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UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Richard H.,
Plaintiff,
v.
Frank Bisignano,
Commissioner of Social Security,
Defendant.
0:25-cv-01385-NEB-EMB
REPORT AND
RECOMMENDATION
Plaintiff seeks judicial review of the final administrative decision of the
Commissioner of Social Security (“Commissioner”) pursuant to 42 U.S.C.
§ 405(g). This matter was referred to the undersigned Magistrate Judge for a
Report and Recommendation by the District Court pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 72.1(c).
The Court considers the matter on the parties’ briefs (Dkt. Nos. 10, 15,
and 16). See Supplemental Rules for Social Security Actions under 42 U.S.C.
§ 405(g), R. 5. For the reasons discussed below, it is recommended that
Plaintiff’s request for relief be DENIED, and the Complaint be DISMISSED
with prejudice.
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I. BACKGROUND
On December 8, 2022, Plaintiff Richard H.1 filed an application for
disability insurance benefits, alleging disability beginning on June 17, 2011.
(Admin. R. (Dkt. No. 8) at 225.)2 In his application, Plaintiff alleged that he
became disabled because of autism and post-traumatic stress disorder. (Id. at
199.)
An individual is considered disabled for purposes of Social Security
disability benefits if he 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 twelve
months.” 42 U.S.C. § 423(d)(1)(A). In addition, an individual is disabled “only
if his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy.” Id. § 423(d)(2)(A). “[A]
physical or mental impairment is an impairment that results from
1 This District has adopted the policy of using only the first name and last
initial of any nongovernmental parties in orders in Social Security matters.
2 All page numbers to record citations refer to the ECF-created numbers at
the top of each page.
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anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” Id. § 423(d)(3).
The Commissioner has established a sequential, five-step evaluation
process to determine whether an individual is disabled. See 20 C.F.R. §
404.1520(a)(4). At step one, the claimant must establish that he is not
engaged in any “substantial gainful activity.” Id. § 404.1520(a)(4)(i). If he is
not, the claimant must then establish that he has a severe medically
determinable impairment or combination of impairments at step two. Id. §
404.1520(a)(4)(ii). At step three, the Commissioner must find that the
claimant is disabled if the claimant satisfies the first two steps and the
claimant’s impairment meets or is medically equal to one of the listings in 20
C.F.R. Pt. 404, Subpart P, App’x 1. Id. § 404.1520(a)(4)(iii). If the claimant’s
impairment does not meet or is not medically equal to one of the listings, the
evaluation proceeds to step four. At that juncture, the claimant bears the
burden of establishing his residual functional capacity (“RFC”) and proving
that he cannot perform any past relevant work. Id. § 404.1520(a)(4)(iv); see
also Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). If the claimant
proves he 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.
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20 C.F.R. § 404.1520(a)(4)(v); see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5
(1987). If the claimant can perform such work, the Commissioner will find
that the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v).
Plaintiff’s application for benefits was denied initially and on
reconsideration. (Admin R. at 79-97.) On December 21, 2023, at Plaintiff’s
request, an Administrative Law Judge (“ALJ”) held a telephone hearing on
Plaintiff’s application. (Id. at 33.) Plaintiff testified and was represented by
Kelly Blad at this hearing. (Id. at 55–78.) Thereafter, the ALJ issued her
written decision. (Id. at 33–50.)
The ALJ determined that Plaintiff had several severe impairments:
autism spectrum disorder and generalized anxiety disorder. (Id. at 36.)
Further, the ALJ determined that Plaintiff has the RFC to perform a full
range of work at all exertional levels with the following limitations: “The
claimant is able to understand, remember and carryout simple,
routine and repetitive instructions; tolerate occasional interaction
with supervisors and coworkers, but is not able to perform tandem
or coordinated tasks with coworkers; tolerate brief and superficial
interaction with the general public; and tolerate occasional changes
to a work setting.” (Id. at 39.)
After considering testimony from a vocational expert (“VE”), the ALJ
determined that there were jobs that Plaintiff could perform available in
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sufficient numbers in the national economy and therefore found that Plaintiff
was not disabled. (Id. at 50.) The Appeals Council denied Plaintiff’s request
for review of the ALJ’s decision, and this lawsuit followed. See 42 U.S.C. §
405(g) (providing for judicial review of final decisions of the Commissioner of
the Social Security Administration).
II. DISCUSSION
Judicial review of the Commissioner’s decision is limited to
determining whether that decision is “supported by substantial evidence on
the record as a whole,” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000),
or whether the ALJ’s decision resulted from a legal error, Nash v. Comm’r,
Soc. Sec. Admin., 907 F.3d 1086, 1089 (8th Cir. 2018). “Substantial evidence .
