0:24-cv-04375•Case Name in Social Security Case - Unavailable
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UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA Jillian N.,1 Plaintiff, v. Frank Bisignano, Commissioner of Social Security, Defendant. Case No. 24-cv-04375 (PJS/DJF) REPORT AND RECOMMENDATION Pursuant to 42 U.S.C. § 405(g), Plaintiff Jillian N. (“Plaintiff”) seeks judicial review of the Commissioner of Social Security’s (“Commissioner”) final decision denying her application for Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Decision”). This matter is before the Court on the parties’ briefs. The undersigned considers the briefs pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1. Plaintiff argues the Commissioner’s Decision is erroneous because: (1.) he failed to adopt or discuss certain mental limitations recommended by a treating nurse practitioner; and (2.) he failed to adequately consider Plaintiff’s ability to sustain competitive employment in light of her absenteeism, off-task time, and ability to interact with coworkers and supervisors. (ECF No. 13.) Because substantial evidence supports the Decision, the Court recommends that the Commissioner’s Decision be affirmed. BACKGROUND I. Plaintiff’s Claim Plaintiff applied for DIB on December 7, 2021. (Soc. Sec. Admin. R. (hereinafter “R.”) 1 This District has adopted a policy of using only the first name and last initial of any nongovernmental parties in orders in Social Security matters. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 1 of 23
2 95-96.) 2 At that time she was 31 years old and had previously worked as a manufacturing associate, direct support professional, resident care assistant, life enrichment coordinator, R.A.Y.S. intern, freelance writer, content creator, independent beauty consultant, sales associate, stocker, cashier, hostess, and to-go server. (R. 200, 216, 234.) Plaintiff alleged she became disabled beginning February 6, 2020 due to fibromyalgia, chronic fatigue syndrome, intercoastal neuralgia, arthritis, bursitis, joint disorders, sacroiliac joint dysfunction, spondylosis of cervicothoracic region, long-lasting sexually transmitted infection, migraines, cyclical vomiting, knee pain, feet pain, leg spasms, hyper-mobility issues, borderline personality disorder, attention deficit hyperactivity disorder (“ADHD”), and post-traumatic stress disorder (“PTSD”) with symptoms of panic, depression, and nightmares. (R. 97.) II. Regulatory Background An individual is considered disabled for the purposes of DIB if she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). In addition, an individual is disabled “only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “[A] ‘physical or mental impairment’ is an impairment that results from anatomical, physiological, or psychological abnormalities which are 2 The Social Security administrative record (R.) is filed at ECF No. 10. For convenience and ease of use, the Court cites to the record’s pagination rather than the Court’s ECF and page numbers in citing to the Administrative Record. All other citations refer to ECF docket and page numbers. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 2 of 23
3 demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3). The Commissioner has established a sequential, five-step evaluation process to determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4). At step one, the claimant must establish she is not engaged in any “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(4)(i). The claimant must then establish at step two that she has a severe, medically determinable impairment or combination of impairments. 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the Commissioner must find the claimant is disabled if the claimant has satisfied the first two steps and the claimant’s impairment meets or is medically equal to one of the impairments listed in 20 C.F.R. Part 404, Subpart P, App’x 1 (“Listing of Impairments” or “Listing”). 20 C.F.R. § 404.1520(a)(4)(iii).3 If the claimant’s impairment does not meet or is not medically equal to one of the impairments in the Listing, the evaluation proceeds to step four. The claimant then bears the burden of establishing her residual functional capacity (“RFC”) and proving she cannot perform any past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). If the claimant proves she is unable to perform any past relevant work, the burden shifts to the Commissioner to establish at step five that the claimant can perform other work existing in a significant number of jobs in the national economy. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). If the claimant can perform other work existing in a significant number of jobs in the 3 The Listing of Impairments is a catalog of presumptively disabling impairments categorized by the relevant “body system” affected. See 20 C.F.R Part 404, Subpart P, App. 1. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 3 of 23
