan for Plaintiff included
an increase of pregabalin with respect to the burning in her feet, proceeding with an
epidural steroid injection, consideration of future diagnostic medial branch blocks for her
back, and consideration of a future trial of a spinal cord stimulator for discogenic low
back pain if she failed other conservative treatment options. (R. 508.)
On February 6, 2020, Plaintiff was seen for an initial examination related to her
physical therapy for her lower back. (R. 989.) Plaintiff rated her pain at 3 out of 10. (R.
989, 994.) Plaintiff’s goals were to cook without pain, go to church (because she
reported it was hard to sit and stand), play tennis longer than 30 minutes, sit longer than
30 minutes, and to stand longer than 6 minutes without pain. (R. 988.) As to her lumbar
range of motion, she could forward bend to the point where she could touch her feet;
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backward bending was 25%, right rotation was at 75%, left rotation was at 75%, right
side bending was at 50%, and left side bending was at 50%. (R. 989.) Her worst pain
was with extension, and she only had pain with flexion at about 10% (once past that point
she experienced less pain). (R. 989.) Plaintiff’s rehabilitation potential was
characterized as good. (R. 990.)
On February 5, 2020, Plaintiff saw Joel Baumgartner, MD, for her lumbar pain.
(R. 494.) Plaintiff’s pain started from her employment, and was located in the midline
lumbar and increased with bending, standing, bending, walking, swimming, and sleeping.
(R. 494.) Pain was relieved by sitting down. (R. 494.) Plaintiff noted that she had seen
other doctors, and they recommended having a lumbar fusion, which she wanted to avoid.
(R. 494.) Her physical activity included tennis. (R. 494.) Lower extremity strength was
normal. (R. 495.) There was tenderness was over the iliac crest and left paraspinous
muscles, with no tenderness over the sacroiliac joint. (R. 495.) The MRI showed lumbar
degenerative disc disease, and she was prescribed with a brace. (R. 495.)
On February 12, 2020, Plaintiff was again seen for her lumbar pain. (R. 491.)
Plaintiff reported no changes in symptoms, continuing to have bilateral low back pain
along the belt line. (R. 491.) Plaintiff rated her pain 4 out of 10. (R. 491.) The
examination of Plaintiff showed that she was not in any acute distress, she had an
appropriate mood and affect, lower extremities were normal as to sensation, and she
experienced tenderness on palpation in lumbar region. (R. 491-92.) Plaintiff was given a
neural block injection. (R. 492.)
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On February 19, 2020, Plaintiff reported exercising by biking and playing tennis
5-7 times per week for about 30-60 minutes at a time. (R. 484-85.) Plaintiff also
reported no improvement from the neural block injection. (R. 488.) Plaintiff rated her
pain as 3 out of 10. (R. 488.) Plaintiff underwent another neural block. (R. 489.)
During a March 3, 2020 appointment, Plaintiff noted that she had been off
medications for her depression for two years after the death of her father. (R. 478.) She
claimed that her medications did not help and caused her nightmares. (R. 478.) 	Her
mood and affect showed a full range. (R. 480.)
On March 4, 2020, Plaintiff considered a back brace for her back pain, but rejected
it because it was uncomfortable. (R. 476.)
On March 24, 2020, Plaintiff received a plasma rich platelet (“PRP”) regenerative
injection for her lumbar pain. (R. 470.)
On March 31, 2020, Plaintiff was seen for telehealth physical therapy, related to
her lower back pain. (R. 979-83.) As to her lumbar range of motion, she could do
forward bending to the point where she could touch her feet; backward bending was 25%,
right rotation was at 75%, left rotation was at 75%, right side bending was at 50%, and
left side bending was at 50%. (R. 979.)
On July 16, 2020, Plaintiff reported exercising 5 to 7 times a week, involving
biking or tennis for 30-60 minutes at a time. (R. 740.) Plaintiff was calm, relaxed and
cooperative during her examination. (R. 741.) She reported an improvement to her back
over the previous month. (R. 741.)
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In a May 14, 2020, function report, Plaintiff claimed that her problems stemmed
from her back pain and chronic Lyme disease. (R. 330.) Plaintiff took care of pets. (R.
331.) She had no problem meeting deadlines, no problem dealing with her personal
cares, she cleaned her house, did laundry, and could ride a riding lawnmower. (R. 332.)
Plaintiff went out a couple of hours each day, could travel by herself, traveled using a car,
and could go shopping. (R. 333.) Plaintiff claimed she spent most of her time with her
husband. (R. 335.) Plaintiff also represented that she had no problem paying attention,
she could follow written instructions well, she could follow spoken instructions well, and
that she got along very well with authority figures. (R. 335-36.) In addition, Plaintiff
admitted that she handled stress and could handle changes in routine “well.” (R. 336.)
On August 25, 2020, Plaintiff displayed a normal gait. (R. 759.) Plaintiff’s
psychiatric examination showed that she had normal mentation, grooming, attention span,
and mood. (R. 759.)
On September 15, 2020, Plaintiff was seen for a Social Security consultative
musculoskeletal examination. (R. 799.) Plaintiff asserted that after she quit her job, she
had an MRI which showed “bone-on-bone”, “collapsed and bulging disc.” (R. 799.) She
stated she saw a spine surgeon who recommended surgery. (R. 799.) She had a second
opinion and had been receiving PRP therapy, as well as injections with minimal relief.
(R. 799.) Plaintiff was taking no pain medications related to her back. (R. 799.) She
was able to take care of her own activities of daily activity and could independently drive.
(R. 799.) Plaintiff was not in any distress during the examination and was cooperative.
(R. 800.) She was able to move about the examination room without assistance and able
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to get up and down from the examination table without assistance. (R. 800.) Her
neurological examination was normal, and she displayed a normal gait. (R. 800.)
Plaintiff displayed no spinal tenderness with palpation, her posture was slouched with
forward protruding shoulders; and the range of motion of her shoulders, elbows, wrists,
knees, hips, ankles, cervical spine, and lumbar spine were all within normal limits
throughout. (R. 800.) The x-rays reviewed showed no compression deformities or
subluxations, with mild degenerative disc disease and hypertrophic change lower thoracic
spine and disc narrowing L5-S1. (R. 801.) 	The examination of Plaintiff was
characterized as “benign with no physical disabilities appreciated. No indications that
she would not be able to work full-time employment.” (R. 801.)
On September 25, 2020, state agency consultant Brenda Affinati, MD, opined that
Plaintiff could occasionally lift 20 pounds, could frequently lift and carry 10 pounds,
could walk for 6 out of 8 hours in a workday, could sit for 6 hours in normal workday,
and was unlimited as to her ability to pull and push. (R. 100.) In addition, Dr. Affinati
opined that Plaintiff had an unlimited ability to balance, kneel, crouch, and crawl; could
frequently climb stairs/ramps and stoop; and could occasionally climb ladders. (R. 101.)
Plaintiff had no manipulative, visual, or communicative limitations. (R. 101.) Plaintiff
was to avoid concentrated exposure to extreme cold and heat, vibration, wetness,
humidity, and hazards. (R. 101-02.) On November 19, 2020, as part of Plaintiff’s
request for reconsideration of her denial of benefits, state agency consultant Gregory
Salmi, MD, found similar limitations for Plaintiff, except as it related to postural
limitations, where he found that Plaintiff could frequently climb stars/ramps, balance,
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stoop, kneel, crouch, crawl, and climb; and could occasionally climb stairs and ramps.
