UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


 Gaoee T.,                            Case No. 22-CV-1992 (JFD)          

               Plaintiff,                                                

 v.                                          ORDER                       

 Kilolo Kijakazi, Acting Commissioner of                                 
 Social Security,                                                        

               Defendant.                                                


    Pursuant to 

(g), Plaintiff Gaoee T. seeks judicial review of a final 
decision by the Defendant Commissioner of Social Security denying her applications for 
disability  insurance  benefits  (“DIB”)  and  supplemental  security  income  (“SSI”).  The 
matter is now before the Court on Plaintiff’s Brief (Dkt. No. 11) and Defendant’s Motion 
for Summary Judgment (Dkt. No. 14).                                       
    Plaintiff seeks reversal of the final decision of the Acting Commissioner of the 
Social Security Administration (“SSA”) on the following grounds: (1) the Administrative 
Law Judge (“ALJ”) did not fully and fairly develop the record concerning Plaintiff’s 
cognition and memory; (2) the ALJ failed to account for a limitation opined by a medical 
source  whom  the  ALJ  deemed  persuasive;  and  (3)  the  ALJ was  not  constitutionally 
appointed. Defendant opposes Plaintiff’s motion and asks the Court to affirm the final 
decision. For the reasons set forth below, the Court concludes that the ALJ did not fully 
and fairly develop the record concerning Plaintiff’s cognition and memory. Therefore, the 
Court reverses the final decision of the Commissioner and remands the matter to the SSA 
for further proceedings consistent with that conclusion. The Court also concludes that the 

ALJ was constitutionally appointed and that the ALJ did not err in her treatment of the 
opined limitation.                                                        
I.   Background                                                           
    On October 29, 2019, Plaintiff applied for DIB and SSI asserting that she became 
disabled on November 15, 2015. (See Soc. Sec. Admin. R. (hereinafter “R.”) 23, 312.)1 
Plaintiff’s  alleged  impairments  included  migraines,  digestive  system  problems,  heart 

problems, diabetes, memory loss, depression, loss of focus, low self-esteem with loss of 
energy  and  motivation,  shoulder  and  body  pain,  and  an  anxiety  disorder  with  sleep 
problems, nightmares, and mood swings. (R. 345.)                          
    A.   Relevant Medical Evidence2                                      
    On April 7, 2015, Plaintiff attended a therapy appointment with Breck Salisbury, 

MSW, LICSW. (R. 470.) Plaintiff’s complaints included daily migraines and short-term 
memory problems. (Id.) She reported problems remembering meetings, what her husband 
told her, and her daughter’s name. (Id.) Mr. Salisbury diagnosed Plaintiff with major 
depressive disorder, recurrent, moderate. (R. 473.) Plaintiff asked Mr. Salisbury to write a 


1  The  Social  Security  administrative  record  is  filed  at  Dkt.  No.  9.  The  record  is 
consecutively paginated, and the Court cites to that pagination rather than docket number 
and page.                                                                 

2 The Court limits the facts in this section to those relevant to the specific issues presented 
for judicial review.                                                      
letter to her employer requesting additional FMLA leave, but Mr. Salisbury suggested she 
ask her primary care provider, Dr. Endea Curry, because Dr. Curry had filled out the 

original FMLA paperwork. (R. 473.)                                        
    On April 23, 2015, Plaintiff saw Darrel Cotch, PA-C, for a psychiatric medication 
management  appointment.  (R.  483.)  Plaintiff  reported  difficulty  sleeping,  worsening 
depression, decreased energy, decreased appetite, poor self-worth, and difficulties with 
focus,  concentration,  and  memory.  (Id.)  Mr.  Cotch  diagnosed  Plaintiff  with  major 
depressive order and possible anxiety order. (R. 485.) Plaintiff did not mention cognition 

or memory problems at a neurology appointment in May 2015 with Dr. Vivian Fink. (R. 
486–89.)                                                                  
    On July 16, 2015, Plaintiff attended a psychiatric appointment with Dr. Karen Ta. 
(R. 491.) Plaintiff reported trouble concentrating, difficulty sleeping, fatigue, dizziness, 
and neck and arm numbness. (R. 492–93.) She said she had stopped working because she 

could not concentrate. (R. 493.) She reported that her concentration and memory were poor. 
(R. 494.) A recent medication change to Bupropion resulted in no side effects, more energy, 
fewer nightmares, better concentration, and less anxiety. (R. 493.) Dr. Ta’s diagnosis was 
major depression, single episode, moderate. (R. 494.)                     
    On December 17, 2015, Plaintiff saw Dr. Curry for a primary care visit. (R. 512). 

Dr. Curry noted significant life changes since Plaintiff’s last visit, including being “let go 
from her job” and a separation from her husband. (R. 513.) Plaintiff reported feeling 
depressed, but with the medication Topamax the frequency of her migraines had decreased 
to approximately once every two weeks. (R. 513.) By the next month, Plaintiff’s migraine 
headaches had decreased in frequency further, to once a month, with each migraine lasting 
about two hours. (R. 518.)                                                

    Plaintiff attended a psychiatric appointment with Dr. Ta in February 2016. (R. 523.) 
Plaintiff reported feeling sad, having low self-esteem and nightmares, not sleeping well, 
having trouble concentrating “sometimes,” and having memory problems when she was 
nervous. (R. 525.) When Plaintiff saw Dr. Ta the following month, Plaintiff reported 
feelings of anger and sadness with crying spells and low motivation, but also improved 
sleep, energy, concentration, and anxiety. (R. 534–35.)                   

    On December 17, 2019, Plaintiff saw Oreoluwa Oye, APRN, CNP, on a referral 
from Dr. Curry, for a psychiatric evaluation. (R. 693.) Plaintiff’s chief complaints were 
depression, nightmares, body pains, tiredness, and forgetfulness. (Id.) She also described 
cognitive dulling, which Ms. Oye noted could be a side effect of Topamax. (R. 694.) The 
mental status examination revealed good attention and concentration, and intact recent and 

remote memory. (R. 698.)                                                  
    On February 19, 2020, Plaintiff reported worsening nightmares, anxiety, and stress 
to Ms. Oye. (R. 817.) Ms. Oye noted “talk to neurology about concerns about Topamax 
and  cognition.”  (Id.)  According  to  Ms.  Oye,  Plaintiff’s  mood  symptoms  included 
“concentration  impairment,”  but  Ms.  Oye  also  noted  that  Plaintiff’s  attention  and 

concentration were good and that her recent memory and remote memory were intact. (R. 
818–19.)                                                                  
    Plaintiff had a telephone visit with Ms. Oye on April 1, 2020. (R. 830.) Plaintiff 
reported some improvement; she was sleeping better; and her nightmares had decreased. 
(Id.) At a July 1, 2020 appointment, Ms. Oye noted that Plaintiff’s anxiety was poorly 
controlled  and  her  memory  was  getting  worse.  (R.  840.)  Ms.  Oye  wrote  “Memory 

impairment”  and  “worsening  memory—encouraged  to  discuss  with  her  neurologist. 
Topamax is on her medication list, may be contributing to symptoms.” (Id.)  
    On July 29, 2020, Plaintiff saw Dr. Curry for a primary care appointment and 
described memory problems potentially caused by medication. (R. 851–52.) Dr. Curry 
observed on examination “insight and memory impaired.” (R. 854.) Dr. Curry agreed that 
Plaintiff should follow-up with her neurologist about her memory concerns. (Id.)  

    On August 3, 2020, Plaintiff saw her neurologist, Dr. Priyanka Sabharwal. (R. 868.) 
Dr. Sabharwal’s diagnoses were migraine, cervicalgia, major depressive disorder, vitamin 
D deficiency, benign essential tremor, and anxiety (R. 868.) Dr. Sabharwal listed Topamax 
as a “prior treatment” that had caused memory concerns (R. 870), but another notation on 
the progress note indicated that Plaintiff was “[n]ot sure if she is taking Topamax” (R. 869). 