4 national economy, the Commissioner will find the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). III. Procedural History The Commissioner denied Plaintiff’s application for DIB initially (R. 83-94) and on reconsideration (R. 97-108). On September 6, 2023, at Plaintiff’s request (R. 132-133), an Administrative Law Judge (“ALJ”) held a hearing on Plaintiff’s application (R. 52-82). An attorney represented Plaintiff, and Plaintiff and a vocational expert testified. (R. 52-53.) After the hearing, the ALJ considered whether Plaintiff was disabled from February 6, 2020, Plaintiff’s alleged disability onset date, through the date of the Decision. (R. 11.) After finding at step one of the analysis that Plaintiff had not engaged in substantial gainful activity during the relevant period, the ALJ determined at step two that Plaintiff has multiple non- severe impairments, including: right de Quervain tenosynovitis; headaches; hypertension; and hypermobility syndrome. (R. 14.) The ALJ further determined that Plaintiff has multiple physical and mental impairments, which at least in combination are severe: fibromyalgia; sacroiliac joint dysfunction; spondylosis of the cervical region; right trochanteric bursitis; obesity; osteoporosis; degenerative disc disease of the thoracic and lumbar spine with endplate compression fractures; ADHD; borderline personality disorder; anxiety disorder; bipolar disorder; PTSD; and depressive disorder. (Id.) At step three, the ALJ addressed the severity of Plaintiff’s impairments. (R. 15-18.) The ALJ reviewed Plaintiff’s sacroiliac joint dysfunction, spondylosis of the cervical region, right trochanteric bursitis, osteoporosis, and degenerative disc disease of the thoracic and lumbar spine under Listing Section 1.00 (Musculoskeletal Disorders), specifically: Listing 1.15 (disorders of the skeletal spine resulting in compromise of a nerve root(s)); Listing 1.16 (lumbar spinal stenosis CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 4 of 23
5 resulting in compromise of the cauda equina); and Listing 1.18 (abnormality of major joint(s) in any extremity). Upon review, the ALJ found Plaintiff’s impairments were not accompanied by signs reflective of the severity of those listings. (R. 15-16.) The ALJ next considered Plaintiff’s obesity. Because obesity does not have a dedicated listing, the ALJ assessed Plaintiff’s obesity using the criteria under Listings 1.00Q (musculoskeletal), 3.00I (respiratory) and 4.00F (cardiovascular impairments). (R. 16.) The ALJ found that Plaintiff’s obesity, alone or in combination with any other impairment, does not medically equal the criteria of any listed impairment. (Id.) Similarly, because fibromyalgia does not have a dedicated listing, the ALJ assessed Plaintiff’s fibromyalgia under analogous Listings 1.18 (abnormality of a major joint(s) in any extremity) and 14.06 (undifferentiated and mixed connective tissue), and found that Plaintiff’s fibromyalgia did not meet the criteria of those listings. (R. 16.) Having determined that Plaintiff’s medical conditions do not satisfy the criteria for any impairment in the Listing, the ALJ further determined that Plaintiff’s mental impairments (ADHD, borderline personality disorder, anxiety disorder, bipolar disorder, PTSD, and depressive disorder) resulted only in: (1.) a mild limitation in understanding, remembering, or applying information; (2.) a moderate limitation in interacting with others; (3.) a moderate limitation in concentrating, persisting or maintaining pace; and (4.) a moderate limitation in adapting or managing herself. (R. 16-17.) In assessing the severity of Plaintiff’s mental impairments, the ALJ also found the evidence failed to meet the “Paragraph C” criteria of Section 12 of the Disability Evaluation Under Social Security, which apply if the claimant: (1.) receives or is in medical treatment, mental health therapy, psychosocial support, or a highly structured setting that is ongoing and that diminishes the symptoms and signs of the mental disorder; and (2.) has only marginal adjustment, that is, a minimal capacity to adapt to changes in the claimant’s environment or to demands that are not CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 5 of 23
6 already part of the claimant’s daily life. (R. 18.) Based on these findings, the ALJ concluded that Plaintiff’s medical and mental impairments, alone or in combination, do not meet or medically equal any impairment in the Listing. (R. 15-18.) At step four of the sequential analysis, the ALJ catalogued the mental and physical health evidence in the record (R. 18-29) and determined that Plaintiff has the RFC: to perform light work as defined in 20 CFR 404.1567(b) except occasionally climb ladders, ropes, and scaffolds. She can frequently climb stairs and balance on uneven terrain. She can push and pull as much as she can lift and carry. The claimant can occasionally stoop, kneel, crouch, and crawl. She can tolerate occasional exposure to extreme cold and extreme heat. She can tolerate occasional exposure to vibration, unprotected heights, and moving mechanical parts. The claimant can carry out simple instructions. She can tolerate occasional interaction with coworkers and supervisors. She can deal with occasional changes in a routine work setting. The claimant cannot perform work requiring a specific production rate such as assembly line work or work that requires hourly quotas. No interactions with the public. (R. 18.) Based on this RFC, the ALJ found that Plaintiff was unable to perform any past relevant work. (R. 29.) At step five, the ALJ evaluated whether Plaintiff can perform any job that exists in significant numbers in the national economy. (R. 29-30.) Based on the vocational expert’s testimony, and considering Plaintiff’s age, education, work experience, and RFC, the ALJ determined Plaintiff is able to perform other jobs, including: Marker (DOT 209.587-034, an unskilled (SVP-24) job at a light exertional level, with approximately 136,780 jobs in the national economy); Routing Clerk (DOT #222.687-022, an unskilled (SVP-2) job at a light exertional level, with approximately 117,980 jobs in the national economy); and Router (DOT 222.587-038, an 4 “SVP” refers to the “specific vocational preparation” for a given occupation. Unskilled work corresponds to an SVP of 1-2; semi-skilled work corresponds to an SVP of 3-4; and skilled work corresponds to an SVP of 5-9 in the Dictionary of Occupational Titles (“DOT”). Social Security Ruling (SSR) 00-4p. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 6 of 23