(R. 118-21.)
On December 29, 2020, Plaintiff was seen for Lyme disease and lower back pain.
(R. 891-92.) Plaintiff was taking supplements for her lumbar pain. (R. 892.) 	Plaintiff
was not using ibuprofen or Tylenol. (R. 892.) Plaintiff noted that she had PTSD and
depression but had not received any therapy in a year. (R. 892.) Plaintiff was not
opposed to counseling and medications for her mental health problems. (R. 892.)
Plaintiff was riding a stationary bike for 30-40 minutes for exercise. (R. 896.) Plaintiff’s
mood, affect, and behavior were unremarkable on examination. (R. 897.) Plaintiff was
started on fluoxetine for her depression and was to start with psychotherapy. (R. 897.)
On January 11, 2021, Plaintiff was seen for a psychotherapy assessment by her
psychologist. (R. 883.) Plaintiff presented with depression. (R. 883.) Plaintiff reported
a depressed mood nearly every day, sleep problems, fatigue/loss of energy, a decreased
ability to enjoy daily activities, and poor self-esteem. (R. 883.) Plaintiff’s anxiety
symptoms included headaches, stomachaches, other muscle tension, being easily
fatigued, easily frustrated or angry, having obsessive/unwanted thoughts, a fear of going
into public places, avoidance of certain places or situations, fear of being judged or
embarrassed in social situations, and avoidance of social interactions. (R. 884, 887-88.)
Plaintiff’s depression was scored at moderate and her anxiety was characterized as mild.
(R. 883-84.) Plaintiff claimed difficulty concentrating. (R. 884.) Plaintiff was not
engaging in her hobbies due to pain. (R. 885.) Plaintiff’s mood was depressed and
anxious, she was adequately groomed, her speech was normal, her thought process and
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content were normal, her memory was grossly intact, and she had fair to good insight and
judgment. (R. 885.) She reported participating in individual mental therapy. (R. 887.)
Provisional diagnosis for Plaintiff was PTSD, social anxiety, and premenstrual dysphoric
disorder. (R. 887.)
During the period between February 2, 2021 through February 1, 2022, Plaintiff
was seen for psychotherapy approximately 30 times, during which she endorsed
excessive worry, fatigue, and difficulty concentrating. (See, e.g., R. 824, 832, 834-35,
842-42, 844, 846, 848, 850, 853, 856-57, 858, 860, 863-64, 875-82, 1732, 1750-51, 1764-
65, 1804, 1818, 1839, 1853, 1872, 1890, 1916, 1935, 1990, 2020, 2039, 2062.)
Plaintiff’s mood was depressed and anxious (with improvement in many cases by the end
of the session), she was adequately groomed, her speech was normal, she had some
intrusive and racing thoughts, her memory was grossly intact, and she had fair to good
insight and judgment. (R. 824-25, 832, 835, 843, 845, 846, 848, 850, 851, 852, 853-54,
857, 858-59, 860-61, 862, 864, 875-82, 1732, 1751, 1765, 1804, 1818, 1839, 1853, 1872,
1890, 1916, 1935, 1990, 2020, 2039, 2062.) 	Plaintiff felt very out of control during her
monthly menstrual cycle. (See, e.g., R. 834, 862.)
On February 9, 2021, Dr. Baumgartner filled out a checklist physical medical
source statement. (R. 806.) Dr. Baumgartner opined that Plaintiff had: a maximum
ability to lift and carry 20 pounds on an occasional and frequent basis; a maximum ability
to stand and walk for 3 hours during an 8-hour day; and no limitation with respect to her
ability to sit. (R. 806.) Plaintiff could sit for 30 minutes before needing to change
position, could stand 15 minutes before needing to change position, and needed to walk
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around every 45 minutes for 5 minutes at a time. (R. 807.) Plaintiff did not need to lie
down at unpredictable intervals during a work shift. (R. 807.) Dr. Baumgartner also
opined that Plaintiff could occasionally twist, stoop/bend, crouch, climb stairs, rotate her
neck, and flex her neck. (R. 808.) Plaintiff could frequently keep her neck static. (R.
808.) The following physical functions were not affected by Plaintiff’s impairment:
reaching, handling, fingering, feeling, and pushing/pulling. (R. 808.) Despite this
opinion, Dr. Baumgartner also opined Plaintiff could frequently engage in fingering, but
only engage in occasionally handling. (R. 809.) According to Dr. Baumgartner, these
functions increase stress to the spine with lifting. (R. 809.) Plaintiff had no
environmental limitations. (R. 809.) 	Dr. Baumgartner believed that Plaintiff’s
impairment would cause her to miss work less than once per month. (R. 809.) Dr.
Baumgartner offered no information as to the duration of these limitations. (R. 810.) In
support of these limitations, Dr. Baumgartner offered the following medical findings:
“MRI / Exam.” (R. 807, 808.)
On February 10, 2021, Plaintiff again presented to Dr. Baumgartner with
complaints of lumbar pain. (R. 928.) Plaintiff showed an appropriate mood and affect.
(R. 928.) She was given permission to return to exercising on her stationary bike, if she
avoided bending forward. (R. 929.) Plaintiff was started on valium and tramadol. (R.
929.) She was also given a peridural shot and PRP shot in the lumbar region. (R. 930.)
On August 24, 2021, Plaintiff reported that her biggest problems were foot
numbness and her mood, including her social phobia that had been going on for decades,
constipation, and a sleep impairment. (R. 830.) Plaintiff had gone off fluoxetine for her
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depression because it made her unable to sleep. (R. 830.) Plaintiff’s mood and behavior
were unremarkable. (R. 831.)
On September 8, 2021, Plaintiff presented for a psychiatric examination. (R. 818.)
Her examination showed no abnormal involuntary movement, she was calm and
cooperative, she had normal speech, her mood was normal, her affect was correlated to
her mood, her thought process and content were normal, she had no suicidal ideation, her
judgment was intact, and she showed good impulse control and insight. (R. 822-23.)
The primary diagnosis was premenstrual dysphoric disorder. (R. 823.) She was
prescribed with quetiapine for her anxiety during her menses, as needed, and was allowed
to use the medication prior to social gatherings. (R. 823.)
On September 9, 2021, Plaintiff was seen for psychotherapy during which she
endorsed excessive worry, depressive symptoms, fatigue, and difficulty concentrating.
(R. 817.) Plaintiff’s mood was depressed and anxious, her memory was grossly intact,
and she had fair to good insight and judgment. (R. 817.)
On November 8, 2021, Plaintiff exhibited a normal affect upon examination. (R.
1970.)
In a January 21, 2022 health history questionnaire, Plaintiff did not indicate that
she had fibromyalgia, but asserted that she had depression and anxiety. (R. 1196, 1200.)