Plaintiff was in fact still taking Topamax at that time. (See R. 894.)    
    Dr. Craig Barron, Psy.D., conducted a consultative psychological evaluation of 
Plaintiff  on  October  2,  2020,  at  the  request  of  the  SSA.  (R.  34,  1077.)  Dr.  Barron 
administered the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”) to assess Plaintiff’s 
overall cognitive abilities and the and the Wechsler Memory Scale-IV (“WMS-IV”) to 

assess Plaintiff’s learning and memory. (R. 1078.) On the WAIS-IV, Plaintiff scored within 
the mild intellectual disability range. (Id.) Dr. Barron remarked that Plaintiff may not have 
understood the instructions because English was her second language and also “may not 
have been working up to her fullest capabilities.” (Id.) On the WMS-IV, Plaintiff scored 
within the significantly impaired range, including multiple scores of “one,” which Dr. 
Barron wrote was “a bit odd unless there is a possibility that she suffered a cerebral vascular 

accident that she is unaware of.” (Id.) Despite the test scores, Dr. Barron said he was “very 
hesitant to make a diagnosis of Neurocognitive Disorder in light of the fact that none of 
her medical records would support that the client has significant problems with cognition 
and  memory.”  (Id.)  His  diagnostic  impressions  were  Generalized  Anxiety  Disorder, 
Unspecified  Depressive  Disorder,  and  “Rule-out  Malingering  versus  Unspecified 
Neurocognitive Disorder.” (R. 1082.)                                      

    During the mental status examination, Dr. Barron found that “Plaintiff presented as 
being confused,” but he “could not tell if this was for effect or not.” (R. 1079.) Plaintiff 
could recall the names of the current and former U.S. presidents and recall four digits 
forward and three digits backwards. (R. 1080.) Plaintiff said, however, that she forgot 
conversations and things like why she had walked into a room. (Id.) Dr. Barron found 

Plaintiff’s memory and cognition test results inconsistent with her background as a college 
graduate who worked for 15 years as a bilingual social worker for Ramsey County. (Id.) 
He questioned whether she was “purposely malingering or perhaps has suffered some type 
of neurological insult that is unknown to her.” (R. 1081.)                
    The  only  medical  record  provided  to  Dr.  Barron  by  the SSA  was  Ms.  Oye’s 

psychiatric evaluation dated December 19, 2019. (R. 1079.) Dr. Barron summarized the 
information in that record and noted that “[n]o other records were available for review.” 
(Id.) In the “Recommendations” section of the report, Dr. Barron wrote,   
    It would have been helpful if this examiner had more records from her 
    primary physician as opposed to her psychiatric nurse to determine if her 
    presentation  today  is  consistent  across  settings.  Due  to  the  differences 
    between the client’s presentation during today’s examination and the records 
    that this examiner had from her psychiatric nurse, as well as her history of 
    working as a social worker and obtaining a college degree without any 
    evidence of having a cerebral vascular accident, exposure to neurotoxins, or 
    having had a traumatic brain injury, this examiner believes that the client 
    may not have been working up to her fullest capabilities.            

(R.  1082.)  Dr.  Barron  concluded  that  Plaintiff  had  the  cognitive  capabilities  to 
communicate, comprehend, and retain simple directions at an unskilled competitive level, 
but  that  if  other  records  “support  her  claim  of  significant  cognitive  and  memory 
impairment,” any decisions about her employability should be reassessed. (R. 1082–83.) 
    On August 18, 2021, Plaintiff saw Amy Larson, APRN, for headaches. Ms. Larson’s 
treatment note also reflected nausea, vomiting, jaw pain, weakness, dizziness, photophobia, 
phonophobia, neck pain, back pain, paresthesias, chest pain, shortness of breath, anxiety, 
depression, memory concerns, and sleep issues. (Id.) Ms. Larson noted that Plaintiff was 
alert and oriented, and could recall three words immediately and two out of three words 
after several minutes, but could not spell “world” backward. (R. 10.)     
    B.   Procedural History                                              
    Plaintiff’s applications for DIB and SSI were denied at the initial review and 
reconsideration stages. (R. 23.) An SSA ALJ held a hearing on May 12, 2021, at Plaintiff’s 
request. (R. 49.) Plaintiff testified that she quit her previous job as a social worker because 
of several impairments including migraine headaches, stress, diabetes, depression, anxiety, 
and stomachaches. (R. 57–58.) Plaintiff reported that she still got headaches four to five 
times a week and experienced nausea and lack of concentration as a result of her migraine 
medication, Topamax. (R. 58.) Plaintiff also reported confusion when cooking a meal and 
memory issues such as forgetting to turn off the stove or sink. (R. 60.)  

    Kenneth Ogren, a vocational expert, also testified during the hearing. (R. 72.) Mr. 
Ogren opined that a hypothetical individual with Plaintiff’s characteristics and limitations, 
as described by the ALJ, could not perform Plaintiff’s past relevant work. (R. 72–73.) Such 
an individual could, however, perform other jobs including laundry worker, kitchen helper, 
and scrap sorter, according to Mr. Ogren. (R. 73.)                        
    The ALJ issued a decision on July 22, 2021, determining that Plaintiff was not 

disabled. (R. 20.) The ALJ followed the five-step sequential analysis outlined in 

(a)(4) and 416.920(a)(4). In the first step of the analysis, the ALJ determined 
Plaintiff had not engaged in substantial gainful activity since her alleged disability onset 
date of November 15, 2015. (R. 25.) At step two, the ALJ found that Plaintiff had the severe 
impairments of degenerative changes of the cervical spine and migraine headaches since 

November 15, 2015. (R. 26.) The ALJ also found that Plaintiff had the severe impairments 
of depressive disorder and generalized anxiety disorder since December 1, 2019. (Id.) The 
ALJ found that Plaintiff did not have a medically determinable cognitive disorder. (R. 27.)  
    At step three, the ALJ determined that Plaintiff did not have an impairment or 
combination of impairments that met or medically equaled the severity of an impairment  

listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 30.) Before moving to step four, the 
ALJ assessed Plaintiff’s residual functional capacity (“RFC”) as able     
    to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) 
    except no climbing of ladders, ropes, or scaffolds, occasional climbing of 
    ramps  and  stairs,  no  work  at  unprotected  heights  and  no  exposure  to 
    dangerous moving machinery in addition to routine repetitive not complex 
    types of tasks and instructions, and the tasks are fixed and predictable from 
    day to day as well as no fast pace high production goal or quota type tasks, 
    such as on an assembly line, moving conveyor belt or would require constant 
    handling, fingering or reaching as defined in the Dictionary of Occupational 
    Titles.                                                              

(R. 34–35.) With this RFC, the ALJ determined, Plaintiff could not perform her past 
relevant work. (R. 41.) At step five, the ALJ determined that Plaintiff could work as a 
laundry worker, kitchen helper, or scrap sorter. (R. 42.) Therefore, Plaintiff was found not 
disabled. (Id.)                                                           
    The Appeals Council denied Plaintiff’s request for review on June 9, 2022. (R. 1.) 
This made the ALJ’s decision the final decision of the Commissioner for the purpose of 
judicial review in accordance with section 205(g) of 

(g).  
II.  Legal Standards                                                      
    Judicial review of the Commissioner’s denial of benefits is limited to determining 
whether substantial evidence in the record as a whole supports the decision, 

(g), or whether the ALJ’s decision resulted from an error of law, Nash v. Comm’r, 
Soc. Sec. Admin., 

 (8th Cir. 2018). “Substantial evidence is less than 
a preponderance but is enough that a reasonable mind would find it adequate to support the 
Commissioner’s conclusion.” Krogmeier v. Barnhart, 

 (8th Cir. 2002) 
(citing Prosch v. Apfel, 

 (8th Cir. 2000)). The Court must examine 
“evidence that detracts from the Commissioner’s decision as well as evidence that supports 
it.” 

 (citing Craig v. Apfel, 

 (8th Cir. 2000)). The Court may not reverse 

the ALJ’s decision simply because substantial evidence would support a different outcome 
or because the Court would have decided the case differently. (Id.) (citing Woolf v. Shalala, 

 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent 

positions from the evidence and one of those positions is that of the Commissioner, the 
Court must affirm the decision. Robinson v. Sullivan, 

 (8th Cir. 1992).  
    It is a claimant’s burden to prove disability. See Roth v. Shalala, 

 
(8th Cir. 1995). To meet the definition of disability for DIB and SSI, the claimant must 
establish that 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.” 