7 unskilled (SVP-2) job at a light exertional level, with approximately 25,130 jobs in the national economy). (R. 30.) The ALJ concluded on that basis that Plaintiff is not disabled. (R. 30-31.) The Appeals Council denied Plaintiff’s request for review of the ALJ’s Decision (R. 1-4), and this lawsuit followed. DISCUSSION Plaintiff challenges the ALJ’s Decision on two grounds: (1.) Plaintiff’s RFC is erroneous because the ALJ failed to incorporate or explain the omission of functional limitations from a treating nurse’s medical opinion that the ALJ purportedly found persuasive (ECF No. 13 at 9-16); and (2.) the ALJ’s step-five analysis was flawed because she failed to consider how Plaintiff’s off- task time, absenteeism, and limitation to occasional contact with coworkers and supervisors would preclude her from sustaining competitive employment (id. at 16-21). I. Standard of Review The Court’s review of the ALJ’s Decision is limited to determining whether the Decision is “supported by substantial evidence on the record as a whole.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). “Substantial evidence … is more than a mere scintilla.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quotation omitted). It is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). This “threshold … is not high.” Id. “If, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ’s] findings, the court must affirm the [ALJ’s] decision.” Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012) (quotation omitted). Remand is warranted, however, when the ALJ’s opinion contains insufficient factual findings that “considered in light of the record as a whole, are insufficient to permit [the] Court to CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 7 of 23
8 conclude that substantial evidence supports the Commissioner’s decision.” Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008); see also Chunn v. Barnhart, 397 F.3d 667, 672 (8th Cir. 2005) (remanding because the ALJ’s factual findings were insufficient for meaningful appellate review). At minimum, the ALJ must build a logical bridge between the evidence and the RFC she creates. She does so by “includ[ing] a narrative discussion describing how the evidence supports each conclusion.” Social Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at *7. “[T]he [ALJ] must also explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.” Id.; see also Lee R. v. Kijakazi, No. 20-cv-1989 (BRT), 2022 WL 673259, at *4 (D. Minn. Mar. 7, 2022) (finding the ALJ failed to create a “logical bridge” between the evidence and his conclusions); Weber v. Colvin, No. 16-cv-332 (JNE/TNL), 2017 WL 477099, at *26 (D. Minn. Jan. 26, 2019) (same). II. Medical Opinion Evidence A. The ALJ’s Evaluation In determining Plaintiff’s RFC, the ALJ took into consideration a checkbox form completed by Plaintiff’s treating nurse practitioner, Angela Melland (“NP Melland”), on November 5, 2021 (R. 539-542). NP Melland checked off responses indicating that Plaintiff has: (1.) a moderate limitation in understanding and remembering short, simple instructions; (2.) no limitation in carrying out short, simple instructions; (3.) a mild limitation in understanding and remembering detailed instructions; (4.) a moderate limitation in carrying out detailed instructions; and (5.) a moderate limitation in her ability to make judgements on simple work-related decisions.5 (R. 539.) In the section below the checkbox part of the form, NP Melland states that Plaintiff’s 5 These responses seem nonsensical since they indicate that Plaintiff has more difficulty understanding and remembering short, simple instructions than detailed instructions. NP Melland does not explain this counterintuitive opinion. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 8 of 23
9 ADHD, borderline personality, and anxiety cause Plaintiff to have “difficulty following instructions and making decisions quickly.” (Id.) NP Melland continues, “if something goes wrong [Plaintiff] may not be able to make a judgment call due to emotions or ‘analysis paralysis’ from ADHD.” (Id.) In evaluating NP Melland’s opinion, the ALJ noted that NP Melland met with Plaintiff, “about once a month for medication management through November 2022.” (R. 24.) During these meetings, NP Melland observed that Plaintiff “was well groomed, she was cooperative, her affect was appropriate, her thought process was coherent and goal directed, her insight and judgment were intact, her memory was intact, she had no problems with attention and concentration, and her intelligence was average.” (Id.) NP Melland’s notes also state that Plaintiff “frequently reported [her medications] helped her symptoms.” (Id.) The ALJ summarized NP Melland’s medical source statement as follows: Nurse Melland stated the claimant had moderate limitations un [sic] understanding and remembering short, simple instructions, carrying out detailed instructions, and in her ability to make judgments on simple work related decisions. [R. 539.] She found the claimant had a mild limitation in understanding and remembering detailed instructions and no limitation in her ability to carry out short, simple instructions. [R. 539.] She added that if something went wrong the claimant may not be able to make a judgment call due to her ADHD symptoms. [R. 539.] (R. 27.) The ALJ then concluded that NP Melland’s opinion “somewhat persuasive” and explained her reasoning: This is a check-box medical source statement, but Nurse Melland provided some explanation as to why she check [sic] certain boxes. Further, the moderate limitations in carrying out detailed instructions, in her ability to make judgments on simple work related decisions, responding appropriate [sic] to work pressures in a usual work setting, and in responding appropriately to changes in a routine work setting are reasonable [sic] accommodated for in the above residual functional capacity. Moreover, Nurse Melland’s own exam findings often found the claimant was cooperative, she was well groomed, her attention and concentration were intact, her memory and cognition were normal, her thought processes were goal directed and coherent, and her mood and affect were appropriate. [R. 746-850, CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 9 of 23