During the January 25, 2002 hearing before the ALJ, Plaintiff testified that she had
been prescribed medication (Cymbalta) for “pain and depression,” however, she had not
started the medication. (R. 71.) She claimed that her mental health affected her attention
and concentration, as exemplified by her need to read the same sentence in passages
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repeatedly. (R. 70.) She also alleged that she had difficulty following instructions
because of her problems with concentration. (R. 73.) She claimed no problem
interacting with and getting along with other people. (R. 71, 73.) At her 2024 hearing,
Plaintiff testified to a “lifelong” battle with mental health, that she attended weekly
counseling sessions, and that her mental health affected how she “sees people” and her
sense of “feeling safe in the world.” (R. 1268).
As to Plaintiff’s spine, March 31, 2022 imaging showed thoracic and lumbar
spondylitic changes most pronounced at L4-5, where small central disc protrusion and
annular fissure contributed to mild spinal canal narrowing; a shallow disc bulge at L5-S1
that contacted the exiting LS nerve root with resultant mild right foraminal narrowing;
and no substantial foraminal or spinal canal narrowing in the thoracic spine. (R. 2143.)
On April 14, 2022, Plaintiff underwent a mental health examination to determine
whether she could undergo a procedure for a spinal cord stimulator. (R. 2134.) Plaintiff
had rated her pain an 8 out of 10. (R. 2135.) Plaintiff’s examination showed that her
mood was euthymic, affect was congruent, she was easily engaged in conversation,
memory and cognition presented as intact; thought form and content were within normal
limits; she was cooperative, her reliability was intact, and she had no speech problems.
(R. 2135.) In addition, it was found that Plaintiff was ready to learn and had no apparent
learning barriers. (R. 2136.) There were no primary behavioral or psychiatric factors
found that limited Plaintiff from proceeding with a spinal cord stimulation trial and
implementation. (R. 2135.)
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From October 3-10, 2022, Plaintiff underwent a trial of a spinal cord stimulator
that eliminated most of the pain in her back and foot. (R. 2123, 2130.) Plaintiff reported
a 90% improvement in foot pain, 80% improvement in the back; and 80% improvement
in functionality. (R. 2123.)
On October 7, 2022, Plaintiff presented with complaints of neck and shoulder
pain, which started approximately a month earlier, which she reported started after she
woke up from sleeping. (R. 1517, 2283.) Plaintiff rated the pain as 10 out of 10, with
limited range of motion, and represented that nothing appeared to make it better. (R.
1517.) She denied any weakness in her hands. (R. 1517.) Plaintiff also reported she had
surgery at Mayo Clinic a week earlier when they placed a spinal stimulator for lower
back pain and right leg radiculopathy. (R. 1517.) She reported that the surgery went
really well, and she had instant relief after the nerve stimulator was placed. (R. 1517.)
Plaintiff reported that Lyrica and medical marijuana did not help her neck pain. (R.
1517.) Plaintiff showed a decreased range of motion in her neck with extension and
flexion and limited range when turning her head to the right. (R. 1519.) Muscle tension
was also present. (R. 1519.) Plaintiff’s mood and affect were normal. (R. 1519.) The
primary diagnosis was muscle tension pain. (R. 1591.) Plaintiff was prescribed with
tizanidine. (R. 1520.)
On October 12, 2022, it was noted that an MRI of the cervical spine revealed mild
spinal stenosis at C5/C6, along with moderate foraminal stenosis at C4/C5 bilaterally.
(R. 1559, 1573, 2121.) Plaintiff did not want to proceed with surgery and instead wanted
to proceed with a cervical spine injection. (R. 1561.)
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An October 8, 2022, x-ray of Plaintiff’s cervical spine showed no evidence of any
evidence for acute osseous abnormality, and mild spondylosis most notably in the mid
cervical spine, as a possible etiology for pain. (R. 2281.)
On October 19, 2022, Plaintiff underwent physical therapy related to her neck
pain. (R. 2274.) Her range of motion was within limits as to neck bend and rotation, her
flexion was at 30 degrees, and her extension was at 15 degrees. (R. 2274.) Plaintiff had
full upper extremity strength. (R. 2274.)
On October 24, 2022, Plaintiff was seen for left upper limb pain greater than neck
pain, which she claimed was unrelated to trauma, that had been going on for the past 1.5-
2 months. (R. 2119.) It was noted that Plaintiff had undergone a nerve stimulator trial
for her bilateral foot pain and nonsurgical refractory back pain, which was successful for
Plaintiff. (R. 2119.) Plaintiff denied symptoms radiating into her left hand and denied
left upper limb weakness or changes in dexterity. (R. 2119.) Plaintiff was friendly upon
examination, her gait was without pain, and she had full strength and sensation to her
upper limbs. (R. 2120.) Her movement was strained, and she showed muscle bulk
asymmetry involving the left arm and forearm musculature in comparison to
the right. (R. 2120.) Her doctor found that Plaintiff’s history, physical exam and
imaging findings were consistent with a subacute radiculopathy secondary to a left C5-6
paracentral disc protrusion likely affecting the C6 versus C7 nerve roots on the left. (R.
2121.) Plaintiff was given a prescription for Lyrica and a steroid epidural injection was
discussed.
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On October 25 and November 15, 2022, Plaintiff received an epidural steroid
injection in her left cervical spine. (R. 2109, 2114.)
December 11, 2023, imaging of Plaintiff’s cervical spine showed mild
degenerative changes of the cervical spine, no significant spinal canal stenosis, and mild-
to-moderate foraminal stenosis. (R. 2240.)
A December 19, 2022 CT image showed impingement upon the left C6 and left
C7 nerve roots by a moderately large left-sided C5-C6 disc extrusion not significantly
changed from a prior MRI. (R. 2107-08.)
On December 20, 2022, Plaintiff had an electromyogram showing
electrodiagnostic evidence of a chronic left C8 cervical radiculopathy. (R. 2105.)
On December 23, 2022, Plaintiff had a cervical spinal fusion to treat her cervical
radiculopathy. (R. 2081-94.) During her preoperative examination, Plaintiff reported
that: “Prior to onset of pain in August 2022, patient was active playing tennis. She now
is able to ride a recumbent bike for exercise but is limited by pain.” (R. 2098.)
On February 1, 2023, Plaintiff had a 6-week follow-up visit to her uncomplicated
cervical fusion operation. (R. 2077.) Plaintiff reported complete resolution of her left C6
radiculopathy since the surgery. (R. 2077.) Plaintiff reported intermittent interscapular
pain that had improved in severity and lessened in frequency. (R. 2077.)
On February 8, 2023, Plaintiff was seen for a physical therapy assessment
resulting due to bilateral shoulder and upper “trap” tightness, and some tingling in left
elbow after pushing a four-foot-long cow-shaped bench a few days earlier. (R. 2255.)
Her cervical range of motion was 13 degrees for flexion, 20 degrees extension, 30
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degrees right rotation, and 15 degrees left rotation. (R. 2256.) Upper extremity strength
was largely full, with some limitation to the left side. (R. 2256.) Plaintiff’s lifting
limitations at the time were 10-15 pounds. (R. 2255.)
March 13, 2023 imaging of the cervical spine showed mild degenerative disc
disease. (R. 2229.)
On March 23, 2023, Plaintiff had a 12-week follow-up visit to her uncomplicated
cervical fusion operation. (R. 2075.) Her provider noted that Plaintiff was “doing
remarkably well after C5-6 ACDF with complete resolution of her preoperative pain
despite the recent fall and pain flare up. She has minimal dysphagia and no hypophonia.”