(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A). The disability, not 
just the impairment, must have lasted or be expected to last for at least twelve months. Titus 
v. Sullivan, 

 (8th Cir. 1993).                             
III.  Discussion                                                          

    A.   The ALJ Did Not Provide Dr. Barron with All Necessary Background 
         Information, and Thereby Failed to Fully and Fairly Develop the Record 
         Concerning Plaintiff’s Cognition and Memory                     

    Plaintiff contends that the ALJ did not fully and fairly develop the record concerning 
her memory and cognitive limitations. (Pl.’s Mem. at 2, 21, Dkt. No. 11.) Plaintiff points 
out  that  Dr.  Barron  received  and  reviewed  only  one  treatment  note  as  part  of  his 
psychological evaluation of her—Ms. Oye’s psychiatric evaluation dated December 19, 
2019. (Id. at 22.) Plaintiff emphasizes Dr. Barron’s comments that “[i]t would have been 
helpful if this examiner had more records from her primary physician as opposed to her 
psychiatric nurse to determine if her presentation is consistent across settings” and “if such 
records do surface that support her claim of significant cognitive and memory impairment,” 
the Disability Determination Services (“DDS”) office3 “should reassess any decision they 

make regarding her employability.” (Id. at 24.)                           
    An ALJ must “order medical examinations and tests,” such as a psychological 
evaluation, “if the medical records presented to him do not give sufficient medical evidence 
to determine whether the claimant is disabled.” See McCoy v. Astrue, 

 
(8th Cir. 2011). None of Plaintiff’s providers submitted a medical opinion or a functional 
capacity assessment about her memory and cognition abilities, which the Court surmises 

is why the ALJ ordered the consultative evaluation from Dr. Barron.       
    When an ALJ orders a consultative examination, the SSA must “give the examiner 
any  necessary  background  information  about  [the  claimant’s]  condition.”  

,  416.917.  Courts  have  interpreted  the  phrase  “necessary  background 
information” to varying degrees. One view is that the Commissioner “should always 

provide all medical records to any physician from whom [she] solicits an opinion regarding 
any social security case.” Mateer v. Bowen, 

 (S.D. Iowa 1988). On 
the other hand, “there simply is no per se rule that an examining physician must be provided 
with, review, and consider the claimant’s medical records to render an opinion of any 
value.” Jones v. Colvin, No. C 14-3049-MWB, 

, at *4 (N.D. Iowa Mar. 

7, 2016); see Pocklington v. Berryhill, No. 2:16-CV-62 JMB, 

, at *5 

3 “Most Social Security disability claims are initially processed through a network of local 
Social Security Administration (SSA) field offices and State agencies (usually called 
Disability  Determination  Services  or  DDSs).”  SSA,  https://www.ssa.gov/ 
disability/determination.htm (last visited Sept. 8, 2023).                
(E.D. Mo. Aug. 4, 2017) (agreeing that no legal authority mandates the provision of the 
entire medical record to the consultative examiner and further noting that the plaintiff 

herself could have given additional medical records to the examiner); Hey v. Colvin, 

 (D. Minn. 2015) (finding that the ALJ fulfilled his duty to fully 
and  fairly  develop  the  record  because  the  consultative  evaluation  complied  with  the 
relevant regulations4 and the withheld records were about diagnoses, not functioning).  
    Dr. Barron wrote in his report that “[i]t would have been helpful to have more 
records from Plaintiff’s primary physician” and that records demonstrating “significant 

cognitive and memory impairment” would have been material to his opinion. In other 
words, Dr. Barron was missing necessary background information. And indeed, some of 


4 These regulations describe the required content of a consultative examiner’s report.  

    The  reported  results  of  your  medical  history,  examination,  requested 
    laboratory findings, discussions and conclusions must conform to accepted 
    professional standards and practices in the medical field for a complete and 
    competent examination. The facts in a particular case and the information 
    and findings already reported in the medical and other evidence of record 
    will dictate the extent of detail needed in the consultative examination report 
    for that case. Thus, the detail and format for reporting the results of a 
    purchased examination will vary depending upon the type of examination or 
    testing requested. The reporting of information will differ from one type of 
    examination  to  another  when  the  requested  examination  relates  to  the 
    performance of tests such as ventilatory function tests, treadmill exercise 
    tests, or audiological tests. The medical report must be complete enough to 
    help us determine the nature, severity, and duration of the impairment, and 
    residual functional capacity. The report should reflect your statement of your 
    symptoms, not simply the medical source’s statements or conclusions. The 
    medical source’s report of the consultative examination should include the 
    objective medical facts as well as observations and opinions.        

.1519n(b), 416.919n(b).                                   
the records which Dr. Barron said he would have liked to have had were present in 
Plaintiff’s  medical  history.  Plaintiff  described  memory,  concentration,  and  cognitive 

problems to her providers several times. Her providers thought the problems could be a 
side  effect  of  Topamax,  which  Plaintiff  was  still  taking  as  late  as  the  date  of  the 
administrative hearing. Dr. Curry observed during an examination and recorded on a 
treatment note “memory impaired.” Both Ms. Oye and Dr. Curry urged Plaintiff to follow-
up with her neurologist. When Plaintiff next saw her neurologist, Dr. Sabharwal noted that 
Topamax had caused memory concerns. Dr. Sabharwal described Topamax as a “prior 

treatment,” but Plaintiff was still taking Topamax at that time.          
    The Court concludes that the ALJ erred by not providing necessary background 
information about Plaintiff’s memory and cognitive issues to Dr. Barron, as required by 

 and 416.917. Dr. Barron wrote that it would have been helpful to have 
more records from Plaintiff’s primary physician, and those records were available but not 

provided. He also wrote that if records existed that supported Plaintiff’s claim of significant 
cognitive and memory impairment, Plaintiff’s employability should be reassessed. It is not 
for the Court to determine in the first instance whether the withheld records would have 
been helpful to Dr. Barron or would support Plaintiff’s claim. Therefore, the Court will 
remand the matter to the SSA for a consultative examination, with instructions to give to 

the examiner all necessary background information about Plaintiff’s memory and cognitive 
issues.                                                                   
    To the extent the Commissioner argues that any error was harmless, the Court 
disagrees. The ALJ relied on Dr. Barron’s opinion in determining the mental elements of 
Plaintiff’s RFC. (R. 40.) The ALJ also deemed Dr. Barron’s opinion persuasive under 

.1520c and 416.920c. (R. 40–41.) Finally, Dr. Barron’s opinion heavily 

influenced the revised reconsideration of the state agency psychological consultants (see 
R. 163, 171, 173, 193, 201), whose opinions the ALJ deemed “most persuasive” (R. 40).  
    B.   The ALJ Included All Limitations in the RFC                     
    State agency consultant Dr. Jeffrey Boyd opined that Plaintiff could “carry out 
routine, repetitive and 3–4 step tasks with adequate persistence and pace” but “would be 
markedly limited for detailed or complex/technical tasks” and that Plaintiff could “handle 

the stresses of a routine repetitive or a 3–4 step work setting” but could not handle “the 
stresses of a detailed or complex work setting.” (R. 178) (emphases added). The ALJ found 
Dr. Boyd’s opined mental limitations “most persuasive” but did not include the word 
“detailed” in the RFC. In relevant part, the RFC limited Plaintiff to “routine repetitive not 
complex types of tasks and instructions, and the tasks are fixed and predictable from day 

to day as well as no fast pace high production goal or quota type tasks, such as on an 
assembly line.” (R. 35.) Plaintiff contends that the ALJ’s failure to include the word 
“detailed” in the RFC violated Gann v. Berryhill, 

 (8th Cir. 2017). (Pl.’s Mem. 
at 27.)                                                                   
    In Gann, the plaintiff’s doctors opined that the plaintiff’s ability to adapt to a work 

environment was “highly marginal,” that the plaintiff was moderately limited in her ability 
to respond to changes in the workplace, and that the plaintiff could not do work requiring 
an intense or frequent change in routine. 

 at 952–53. The ALJ found the doctors 
“credible” and gave “significant weight” to their opinions,5 but the RFC did not include 
the limitations opined by the doctors. 