. . is more than a mere scintilla.” Biestek v. Berryhill, 587 U.S. 97, 103 (2019)
(quotation omitted). It is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)). This “threshold . . . is not high.”
Biestek, 587 U.S. at 103. “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).
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Plaintiff challenges only the ALJ’s determination of his RFC. (Dkt. No.
10 at 6–13.) Namely, he argues that the ALJ erred in finding an RFC with
only “occasional” interaction with supervisors rather than “occasional and
superficial” interaction with supervisors. (Dkt. No. 16 at 3–4.) As a result of
the omission of the “superficial interaction” limitation in the RFC, Plaintiff
argues it is impossible to know whether the RFC accurately represents
Richard H.’s ability to work. (Dkt. No. 10 at 13.)
The ALJ must determine the claimant’s RFC pursuant to 20 C.F.R.
§ 404.1520(e). The RFC is the most an individual can do in a work setting
despite his limitations due to any impairments and related symptoms. 20
C.F.R. § 404.1545(a)(1). The ALJ must consider all the claimant’s
impairments, severe and not severe, in determining the RFC. 20 C.F.R.
§ 404.1520(e) and 404.1545.
After determining Plaintiff’s RFC, the ALJ used the RFC to question a
VE and determine that Plaintiff could not perform his past work as a sales
attendant or janitor. (Admin. R. at 48–49.) The ALJ went on to consider the
RFC, along with Plaintiff’s age, education, and work experience, in
concluding jobs existed in significant numbers in the national economy that
the Plaintiff could perform. (Id. at 49-50.) Importantly, the ALJ’s
determination that other jobs existed for Plaintiff was not based solely on the
RFC. The VE identified Laundry Worker II, Routing Clerk, and Sorter as jobs
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appropriate for Plaintiff. (Admin R. at 49.) Thus, the ALJ found Plaintiff was
not disabled under sections 216(i) and 223(d) of the Social Security Act. (Id.
at 50.)
a. The ALJ Thoroughly Analyzed the Medical and Other
Evidence.
The ALJ performed a thorough analysis in arriving at Plaintiff’s RFC.
She correctly noted that she “cannot defer or give any specific evidentiary
weight, including controlling weight, to any prior administrative medical
finding(s) or medical opinion(s).” (Admin R. at 46); see also 20 C.F.R. §
404.1520c(a)
The ALJ first considered Plaintiff’s symptoms. Most specifically, she
noted the Plaintiff’s job at Cub Foods ended when he had an angry outburst
related to a scheduling change. (Admin. R. at 40.) Notably, this outburst was
due to a failure to adjust to change in schedule rather than due to an
interaction with his supervisor. This is consistent with Plaintiff’s testimony
that he does not do well with changes in routine. (Id. at 72.) The ALJ’s RFC is
consistent with this symptom, including that Plaintiff can only “tolerate
occasional changes to a work setting.” (Id. at 39.)
Then, the ALJ looked at Plaintiff’s mental health history in detail. She
started with the psychological assessment by Dr. Maurice Smith, which
included numerous diagnostic psychological tests and Plaintiff’s family,
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education, employment, and mental health history. (Id. at 41-43.) The ALJ
summarized the key information from the treatment files of Dr. Vikesland,
MA Woodward-Kreitz, and MA Lahti, which were appended to Dr. Smith’s
report. (Id. at 42–44.)
Finally, the ALJ considered the medical opinions and prior
administrative medical findings. (Id. at 46–47.) Ultimately, the ALJ found
two of these categories of medical evidence persuasive and several others not
persuasive. It is not this Court’s role to upset the ALJ’s weighing of various
medical sources. See Schmitt v. Kijakazi, 27 F.4th 1353, 1361 (8th Cir. 2022)
(“[I]t is not this Court’s role to reweigh [ ] evidence.”).
Focusing on the two sources the ALJ deemed persuasive, the Court
must determine whether these provide sufficient evidence for the limitations
included in the RFC. First, as noted by the parties, the ALJ found the
opinions of the state-retained psychologists Dr. Joseph Cools and Kathleen
Feil persuasive. (Admin R. at 46–47.) Dr. Cools classified Plaintiff as having
“moderate difficulties in interacting with others.” (Id. at 46, 82.) The specific
“Social Interaction Limitation” regarding supervisors that Dr. Cools found as
“Moderately Limited” was “the ability to accept instructions and respond
appropriately to criticism from supervisors.” (Id. at 84.) It was this limitation,
when grouped with social interaction limitations related to coworkers and the
public, that led to the narrative description that: “The claimant would be able
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to maintain only limited, superficial, and infrequent contact with supervisors
and coworkers. He would do best with very infrequent contact with the
general public.” (Id. at 85.) Dr. Feil affirmed this assessment at the
reconsideration level. (Id. at 93-94.) The ALJ found these assessments
persuasive, because they were “consistent with other cumulative evidence of
record.” (Id. at 47.)