(R. 2075.) Spine imaging demonstrated a stable appearance of the cervical spine. (R.
2075.) The provider cautioned against any further falls, after Plaintiff had a recent fall.
(R. 2075.) Her weight limit was increased to 25 pounds. (R. 2075.) 	Plaintiff was told
that she could resume playing tennis in 6 months. (R. 2075.)
June 21, 2023 imaging of Plaintiff’s cervical spine showed C5-6 postoperative
changes stable in alignment and stable mild spondylosis. (R. 2226.)
III. 	LEGAL STANDARD
Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence in the record as a whole supports the decision, 42 U.S.C.
§ 405(g), or if the ALJ’s decision resulted from an error of law, Nash v. Comm’r, Soc.
Sec. Admin., 907 F.3d 1086, 1089 (8th Cir. 2018) (citing 42 U.S.C. § 405(g)
and Chismarich v. Berryhill, 888 F.3d 978, 979 (8th Cir. 2018)). “Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find it adequate to
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support the Commissioner’s conclusions.” Id. (quoting Travis v. Astrue, 477 F.3d 1037,
1040 (8th Cir. 2007)). The Court “considers evidence that detracts from the
Commissioner’s decision as well as evidence that supports it.” Id. “If substantial
evidence supports the Commissioner’s conclusions, this court does not reverse even if it
would reach a different conclusion, or merely because substantial evidence also supports
the contrary outcome.” Id. In reviewing the record for substantial evidence, the
Court may not substitute its own judgment or findings of fact for that of the
ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004). “Assessing and
resolving credibility is a matter properly within the purview of the ALJ.” Chaney v.
Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (citing Edwards v. Barnhart, 314 F.3d 964,
966 (8th Cir. 2003) (“Our touchstone is that [a claimant’s] credibility is primarily a
matter for the ALJ to decide.”)).
IV. 	DISCUSSION
A. 	Plaintiff’s Mental Impairments
1. 	Whether the ALJ Erred by Failing to Obtain Medical Expert Opinions
as to the Severity or Vocational Impact of her Mental Impairments.
Plaintiff argues that the ALJ erred by failing to obtain medical expert opinions as
to the severity or vocational impact of her admittedly severe mental impairments in
violation of the Commissioner’s own regulations, rulings, and policies. (Dkt. 8 at 4
(citing 42 U.S.C. § 421(h); 20 C.F.R. §§ 404.1616(c), 404.1617(c); SSR 17-2p, 2017 WL
3928306; 60 Fed. Reg. 20023, 20025 (1995).) Plaintiff argues that ALJ erred in relying
upon only his lay reading of the evidence of record as to the vocational impact of her
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complex mental impairments instead of seeking state agency review of the evidence or a
consultative examination. (Id. at 4-5.) The Commissioner counters that Plaintiff has
cited no authority that the ALJ was required to obtain a medical expert opinion at step
two with respect to her mental impairments, as the ALJ is tasked with determining
whether Plaintiff’s impairments are severe according to 20 C.F.R. § 404.1520(c); the
regulations and Federal Register allow but do not require obtaining the opinion of a
medical consultant; and that under Eighth Circuit caselaw; and an ALJ is permitted to
issue a decision without obtaining additional medical evidence so long as other evidence
in the record provides a sufficient basis for the ALJ’s decision. (Dkt. 10 at 8-10.)
At the second step of the five-step analysis, the ALJ considers “the medical
severity of [a claimant’s] impairment(s).” 20 C.F.R. § 404.1520(a)(4)(ii). It is a
claimant’s burden to demonstrate a severe medically determinable impairment or
combination of impairments at step two of the sequential evaluation. See Kirby v. Astrue,
500 F.3d 705, 707-08 (8th Cir. 2007) (citations omitted). “If the impairment would have
no more than a minimal effect on the claimant’s ability to work, then it does not satisfy
the requirement of step two.” Id. at 707 (citation omitted); see 20 C.F.R. § 404.1520(c).
The severity showing “is not an onerous requirement for the claimant to meet, but it is
also not a toothless standard. . . .” Kirby, 500 F.3d at 708 (citations omitted). It is the
claimant’s burden to establish that an impairment, or combination of impairments, is
severe. See Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).
To the extent Plaintiff argues that the ALJ was obligated to obtain testimony from
a medical expert at step two, such an argument lacks merit. “It is well-settled “that the
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ALJ bears a responsibility to develop the record fairly and fully, independent of the
claimant’s burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir.
2004) (citing cases). An ALJ’s duty to develop the record may, in certain circumstances,
require consulting a medical expert. See 20 C.F.R. § 404.1519a. The ALJ’s duty
generally to develop the record is triggered, however, only when there is ambiguous
evidence or when the record is inadequate to allow for proper evaluation of the evidence.
See 20 C.F.R. § 404.1519a(b). Indeed, The ALJ is “required to order medical
examinations . . . only if the medical records presented to him do not give sufficient
medical evidence to determine whether the claimant is disabled.” Johnson v. Astrue, 627
F.3d 316, 320 (8th Cir. 2010) (quoting Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.
1994)); see also 20 C.F.R. § 404.1520a; Tristan M. v. O’Malley, No. 23-CV-2077
(JMB/DTS), 2024 WL 2222216, at *3 (D. Minn. Apr. 16, 2024), R. & R. adopted, No.
23-CV-2077 (JMB/DTS), 2024 WL 2220605 (D. Minn. May 16, 2024) (“Despite the lack
of a medical expert opinion, substantial evidence in the record supports the ALJ’s
materiality finding. The ALJ made reasonable inferences based on the medical evidence,
which consistently showed a correlation between Claimant’s marijuana use and his
gastrointestinal symptoms.”); Paris R. J. v. Kijakazi, No. 22-CV-1875 (ECW), 2023 WL
7161421, at *3 (D. Minn. Sept. 15, 2023) (“The ALJ is required to order medical
examinations and tests only if the medical records presented to [them] do not give
sufficient medical evidence to determine whether the claimant is disabled.”) (quoting
McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011)).
Here, Plaintiff does not argue that the evidence was ambiguous or the record
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inadequate. Rather, Plaintiff relies on 42 U.S.C. § 421(h) to support her assertion that an
ALJ must retain an expert and cannot rely solely on the medical records. That statutory
subsection provides:
An initial determination under subsection (a), (c), (g), or (i) shall not be
made until the Commissioner of Social Security has made every reasonable
effort to ensure—
(1) in any case where there is evidence which indicates the existence of a
mental 	impairment, 	that 	a 	qualified 	psychiatrist 	or 	psychologist 	has
completed the medical portion of the case review and any applicable residual
functional capacity assessment; and
(2) in any case where there is evidence which indicates the existence of a
physical impairment, that a qualified physician has completed the medical
portion of the case review and any applicable residual functional capacity
assessment.
