Phillips v. O'Malley

U.S. District Court, District of Minnesota September 17, 2024

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Dixie J. P.,                         Case No. 23-cv-1104 (TNL)           

          Plaintiff,                                                     

v.                                          ORDER                        

Martin J. O’Malley1,                                                     
Commissioner of Social Security                                          
Administration,                                                          

          Defendant.                                                     


Edward  A.  Wicklund,  Olinsky  Law  Group,  250  South  Clinton  Street,  Suite  210, 
Syracuse,  NY  13202  and  Jyotsna  Asha  Sharma,  Disability  Partners,  PLLC,  2579 
Hamline Avenue North, Suite C, Roseville, MN 55113 (for Plaintiff); and  

Ana H. Voss, United States Attorney’s Office, 300 South Fourth Street, Suite 600, 
Minneapolis, MN 55415; and James D. Sides, Linda H. Green, and Sophie Doroba, 
Social Security Administration, Office of Program Litigation, Office 4, 6401 Security 
Boulevard, Baltimore, MD 21235 (for Defendant).                          


                       I. INTRODUCTION                                   
    Plaintiff Dixie J. P. brings the present case, contesting Defendant Commissioner of 
Social Security’s denial of supplemental security income (“SSI”) under Title XVI of the 
Social security Act. See

42 U.S.C. §§ 405

(g), 1383(c)(3). The parties have consented to a 
final judgment from the undersigned United States Magistrate Judge in accordance with

28 U.S.C. § 636

(c), Fed. R. Civ. P. 73, and D. Minn. LR 72.1(c).

1 Martin O’Malley is currently serving as the Commissioner of the Social Security Administration. Pursuant to Federal
Rule of Civil Procedure 25(d), he is automatically substituted as Defendant in this suit. See Fed. R. Civ. P. 25(d).
Pursuant to the Federal Rules of Civil Procedure’s Supplemental Rules governing
social security actions, this action “is presented for decision by the parties’ briefs.” Fed. R.

Civ. P. Supp. SS Rule 5. Plaintiff filed a Motion for Summary Judgment, ECF No. 17, —
which was the procedure prior to the amendment to Rule 5—requesting the
Commissioner’s decision to be reversed and remanded for further administrative
proceedings. Defendant filed a brief, ECF No. 20, requesting the Court to affirm the
Commissioner’s decision.
For the reasons set forth below, the Court denies Plaintiff’s motion and affirms the

Commissioner’s decision.
II. PROCEDURAL HISTORY
On February 19, 2019, Plaintiff applied for SSI, alleging disability beginning on
November 30, 1993 due to degenerative disc disease, gout, rheumatoid arthritis, Crohn’s
disease, COPD, diverticulitis, high blood pressure, diabetes, anxiety disorder, and

depression. Tr. 251, 295, ECF No. 10. Plaintiff’s application was denied initially in May
2019, and again upon reconsideration in August 2019. Tr. 179-86, 187-88. Plaintiff
appealed the reconsideration of her SSI determination and a hearing before an
administrative law judge (“ALJ”) was held in June 2020. Tr. 39-88. An unfavorable
decision was issued following from the June 2020 hearing. Tr. 15-34. After receiving an

unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council,
which was denied. Tr. 1-3. Plaintiff then requested the alleged onset date be amended from
November 30, 1993 to February 19, 2019. Tr. 829.
Next, Plaintiff brought a social security action in the Southern District of Ohio,
where the Commissioner’s motion for a voluntary remand was granted and the Appeals

Council subsequently remanded the matter in July 2022. Tr. 719-22, 749-51. A hearing
before an ALJ was then held in January 2023, Tr. 695-714, and the ALJ issued in February
2023 an unfavorable decision. Tr. 654-88. The ALJ’s February 2023 decision became the
final decision of the Commissioner subject to judicial review. See

42 U.S.C. § 405

(g). 
Plaintiff now seeks review by this Court.                                 