The ALJ also found Dr. Gary Vikesland’s opinion persuasive. Dr.
Vikesland provided a letter dated September 6, 2016 that stated in part: “I do
not believe that [Richard H.] could successfully work in a job that would
require frequent social interaction and communication with either coworkers
or the public. . . .” (Id. at 379–80.) In finding this persuasive, the ALJ
specifically noted that Dr. Vikesland was a “treating source, specialized in
psychology, and his opinion is consistent with his treatment notes and
medical evidence of record.” (Id. at 48) Indeed, Dr. Vikesland had seen
Plaintiff on and off for over a decade. (See id. at 379.)
After reviewing and weighing the credibility of each of these sources
and the record evidence as a whole, the ALJ arrived at her RFC.
b. The ALJ’s Formulated RFC Is Consistent with the Medical
Opinions and Substantially Supported by the Record
Evidence.
Plaintiff argues the ALJ erred by not including the limitations stated
by the psychologists in the prior administrative medical findings. (Dkt. 10 at
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12–13.) But an ALJ is not “required to adopt the exact limitations set forth in
the opinions she found persuasive.” Wyatt v. Kijakazi, No. 23-1559, 2023 WL
6629761, at *1 (8th Cir. Oct. 12, 2023). However, the ALJ’s limitations
around social interaction in the RFC do need to be supported by substantial
evidence. Id. Even if it was possible to draw two inconsistent conclusions
from the medical opinions deemed persuasive, the Court must accept the
ALJ’s findings. See Perks, 687 F.3d at 1091. The Court looks at the ALJ’s
conclusion considering all the evidence, McKinney, 228 F.3d at 863, to
determine whether the ALJ’s conclusion is based on “relevant evidence as a
reasonable mind might accept as adequate to support [that] conclusion.”
Biestek, 587 U.S. at 103 (internal quotation omitted).
At issue here, Dr. Vikesland phrases his limitation as one against
“frequent social interaction” with “coworkers or the public,” without specific
mention of supervisors. (Admin R. at 379–80.) In comparison, Drs. Cools and
Feil phrase the limitation as to “only limited, superficial, and infrequent
contact with supervisors and coworkers. . . [and] very infrequent contact with
the general public.” (Id. at 85, 94.) These opinions are getting at the same
type of limitations. See Chismarich v. Berryhill, 888 F.3d 978, 980 (8th Cir.
2018) (“[O]ur deferential standard of review precludes us from labeling
findings as inconsistent if they can be harmonized. . . we must strive to
harmonize statements where possible.”).
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The ALJ’s formulation of the RFC is a combination of the medical
experts’ opinions she deemed persuasive: “tolerate occasional interaction with
supervisors and coworkers, but is not able to perform tandem or coordinated
tasks with coworkers; tolerate brief and superficial interaction with the
general public.” (Id. at 39.) The ALJ chose, as did Dr. Vikesland, to focus on
limiting the frequency of social interactions in a work setting. This is within
her purview to develop limitations by relying on any of the medical opinions
she found persuasive. See Wyatt, 2023 WL 6629761, at *1; Schmitt v.
Kijakazi, 27 F.4th 1353, 1360 (8th Cir. 2022) (“[T]here is no requirement that
an RFC finding be supported by a specific medical opinion.” (quoting Hensley
v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016)). Indeed, the ALJ must synthesize
“all of the relevant evidence, including the medical records, observations of
treating physicians and others, and an individual’s own description of [his]
limitations” to establish the claimant’s maximum capability for work. Id.
(quoting Hensley, 829 F.3d at 931–32); see also 20 C.F.R. § 404.1545(a)(1).
That is what the ALJ did here—she found the opinions of Dr. Vikesland and
Drs. Cools and Fiel persuasive and formulated limitations that took both
opinions into account.
Further, nothing in the ALJ’s RFC determination conflicts with these
medical opinions. The ALJ’s use of “occasional interaction” rather than
“infrequent,” “limited,” and/or “superficial” does not create a conflict. On
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multiple recent occasions, the Eighth Circuit shut down this very practice of
nitpicking an ALJ’s decision. See Lane v. O’Malley, No. 23-1432, 2024 WL
302395, at *1 (8th Cir. Jan. 26, 2024) (finding that “[n]othing in the reference
to ‘occasional’ interactions conflicts with [the psychologists’] opinion,” where
the psychologists used the word “superficial” rather than “occasional”);
Michael M. v. Kijakazi, No. CV 23-405 (PAM/ECW), 2023 WL 6296007, at *2
(D. Minn. Sept. 27, 2023), aff’d sub nom. McKinney v. O’Malley, No. 23-3220,
2024 WL 1327965 (8th Cir. Mar. 28, 2024) (finding substantial evidence for
the ALJ’s limitation of “occasional incidental” interactions with coworkers
with no distinction from the doctor’s “brief and superficial contact”
recommendation).