42 U.S.C. § 421(h) (emphases added).
Because 42 U.S.C. § 421(d), which covers hearings before the ALJ, is excluded
from § 421(h)’s purview, the ALJ is not required to employ the assistance of a qualified
psychiatrist or psychologist in making an initial determination of mental impairment. See
Patrick D. v. Saul, No. 18-CV-3052 (ECW), 2020 WL 1816378, at *9 (D. Minn. Feb. 21,
2020 ) (citations omitted) (“Subsection (a) of § 421 governs state-agency review,
subsection (c) governs the Commissioner’s review of determinations on the
Commissioner’s own motion, subsection (g) governs initial reviews by the Commissioner
when state-agency review is unavailable, and subsection (i) governs continuing-eligibility
determinations; subsection (d), which governs hearings by an ALJ when requested by the
claimant, is not covered by § 421(h) by its terms.”). The Social Security regulations
distinguish between a determination and a decision. A determination refers to “the initial
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determination or the reconsidered determination” of the Commissioner; whereas a
decision “means the decision made by an administrative law judge or the Appeals
Council.” 20 C.F.R. § 404.901. Since the plain language of Section 421(h) expressly
refers to an initial determination, it does not apply at the hearing level to an ALJ’s
decision.
Plaintiff also relies on 20 C.F.R. § 404.1616, which only addresses what
consultants are, their qualifications, and what they do, as well as 20 C.F.R. § 404.1617(c),
which only states that if a qualified psychiatrist or psychologist cannot be found to review
a mental impairment case, a physician case can be used. Neither of these regulations
requires that an ALJ retain a consultative expert at step two.
Plaintiff argues that Social Security Ruling (“SSR”) 17-2p required the ALJ to rely
on a medical consultant or medical expert when evaluating medical equivalence at step
two. However, SSR only applies to step three. See SSR 17-2p: Titles II & XVI: Evidence
Needed by Adjudicators at the Hearings & Appeals Council Levels of the Admin. Rev.
Process to Make Findings About Med. Equivalence, SSR 17-2P (S.S.A. Mar. 27, 2017).
Further, there is nothing in SSR 17-2p requiring an ALJ to obtain a consultative
examination. See Nelson v. Comm’r of Soc. Sec. Admin., No. 2:20-CV-10408, 2021 WL
4255645, at *3 (E.D. Mich. Aug. 9, 2021) (holding that SSR 17-2p “does not illustrate
that the ALJ was required to order a consultative examination or erred by proceeding
without one.”), R. & R. adopted, 2021 WL 4243140 (E.D. Mich. Sept. 17, 2021); see also
Deleon v. Comm’r of Soc. Sec., No. 2:20-CV-472-JLB-NPM, 2021 WL 6011104, at *7
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(M.D. Fla. Nov. 15, 2021) (“[H]ere, the ALJ could have, but was not required to, consult
a medical expert.”), R. & R. adopted, 2021 WL 5999283 (M.D. Fla. Dec. 20, 2021).
Further, Plaintiff’s reliance on the Federal Register at 60 Fed. Reg. 20023, 20025
(1995), as another source requiring an ALJ to obtain the opinion of a medical consultant
in any case involving evidence of a mental impairment is misplaced. This authority
constitutes a notice regarding final rulemaking describing the comments and responses
related to the single decisionmaker process, and has nothing to do with Plaintiff’s
argument on this issue. Instead, it refers to adjudicators below the ALJ level—that is, the
state agency review at the initial and reconsideration levels.
Plaintiff also relies on the Program Operations Manual System (“POMS”) of
the Social Security Administration (“SSA”) in support of her argument that a consultant
should have been retained at step two. (Dkt. 11 at 1.) Specifically, Plaintiff relies on the
statement in POMS DI 24510.060 that: “In decisions that are not fully favorable, only a
psychiatrist or psychologist is able to perform the analysis and decide the mental
functional capacity.” (Id.) However, Eighth Circuit has held that the POMS is only a
persuasive, rather than a binding, authority. See Berger v. Apfel, 200 F.3d 1157, 1161
(8th Cir. 2000) (“We recognize that the POMS guidelines have no legal force, and do not
bind the Commissioner. . . .”) (quoting Schweiker v. Hansen, 450 U.S. 785, 789 (1981))
(citation modified); see also Draper v. Colvin, 779 F.3d 556, 561 (8th Cir. 2015).
Further, the POMS does not require that a consultant be consulted at step two; it only
states that if a consultant is used to render an RFC as part of the special form and they
provide an unfavorable decision, a psychiatrist or psychologist is to perform the analysis
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and decide the mental functional capacity. See DI 24510.060 Mental Residual Functional
Capacity Assessment, SSA POMS DI 24510.060. On the other hand, if the decision by
the consultant is favorable, they only need be a physician. Id. This tracks with 20 C.F.R.
§§ 404.1616 and 404.1617(c), supra, which deal with the qualifications of the
consultants.
For all of these reasons, the Court finds no legal error by the ALJ in failing to
utilize a medical consultant at step two when dealing with mental impairments.
2. 	Differences between the Decisions of ALJ Rosen and ALJ Chin
While it is not entirely clear, it appears that Plaintiff is arguing that because ALJ
Rosen found in the first decision that Plaintiff’s severe impairments included an
adjustment disorder, PTSD, social anxiety disorder, and premenstrual dysphoric
dysfunction, ALJ Chin must have erred in finding no severe mental impairment in the
decision now at issue given that the only difference in the decisions was that ALJ Rosen
found mild limitations to Plaintiff’s ability to understand, remember, and apply
information, interact with others, and adapt or manage herself, and found a moderate
limitation as her ability to concentrate, persist, and maintain pace; and ALJ Chin found
only mild limitations in all of these areas. (Dkt. 8 at 5-6.) Plaintiff notes that ALJ Chin’s
review was de novo, but still argues “it is curious that there has been very little change in
the evidence related to [Plaintiff’s] mental impairments to justify finding previously
severe mental impairments to suddenly be non-severe.” (Id. at 5.) The Commissioner
responds that the Appeals Council vacated the previous decision by the ALJ, and as
recognized by Plaintiff, the ALJ was not bound by the previous decisions, even though
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substantial evidence may support both outcomes. (Dkt. 10 at 10-11.)
As an initial matter, the Court agrees with Plaintiff (Dkt. 8 at 5) that on remand, an
ALJ must consider all issues de novo. See 72 Fed. Reg. 61218-01, 61222 (Oct. 29, 2007)
(“[W]hen the Appeals Council grants an individual’s request that it review the decision
made by an ALJ and finds reasons to reverse that decision and remand the case for
further proceedings, it has typically ‘vacated’ the decision of the ALJ. As a result, we
consider the case during the subsequent proceedings on remand as if the earlier ALJ’s
decision had not been issued. This same situation may arise where a Federal court
remands a case for further proceedings.”); see also HALLEX I-2-8-18(A) (“If the
Appeals Council (AC) remands a case to the hearing level after a court remand, it
generally vacates the entire administrative law judge (ALJ) decision, and the ALJ must
consider all pertinent issues de novo”). Here, in remanding the case the ALJ, the Appeals
Council stated, “The Appeals Council hereby vacates the final decision of the
Commissioner of Social Security. . . .” (R. 1320.) Therefore, ALJ Chin’s conclusion that
Plaintiff’s mental impairments were not severe is not rendered erroneous notwithstanding
ALJ Rosen’s finding that they were severe.