10 1125-1188.] (R. 27-28.) B. Analysis Plaintiff argues the ALJ’s RFC determination is erroneous because the ALJ failed to account for or explain the omission of NP Melland’s opinion that Plaintiff has moderate limitations in: (1.) understanding and remembering short, simple instructions; and (2.) making judgements on simple work-related decisions. (ECF No. 13 at 12.) 1. Understanding and Remembering Short, Simple Instructions Plaintiff contends the ALJ was obligated to incorporate NP Melland’s limitation to “understanding and remembering short, simple instructions” because the ALJ found the opinion “persuasive.” (ECF No. 13 at 12-13.) According to Plaintiff, when an ALJ finds an opinion to be persuasive, she must either adopt all the limitations contained in the opinion by incorporating them into the claimant’s RFC, or she must explain the omission of those limitations from the claimant’s RFC. (ECF No. 18 at 2.) The Court disagrees for several reasons. First, the factual premise of Plaintiff’s argument is flawed. The ALJ did not find NP Melland’s medical opinion to be wholly persuasive; rather, she found it to be “somewhat persuasive.” (R. 27, emphasis added.) Thus, the ALJ was convinced by some of NP Melland’s opinion, but not all of it. (R. 28, stating ALJ’s RFC determination reasonably accommodated some of the limitations in Plaintiff’s RFC, but omitting reference to Plaintiff’s ability to understand and remember short, simple instructions.) An ALJ is “not required to adopt the exact limitations set forth in the opinions she found partially persuasive.” McKinney v. O'Malley, No. 23-cv-3220, 2024 WL 1327965, at *1 (8th Cir. Mar. 28, 2024). Therefore, the ALJ’s decision to incorporate only some of NP Meland’s “somewhat persuasive” opinion was entirely appropriate. Second, there is no per se rule that every limitation in a persuasive opinion must be CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 10 of 23
11 incorporated, so long as “substantial evidence supports the ALJ’s determinations regarding Plaintiff’s RFC.” John W. v. Kijakazi, No. 22-cv-2612 (PAM/TNL), 2023 WL 2540566, at *3 (D. Minn. Mar. 16, 2023), aff’d, 2023 WL 6629761 (8th Cir. Oct. 12, 2023) (per curiam). Substantial evidence supported the ALJ’s determination that Plaintiff’s ability to understand and remember short, simple instructions was not as limited as NP Melland’s check-box form reflects. In her step- two analysis the ALJ stated: The claimant alleged she had problems with her memory, she had problems managing her money, and she had problems [sic] [R. 251, 259, 1494, 1501, 52-82 (hearing testimony).] Nevertheless, the claimant’s exams continuously showed her memory, language, fund of knowledge, and cognition were intact. [R. 546-569, 663-672, 746-850, 879-930, 1126-1221, 1287-1448, 1493-1501.] Further, the record showed the claimant ran a business by selling Pokeman [sic] cards, she used a computer, she did online schooling, she watched television, she drove a car, and she went shopping in stores and online. [R. 251-252, 668, 1188, 1198, 1490, 1497, 52-82 (hearing testimony).] Accordingly, the undersigned finds no more than a mild limitation. (R. 16.) Additionally, in her step-four analysis, the ALJ cited Counselor Laura Wagner’s assessment that Plaintiff’s “language and associations were intact, her thought processes were logical, goal directed, and organized, her memory was good, her attention span was intact, she was focused, and her judgment was not impaired.” (R. 24.) Similarly, the ALJ cited Physician Assistant Daniel Durbin’s assessment that Plaintiff’s “memory was intact, her speech was normal, her thought processes were logical, linear, coherent, and goal directed, she was attentive, her concentration was good, [and] her intelligence was average and above….” (R. 25.) The ALJ expressly disagreed with Counselor Wagner’s assessment that Plaintiff has a “marked” limitation in remembering instructions because “Ms. Wagner’s own exam findings generally showed [Plaintiff] had no difficulty with her memory” and “other exams” showed that “her memory and cognition were normal.” (R. 27.) This is “more than a mere scintilla” of evidence. Biestek, 139 S. Ct. at 1154. Accordingly, the Court must defer to the ALJ’s RFC determination with respect to CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 11 of 23
12 Plaintiff’s limitations in understanding and remembering short, simple instructions. See Perks, 687 F.3d at 1091. Plaintiff relies on two cases from this District to support her argument, but they are easily distinguishable. (See ECF No. 13 at 12-14, citing Mark S.E. v. Kijakazi, No. 20-cv-1954 (JFD), 2022 WL 834513 (D. Minn., Mar. 21, 2022); Brent Z. v. Kijakazi, No. 22-cv-511 (JWB/JFD), 2023 WL 1110449 (D. Minn. Jan. 30, 2023).) In Mark S.E., the court remanded because the ALJ deemed “persuasive” opinions that the plaintiff was limited to one-to-two step tasks, but then omitted that limitation from the plaintiff’s RFC without explanation. See Mark S. E., 2022 WL 834513, at *4-5. Similarly, in Brent Z., the court remanded because the ALJ found “generally persuasive” opinions that the plaintiff was limited to one-to-two step tasks, but omitted that limitation without explanation. Brent Z., 2023 WL 1110449, at *7-8. Here, in contrast, the ALJ only found NP Melland’s opinion to be somewhat