 As a result, the vocational expert’s testimony 

given in response to the hypothetical question based on the RFC was not substantial 
evidence. 

 (“Because the hypothetical posed to the VE did not contain all of 
Gann’s limitations and impairments, the VE’s testimony cannot be viewed as substantial 
evidence that Gann is able to perform other work in the national economy.”).  
    The limitations omitted by the ALJ in Gann (a highly marginal ability to adapt to a 
work environment, a moderately limited ability to respond to changes in the workplace, 

and an inability to do work requiring an intense or frequent change in routine) were far 
more comprehensive than the single word “detailed.” The Court therefore finds Gann 
distinguishable;  the  omission  of  the  word  “detailed”  from  Plaintiff’s  RFC  was  not 
comparable to the error in Gann. Moreover, other language in the RFC covered the same 
functional ground as the word “detailed.” Specifically, the ALJ determined that Plaintiff 

could perform routine, repetitive, or non-complex tasks and instructions, as long as the 
tasks were fixed, predictable, and not fast-paced or high-production goal-or-quota-type 
tasks. These limitations adequately ruled out “detailed” tasks or a “detailed” work setting. 
    Plaintiff argues that the jobs the ALJ found that she could do (laundry worker, 
kitchen helper, and scrap sorter) would require her to “[a]pply commonsense understanding 

to carry out detailed but uninvolved written or oral instructions.” See DICOT 318.687-010 

5 For claims filed before March 27, 2017, when an ALJ found a medical professional 
“credible” or their opinion entitled to “significant weight” under 

 or 
416.927, the RFC had to reflect the limitations described in the opinion. See Gann, 864 
F.3d at 952–53.                                                           
(Kitchen  Helper);  DICOT  361.684-014  (Laundry  Worker  I);  DICOT  929.687-022 
(Laborer,  Salvage)  (emphasis  added).  The  adjective  “detailed”  modifies  the  word 

“instructions,” however, not the words “tasks” or “work setting,” which were the words 
used by Dr. Boyd. Furthermore, Dr. Boyd made specific findings about Plaintiff’s abilities 
to carry out instructions. He found that Plaintiff’s “ability to carry out very short and simple 
instructions” was “not significantly limited”; and that her “ability to carry out detailed 
instructions” was only “moderately limited.” (R. 176–77.) The ALJ’s RFC was consistent 
with these findings, and the ALJ did not err by omitting the word “detailed” from the 

description of tasks or the work setting in the RFC.                      
    C.   Whether the ALJ was Constitutionally Appointed                  
    Plaintiff  contends  that  the  ALJ  who  issued  the  decision  in  her  case  was  not 
constitutionally appointed by then-Acting SSA Commissioner Nancy Berryhill. (Pl.’s 
Mem. at 29.) In 2016, President Barack Obama issued a Memorandum Providing an Order 

of Succession Within the Social Security Administration (“Succession Memorandum”). 

 (Dec. 23, 2016); see Dahle v. Kijakazi, 

 (8th Cir. 2023). 
Citing the Federal Vacancies Reform Act of 1998 (“FVRA”), President Obama designated 
the Deputy Commissioner of Operations (“DCO”) to take over as the Acting Commissioner 
of the Social Security Administration (“SSA”) in the event that both the Commissioner and 

Deputy Commissioner positions became vacant. Succession Memorandum, 

.                                                                   
    In January 2017, Deputy Commissioner Carolyn Colvin, who was then Acting 
Commissioner  of  the  SSA,  resigned.  See  Dahle,  

.  There  was  no 
Commissioner in place at that time. 

 at 426–27. Nancy Berryhill, the DCO, therefore 
took over as Acting Commissioner in accordance with the Succession Memorandum. 

. On March 6, 2018—over 400 days after Ms. Colvin’s resignation—the General 
Counsel of the Government Accountability Office, a non-partisan agency tasked with 
assuring  that  the  executive  branch  is  operating  in  compliance  with  the  law, notified 
President Donald Trump that Ms. Berryhill’s term as Acting Commissioner of the SSA had 
expired on November 17, 2017. U.S. Gov’t Accountability Off., B-329853, Violation of 
the Time Limit Imposed by the Federal Vacancies Reform Act of 1988–Commissioner, 

Social  Security  Administration  (2018),  https://www.gao.gov/products/b-329853  (last 
visited  Aug.  23,  2023).  In  response,  Ms.  Berryhill  then  stepped  down  as  Acting 
Commissioner and returned to her previous position as DCO, while also performing the 
“delegable functions”6 of the Commissioner’s office. See Richard J. M. v. Kijakazi, No. 
19-CV-827 (KMM), 

, at *4 (D. Minn. Mar. 30, 2022). President Trump 

nominated Andrew Saul to be the SSA Commissioner on April 17, 2018. Mr. Saul had a 
lengthy confirmation process and did not take office as Commissioner until June 17, 2019. 
See Brent Z. v. Kijakazi, No. 22-CV-511 (JWB/JFD), 

, at *13 (D. Minn. 
Jan. 30, 2023), R. & R. adopted, 

 (D. Minn. Mar. 8, 2023). While Mr. 



6 Under the Social Security Act as it was then written, “[t]he Commissioner may assign 
duties, and delegate, or authorize successive redelegations of, authority to act and to render 
decisions to such officers and employees of the [Social Security] Administration as the 
Commissioner may find necessary.” 

(a)(7) (2018).           
Saul’s nomination was pending, Ms. Berryhill resumed the role of Acting Commissioner. 
See 

                                                                   

    Shortly after Mr. Saul’s nomination reached the Senate, the Supreme Court issued 
its decision in Lucia v. S.E.C., holding that the S.E.C.’s ALJs were “inferior officers” under 
the Appointments Clause, U.S. Const., Art. II, § 2, cl. 2, and therefore had to be appointed 
by the “President, a court of law, or a head of department.” 

 
(2018). Because the ALJs whose appointments were at issue in Lucia were hired by staff 
at the S.E.C. and not by the Chair of the S.E.C., the Supreme Court remanded the case to 

a properly appointed ALJ, “or the Commission itself.” 

. The SSA, which 
also used staff to hire its ALJs, was concerned that the new decision would apply to the 
SSA as well. SSR 19-1p, 

, 9583, 

 (Mar. 15, 2019). 
Thus, Acting Commissioner Berryhill responded to the Lucia decision on July 16, 2019, 
by ratifying the appointments of the SSA’s ALJs. 

 (“To address any Appointments 

Clause questions involving Social Security claims, and consistent with guidance from the 
Department of Justice, on July 16, 2018 the Acting Commissioner of Social Security 
ratified the appointments of [the Agency’s] ALJs and approved those appointments as her 
own.”).                                                                   
    One of the appointments Acting Commissioner Berryhill ratified was that of the 

ALJ who issued the written decision denying Plaintiff’s applications for benefits. Plaintiff 
argues that the ALJ was not constitutionally appointed because Ms. Berryhill was not 
properly serving as Acting Commissioner at the time she ratified the ALJ’s appointment. 
(Pl.’s Mem. at 39.)                                                       
    When Plaintiff filed her supporting memorandum on January 17, 2023, the Eighth 
Circuit had not yet issued its decision in Dahle. Plaintiff acknowledged that the Dahle 

decision  would  resolve  whether  Ms.  Berryhill  was  properly  serving  as  the  Acting 
Commissioner when she ratified the appointment of the ALJ. (Pl.’s Mem. at 29.) The 
Eighth Circuit decided Dahle on March 7, 2023, finding that “Berryhill was properly 
serving as Acting Commissioner when she ratified the appointment of the SSA ALJs.” 

. Plaintiff’s challenge to the constitutionality of the ALJ’s appointment is, 
accordingly, without merit.                                               

IV.  Conclusion                                                           
    Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
    1.  Defendant’s Motion for Summary Judgment (Dkt. No. 17) is DENIED; and 
    2.  The  Commissioner’s  decision  is  REVERSED  and  REMANDED  to  the 

      Commissioner for further proceedings consistent with this Order.   