In her reply, Plaintiff cites for the first time specific evidence in the record that she
claims shows the ALJ minimized the findings reported by Plaintiff’s treating mental
health professionals and ignored numerous additional pages of treatment notes, and that
the ALJ’s finding of nonseverity was the result of cherry-picking the evidence to support
his conclusion. (Dkt. 11 at 2-4.) Because these arguments are raised for the first time in
a reply brief, the Court need not address it. See Dereschuk v. Berryhill, 691 F. App’x
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292, 294 n.3 (8th Cir. 2017) (“Absent some reason for failing to raise an issue in the
opening brief, ‘we will not consider an issue first raised in a reply brief.’” (quoting
United States v. Darden, 70 F.3d 1507, 1549 n.18 (8th Cir. 1995), cert. denied, 517 U.S.
1149 (1996))); see also Loeffler v. Massanari, 23 F. App’x 605, 606 (8th Cir. 2001)
(citing PlaNet Prods., Inc. v. Shank, 119 F.3d 729, 732 (8th Cir. 1997) (declining to
consider argument raised for first time in reply brief)); Amy G. Dudek, No. 24-CV-1348
(JWB/SGE), 2025 WL 1666835, at *5 (D. Minn. May 8, 2025), R. & R. adopted sub
nom., 2025 WL 1666744 (D. Minn. June 12, 2025). Even to the extent that these
arguments were properly raised in the reply in response to the Commissioner’s arguments
that the record was adequately developed (Dkt. 10 at 4-6), the record as to Plaintiff’s
mental health includes mild objective findings, shows conservative and limited treatment,
includes Plaintiff’s own statements regarding her mental health, and documents the fact
that she did not take psychiatric medications as prescribed. (See, e.g., R. 71, 73, 335-36,
478, 480, 533, 540, 567, 572, 759, 892, 928, 949, 533, 1519, 1970, 2135-36.) This
evidence adequately supports the ALJ’s finding that Plaintiff’s mental impairments were
nonsevere regardless of whether substantial evidence also supports the contrary outcome.
See Nash, 907 F.3d at 1089 (“If substantial evidence supports the Commissioner’s
conclusions, this court does not reverse even if it would reach a different conclusion, or
merely because substantial evidence also supports the contrary outcome.”).
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3. 	The ALJ’s RFC Decision with Respect to Plaintiff’s Nonsevere Mental
Impairments
Plaintiff argues that because the ALJ found mental impairments pursuant to a
special technique, called the psychiatric review technique (“PRT”) at step two, as noted
above, the ALJ erred in failing to include these limitations in the RFC.4 (Dkt. 8 at 6-9.)
The Commissioner asserts that SSA regulations and rulings make it clear that ALJ’s
paragraph B findings at step two do not equate to mental RFC limitations, but instead
assist the ALJ in determining the severity of a plaintiff’s mental impairments. (Dkt. 10 at
11-12, 14.) The Commissioner also argues that the ALJ’s decision reflects consideration
of the nonsevere mental impairments as part of his RFC findings. (Id. at 14.) Finally, the
Commissioner contends that even assuming Plaintiff’s limited mental function at step
two should have been included in the RFC, the resulting unskilled work propounded by
the VE fully accounts for any mild mental limitations. (Id. at 16.)
At step two, the ALJ found Plaintiff’s medically determinable mental impairments
of PTSD, generalized anxiety disorder, and major depressive disorder considered singly
and in combination, did not cause more than minimal limitation in her ability to perform
basic mental work activities and were therefore nonsevere. (R. 1241.) In making this
finding, the ALJ found as follows:
The 	first 	functional 	area 	is 	understanding, 	remembering 	or 	applying
information. In this area, the claimant had mild limitation. The claimant
wrote in her function report that she has deficits in understanding (Exhibit
3E/6). However, she wrote that she is able to pay bills, count change, and
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)).
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handle money (Exhibit 3E/4). She also wrote that she follows instructions
well (Id). Additionally, the claimant exhibited normal mentation during an
examination 	in 	2020 	and 	showed 	grossly 	intact 	memory 	during 	an
examination in 2021 (Exhibits 8F/8 and 12F/6). Accordingly, the claimant
has no more than a mild limitation in this area of functioning.
The next functional area is interacting with others. In this area, the claimant
had mild limitation. The claimant did not report deficits in getting along with
others in her function report (Exhibit 3E/6). In fact, she wrote that she gets
along with authority figures well (Id at 7). She was cooperative, cheerful, and
calm during an examination (Exhibit 17F/4). Accordingly, because the
claimant did not allege deficits in interacting with others, she has no more
than a mild limitation in this area of functioning.
The third functional area is concentrating, persisting or maintaining pace. In
this area, the claimant had mild limitation. The claimant wrote in her function
report that she has deficits in concentrating and completing tasks (Exhibit
3E/6). However, she wrote that she is able to perform her own personal care,
clean, do laundry, and use a riding lawn mower (Id at 2-3). During an
examination in 2020, she exhibited normal mentation, attention span, and
mood (Exhibit 8F/8). During an examination in 2021, she demonstrated
grossly intact memory, normal speech, and logical and coherent thoughts
(Exhibit 12F/6). Accordingly, the record shows that the claimant has no more
than a mild limitation in this area of functioning.
The fourth functional area is adapting or managing oneself. In this area, the
claimant had mild limitation. The claimant testified at the hearing that she
undergoes counseling on an almost weekly basis and has seen a lot of trauma
in her life. However, she wrote in her function report that she is able to handle
stress and change well (Exhibit 3E/7). She also wrote that she is able to
perform her own personal care, manage finances, clean, do laundry, and mow
the grass with a riding mower for a little while (Id at 2-4). During an
examination in 2020, the claimant exhibited normal mentation, mood, and
attention span (Exhibit 8F/8). While she had a depressed and anxious mood
during 	an 	examination 	in 	2021, 	she 	was 	adequately 	groomed 	and
demonstrated fair to good judgment and insight and coherent and logical
thoughts (Exhibit 12F/6). While the claimant, at times, demonstrated a
depressed and anxious mood during examinations, her mood often improved
during the examination, and she was adequately groomed without psychotic
symptomology 	and 	exhibited 	normal 	mood, 	affect, 	behavior, 	thought
content, and judgment during multiple examinations as well (Exhibit 27F/15,
57, 229, 247, 261). Accordingly, the claimant has no more than a mild
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limitation in this area of functioning.
(R. 1241-42.) The ALJ also cautioned that these findings were not an RFC assessment:
The limitations identified in the “paragraph B” criteria are not a residual
functional capacity assessment but are used to rate the severity of mental
impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of
the sequential evaluation process requires a more detailed assessment.
The following residual functional capacity assessment reflects the degree of
limitation I have found in the “paragraph B” mental function analysis.
(R. 1242 (emphasis added).) That said, there is no assessment, let alone a detailed
assessment, of Plaintiff’s mental health impairments at step four as part of the RFC
analysis. (R. 1244-47.) The closest to any such assessment is the ALJ’s conclusory
finding “that the physical and mental assessments, taken in combination, are well
supported by the objective medical evidence record, are generally consistent with one
another, and ultimately demonstrate that the claimant has not been severely limited in her
functioning.” (R. 1246.)