                       III. ALJ’s DECISION                               
    The ALJ found in its February 2023 decision that Plaintiff has not engaged in 
substantial gainful activity since February 19, 2019. Tr. 660. Next, the ALJ found that 
Plaintiff has the following severe impairment: osteoarthrosis of the left hip; inflammatory 
bowel disease; chronic obstructive pulmonary disease; diabetes mellitus with neuropathy; 
obesity; and borderline intellectual functioning. Tr. 660. The ALJ also concluded that 

Plaintiff  does  not  have  an  impairment  or  combination  of  impairments  that  meets  or 
medically equals the severity of one of the listed impairments under 20 C.F.R. Part 404, 
Subpart P, Appendix 1 (

20 C.F.R. §§ 416.920

(d), 416.925 and 416.926). Tr. 667.  
    As for Plaintiff’s residual functional capacity, the ALJ found that Plaintiff has the 
residual functional capacity to perform light work as defined in

20 C.F.R. § 416.967

(b),

Tr. 674, expect for the following:
the claimant is limited to occasional climbing of ramps, stairs, and ladders;
the claimant is limited to no climbing of ropes and scaffolds; the claimant is
limited to occasional stooping, kneeling, crouching, and crawling; the
claimant is limited to frequent handling with the dominant (right) upper
extremity; the claimant needs to avoid concentrated exposure to fumes,
odors, dusts, gases, unprotected heights, and unprotected moving machinery;
and the claimant is limited to jobs that only require up to detailed but
uninvolved tasks with few concrete variables, little in the way of change in
the job process from day to day, and jobs with multistep tasks, easily resumed
after momentary distraction.

Tr. 674. The ALJ next found that Plaintiff has no past relevant work. Tr. 686. Taking into
consideration Plaintiff’s age, education, work experience, and residual functional capacity,
the ALJ found that there are jobs that exist in significant numbers in the national economy
that Plaintiff can perform, such as the following unskilled jobs: housekeeping/cleaner,
marker, router, document specialist, surveillance system monitor, and addressor. Tr. 686-
87. Accordingly, the ALJ concluded that Plaintiff has not been disabled since February 19,
2019. Tr. 688.
IV. ANALYSIS
A. Legal Standard
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. § 1381a; accord

20 C.F.R. § 416.901

. An individual is considered to 
be disabled 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 
twelve months.” 42 U.S.C. § 1382c(a)(3)(A); accord

20 C.F.R. § 416.905

(a). This standard 

is met when a severe physical or mental impairment, or impairments, renders the individual 
unable to do her previous work or “any other kind of substantial gainful work which exists 
in  the  national  economy”  when  taking  into  account  her  age,  education,  and  work 
experience. 42 U.S.C. § 1382c(a)(3)(B); accord

20 C.F.R. § 416.905

(a).    
    The  ALJ  determines  disability  according  to  a  five-step  sequential  evaluation 
process.

20 C.F.R. § 416.920

(a)(4).                                       

    To  determine  disability,  the  ALJ  follows  the familiar  five-step process, 
    considering whether: (1) the claimant was employed; (2) she was severely 
    impaired; (3) her impairment was, or was comparable to, a listed impairment; 
    (4) she could perform past relevant work; and if not, (5) whether she could 
    perform any other kind of work.                                      

Halverson v. Astrue,

600 F.3d 922, 929

 (8th Cir. 2010). Within this evaluation process, the 
ALJ determines Plaintiff’s residual functional capacity, which “is the most [she] can do 
despite [her] limitations.”

20 C.F.R. § 416.945

(a)(1); see McCoy v. Astrue,

648 F.3d 605, 614

 (8th Cir. 2011) (“A claimant’s [residual functional capacity] represents the most [s]he 
can do despite the combined effects of all of h[er] credible limitations and must be based 
on all credible evidence.”). In general, the burden of proving the existence of disability lies 
with the claimant.

20 C.F.R. § 416.912

(a).                                
    Judicial review of the Commissioner’s denial of benefits is limited to determining 
whether substantial evidence on the record as a whole supports the decision, or if the ALJ’s 
decision resulted from an error of law. Nash v. Comm’r, Soc. Sec. Administration,

907 F.3d 1086, 1089

 (8th Cir. 2018) (citing

42 U.S.C. § 405

(g); Chismarich v. Berryhill,

888 F.3d 978, 979

 (8th Cir. 2018)). Thus, the Court reviews whether the ALJ’s decision is supported 
by substantial evidence in the record as a whole. Biestek v. Berryhill,

587 U.S. 97, 103

 
(2019). “[T]he threshold for such evidentiary sufficiency is not high.”

Id.

 “It means—and 
means only—such relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion.”

Id.