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      

Date: September 11, 2023          s/  John F. Docherty                   
                                  JOHN F. DOCHERTY                       
                                  United States Magistrate Judge         

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


 Gaoee T.,                            Case No. 22-CV-1992 (JFD)          

               Plaintiff,                                                

 v.                                          ORDER                       

 Kilolo Kijakazi, Acting Commissioner of                                 
 Social Security,                                                        

               Defendant.                                                


    Pursuant to 

(g), Plaintiff Gaoee T. seeks judicial review of a final 
decision by the Defendant Commissioner of Social Security denying her applications for 
disability  insurance  benefits  (“DIB”)  and  supplemental  security  income  (“SSI”).  The 
matter is now before the Court on Plaintiff’s Brief (Dkt. No. 11) and Defendant’s Motion 
for Summary Judgment (Dkt. No. 14).                                       
    Plaintiff seeks reversal of the final decision of the Acting Commissioner of the 
Social Security Administration (“SSA”) on the following grounds: (1) the Administrative 
Law Judge (“ALJ”) did not fully and fairly develop the record concerning Plaintiff’s 
cognition and memory; (2) the ALJ failed to account for a limitation opined by a medical 
source  whom  the  ALJ  deemed  persuasive;  and  (3)  the  ALJ was  not  constitutionally 
appointed. Defendant opposes Plaintiff’s motion and asks the Court to affirm the final 
decision. For the reasons set forth below, the Court concludes that the ALJ did not fully 
and fairly develop the record concerning Plaintiff’s cognition and memory. Therefore, the 
Court reverses the final decision of the Commissioner and remands the matter to the SSA 
for further proceedings consistent with that conclusion. The Court also concludes that the 

ALJ was constitutionally appointed and that the ALJ did not err in her treatment of the 
opined limitation.                                                        
I.   Background                                                           
    On October 29, 2019, Plaintiff applied for DIB and SSI asserting that she became 
disabled on November 15, 2015. (See Soc. Sec. Admin. R. (hereinafter “R.”) 23, 312.)1 
Plaintiff’s  alleged  impairments  included  migraines,  digestive  system  problems,  heart 

problems, diabetes, memory loss, depression, loss of focus, low self-esteem with loss of 
energy  and  motivation,  shoulder  and  body  pain,  and  an  anxiety  disorder  with  sleep 
problems, nightmares, and mood swings. (R. 345.)                          
    A.   Relevant Medical Evidence2                                      
    On April 7, 2015, Plaintiff attended a therapy appointment with Breck Salisbury, 

MSW, LICSW. (R. 470.) Plaintiff’s complaints included daily migraines and short-term 
memory problems. (Id.) She reported problems remembering meetings, what her husband 
told her, and her daughter’s name. (Id.) Mr. Salisbury diagnosed Plaintiff with major 
depressive disorder, recurrent, moderate. (R. 473.) Plaintiff asked Mr. Salisbury to write a 


1  The  Social  Security  administrative  record  is  filed  at  Dkt.  No.  9.  The  record  is 
consecutively paginated, and the Court cites to that pagination rather than docket number 
and page.                                                                 

2 The Court limits the facts in this section to those relevant to the specific issues presented 
for judicial review.                                                      
letter to her employer requesting additional FMLA leave, but Mr. Salisbury suggested she 
ask her primary care provider, Dr. Endea Curry, because Dr. Curry had filled out the 

original FMLA paperwork. (R. 473.)                                        
    On April 23, 2015, Plaintiff saw Darrel Cotch, PA-C, for a psychiatric medication 
management  appointment.  (R.  483.)  Plaintiff  reported  difficulty  sleeping,  worsening 
depression, decreased energy, decreased appetite, poor self-worth, and difficulties with 
focus,  concentration,  and  memory.  (Id.)  Mr.  Cotch  diagnosed  Plaintiff  with  major 
depressive order and possible anxiety order. (R. 485.) Plaintiff did not mention cognition 

or memory problems at a neurology appointment in May 2015 with Dr. Vivian Fink. (R. 
486–89.)                                                                  
    On July 16, 2015, Plaintiff attended a psychiatric appointment with Dr. Karen Ta. 
(R. 491.) Plaintiff reported trouble concentrating, difficulty sleeping, fatigue, dizziness, 
and neck and arm numbness. (R. 492–93.) She said she had stopped working because she 

could not concentrate. (R. 493.) She reported that her concentration and memory were poor. 
(R. 494.) A recent medication change to Bupropion resulted in no side effects, more energy, 
fewer nightmares, better concentration, and less anxiety. (R. 493.) Dr. Ta’s diagnosis was 
major depression, single episode, moderate. (R. 494.)                     
    On December 17, 2015, Plaintiff saw Dr. Curry for a primary care visit. (R. 512). 

Dr. Curry noted significant life changes since Plaintiff’s last visit, including being “let go 
from her job” and a separation from her husband. (R. 513.) Plaintiff reported feeling 
depressed, but with the medication Topamax the frequency of her migraines had decreased 
to approximately once every two weeks. (R. 513.) By the next month, Plaintiff’s migraine 
headaches had decreased in frequency further, to once a month, with each migraine lasting 
about two hours. (R. 518.)                                                

    Plaintiff attended a psychiatric appointment with Dr. Ta in February 2016. (R. 523.) 
Plaintiff reported feeling sad, having low self-esteem and nightmares, not sleeping well, 
having trouble concentrating “sometimes,” and having memory problems when she was 
nervous. (R. 525.) When Plaintiff saw Dr. Ta the following month, Plaintiff reported 
feelings of anger and sadness with crying spells and low motivation, but also improved 
sleep, energy, concentration, and anxiety. (R. 534–35.)                   

    On December 17, 2019, Plaintiff saw Oreoluwa Oye, APRN, CNP, on a referral 
from Dr. Curry, for a psychiatric evaluation. (R. 693.) Plaintiff’s chief complaints were 
depression, nightmares, body pains, tiredness, and forgetfulness. (Id.) She also described 
cognitive dulling, which Ms. Oye noted could be a side effect of Topamax. (R. 694.) The 
mental status examination revealed good attention and concentration, and intact recent and 

remote memory. (R. 698.)                                                  
    On February 19, 2020, Plaintiff reported worsening nightmares, anxiety, and stress 
to Ms. Oye. (R. 817.) Ms. Oye noted “talk to neurology about concerns about Topamax 
and  cognition.”  (Id.)  According  to  Ms.  Oye,  Plaintiff’s  mood  symptoms  included 
“concentration  impairment,”  but  Ms.  Oye  also  noted  that  Plaintiff’s  attention  and 

concentration were good and that her recent memory and remote memory were intact. (R. 
818–19.)                                                                  
    Plaintiff had a telephone visit with Ms. Oye on April 1, 2020. (R. 830.) Plaintiff 
reported some improvement; she was sleeping better; and her nightmares had decreased. 
(Id.) At a July 1, 2020 appointment, Ms. Oye noted that Plaintiff’s anxiety was poorly 
controlled  and  her  memory  was  getting  worse.  (R.  840.)  Ms.  Oye  wrote  “Memory 

impairment”  and  “worsening  memory—encouraged  to  discuss  with  her  neurologist. 
Topamax is on her medication list, may be contributing to symptoms.” (Id.)  
    On July 29, 2020, Plaintiff saw Dr. Curry for a primary care appointment and 
described memory problems potentially caused by medication. (R. 851–52.) Dr. Curry 
observed on examination “insight and memory impaired.” (R. 854.) Dr. Curry agreed that 
Plaintiff should follow-up with her neurologist about her memory concerns. (Id.)  

    On August 3, 2020, Plaintiff saw her neurologist, Dr. Priyanka Sabharwal. (R. 868.) 
Dr. Sabharwal’s diagnoses were migraine, cervicalgia, major depressive disorder, vitamin 
D deficiency, benign essential tremor, and anxiety (R. 868.) Dr. Sabharwal listed Topamax 
as a “prior treatment” that had caused memory concerns (R. 870), but another notation on 
the progress note indicated that Plaintiff was “[n]ot sure if she is taking Topamax” (R. 869). 