persuasive, making it clear she was persuaded by some parts of it and unpersuaded by others. (R. 27.) Moreover, the ALJ expressly enumerated the list of NP Melland’s proposed limitations reasonably addressed in the RFC and excluded any limitation in understanding or remembering from that list.6 (R. 27-28.) Unlike the ALJs in Mark S.E. and Brent Z., the ALJ here did not suggest that she found a particular limitation to be warranted and then exclude it from the RFC without explanation. To the contrary, the ALJ explained in several parts of her Decision why she concluded only a mild limitation in this functional domain was warranted. For these reasons, the authorities Plaintiff cites do not persuade the Court to reject the ALJ’s determination. Because the ALJ properly considered Plaintiff’s ability to understand 6 Plaintiff appears to argue that, by “explicitly restat[ing]” NP Melland’s conclusions, the ALJ necessarily found them persuasive. (ECF No. 13 at 11; ECF No. 18 at 2.) The Court does not agree that the restatement of an opinion amounts to an agreement with it. The ALJ was simply noting NP Melland’s conclusions as a foundation for the following paragraph, wherein she addressed their persuasiveness. (R. 27-28.) CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 12 of 23
13 and remember short, simple instructions and explained her reasoning with support from the record, the Court does not believe the ALJ’s omission of additional limitations from Plaintiff’s RFC was legally erroneous. 2. Making Judgments on Simple Work-Related Decisions Plaintiff also contends the ALJ erred in failing to adopt limits in her RFC addressing NP Melland’s opinion that Plaintiff has a moderate limitation in her ability to make judgments on simple work-related decisions. (ECF No. 13 at 10.). But that contention overlooks the ALJ’s explicit statement that Plaintiff’s “ability to make judgments on simple work related decisions … [is] reasonabl[y] accommodated for in the [RFC].” (R. 27-28.) And though the ALJ did not include an express reference to making judgments in her RFC determination, it does include broad mental and social limitations: The claimant can carry out simple instructions. She can tolerate occasional interaction with coworkers and supervisors. She can deal with occasional changes in a routine work setting. The claimant cannot perform work requiring a specific production rate such as assembly line work or work that requires hourly quotas. No interactions with the public. (R. 18.) Plaintiff acknowledges these limitations, but she argues they do not equate to a moderate limitation in making judgments. (ECF No. 18 at 4-5.) The Court disagrees. An RFC can accommodate a claimant’s limitations while not restating those limitations verbatim. See Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir. 2018) (“Minor inconsistencies in wording or phrasing do not rise to the level of reversible error.”). “It is not necessary for an ALJ to use magic words [when] … the record as a whole demonstrates the ALJ understood a claimant’s mental impairments and imposed RFC limitations … related to those impairments.” Kasey K., v. Kijakazi, No. 22-cv-2029 (WMW/DLM), 2023 WL 5754115, at *4 (D. Minn. July 13, 2023), report & recommendation adopted, 2023 WL 5624007 (D. Minn. Aug. 31, 2023). CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 13 of 23
14 The ALJ’s RFC limitations as a whole are adequate to account for Plaintiff’s judgement impairment. The RFC limits Plaintiff to carrying out, “simple instructions” with only “occasional interaction with coworkers and supervisors.” (R. 18.) Moreover, the ALJ’s step-five analysis shows that these limitations sufficiently address Plaintiff’s impairment. Based on her RFC determination and the vocational expert’s testimony, the ALJ concluded Plaintiff could perform the jobs of Marker, Routing Clerk, and Router. (R. 77-78.) All these jobs are categorized as SVP 2 positions. See DOT §§ 209.587-034, 222.687-022, 222.587-038. SVP 2 corresponds to “unskilled work.” SSR 00-4P, Policy Interpretation Ruling Titles II and XVI: Use of Vocational Expert & Vocational Specialist Evidence, & Other Reliable Occupational Info. in Disability Decisions, (S.S.A. Dec. 4, 2000). Unskilled work in this context means, “work which needs little or no judgment to do simple duties.” 20 C.F.R. § 404.1568 (emphasis added). The vocational expert only identified jobs that accommodated Plaintiff’s limited ability to make judgments, and thus the ALJ’s omission of any reference to judgment from Plaintiff’s RFC could not have affected the outcome of Plaintiff’s disability determination. See Austin v. Kijakazi, 52 F.4th 723, 729 (8th Cir. 2022) (concluding “any legal error in the ALJ’s analysis [of medical opinions] was harmless” because it did would not have altered the disability determination). For the foregoing reasons, the Court concludes the ALJ did not commit reversible error in addressing the limits set forth in NP Melland’s opinion. III. Absenteeism, Off-Task Time, and Interaction with Coworkers and Supervisors Plaintiff argues the ALJ erred in failing to consider Plaintiff’s need for absences and off- task time in evaluating Plaintiff’s ability to sustain competitive employment. (ECF No. 13 at 16.) Specifically, Plaintiff asserts the ALJ should have considered her need to take time off for medical appointments, as well as absences and off-task time arising from her physical and mental CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 14 of 23