 (quotation omitted); see, e.g., Chismarich,

888 F.3d at 979

 
(defining “substantial evidence as less than a preponderance but enough that a reasonable 
mind would find it adequate to support the conclusion” (quotation omitted)). 

    This standard requires the Court to “consider both evidence that detracts from the 
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue,

652 F.3d 860, 863

 
(8th Cir. 2011); see Grindley v. Kijakazi,

9 F.4th 622, 627

 (8th Cir. 2021). The ALJ’s 
decision “will not [be] reverse[d] simply because some evidence supports a conclusion 
other than that reached by the ALJ.” Boettcher,

652 F.3d at 863

; accord Grindley,

9 F.4th at 627

. “The court must affirm the [ALJ’s] decision if it is supported by substantial 

evidence on the record as a whole.” Chaney v. Colvin,

812 F.3d 672, 676

 (8th Cir. 2016) 
(quotation omitted). Thus, “[i]f, 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).                           

    B. Medical Opinion Evidence                                          
    Plaintiff challenges the ALJ’s evaluation of medical opinion evidence. See Pl.’s 
Mem. in Supp. at 6-11, ECF No. 18; see also Pl.’s Reply, ECF No. 21. Plaintiff specifically 
challenges the ALJ’s evaluation of a consultative examiner’s opinion and two state agency 
psychologists’ opinions, including whether the ALJ failed to address a part of the state 

psychologists’ opinions.

Id.

 In evaluating the persuasiveness of medical opinions, an ALJ 
must consider “(1) whether they are supported by objective medical evidence, (2) whether 
they are consistent with other medical sources, (3) the relationship that the source has with 
the claimant, (4) the source’s specialization, and (5) any other relevant factors.” Bowers v. 
Kijakazi,

40 F.4th 872, 875

 (8th Cir. 2022) (citing

20 C.F.R. § 404

.1520c(c)2). “The first 
two factors—supportability3 and consistency4—are the most important.”

Id.

 (citing

20 C.F.R. § 404

.1520c(a)). But “[n]o talismanic language is required for the ALJ to meet the 
requirements of [20  C.F.R.] § 404.1520c,  only that the  ALJ make it clear that they 
considered the supportability and consistency of an opinion.” Mario O. v. Kijakazi, No. 21-
cv-2469 (NEB/ECW),

2022 WL 18157524

, at *11 (D. Minn. Dec. 13, 2022), report and 
recommendation adopted,

2023 WL 136590

 (D. Minn. Jan. 9, 2023). Explicit use of the 
terms “supportability” and “consistency” is not required. See

20 C.F.R. § 416

.920c(b).  

         1.  Consultative Examiner Dr. Ward’s Opinion                    
    In April 2019, consultative examiner Dr. Ward examined Plaintiff, Tr. 534-41, and 
offered four opinions. Dr. Ward first opined that Plaintiff’s testing performance “was 
suggestive  of  difficulty  understanding  complex  and  more  sophisticated  one-step 
instructions” and “suggestive of difficulty remembering complex and more sophisticated 

one-step instructions.” Tr. 540. Dr. Ward next opined that Plaintiff “appeared to have 
difficulty with attention and focus based on the need for regular repetition of questions.” 


2 The standard is the same for the regulations governing SSI. See

20 C.F.R. § 416

.920c.  

3 The regulations define the factor of “supportability” as follows:       
    The more relevant the objective medical evidence and supporting explanations presented by a 
    medical source are to support his or her medical opinion(s) or prior administrative medical 
    finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will 
    be.

20 C.F.R. § 416

.920c(c)(1).                                               

4 The regulations define the factor of “consistency” as follows:          
    The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the 
    evidence from other medical sources and nonmedical sources in the claim, the more persuasive the 
    medical opinion(s) or prior administrative medical finding(s) will be.