Plaintiff was in fact still taking Topamax at that time. (See R. 894.)    
    Dr. Craig Barron, Psy.D., conducted a consultative psychological evaluation of 
Plaintiff  on  October  2,  2020,  at  the  request  of  the  SSA.  (R.  34,  1077.)  Dr.  Barron 
administered the Wechsler Adult Intelligence Scale-IV (“WAIS-IV”) to assess Plaintiff’s 
overall cognitive abilities and the and the Wechsler Memory Scale-IV (“WMS-IV”) to 

assess Plaintiff’s learning and memory. (R. 1078.) On the WAIS-IV, Plaintiff scored within 
the mild intellectual disability range. (Id.) Dr. Barron remarked that Plaintiff may not have 
understood the instructions because English was her second language and also “may not 
have been working up to her fullest capabilities.” (Id.) On the WMS-IV, Plaintiff scored 
within the significantly impaired range, including multiple scores of “one,” which Dr. 
Barron wrote was “a bit odd unless there is a possibility that she suffered a cerebral vascular 

accident that she is unaware of.” (Id.) Despite the test scores, Dr. Barron said he was “very 
hesitant to make a diagnosis of Neurocognitive Disorder in light of the fact that none of 
her medical records would support that the client has significant problems with cognition 
and  memory.”  (Id.)  His  diagnostic  impressions  were  Generalized  Anxiety  Disorder, 
Unspecified  Depressive  Disorder,  and  “Rule-out  Malingering  versus  Unspecified 
Neurocognitive Disorder.” (R. 1082.)                                      

    During the mental status examination, Dr. Barron found that “Plaintiff presented as 
being confused,” but he “could not tell if this was for effect or not.” (R. 1079.) Plaintiff 
could recall the names of the current and former U.S. presidents and recall four digits 
forward and three digits backwards. (R. 1080.) Plaintiff said, however, that she forgot 
conversations and things like why she had walked into a room. (Id.) Dr. Barron found 

Plaintiff’s memory and cognition test results inconsistent with her background as a college 
graduate who worked for 15 years as a bilingual social worker for Ramsey County. (Id.) 
He questioned whether she was “purposely malingering or perhaps has suffered some type 
of neurological insult that is unknown to her.” (R. 1081.)                
    The  only  medical  record  provided  to  Dr.  Barron  by  the SSA  was  Ms.  Oye’s 

psychiatric evaluation dated December 19, 2019. (R. 1079.) Dr. Barron summarized the 
information in that record and noted that “[n]o other records were available for review.” 
(Id.) In the “Recommendations” section of the report, Dr. Barron wrote,   
    It would have been helpful if this examiner had more records from her 
    primary physician as opposed to her psychiatric nurse to determine if her 
    presentation  today  is  consistent  across  settings.  Due  to  the  differences 
    between the client’s presentation during today’s examination and the records 
    that this examiner had from her psychiatric nurse, as well as her history of 
    working as a social worker and obtaining a college degree without any 
    evidence of having a cerebral vascular accident, exposure to neurotoxins, or 
    having had a traumatic brain injury, this examiner believes that the client 
    may not have been working up to her fullest capabilities.            

(R.  1082.)  Dr.  Barron  concluded  that  Plaintiff  had  the  cognitive  capabilities  to 
communicate, comprehend, and retain simple directions at an unskilled competitive level, 
but  that  if  other  records  “support  her  claim  of  significant  cognitive  and  memory 
impairment,” any decisions about her employability should be reassessed. (R. 1082–83.) 
    On August 18, 2021, Plaintiff saw Amy Larson, APRN, for headaches. Ms. Larson’s 
treatment note also reflected nausea, vomiting, jaw pain, weakness, dizziness, photophobia, 
phonophobia, neck pain, back pain, paresthesias, chest pain, shortness of breath, anxiety, 
depression, memory concerns, and sleep issues. (Id.) Ms. Larson noted that Plaintiff was 
alert and oriented, and could recall three words immediately and two out of three words 
after several minutes, but could not spell “world” backward. (R. 10.)     
    B.   Procedural History                                              
    Plaintiff’s applications for DIB and SSI were denied at the initial review and 
reconsideration stages. (R. 23.) An SSA ALJ held a hearing on May 12, 2021, at Plaintiff’s 
request. (R. 49.) Plaintiff testified that she quit her previous job as a social worker because 
of several impairments including migraine headaches, stress, diabetes, depression, anxiety, 
and stomachaches. (R. 57–58.) Plaintiff reported that she still got headaches four to five 
times a week and experienced nausea and lack of concentration as a result of her migraine 
medication, Topamax. (R. 58.) Plaintiff also reported confusion when cooking a meal and 
memory issues such as forgetting to turn off the stove or sink. (R. 60.)  

    Kenneth Ogren, a vocational expert, also testified during the hearing. (R. 72.) Mr. 
Ogren opined that a hypothetical individual with Plaintiff’s characteristics and limitations, 
as described by the ALJ, could not perform Plaintiff’s past relevant work. (R. 72–73.) Such 
an individual could, however, perform other jobs including laundry worker, kitchen helper, 
and scrap sorter, according to Mr. Ogren. (R. 73.)                        
    The ALJ issued a decision on July 22, 2021, determining that Plaintiff was not 

disabled. (R. 20.) The ALJ followed the five-step sequential analysis outlined in 

(a)(4) and 416.920(a)(4). In the first step of the analysis, the ALJ determined 
Plaintiff had not engaged in substantial gainful activity since her alleged disability onset 
date of November 15, 2015. (R. 25.) At step two, the ALJ found that Plaintiff had the severe 
impairments of degenerative changes of the cervical spine and migraine headaches since 

November 15, 2015. (R. 26.) The ALJ also found that Plaintiff had the severe impairments 
of depressive disorder and generalized anxiety disorder since December 1, 2019. (Id.) The 
ALJ found that Plaintiff did not have a medically determinable cognitive disorder. (R. 27.)  
    At step three, the ALJ determined that Plaintiff did not have an impairment or 
combination of impairments that met or medically equaled the severity of an impairment  

listed in 20 C.F.R. part 404, subpart P, appendix 1. (R. 30.) Before moving to step four, the 
ALJ assessed Plaintiff’s residual functional capacity (“RFC”) as able     
    to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) 
    except no climbing of ladders, ropes, or scaffolds, occasional climbing of 
    ramps  and  stairs,  no  work  at  unprotected  heights  and  no  exposure  to 
    dangerous moving machinery in addition to routine repetitive not complex 
    types of tasks and instructions, and the tasks are fixed and predictable from 
    day to day as well as no fast pace high production goal or quota type tasks, 
    such as on an assembly line, moving conveyor belt or would require constant 
    handling, fingering or reaching as defined in the Dictionary of Occupational 
    Titles.                                                              

(R. 34–35.) With this RFC, the ALJ determined, Plaintiff could not perform her past 
relevant work. (R. 41.) At step five, the ALJ determined that Plaintiff could work as a 
laundry worker, kitchen helper, or scrap sorter. (R. 42.) Therefore, Plaintiff was found not 
disabled. (Id.)                                                           
    The Appeals Council denied Plaintiff’s request for review on June 9, 2022. (R. 1.) 
This made the ALJ’s decision the final decision of the Commissioner for the purpose of 
judicial review in accordance with section 205(g) of 

(g).  
II.  Legal Standards                                                      
    Judicial review of the Commissioner’s denial of benefits is limited to determining 
whether substantial evidence in the record as a whole supports the decision, 

(g), or whether the ALJ’s decision resulted from an error of law, Nash v. Comm’r, 
Soc. Sec. Admin., 

 (8th Cir. 2018). “Substantial evidence is less than 
a preponderance but is enough that a reasonable mind would find it adequate to support the 
Commissioner’s conclusion.” Krogmeier v. Barnhart, 

 (8th Cir. 2002) 
(citing Prosch v. Apfel, 

 (8th Cir. 2000)). The Court must examine 
“evidence that detracts from the Commissioner’s decision as well as evidence that supports 
it.” 

 (citing Craig v. Apfel, 

 (8th Cir. 2000)). The Court may not reverse 

the ALJ’s decision simply because substantial evidence would support a different outcome 
or because the Court would have decided the case differently. (Id.) (citing Woolf v. Shalala, 

 (8th Cir. 1993)). In other words, if it is possible to reach two inconsistent 

positions from the evidence and one of those positions is that of the Commissioner, the 
Court must affirm the decision. Robinson v. Sullivan, 

 (8th Cir. 1992).  
    It is a claimant’s burden to prove disability. See Roth v. Shalala, 

 
(8th Cir. 1995). To meet the definition of disability for DIB and SSI, the claimant must 
establish that 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.” 