As the Commissioner argues (Dkt. 10 at 11-13), it is correct that: “The restrictions
identified in the step two’s ‘paragraph B’ discussions are used only to rate the severity of
mental health related impairments at step two of the sequential evaluation process. The
mere fact that an individual has a medically determinable impairment does not
necessarily mean that the impairment restricts the individual’s ability to function in the
workplace.” Carleen W. v. Kijakazi, No. 20-CV-1216 (SRN/LIB), 2022 WL 396880, at
*5 (D. Minn. Jan. 30, 2022), R. & R. adopted sub nom., 2022 WL 396044 (D. Minn. Feb.
9, 2022) (citation modified); see also Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir.
2018) (citing Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006) (rejecting
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argument that finding of mental impairment at step two required imposing related
limitations in the RFC at step four because “[e]ach step in the disability determination
entails a separate analysis and legal standard”)).
“However, courts in this District have repeatedly concluded that an ALJ must
either include the mild limitations found at step two into the RFC or provide an
explanation why they were not included when discussing the RFC.” Michael G. v.
Bisignano, No. 24-CV-02160 (ECT/ECW), 2025 WL 1557896, at *7 (D. Minn. May 14,
2025), R. & R. adopted, 2025 WL 1555745 (D. Minn. June 2, 2025); see also Angela D.
v. Colvin, No. 24-CV-385 (JWB/DTS), 2025 WL 539673, at *7 (D. Minn. Jan. 17, 2025)
(“An RFC analysis need not recite verbatim the ALJ’s findings at step two, but the ALJ
must make it clear he considered limitations from step two in formulating the RFC.”)
(citations omitted), R. & R. adopted sub nom., 2025 WL 524202 (D. Minn. Feb. 18,
2025); Angela D. v. Colvin, No. 24-CV-385 (JWB/DTS), 2025 WL 539673, at *7 (D.
Minn. Jan. 17, 2025) (“An RFC analysis need not recite verbatim the ALJ’s findings at
step two, but the ALJ must make it clear he considered limitations from step two in
formulating the RFC.”), R. & R. adopted sub nom., 2025 WL 524202 (D. Minn. Feb. 18,
2025); Debbie L. D. v. O’Malley, No. 23-CV-649 (DLM), 2024 WL 1331989, at *4 (D.
Minn. Mar. 28, 2024) (“[A]lthough the ALJ found at step two that Plaintiff has mild
mental limitations, he did not incorporate any mental limitations into Plaintiff’s RFC.
Nor did the ALJ include an explanation for his omission in his discussion of Plaintiff’s
RFC construction. Instead, the ALJ provided only a boilerplate summary explanation . . .
This is not enough. The Court finds that the mild mental limitations the ALJ found at
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step two should have been incorporated into the RFC determination or a reason provided
for their omission.”) (citation modified); Mark E. v. Kijakazi, No. 20-CV-2047
(PAM/JFD), 2021 WL 6066260, at *10 (D. Minn. Dec. 7, 2021) (“Here, the ALJ’s RFC
did not include the mild mental limitation that the ALJ found at step two. Although an
RFC need not be a verbatim recitation of step two findings, it does need to include each
limitation found at earlier steps, both severe and nonsevere. Here, the ALJ followed the
proper procedure at step two, but, perhaps inadvertently, omitted one of the limitations
found at step two from the RFC assessment. Because this Court finds the complete
omission of Plaintiff’s mild mental limitation from the formulation of the RFC erroneous,
this Court recommends that summary judgment be granted in Plaintiff’s favor on this
issue and that the case be remanded for reformulation of the RFC.”) (citation modified),
R. & R. adopted sub nom., 2021 WL 6063631 (D. Minn. Dec. 22, 2021); Vicky R. v. Saul,
No. 19-CV-2530 (ADM/ECW), 2021 WL 536297, at *14 (D. Minn. Jan. 28, 2021)
(“However, the mild mental limitations found by the ALJ should have been incorporated
into the RFC determination or a reason provided for their omission, and on remand, the
ALJ should either incorporate these limitations into the RFC or provide justification for
their omission.”) (collecting cases), R. & R. adopted, 2021 WL 533685 (D. Minn. Feb.
12, 2021).
The Commissioner relies upon West-Viotay v. Saul, 829 F. App’x 149, 149-50 (8th
Cir. 2020), for the proposition that the limitations in criteria B should not be considered
as part of the RFC where the limitations were found to be moderate. (Dkt. 10 at 12.)
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However, there was no such ruling by the Eighth Circuit. Instead, the Eighth Circuit in
that unpublished opinion found:
While the RFC findings did not specify work-related limitations based on
some moderate functional-area limitations that the ALJ found under the
“paragraph B” criteria, the two findings serve distinct purposes at the
separate steps of the sequential evaluation process. See Social Security
Ruling 96-8p, 1996 WL 374184, at *4 (Soc. Sec. Admin. July 2, 1996). Here,
the findings can be harmonized, as the ALJ adequately explained why
greater work-related limitations were not warranted. See Chismarich,
888 F.3d at 980.
West-Viotay, 829 F. App’x at 149-150 (emphasis added). Unlike the ALJ in West-Viotay,
here the ALJ did not explain why the mild limitations were not warranted. Similarly, in
Michele B. v. O’Malley, No. 23-CV-1051 (JFD), 2024 WL 1855090 (D. Minn. Apr. 29,
2024), also relied on by the Commissioner, the court found that the ALJ in that case
“walked through Plaintiff’s mental impairments and how they impacted her ability to
perform work.” Id. at *4.
Accordingly, the question is whether the ALJ actually considered the mental
limitations at step two in his step four analysis and whether he adequately explained why
those limitations were not included in the RFC. This assessment “need only be ‘clear
enough to allow for appropriate judicial review.’” Grindley v. Kijakazi, 9 F.4th 622, 631
(8th Cir. 2021) (quoting Sloan v. Saul, 933 F.3d 946, 951 (8th Cir. 2019)). Here, despite
determining Plaintiff’s PTSD, generalized anxiety disorder, and major depressive
disorder were medically determinable (although nonsevere) impairments (R. 1241), the
ALJ’s RFC analysis and determination at step four does not discuss these impairments at
all, let alone the mild limitations assessed at step 2.
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The Commissioner takes the position that it is enough that the ALJ acknowledged
that in making his RFC finding that he is required to consider all of the claimant’s
impairments, including impairments that are not severe and found “that the physical and
mental assessments, taken in combination, are well-supported by the objective medical
evidence record, are generally consistent with one another, and ultimately demonstrate
that the claimant has not been severely limited in her functioning.” (Dkt. 10 at 13-14.)
This is in contradiction to the ALJ’s own decision, where he states that the “mental
residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation
process requires a more detailed assessment.” (R. 1242.) There was simply no
assessment at step four to allow for appropriate judicial review of the ALJ’s analysis of
the nonsevere impairments and the limitations related to those impairments found at step
two.
The Commissioner argues that even assuming the ALJ erred at step four with
respect to Plaintiff’s mental impairments, there is no prejudice because the positions
identified by the VE were unskilled positions, which would fully account for any mild
mental limitation. (Dkt. 10 at 16.) The Court rejects this argument for several reasons.