20 C.F.R. § 416

.920c(c)(2).
Tr. 540. Third, Dr. Ward opined that Plaintiff “presented with indications of depression
which may impact interpersonal interaction in work settings including limited or negative

social interaction.” Tr. 540. And lastly, Dr. Ward opined that Plaintiff’s “testing results
were indictive of problems with intellectual functioning which may negatively impact
ability to adequately manage occupational tasks when coupled with normal work
pressures.” Tr. 540.
The ALJ pointed out that Dr. Ward “made a number of vague statements,
intermingled with phrasing that simply constituted communication of the claimant’s self-

reporting of symptoms (and his own mental status observations as made during his
evaluation).” Tr. 682. Nonetheless, the ALJ determined that Dr. Ward’s “statements may
be construed at least in part as [a] medical opinion.” Tr. 682. The ALJ, however, ultimately
found Dr. Ward’s opinion unpersuasive because it was not supported by his own
examination findings and not consistent with the evidence record. Tr. 682-83. The ALJ’s

analysis shows full compliance with the requirement to evaluate the supportability and
consistency of Dr. Ward’s opinion. The ALJ cited to several of Dr. Ward’s examination
findings that conflicted with his own opinion as well as evidence from the record that
proved inconsistent with Dr. Ward’s opinion and more supportive of the ALJ’s residual
functional capacity determination.

The ALJ found Dr. Ward’s own examination findings from his evaluation of
Plaintiff to not be supportive of his “overly restrictive opinion.” Tr. 682. For example, the
ALJ found Dr. Ward’s diagnosis of a mild intellectual development disorder to be not
supported by Dr. Ward’s exam findings that Plaintiff has a driver’s license, drives, utilizes
the internet and electronic devices, maintains contact with her family, has positive
relationships, and has no “apparent deficits which would impact [Plaintiff’s] ability to

manage funds.” Tr. 682-83 (quoting Tr. 534-41). Contrary to Plaintiff’s assertions, the ALJ
did explain how Plaintiff’s own reports to Dr. Ward regarding operating a vehicle, enjoying
photography, and playing guitar did not support Dr. Ward’s opinion. The ALJ explained
that Plaintiff’s reported activities and abilities are “suggestive of adequate and even
significant adaptive functionality, and is not supportive of [Dr. Ward’s] diagnosis of actual
intellectual disorder and his perception that the claimant’s extremely low intelligence test

scoring ‘appears to be reliable.’” Tr. 683 (quoting Tr. 539); see also Tr. 679-80. The ALJ
further determined that Dr. Ward’s findings are “not supportive of his overly restrictive
assessments regarding performance of ‘more sophisticated one-step instructions’ and
(vague) limitations regarding completion of work duties, problems with ‘interpersonal
interaction in work settings,’ and ability to adequate[ly] manage occupational tasks ‘when

coupled with normal work pressures.’” Tr. 683 (quoting 540).
After careful review, the Court concludes that the ALJ properly determined that Dr.
Ward’s own examination findings did not support his opinion. Dr. Ward failed to provide
persuasive explanations to support his medical opinion. See Davidson v. Astrue,

578 F.3d 838, 843

 (8th Cir. 2009) (“It is permissible for an ALJ to discount an opinion of a treating 

physician that is inconsistent with the physician’s clinical treatment notes.”); Gayla J. C. 
v. Kijakazi, No. 21-cv-1687 (TNL),

2022 WL 4017504

, at *9 (D. Minn. Sept. 2, 2022) 
(finding that “the ALJ properly considered the supportability factor by finding that Dr. 
Kaiser did not provide detailed support for her opinion”). And Dr. Ward’s opinion is made 
up of vague and conclusory statements. See Wildman v. Astrue,

596 F.3d 959, 964

 (8th Cir. 
2010)  (“[A]  treating  physician’s  opinion  deserves  no  greater  respect  than  any  other 

physician’s opinion when it consists of nothing more than vague, conclusory statements.” 
(citation  omitted)); Thomas v. Berryhill,

881 F.3d 672, 675

(8th Cir. 2018) (finding
assessment of claimant to consist “of nothing more than vague, conclusory statements” that
possessed “little evidentiary value” because no medical evidence was cited to and “little to
no elaboration” was provided (citation omitted)).
Furthermore, the ALJ properly found Dr. Ward’s opinion, including Plaintiff’s

difficultly with understanding and responding to Dr. Ward’s questions; difficulty with
attention and focus; Dr. Ward’s restriction of more sophisticated one-step instructions; and
“vague assessments that the claimant would have problems with workplace social
interaction, completion of work duties, and ability to manage work tasks given normal
work pressures” as inconsistent with the record evidence. Tr. 683. In support, the ALJ cited

to other evidence in the record that was inconsistent with Dr. Ward’s opinion. See Tr. 683
(citing Tr. 360, 1005, 1085-87, 1092-93, 1104, 1290). For example, examination findings
from July 2018 found Plaintiff’s intellect to be normal. See Tr. 360. Observations from a
psychiatric exam in early July 2020 estimated Plaintiff to have an average intelligence,
normal cognition, and a sufficient fund of knowledge and language. Tr. 1085-87.