(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A). The disability, not 
just the impairment, must have lasted or be expected to last for at least twelve months. Titus 
v. Sullivan, 

 (8th Cir. 1993).                             
III.  Discussion                                                          

    A.   The ALJ Did Not Provide Dr. Barron with All Necessary Background 
         Information, and Thereby Failed to Fully and Fairly Develop the Record 
         Concerning Plaintiff’s Cognition and Memory                     

    Plaintiff contends that the ALJ did not fully and fairly develop the record concerning 
her memory and cognitive limitations. (Pl.’s Mem. at 2, 21, Dkt. No. 11.) Plaintiff points 
out  that  Dr.  Barron  received  and  reviewed  only  one  treatment  note  as  part  of  his 
psychological evaluation of her—Ms. Oye’s psychiatric evaluation dated December 19, 
2019. (Id. at 22.) Plaintiff emphasizes Dr. Barron’s comments that “[i]t would have been 
helpful if this examiner had more records from her primary physician as opposed to her 
psychiatric nurse to determine if her presentation is consistent across settings” and “if such 
records do surface that support her claim of significant cognitive and memory impairment,” 
the Disability Determination Services (“DDS”) office3 “should reassess any decision they 

make regarding her employability.” (Id. at 24.)                           
    An ALJ must “order medical examinations and tests,” such as a psychological 
evaluation, “if the medical records presented to him do not give sufficient medical evidence 
to determine whether the claimant is disabled.” See McCoy v. Astrue, 

 
(8th Cir. 2011). None of Plaintiff’s providers submitted a medical opinion or a functional 
capacity assessment about her memory and cognition abilities, which the Court surmises 

is why the ALJ ordered the consultative evaluation from Dr. Barron.       
    When an ALJ orders a consultative examination, the SSA must “give the examiner 
any  necessary  background  information  about  [the  claimant’s]  condition.”  

,  416.917.  Courts  have  interpreted  the  phrase  “necessary  background 
information” to varying degrees. One view is that the Commissioner “should always 

provide all medical records to any physician from whom [she] solicits an opinion regarding 
any social security case.” Mateer v. Bowen, 

 (S.D. Iowa 1988). On 
the other hand, “there simply is no per se rule that an examining physician must be provided 
with, review, and consider the claimant’s medical records to render an opinion of any 
value.” Jones v. Colvin, No. C 14-3049-MWB, 

, at *4 (N.D. Iowa Mar. 

7, 2016); see Pocklington v. Berryhill, No. 2:16-CV-62 JMB, 

, at *5 

3 “Most Social Security disability claims are initially processed through a network of local 
Social Security Administration (SSA) field offices and State agencies (usually called 
Disability  Determination  Services  or  DDSs).”  SSA,  https://www.ssa.gov/ 
disability/determination.htm (last visited Sept. 8, 2023).                
(E.D. Mo. Aug. 4, 2017) (agreeing that no legal authority mandates the provision of the 
entire medical record to the consultative examiner and further noting that the plaintiff 

herself could have given additional medical records to the examiner); Hey v. Colvin, 

 (D. Minn. 2015) (finding that the ALJ fulfilled his duty to fully 
and  fairly  develop  the  record  because  the  consultative  evaluation  complied  with  the 
relevant regulations4 and the withheld records were about diagnoses, not functioning).  
    Dr. Barron wrote in his report that “[i]t would have been helpful to have more 
records from Plaintiff’s primary physician” and that records demonstrating “significant 

cognitive and memory impairment” would have been material to his opinion. In other 
words, Dr. Barron was missing necessary background information. And indeed, some of 


4 These regulations describe the required content of a consultative examiner’s report.  

    The  reported  results  of  your  medical  history,  examination,  requested 
    laboratory findings, discussions and conclusions must conform to accepted 
    professional standards and practices in the medical field for a complete and 
    competent examination. The facts in a particular case and the information 
    and findings already reported in the medical and other evidence of record 
    will dictate the extent of detail needed in the consultative examination report 
    for that case. Thus, the detail and format for reporting the results of a 
    purchased examination will vary depending upon the type of examination or 
    testing requested. The reporting of information will differ from one type of 
    examination  to  another  when  the  requested  examination  relates  to  the 
    performance of tests such as ventilatory function tests, treadmill exercise 
    tests, or audiological tests. The medical report must be complete enough to 
    help us determine the nature, severity, and duration of the impairment, and 
    residual functional capacity. The report should reflect your statement of your 
    symptoms, not simply the medical source’s statements or conclusions. The 
    medical source’s report of the consultative examination should include the 
    objective medical facts as well as observations and opinions.        

.1519n(b), 416.919n(b).                                   
the records which Dr. Barron said he would have liked to have had were present in 
Plaintiff’s  medical  history.  Plaintiff  described  memory,  concentration,  and  cognitive 

problems to her providers several times. Her providers thought the problems could be a 
side  effect  of  Topamax,  which  Plaintiff  was  still  taking  as  late  as  the  date  of  the 
administrative hearing. Dr. Curry observed during an examination and recorded on a 
treatment note “memory impaired.” Both Ms. Oye and Dr. Curry urged Plaintiff to follow-
up with her neurologist. When Plaintiff next saw her neurologist, Dr. Sabharwal noted that 
Topamax had caused memory concerns. Dr. Sabharwal described Topamax as a “prior 

treatment,” but Plaintiff was still taking Topamax at that time.          
    The Court concludes that the ALJ erred by not providing necessary background 
information about Plaintiff’s memory and cognitive issues to Dr. Barron, as required by 

 and 416.917. Dr. Barron wrote that it would have been helpful to have 
more records from Plaintiff’s primary physician, and those records were available but not 

provided. He also wrote that if records existed that supported Plaintiff’s claim of significant 
cognitive and memory impairment, Plaintiff’s employability should be reassessed. It is not 
for the Court to determine in the first instance whether the withheld records would have 
been helpful to Dr. Barron or would support Plaintiff’s claim. Therefore, the Court will 
remand the matter to the SSA for a consultative examination, with instructions to give to 

the examiner all necessary background information about Plaintiff’s memory and cognitive 
issues.                                                                   
    To the extent the Commissioner argues that any error was harmless, the Court 
disagrees. The ALJ relied on Dr. Barron’s opinion in determining the mental elements of 
Plaintiff’s RFC. (R. 40.) The ALJ also deemed Dr. Barron’s opinion persuasive under 

.1520c and 416.920c. (R. 40–41.) Finally, Dr. Barron’s opinion heavily 

influenced the revised reconsideration of the state agency psychological consultants (see 
R. 163, 171, 173, 193, 201), whose opinions the ALJ deemed “most persuasive” (R. 40).  
    B.   The ALJ Included All Limitations in the RFC                     
    State agency consultant Dr. Jeffrey Boyd opined that Plaintiff could “carry out 
routine, repetitive and 3–4 step tasks with adequate persistence and pace” but “would be 
markedly limited for detailed or complex/technical tasks” and that Plaintiff could “handle 

the stresses of a routine repetitive or a 3–4 step work setting” but could not handle “the 
stresses of a detailed or complex work setting.” (R. 178) (emphases added). The ALJ found 
Dr. Boyd’s opined mental limitations “most persuasive” but did not include the word 
“detailed” in the RFC. In relevant part, the RFC limited Plaintiff to “routine repetitive not 
complex types of tasks and instructions, and the tasks are fixed and predictable from day 

to day as well as no fast pace high production goal or quota type tasks, such as on an 
assembly line.” (R. 35.) Plaintiff contends that the ALJ’s failure to include the word 
“detailed” in the RFC violated Gann v. Berryhill, 

 (8th Cir. 2017). (Pl.’s Mem. 
at 27.)                                                                   
    In Gann, the plaintiff’s doctors opined that the plaintiff’s ability to adapt to a work 

environment was “highly marginal,” that the plaintiff was moderately limited in her ability 
to respond to changes in the workplace, and that the plaintiff could not do work requiring 
an intense or frequent change in routine. 

 at 952–53. The ALJ found the doctors 
“credible” and gave “significant weight” to their opinions,5 but the RFC did not include 
the limitations opined by the doctors. 