15 conditions. (ECF No. 13 at 17-20.) Plaintiff also argues she cannot sustain competitive employment because “the RFC permits occasional contact with coworkers and supervisors,” which would create an unsustainable work environment for her. (ECF No. 13 at 21.) Though Plaintiff frames these arguments as step-five challenges, the Court construes them as step-four RFC challenges, as courts have done in similar cases. See, e.g., Angela D. v. Colvin, No. 24-cv-385 (JWB/DTS), 2025 WL 539673, at *4 (D. Minn. Jan. 17, 2025), report and recommendation adopted sub nom., Angela D. v. King, 2025 WL 524202 (D. Minn. Feb. 18, 2025); see James P.K. v. O’Malley, No. 23-cv-3883 (KMM/DTS), 2024 WL 5508588 (D. Minn. Aug. 7, 2024), report and recommendation adopted sub nom., James P.K. v. Dudek, 2025 WL 911014 (D. Minn. Mar. 26, 2025); Jessica D. v. Bisignano, No. 24-cv-02981 (LMP/ECW), 2025 WL 2534639, at *43 (D. Minn. July 30, 2025), report and recommendation adopted, 2025 WL 2533675 (D. Minn. Sept. 3, 2025). A person’s RFC is the most she can still do in a work setting despite mental and physical limitations that affect her in that setting. 20 C.F.R. § 404.1545(a)(1). Plaintiff argues her mental and physical limitations limit her ability to be present and focused at work because those limitations necessitate absences and off-task time. (ECF No. 13 at 18-20.) This is plainly an RFC challenge because she is alleging the ALJ failed to consider ways in which her mental and physical conditions limit her ability to perform sustained work. See Titles II & XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8P (1996), 1996 WL 374184, at *5 (stating RFC assessment must be based on “effects of treatment, including limitations or restrictions imposed by the mechanics of treatment”). Plaintiff’s argument concerning social limitations is also a step-four RFC challenge because she alleges the ALJ’s RFC determination requires her to do more than what she can do in a work setting, instead of the most she can do. (ECF No. 13 at 20.) For these reasons, the Court analyzes Plaintiff’s arguments as step-four CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 15 of 23
16 challenges. A. Absenteeism Due to Medical Appointments Plaintiff asserts she is unable to perform sustained work due to her need for frequent medical appointments, including: approximately once-weekly psychotherapy appointments with Counselor Wagner for treatment of borderline personality disorder (R. 24); twice-weekly dialectical behavioral therapy (“DBT”) appointments (R. 24-25); and once-monthly medication management appointments with PA Daniel Durbin (R. 25). Based on these numbers, Plaintiff contends she attends approximately thirteen appointments per month. Moreover, the vocational expert testified that if Plaintiff has to leave early or arrive late to accommodate weekly therapy appointments, her absences would exceed employer tolerances. (R. 80.) Plaintiff argues on these grounds that the ALJ erred in finding her capable of sustained employment. (ECF No. 13 at 17.) The Court is not persuaded by this argument for two reasons. First, the record reflects that Plaintiff’s DBT appointments ended in June 2023. (See R. 1759, DBT therapist’s note dated June 30, 2023, stating, “Client will be graduating after this session”; see also R. 24-25, ALJ Decision stating that Plaintiff attended DBT from July 2019 through June 2023.) Plaintiff submitted no medical records or therapy notes substantiating any claim that her DBT appointments continued after that date. Plaintiff represents that she testified during the September 6, 2023 hearing that her DBT appointments were still ongoing (ECF No. 18 at 6, citing R. 62-63), but this is a blatant mischaracterization of her testimony. (See R. 62-63, describing weekly psychotherapy appointments with Counselor Wagner and monthly medication management appointments with PA Durbin, with no reference whatsoever to DBT.) In light of this evidence, Plaintiff’s assertion that she continues to need thirteen medical appointments per month lacks credibility. Instead, an estimate of five appointments per month is more consistent with the record. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 16 of 23
17 Second, though Plaintiff’s psychotherapy and medication management appointments appear to be necessary for her to function, Plaintiff has failed to show that they necessitate absences from work. “The frequency of medical appointments … without information to substantiate the degree of absenteeism from employment resulting from such appointments, does not justify an absenteeism limitation.” James P.K., 2024 WL 5508588 at *6. Furthermore, “[i]t is Plaintiff's burden to show the frequency of [her] healthcare appointments and any disruption they would cause.” Jason P. P. v. Kijakazi, No. 20-cv-688, 2021 WL 4483040, at *17 (D. Minn. Sept. 30, 2021) (emphasis added). A plaintiff cannot satisfy this burden by simply pointing to the frequency of her medical appointments; rather, she must demonstrate that her medical appointments can only be scheduled during working hours and would therefore necessarily result in absenteeism. See James P.K., 2024 WL 5508588 at *6. Plaintiff makes no such demonstration and simply relies on the number of appointments as the basis for her argument. (ECF No. 13 at 18-19.) Plaintiff relies on Kim J.H. v. Saul, No. 18-cv-2736 (MTD/TNL), 2020 WL 872308, at *9- 10 (D. Minn. Jan. 28, 2020), but that case is unhelpful. (ECF No. 13 at 18-29.) The plaintiff in Kim J.H. needed cancer treatments, which the Commissioner acknowledged “would require [the p]laintiff to be absent from work for the entire day.” Kim J.H., 2020 WL 872308, at *10. Moreover, the court explicitly stated that its decision should not be construed as standing for the proposition “that frequency of medical appointments alone renders a claimant disabled.” Id. at *11. Because Plaintiff’s argument here rests solely on the alleged frequency of her medical appointments, the Court is compelled to find that an absenteeism restriction based on those appointments is unwarranted. B. Absenteeism and Off-Task Time Due to Mental and Physical Health Plaintiff further contends that pain in her back, joints, and upper extremities, headaches, and a “moderate” limitation in her ability to “complete a normal workday and workweek without CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 17 of 23