Psychiatric exams from late July and mid-August in 2020 observed normal cognition, an
average estimated intelligence, no memory loss, sufficient fund of knowledge and
language, and normal attention span and concentration. Tr. 1092-93, 11045. In November
2020, clinical notes recognized Plaintiff’s ability to “follow[] verbal commands” and

described her “[a]ttention [as] intact.” Tr. 1005, 1290. All of the above contradicts Dr.
Ward’s opinion, including Plaintiff’s low IQ score, resulting from Dr. Ward’s IQ testing,
see Tr. 680, and Plaintiff’s reported symptoms, Tr. 679, all of which the ALJ thoroughly
discussed and considered.
The Court concludes that the ALJ did not err in his consistency analysis of Dr.
Ward’s opinion as the ALJ “may discount or even disregard the opinion of a treating

physician where other medical assessments are supported by better or more thorough
medical evidence.” Fentress v. Berryhill,

854 F.3d 1016, 1020

 (8th Cir. 2017) (citations 
omitted). Because the ALJ supported his findings with substantial evidence in the record, 
the ALJ was not required to adopt Dr. Ward’s opinion. See Seth K. v. Kijakazi, No. 21-cv-
76 (MJD/LIB),

2022 WL 3718601

, at *5 (D. Minn. July 27, 2022) (“[T]he ALJ is not 

required to believe the opinion of a treating physician when, on balance, the medical 
evidence convinces h[im] otherwise.”), report and recommendation adopted,

2022 WL 3717043

 (D. Minn. Aug. 29, 2022).                                         
    In sum, the Court concludes that the ALJ did not err in considering the supportability 
and consistency factors in finding Dr. Ward’s opinion not persuasive, and that the ALJ’s 



5 Plaintiff highlights her reports at the psychiatric exam in August 2020 of feeling anxious, fearful, depressed as well 
as difficulties with sleeping, excessive worrying, fatigue, paranoia, and racing thoughts. See Pl.’s Mem. in Supp. at 8. 
Plaintiff’s subjective complaints, however, are not enough to establish a disability. See

20 C.F.R. § 416.929

(a). “There 
must be objective medical evidence from an acceptable medical source that shows you have a medical impairment(s) 
which could reasonably be expected to produce the pain or other symptoms alleged.”

Id.

 Plaintiff is essentially asking 
this Court to reweigh the evidence by pointing out her subjective complaints from August 2020. See infra. 
decision is supported by substantial evidence in the record as a whole. It is not the role of 
the Court to reweigh the evidence presented to the ALJ. See Schmitt v. Kijakazi,

27 F. 4th 1353, 1361

 (8th Cir. 2022) (“Despite [the claimant’s] dissatisfaction with how the ALJ 
weighed the evidence, it is not this Court’s role to reweigh that evidence.”). Plaintiff points 
to evidence in the record to support her position, however, the Court must not reweigh the 
evidence. And “[w]hile it is not surprising that, in an administrative record which exceeds 
1,500  pages,  [Plaintiff]  can  point  to  some  evidence  which  detracts  from  the 
Commissioner’s determination, good reasons and substantial evidence on the record as a 

whole support the Commissioner’s [residual functional capacity] determination and the 
decision to discount [Dr. Ward’s] opinion.” See Fentress,

854 F.3d at 1021

 (citing Igo v. 
Colvin,

839 F.3d 724, 731

 (8th Cir. 2016). See also Goff v. Barnhart,

421 F.3d 785, 789

(8th Cir. 2005) (“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

Commissioner’s findings, the court must affirm the Commissioner’s decision.”).
2. State Agency Psychologists’ Opinions
Dr. Johnston and Dr. Tangeman, two state agency psychologists, offered virtually
identical opinions. In May 2019, Dr. Johnston opined that Plaintiff is limited to simple,
repetitive, one to two step tasks, in environments where there is no demand for a fast pace.