 As a result, the vocational expert’s testimony 

given in response to the hypothetical question based on the RFC was not substantial 
evidence. 

 (“Because the hypothetical posed to the VE did not contain all of 
Gann’s limitations and impairments, the VE’s testimony cannot be viewed as substantial 
evidence that Gann is able to perform other work in the national economy.”).  
    The limitations omitted by the ALJ in Gann (a highly marginal ability to adapt to a 
work environment, a moderately limited ability to respond to changes in the workplace, 

and an inability to do work requiring an intense or frequent change in routine) were far 
more comprehensive than the single word “detailed.” The Court therefore finds Gann 
distinguishable;  the  omission  of  the  word  “detailed”  from  Plaintiff’s  RFC  was  not 
comparable to the error in Gann. Moreover, other language in the RFC covered the same 
functional ground as the word “detailed.” Specifically, the ALJ determined that Plaintiff 

could perform routine, repetitive, or non-complex tasks and instructions, as long as the 
tasks were fixed, predictable, and not fast-paced or high-production goal-or-quota-type 
tasks. These limitations adequately ruled out “detailed” tasks or a “detailed” work setting. 
    Plaintiff argues that the jobs the ALJ found that she could do (laundry worker, 
kitchen helper, and scrap sorter) would require her to “[a]pply commonsense understanding 

to carry out detailed but uninvolved written or oral instructions.” See DICOT 318.687-010 

5 For claims filed before March 27, 2017, when an ALJ found a medical professional 
“credible” or their opinion entitled to “significant weight” under 

 or 
416.927, the RFC had to reflect the limitations described in the opinion. See Gann, 864 
F.3d at 952–53.                                                           
(Kitchen  Helper);  DICOT  361.684-014  (Laundry  Worker  I);  DICOT  929.687-022 
(Laborer,  Salvage)  (emphasis  added).  The  adjective  “detailed”  modifies  the  word 

“instructions,” however, not the words “tasks” or “work setting,” which were the words 
used by Dr. Boyd. Furthermore, Dr. Boyd made specific findings about Plaintiff’s abilities 
to carry out instructions. He found that Plaintiff’s “ability to carry out very short and simple 
instructions” was “not significantly limited”; and that her “ability to carry out detailed 
instructions” was only “moderately limited.” (R. 176–77.) The ALJ’s RFC was consistent 
with these findings, and the ALJ did not err by omitting the word “detailed” from the 

description of tasks or the work setting in the RFC.                      
    C.   Whether the ALJ was Constitutionally Appointed                  
    Plaintiff  contends  that  the  ALJ  who  issued  the  decision  in  her  case  was  not 
constitutionally appointed by then-Acting SSA Commissioner Nancy Berryhill. (Pl.’s 
Mem. at 29.) In 2016, President Barack Obama issued a Memorandum Providing an Order 

of Succession Within the Social Security Administration (“Succession Memorandum”). 

 (Dec. 23, 2016); see Dahle v. Kijakazi, 

 (8th Cir. 2023). 
Citing the Federal Vacancies Reform Act of 1998 (“FVRA”), President Obama designated 
the Deputy Commissioner of Operations (“DCO”) to take over as the Acting Commissioner 
of the Social Security Administration (“SSA”) in the event that both the Commissioner and 

Deputy Commissioner positions became vacant. Succession Memorandum, 

.                                                                   
    In January 2017, Deputy Commissioner Carolyn Colvin, who was then Acting 
Commissioner  of  the  SSA,  resigned.  See  Dahle,  

.  There  was  no 
Commissioner in place at that time. 

 at 426–27. Nancy Berryhill, the DCO, therefore 
took over as Acting Commissioner in accordance with the Succession Memorandum. 

. On March 6, 2018—over 400 days after Ms. Colvin’s resignation—the General 
Counsel of the Government Accountability Office, a non-partisan agency tasked with 
assuring  that  the  executive  branch  is  operating  in  compliance  with  the  law, notified 
President Donald Trump that Ms. Berryhill’s term as Acting Commissioner of the SSA had 
expired on November 17, 2017. U.S. Gov’t Accountability Off., B-329853, Violation of 
the Time Limit Imposed by the Federal Vacancies Reform Act of 1988–Commissioner, 

Social  Security  Administration  (2018),  https://www.gao.gov/products/b-329853  (last 
visited  Aug.  23,  2023).  In  response,  Ms.  Berryhill  then  stepped  down  as  Acting 
Commissioner and returned to her previous position as DCO, while also performing the 
“delegable functions”6 of the Commissioner’s office. See Richard J. M. v. Kijakazi, No. 
19-CV-827 (KMM), 

, at *4 (D. Minn. Mar. 30, 2022). President Trump 

nominated Andrew Saul to be the SSA Commissioner on April 17, 2018. Mr. Saul had a 
lengthy confirmation process and did not take office as Commissioner until June 17, 2019. 
See Brent Z. v. Kijakazi, No. 22-CV-511 (JWB/JFD), 

, at *13 (D. Minn. 
Jan. 30, 2023), R. & R. adopted, 

 (D. Minn. Mar. 8, 2023). While Mr. 



6 Under the Social Security Act as it was then written, “[t]he Commissioner may assign 
duties, and delegate, or authorize successive redelegations of, authority to act and to render 
decisions to such officers and employees of the [Social Security] Administration as the 
Commissioner may find necessary.” 

(a)(7) (2018).           
Saul’s nomination was pending, Ms. Berryhill resumed the role of Acting Commissioner. 
See 

                                                                   

    Shortly after Mr. Saul’s nomination reached the Senate, the Supreme Court issued 
its decision in Lucia v. S.E.C., holding that the S.E.C.’s ALJs were “inferior officers” under 
the Appointments Clause, U.S. Const., Art. II, § 2, cl. 2, and therefore had to be appointed 
by the “President, a court of law, or a head of department.” 

 
(2018). Because the ALJs whose appointments were at issue in Lucia were hired by staff 
at the S.E.C. and not by the Chair of the S.E.C., the Supreme Court remanded the case to 

a properly appointed ALJ, “or the Commission itself.” 

. The SSA, which 
also used staff to hire its ALJs, was concerned that the new decision would apply to the 
SSA as well. SSR 19-1p, 

, 9583, 

 (Mar. 15, 2019). 
Thus, Acting Commissioner Berryhill responded to the Lucia decision on July 16, 2019, 
by ratifying the appointments of the SSA’s ALJs. 

 (“To address any Appointments 

Clause questions involving Social Security claims, and consistent with guidance from the 
Department of Justice, on July 16, 2018 the Acting Commissioner of Social Security 
ratified the appointments of [the Agency’s] ALJs and approved those appointments as her 
own.”).                                                                   
    One of the appointments Acting Commissioner Berryhill ratified was that of the 

ALJ who issued the written decision denying Plaintiff’s applications for benefits. Plaintiff 
argues that the ALJ was not constitutionally appointed because Ms. Berryhill was not 
properly serving as Acting Commissioner at the time she ratified the ALJ’s appointment. 
(Pl.’s Mem. at 39.)                                                       
    When Plaintiff filed her supporting memorandum on January 17, 2023, the Eighth 
Circuit had not yet issued its decision in Dahle. Plaintiff acknowledged that the Dahle 

decision  would  resolve  whether  Ms.  Berryhill  was  properly  serving  as  the  Acting 
Commissioner when she ratified the appointment of the ALJ. (Pl.’s Mem. at 29.) The 
Eighth Circuit decided Dahle on March 7, 2023, finding that “Berryhill was properly 
serving as Acting Commissioner when she ratified the appointment of the SSA ALJs.” 

. Plaintiff’s challenge to the constitutionality of the ALJ’s appointment is, 
accordingly, without merit.                                               

IV.  Conclusion                                                           
    Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
    1.  Defendant’s Motion for Summary Judgment (Dkt. No. 17) is DENIED; and 
    2.  The  Commissioner’s  decision  is  REVERSED  and  REMANDED  to  the 

      Commissioner for further proceedings consistent with this Order.   

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      

Date: September 11, 2023          s/  John F. Docherty                   
                                  JOHN F. DOCHERTY                       
                                  United States Magistrate Judge