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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.
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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.
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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.
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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
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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
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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.
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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
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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.
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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,
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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
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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
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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.)
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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).
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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
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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
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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.
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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
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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
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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
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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,
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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
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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.
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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).
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