Tr. 681, 124. Dr. Johnston also opined that Plaintiff could interact with the public no more
than 20% of the workday and cannot participate in sales or negotiations but can relate to
others infrequently. See Tr. 681, 124. Dr. Johnston lastly opined that Plaintiff could adapt
to settings where changes are infrequent but that changes can occur no more than 10% of
the workday. See Tr. 681, 125. In August 2019, Dr. Tangeman adopted Dr. Johnston’s
above opinions. Tr. 681, 169-70. The ALJ considered the above opinions but found only

partially persuasive both Dr. Johnston’s and Dr. Tangeman’s opinions, concluding that the
evidence record is most consistent with the ALJ’s residual functional capacity
determination. Tr. 681.
Plaintiff argues that the ALJ’s findings with respect to these opinions are flawed
because the ALJ did not sufficiently analyze the supportability and consistency of the
opinions. See Pl.’s Mem. in Supp. at 7-8. Plaintiff puts a particular emphasis on the

supportability analysis, arguing that the ALJ failed to address the pace limitations opined
by Dr. Johnston and Dr. Tangeman. Id. at 7; see also Pl.’s Reply at 1-2. The Court
concludes that the ALJ did not err in his consideration of Dr. Johnston’s and Dr.
Tangeman’s opinions and the ALJ did not fail to consider the pace limitations.
As for supportability, the ALJ concluded that Dr. Johnston’s and Dr. Tangeman’s

opinions were partially based on Dr. Ward’s unpersuasive opinion which hindered the
supportability of the state psychologists’ opinions. See Tr. 681, 119, 124-25, 165, 169-70.
Plaintiff argues that the ALJ failed to address the state psychologists’ limitation of “no
demand for fast pace” in the ALJ’s decision. See Pl.’s Mem. in Supp. at 18; Pl.’s Reply at
1-2. Plaintiff also argues that Defendant’s brief fails to address this issue which—as

Plaintiff argues—is evidence the ALJ did not consider that limitation. Compare Pl.’s Reply
at 2, with Def.’s Brief at 6, 11. Defendant, however, did argue that the ALJ’s decisions
included the “pace elements that are part of Plaintiff’s arguments.” Def.’s Brief at 6. Dr.
Johnston’s and Dr. Tangeman’s opinions, including the pace limitation is partially based
on Dr. Ward’s opinion, which the ALJ found unpersuasive. See Tr. 682-83, 119, 165. While
the ALJ recognized that Dr. Ward’s opinion partially supported the state psychologists’

opinions, see Tr. 681, Dr. Ward’s opinion was ultimately rejected by the ALJ. See Tr. 682-
83.
Nonetheless, the Court “review[s] the record to ensure that an ALJ does not
disregard evidence or ignore potential limitations, but we do not require an ALJ to
mechanically list and reject every possible limitation.” McCoy,

648 F.3d at 615

. Based on 
the Court’s review of the record, the Court concludes that the ALJ did not overlook the 

state psychologists’ limitation of no demand for a fast pace. Such limitation was implicitly 
discussed  in  the  ALJ’s  analysis  of  Dr.  Ward’s  opinion  and  the  state  psychologists’ 
opinions, see Tr. 681-83, therefore; the ALJ did not disregard or ignore the opined pace 
limitation. Further, “an arguable deficiency in opinion-writing technique does not require 
[the Court] to set aside an administrative finding when that deficiency had no bearing on 

the outcome.” Robinson v. Sullivan,

956 F.2d 836, 841

 (8th Cir. 1992) (quotation omitted). 
An arguable deficiency in the ALJ’s opinion writing in this matter had no bearing on the 
outcome of this case because—as the ALJ pointed out—the state psychologists “had no 
opportunity  to  review  the  later  specialized  mental  status  observations  .  .  .  featuring 
recurrent clinician reporting of ‘average’ estimated intelligence, no memory loss, and 

‘normal’ attention span and concentration.” Tr. 681 (citing Tr. 1086-87, 1092-93, 1104). 
This is not the type of circumstance that warrants remand. See Senne v. Apfel,

198 F.3d 1065, 1067-68

 (8th Cir. 1999) (rejecting the argument that deficiency in the ALJ’s opinion 
writing alone warrants remand, but finding remand appropriate when the ALJ’s findings 
were not sufficient to ascertain whether the ALJ’s decision was supported by substantial 
evidence on the record); Benskin v. Bowen,