Plaintiff does not address the Eighth Circuit cases cited by Defendant.
Instead, Plaintiff includes a long list of unpublished district court decisions—
all but two from outside this Circuit and all issued prior to the on-point
Eighth Circuit cases. (See Dkt. 10 at 10-12.) One of the Minnesota cases
Plaintiff cites, does not support Plaintiff’s position for the point at issue.
Sanders v. Astrue, No. CIV. 11-1356 JNE/JJG, 2012 WL 1658988, at *2 (D.
Minn. May 11, 2012) (“The ALJ’s choice in using the word ‘occasional’ rather
than ‘brief’ and ‘superficial’ is supported by substantial evidence and
adequately balances the evidence in the record.”). In the other case cited from
this Circuit, the Court could not determine whether the ALJ’s decision was
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supported by substantial evidence where opinions deemed persuasive were
not incorporated or discussed. Troy L. M. v. Kijakazi, No. 21-CV-199 (TNL),
2022 WL 4540107, at *16 (D. Minn. Sept. 28, 2022). The Troy L. M. case was
remanded with a suggestion that the ALJ take “additional testimony from a
vocational expert.” Id. The cases cited by Plaintiff are not controlling or
persuasive in light of the recent Eighth Circuit affirmations and the facts of
this case.
The Court finds that the ALJ’s decision regarding Plaintiff’s
recommended interaction with supervisors was based on substantial
evidence. Certainly, it is possible for a person to have occasional but lengthy
and in-depth interaction with a supervisor, but on the record here, that
situation is not necessarily a problem for the Plaintiff. Here, the ALJ used
“occasional” to limit social interactions at work and included a broader
limitation both as to the frequency and the nature of interactions with the
general public. That distinction is supported by the record. Several treatment
notes discuss increased symptoms when Plaintiff is in crowds or engaging
outside of the home and explain Plaintiff’s use of ear plugs or headphones to
limit stimuli. (Admin R. at 42.) Other notes mention Plaintiff avoiding large
gatherings such as weddings, funerals, reunions, or theaters. (Id. at 37, 43.)
Plaintiff testified to being easily distracted and reported exhaustion from
being out in the world. (Id. at 65, 68.) But the need for only superficial
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interactions at work has no direct support in the record and is undercut by
treatment notes and testimony about Plaintiff’s normal social relationships
with his family and friends. (Id. at 42–46, 69–70 (describing going on road
trips, going out to eat, and talking on the phone).) Plaintiff similarly responds
well to therapy and has good relationships with his treatment providers,
which necessarily require more than superficial interaction. (Id. at 37, 44–
46.) There is no indication in the record that Plaintiff should be limited to
only superficial interactions with people he knows, as would be the case with
a supervisor.
Further, the job descriptions for laundry worker II, routing clerk, and
sorter—the positions for which the ALJ found Plaintiff qualified—do not
indicate that more than “occasional” and “superficial” contact with a
supervisor would be required. See Dictionary of Occupational Titles, DICOT §
361.685-018, 222.687-022, and 222.687-014. The DICOT describes “taking
instructions-helping” as a “not significant” part of any of these jobs. Id.
The ALJ’s formulation of the RFC is supported by substantial evidence
on the record as a whole.
III. CONCLUSION
For the reasons discussed above, the Court concludes that the ALJ’s
assessment of Plaintiff’s RFC is supported by substantial evidence. Thus, the
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ALJ’s conclusion that Richard H. is not disabled within the meaning of the
Social Security Act is undisturbed.
Thus, it is RECOMMENDED that:
1. Plaintiff’s requested relief (Dkt. No. 10) be DENIED; and
2. This Complaint (Dkt. No. 1) be DISMISSED with prejudice.
Date: January 5, 2026
NOTICE
Filing Objections: This Report and Recommendation is not an order or
judgment of the District Court and is therefore not appealable directly to the
Eighth Circuit Court of Appeals.
Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed 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. See Local Rule 72.2(b)(2). All objections and responses
must comply with the word or line limits set forth in Local Rule 72.2(c).
s/Elsa M. Bullard
ELSA M. BULLARD
United States Magistrate Judge
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