First, the Commissioner’s argument is problematic because where an ALJ asks a
hypothetical question that fails to “capture[ ] the concrete consequences of the claimant’s
deficiencies,” the resulting expert testimony is not substantial evidence on which an ALJ
can rely in reaching their conclusions. Nathan L. v. O’Malley, No. 23-cv-1310
(JWB/DJF), 2024 WL 3015139, at *6 (D. Minn. May 3, 2024) (quoting Scott v. Berryhill,
855 F.3d 853, 857 (8th Cir. 2017)). “When an RFC is incomplete, ‘it cannot be said that
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substantial evidence supports the conclusion’ that Plaintiff can actually perform all
aspects of the jobs the vocational expert identifies.” Id. (quoting Vicky R., 2021 WL
536297, at *14.) Here, the hypothetical to the VE contained no limitations with respect
to unskilled work or any mention of mental limitations. (R. 1271.) As the SSA’s own
rulings clarify, individuals respond differently to the demands of work, and “the skill
level of a position is not necessarily related to the difficulty an individual will have in
meeting the demands of the job” when the individual has a mental impairment. See SSR
85-15, 1985 WL 56857, *6. Indeed, “unskilled” work is defined as by the SSA’s
regulations is “work which needs little or no judgment to do simple duties that can be
learned on the job in a short period of time.” 20 C.F.R. § 404.1568(a). Regardless of
whether or not the positions identified by the VE were unskilled, the fact that such work
is unskilled does not necessarily fully account for Plaintiff’s ability to function in view of
her of mental limitations, including difficulties with concentration, persistence, or pace or
limitations related interacting with others,5 given her nonsevere medical impairments of
PTSD, generalized anxiety disorder, and major depressive disorder. See Yost v. Astrue,
No. 11 C 1423, 2012 WL 2814373, at *20 (N.D. Ill. July 10, 2012) (“Given the definition
in the regulations, the term ‘unskilled’ does not fully address the impact of mental
limitations such as difficulties with concentration, persistence, or pace.” (citing Jelinek v.
5 	The Court acknowledges that while unskilled jobs “ordinarily involve dealing
primarily with objects, rather than with data or people” (SSR 85-15, 1985 WL 56857, *6
(emphases added)), the VE will be able to speak as to whether any of the positions he or
she identifies account for any mental RFC limitations regarding interacting with others
the ALJ, to the extent warranted, propounds to the VE as part of a hypothetical.
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Astrue, 662 F.3d 805, 813-14 (7th Cir. 2011)); see also Hunt v. Colvin, No. 2:13-CV-
457-JEM, 2015 WL 1268298, at *6 (N.D. Ind. Mar. 17, 2015) (“In this case, the ALJ
found that Plaintiff had ‘mild difficulties in maintaining concentration, persistence or
pace,’; however, it is not clear whether the ALJ included the limitation in his RFC, or if
the VE’s testimony would have been different if provided these limitations. The
Commissioner’s argument that Plaintiff’s unskilled work addresses these limitations is
unavailing. It is not clear to the Court how mild limitations in concentration, persistence,
and pace translate into ‘unskilled work.’ The regulations define ‘unskilled work’ as
‘work which needs little or no judgment to do simple duties that can be learned on the job
in a short period of time.’ The ALJ did not provide any explanation for how the ability to
sustain focused attention and concentration relates to the length of time it takes to learn a
job, the defining characteristic of ‘unskilled work.’”) (citations omitted).6 In sum, the
6 	The Commissioner relies on Young v. Soc. Sec. Admin., No. 3:19-CV-363-BD,
2020 WL 7055494, at *2 (E.D. Ark. Dec. 2, 2020), for the proposition that “a limitation
to unskilled work fully accounts for any mild mental limitations.” (Dkt 10 at 16.) The
Commissioner’s reliance on Young is misplaced. In that case there was argument that the
ALJ failed to properly address nonsevere limitations as part of the RFC. The relevant
portion of the decision is as follows:
Ms. Young also argues that the RFC did not fully incorporate her limitations.
A claimant’s RFC represents the most she can do despite the combined
effects of all of her credible limitations and must be based on all credible
evidence. McCoy v. Astrue, 648 F.3d 605, 614 (8th Cir. 2011). In determining
the claimant’s RFC, the ALJ has a duty to establish, by competent medical
evidence, the physical and mental activity that the claimant can perform in a
work setting, after giving appropriate consideration to all impairments.
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). Again, objective
imaging was normal, which lends support to the ALJ’s determination that
Ms. Young could perform at least light work. And the ALJ likewise limited
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Court finds that the ALJ’s RFC determination is not based on substantial evidence
because it did not properly account for Plaintiff’s nonsevere mental impairments and
because it did not address the mental limitations found at step two as part of the RFC.
The Court recommends remand so the ALJ can address these issues and then include
mental limitations, as appropriate, in a hypothetical propounded to the VE.
B. 	Plaintiff’s Remaining Arguments
Because the Court concludes that the ALJ improperly failed to consider Plaintiff’s
nonsevere impairments as part of the RFC, the Court does not reach the question of
whether the ALJ adequately evaluated the opinion of Dr. Baumgartner; whether the ALJ
considered the entirety of the medical record; whether the ALJ failed to properly discuss
his findings as to Plaintiff’s fibromyalgia; and whether the ALJ’s discussion of the
reliability of Plaintiff’s subjective complaints constituted only a brief summary of the
medical findings of record without considering the other factors required under 20 C.F.R.
§ 404.1529(c). (See Dkt. 8 at 9-15.) 	Upon remand, the ALJ may wish
to address Plaintiff’s other claims of error. See Jolivette v. Colvin, No. SACV 14-01953-
Ms. Young to unskilled work, which fully accounts for any mild mental
impairments.
Young, 2020 WL 7055494, at *2 (emphasis added). Here, the ALJ did not limit Plaintiff
to unskilled work when propounding the hypothetical to the VE. Further, the Young
court did not cite any authority supporting its finding that limiting that plaintiff to
unskilled work fully accounted for any mild mental impairments. For these reasons, the
Court does not find Young persuasive as to whether unskilled work sufficiently addresses
mild mental limitations.
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DFM, 2015 WL 5842393, at *1 n.1 (C.D. Cal. Oct. 6, 2015), judgment entered, 2015 WL
5842399 (C.D. Cal. Oct. 6, 2015).
* * *
For all these reasons, the Court concludes that Plaintiff’s request for remand of the
Commissioner’s decision should be granted and the Commissioner’s request that the
decision be affirmed be denied.
V. 	RECOMMENDATION
Based on the above, and on the files, records, and proceedings herein, IT IS
RECOMMENDED that:
1. 	Plaintiff’s request for remand of the Commissioner’s decision (Dkts. 8, 11)
be GRANTED;
2. 	The Commissioner’s request that the Complaint be dismissed (Dkt. 10) be
DENIED; and
3. 	This case be REMANDED to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g), for further administrative proceedings consistent with this Report
and Recommendation
DATED: January 29, 2026 	s/Elizabeth Cowan Wright
ELIZABETH COWAN WRIGHT
United States Magistrate Judge
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NOTICE
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 District of Minnesota Local Rule 72.2(b)(1), “a party may file and serve specific
written objections to a magistrate judge’s proposed finding and recommendations within
14 days after being served 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. D.
Minn. LR 72.2(b)(2). All objections and responses must comply with the word or line
limits set for in D. Minn. LR 72.2(c).
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