830 F.2d 878, 883

 (8th Cir. 1987) (finding 

harmless error where “the deficiency probably had no practical effect on the outcome of 
the case.”).                                                              
    As for the consistency analysis, the ALJ properly found the state psychologists’ 
opinions  to  be  inconsistent  with  more  recent  medical  records  on  Plaintiff’s  mental 
functioning that the state psychologists had not reviewed but which directly contradicted 
the state psychologists’ opinions. See Tr. 681 (citing Tr. 1086-87, 1092-93, 1104). The ALJ 

must consider all the evidence. See Pearsall v. Massanari,

274 F.3d 1211, 1217

 (8th Cir. 
2001)  (“It  is  the  ALJ’s  responsibility  to  determine  a  claimant’s  [residual  functional 
capacity]  based  on  all  relevant  evidence,  including  medical  records,  observations  of 
treating physicians and others, and claimant’s own descriptions of his limitations.”). As 
such,  there  is  no  requirement  that  a  residual-functional-capacity  determination  “be 

supported by a specific medical opinion.” Schmitt,

27 F. 4th at 1360

 (quotation omitted).   
    The ALJ also considered other evidence showing, among other things, that Plaintiff 
generally presented throughout her medical history (including since the amended alleged 
onset date of disability) with a normal mood, affect, alertness, orientation, speech, thought 
content, intellect, memory, and cognition, Tr. 681; see, e.g., Tr. 359-60, 399, 453-54, 464-

66, 471, 477, 482, 500, 505, 524-26, 553, 556, 559, 561-62, 620, 626, 629, 641, 994, 1121-
22, 1137-38, 1213-15, 1257, 1276. Thus, the ALJ properly considered the medical opinions 
by  addressing  the  supportability  and  consistency  of the  state  psychologists’  partially 
persuasive  medical opinions. The  Court concludes that the ALJ’s residual functional 
capacity determination—in particular that Plaintiff is limited to performing “jobs that only 
require up to detailed but uninvolved tasks with few concrete variables, little in the way of 

change in the job process from day to day, and jobs with multistep tasks, easily resumed 
after momentary distraction”, see Tr. 674—is supported by substantial evidence in the 
record as a whole. “Because a claimant’s [residual functional capacity] is a medical 
question, an ALJ’s assessment of it must be supported by some medical evidence of the 
claimant’s ability to function in the workplace.” Perks,

687 F.3d at 1092

 (quotation 
omitted). “Even though the [residual functional capacity] assessment draws from medical 

sources  for  support,  it  is  ultimately  an  administrative  determination  reserved  to  the 
Commissioner.”

Id.

 (quotation omitted); see

20 C.F.R. § 416.946

(c).       
                        V. CONCLUSION                                    
    Based upon the record, memoranda, and proceedings herein, and for the reasons 
stated above, IT IS HEREBY ORDERED that:                                  

    1.   Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 

    2.   Defendant’s request for relief, ECF No. 20, is GRANTED.         

    3.   The Commissioner’s decision is AFFIRMED.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      
Date: September 17, 2024           s/ Tony N. Leung                       
                                  Tony N. Leung                          
                                  United States Magistrate Judge         
                                  District of Minnesota                  


                                  Dixie J. P. v. O’Malley                
                                  Case No. 23-cv-1104 (TNL)

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Dixie J. P.,                         Case No. 23-cv-1104 (TNL)           

          Plaintiff,                                                     

v.                                          ORDER                        

Martin J. O’Malley1,                                                     
Commissioner of Social Security                                          
Administration,                                                          

          Defendant.                                                     


Edward  A.  Wicklund,  Olinsky  Law  Group,  250  South  Clinton  Street,  Suite  210, 
Syracuse,  NY  13202  and  Jyotsna  Asha  Sharma,  Disability  Partners,  PLLC,  2579 
Hamline Avenue North, Suite C, Roseville, MN 55113 (for Plaintiff); and  

Ana H. Voss, United States Attorney’s Office, 300 South Fourth Street, Suite 600, 
Minneapolis, MN 55415; and James D. Sides, Linda H. Green, and Sophie Doroba, 
Social Security Administration, Office of Program Litigation, Office 4, 6401 Security 
Boulevard, Baltimore, MD 21235 (for Defendant).                          