18 interruptions from psychologically based symptoms” require absenteeism and off-task time limitations in her RFC. (ECF No 13 at 20, citing R. 92, 93, 105, 106, 83-94.) The ALJ considered Plaintiff’s reported pain and mental health conditions in determining Plaintiff’s RFC, however, and included restrictions to the extent the ALJ found them supported by the record. In doing so, the ALJ took Plaintiff’s hearing testimony regarding her pain and mental health symptoms into account. (See, e.g., R. 20, citing Plaintiff’s testimony that her last job was “too much, stressful, painful,” that she “would have episodes at work where she would hit things, throw things, and had crying spells” and that “her fibromyalgia made her feel hungover or like she had the flu.”) Having considered and weighed Plaintiff’s testimony along with the other evidence in the record, the ALJ concluded that Plaintiff’s “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but that Plaintiff’s “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 20-21.) In reaching this conclusion, the ALJ cited Dr. Marc Nolan, D.O. and Dr. Carlton Kimmerle, M.D., who found that Plaintiff’s pain could be alleviated by low-impact aerobics and treatment with Tizanidine. (R. 20, citing R. 322, 345.) The ALJ noted that physical therapy had improved Plaintiff’s neck pain, thoracic pain, and function. (R. 20, citing R. 576-577, 582.) The ALJ also noted a stabilization in Plaintiff’s pain following visits with Bethany Miller, C.N.P. in 2023. (R. 22, citing R. 1464.) The ALJ further considered Plaintiff’s statements regarding her pain in light of her treatment regimens and activities of daily living: [t]he claimant was treated conservatively with medication, physical therapy, medical marijuana, and injections which she frequently reported were helping and managing her symptoms. [R. 317, 865, 1464, 1469, 1473, 1475, 1478, 1483, 52- 82 (hearing testimony).] It was even noted the claimant was not on medication for fibromyalgia and that she was only using supplements and THC/CBD products. Moreover, the record showed she was able to do yoga, she swam, she played frisbee CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 18 of 23
19 golf, she attended a music festival, she played pool, she went shopping, she prepared simple meals, and she drove a car. [R. 250-251, 545, 833, 1020, 1129, 52-82 (hearing testimony).] (R. 23.) The ALJ also extensively reviewed Plaintiff’s psychological symptoms. (R. 25-29.) In formulating Plaintiff’s RFC, the ALJ addressed her “problems with social anxiety, stress, problems getting along with others, mood swings, and problems concentrating.” (R. 26.) But the ALJ also noted that Plaintiff “generally reported her medication and therapy were helping her mental health symptoms.” (R. 26, citing R. 747, 754, 756, 771, 778, 786, 794, 802, 810, 818, 826, 834, 1121, 1129, 1156, 1164, 1172, 1180, 1186, 1188, 1198, 1208, 1216, 1222-1223.) The ALJ considered that Plaintiff’s activities of daily living included running a Pokémon card business, using a computer, attending online school, watching television, driving, and shopping in stores and online. (R. 26, citing R. 251-252, 668, 1188, 1198, 1490, 1497, 52-82.) The ALJ further noted that Plaintiff “had a boyfriend, she spent time with others, she went to a music festival, and she was close with her mom.” (R. 26, citing R. 252, 659, 801, 833, 1198, and Plaintiff’s hearing testimony.) The ALJ additionally considered Plaintiff’s treatment history and found that “the record failed to document any significant, ongoing treatment other than therapy, medication and management, indicating only conservative care without significant exacerbation or symptomatology during the period at issue.” (R. 26.) The ALJ thus thoroughly reviewed the record, explained her reasoning, and based her determination on “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek, 139 S. Ct. at 1154. Plaintiff objects to the ALJ’s conclusion that she can perform sustained work based on medical records from the Pain Management Center, which state that Plaintiff should work limited hours. (ECF No. 13 at 19-20.) She also stresses that a previous employer terminated her CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 19 of 23
20 employment due to her absenteeism and off-task time. (ECF No. 13 at 20.) Though these facts support her position, Plaintiff’s argument is essentially a disagreement with how the ALJ weighed the evidence. It is blackletter law that the Court’s review of the ALJ’s evidentiary analysis is limited to “whether substantial evidence supports the ALJ’s decision” and not “whether substantial evidence exists to reverse the ALJ.” Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010) (citing Young v. Apfel, 221 F.3d at 1068). Because substantial evidence supports the ALJ’s conclusion that an absenteeism and off-task time limitation for Plaintiff’s mental and physical health was unnecessary, the Court recommends affirming the ALJ’s decision. C. Interactions with Coworkers and Supervisors Plaintiff also challenges the ALJ’s RFC determination insofar as it permits occasional contact with coworkers and supervisors. In determining that Plaintiff can tolerate only “occasional interaction with coworkers and supervisors” and have “[n]o interactions with the public,” the ALJ recognized that Plaintiff’s ability to interact with others is limited and incorporated that limitation into Plaintiff’s RFC. Therefore, Plaintiff’s disagreement is not that the ALJ failed to consider her social interaction limitation, but that the ALJ did not account for that limitation to a sufficient degree. Plaintiff bases her challenge on: (1.) NP Mellard’s opinion that Plaintiff has difficulty interacting with others (ECF No. 13 at 20, citing R. 540); (2.) problems Plaintiff encountered in a previous job at Anderson Windows (ECF No. 13 at 20-21, citing R. 60-61, 659); and (3.) the state agency psychological consultants opinions that Plaintiff has a “moderate” limitation in interacting with others (ECF No. 13 at 21, citing R. 92, 105, 83-94, 97-108). In analyzing Plaintiff’s RFC, the ALJ acknowledged Plaintiff’s testimony that her previous employer fired her for throwing a drill at someone. (R. 20, referring to R. 60-61.) But the ALJ also considered NP Melland’s findings that Plaintiff was cooperative during appointments (R. 24, CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 20 of 23
21 citing R. 746-850, 1191-1221) and that gabapentin had helped to manage her social anxiety symptoms (R. 24, citing R. 742, 755, 771, 799, 810, 818, 831, 834, 1199). Moreover, the ALJ considered Counselor Wagner’s appointment notes that Plaintiff “was friendly and responsive” (R. 24, citing R. 546-569, 662-663, 671-672, 878-930, 1287-1448) and PA Durbin’s mental status exam findings that Plaintiff was “cooperative and pleasant” (R. 25, citing R. 1125-1126, 1133- 1134, 1141-1142, 1151-1152, 1159-1160, 1167-1168, 1175-1176, 1183-1184). The ALJ stated: The claimant alleged she had problems getting along with others, she had social anxiety, she had problems getting along with others at work, she had problems making phone calls, and she had problems in crowds [R. 252-253, 256, 260, 1121, 1127, 52-82 (hearing testimony).] Nonetheless, the record showed the claimant had a boyfriend, she spent time with others, she went to a music festival, and she was close with her mom. [R. 252, 659, 801, 833, 1198, 52-82 (hearing testimony).] The claimant often reported gabapentin helped the claimant’s social anxiety and she had to rarely use Ativan. [R. 784, 802, 810, 818, 826, 834, 1156, 1164, 1172, 1180, 1223.] In addition, the claimant’s exams continually reported she was cooperative, she had normal socialization with others, and had she had normal behavior. [R. 546-569, R. 663-672, 746-850, 879-930, 1126-1221, 1287-1448, 1493, 1501.] Further, the record failed to document she had problems getting along with medical staff and providers during the period at issue. Based on the above evidence and moderate limitation in interact with others, the claimant can tolerate occasional interaction with coworkers and supervisors, but no interaction with the public. This reasonably accommodates the claimant’s difficultly interacting with others. (R. 26.) In reaching this conclusion, the ALJ expressly found Counselor Wagner’s opinion that Plaintiff had “marked” limitations in responding appropriately to supervisors and co-workers unpersuasive because it was inconsistent with Counselor Wagner’s own records, which noted Plaintiff’s cooperation and pleasant mood during appointments. (R. 27.) Plaintiff does not challenge the ALJ’s evaluation of Counselor Wagner’s opinion. In contrast, the ALJ also disagreed with NP Melland’s assessment that Plaintiff had “no limitations in her ability to interact appropriate[ly] with the public, supervisors, or coworkers.” The ALJ acknowledged that during CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 21 of 23
22 the time NP Melland wrote her statement gabapentin helped Plaintiff’s social anxiety, but found: Nonetheless, the record does support no more than moderate limitations in the claimant interacting with others, as the claimant stopped taking gabapentin after this opinion was written, the claimant reported she had problems getting along with others, and at times reported she had some social anxiety along with problems being in large crowds. (R. 27-28, citing R. 1121, 1127, 1172, 1189, 52-82 (hearing testimony).) The ALJ thus reconciled the stark conflict between Counselor Wagner and NP Melland’s opinions by: (1.) finding that Plaintiff has a moderate limitation in interacting with others; and (2.) crafting an RFC that limits Plaintiff to “occasional interaction with coworkers and supervisors” and “[n]o interactions with the public.” (R.18.) Based on this record, the Court finds the ALJ thoroughly reviewed the relevant evidence concerning Plaintiff’s social interactions, made a reasonable decision based on substantial evidence, and clearly explained her reasoning. Plaintiff’s challenge to this portion of the ALJ’s RFC determination invites the Court to reweigh the evidence which, as previously stated, the Court cannot do. See Chesser, 858 F.3d at 1164; see also Nash, 907 F.3d at 1089. The ALJ’s determination that Plaintiff is capable of occasional interactions with coworkers and supervisors should be affirmed for these reasons. RECOMMENDATION Based on foregoing, and on all the files, records, and proceedings herein, IT IS HEREBY RECOMMENDED that: 1. Plaintiff’s Request for Relief (ECF No. 13) be DENIED; 2. Defendant’s Request for Relief (ECF No. 15) be GRANTED; 3. The ALJ’s Decision be AFFIRMED; and 4. This action be DISMISSED WITH PREJUDICE. CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 22 of 23
23 Dated: January 20, 2026 s/ Dulce J. Foster DULCE J. FOSTER United States Magistrate Judge 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 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. LR 72.2(b)(2). All objections and responses must comply with the word or line limits set forth in LR 72.2(c). CASE 0:24-cv-04375-PJS-DJF Doc. 22 Filed 01/20/26 Page 23 of 23
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