                       I. INTRODUCTION                                   
    Plaintiff Dixie J. P. brings the present case, contesting Defendant Commissioner of 
Social Security’s denial of supplemental security income (“SSI”) under Title XVI of the 
Social security Act. See

42 U.S.C. §§ 405

(g), 1383(c)(3). The parties have consented to a 
final judgment from the undersigned United States Magistrate Judge in accordance with

28 U.S.C. § 636

(c), Fed. R. Civ. P. 73, and D. Minn. LR 72.1(c).

42 U.S.C. § 405

(g). 
Plaintiff now seeks review by this Court.                                 

                       III. ALJ’s DECISION                               
    The ALJ found in its February 2023 decision that Plaintiff has not engaged in 
substantial gainful activity since February 19, 2019. Tr. 660. Next, the ALJ found that 
Plaintiff has the following severe impairment: osteoarthrosis of the left hip; inflammatory 
bowel disease; chronic obstructive pulmonary disease; diabetes mellitus with neuropathy; 
obesity; and borderline intellectual functioning. Tr. 660. The ALJ also concluded that 

Plaintiff  does  not  have  an  impairment  or  combination  of  impairments  that  meets  or 
medically equals the severity of one of the listed impairments under 20 C.F.R. Part 404, 
Subpart P, Appendix 1 (

20 C.F.R. §§ 416.920

(d), 416.925 and 416.926). Tr. 667.  
    As for Plaintiff’s residual functional capacity, the ALJ found that Plaintiff has the 
residual functional capacity to perform light work as defined in

20 C.F.R. § 416.967

(b),

20 C.F.R. § 416.901

. An individual is considered to 
be disabled 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 
twelve months.” 42 U.S.C. § 1382c(a)(3)(A); accord

20 C.F.R. § 416.905

(a). This standard 

is met when a severe physical or mental impairment, or impairments, renders the individual 
unable to do her previous work or “any other kind of substantial gainful work which exists 
in  the  national  economy”  when  taking  into  account  her  age,  education,  and  work 
experience. 42 U.S.C. § 1382c(a)(3)(B); accord

20 C.F.R. § 416.905

(a).    
    The  ALJ  determines  disability  according  to  a  five-step  sequential  evaluation 
process.

20 C.F.R. § 416.920

(a)(4).                                       

    To  determine  disability,  the  ALJ  follows  the familiar  five-step process, 
    considering whether: (1) the claimant was employed; (2) she was severely 
    impaired; (3) her impairment was, or was comparable to, a listed impairment; 
    (4) she could perform past relevant work; and if not, (5) whether she could 
    perform any other kind of work.                                      

Halverson v. Astrue,

600 F.3d 922, 929

 (8th Cir. 2010). Within this evaluation process, the 
ALJ determines Plaintiff’s residual functional capacity, which “is the most [she] can do 
despite [her] limitations.”

20 C.F.R. § 416.945

(a)(1); see McCoy v. Astrue,

648 F.3d 605, 614

 (8th Cir. 2011) (“A claimant’s [residual functional capacity] represents the most [s]he 
can do despite the combined effects of all of h[er] credible limitations and must be based 
on all credible evidence.”). In general, the burden of proving the existence of disability lies 
with the claimant.

20 C.F.R. § 416.912

(a).                                
    Judicial review of the Commissioner’s denial of benefits is limited to determining 
whether substantial evidence on the record as a whole supports the decision, or if the ALJ’s 
decision resulted from an error of law. Nash v. Comm’r, Soc. Sec. Administration,

907 F.3d 1086, 1089

 (8th Cir. 2018) (citing

42 U.S.C. § 405

(g); Chismarich v. Berryhill,

888 F.3d 978, 979

 (8th Cir. 2018)). Thus, the Court reviews whether the ALJ’s decision is supported 
by substantial evidence in the record as a whole. Biestek v. Berryhill,

587 U.S. 97, 103

 
(2019). “[T]he threshold for such evidentiary sufficiency is not high.”

Id.

 “It means—and 
means only—such relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion.”

Id.

 (quotation omitted); see, e.g., Chismarich,

888 F.3d at 979

 
(defining “substantial evidence as less than a preponderance but enough that a reasonable 
mind would find it adequate to support the conclusion” (quotation omitted)). 

    This standard requires the Court to “consider both evidence that detracts from the 
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue,

652 F.3d 860, 863

 
(8th Cir. 2011); see Grindley v. Kijakazi,

9 F.4th 622, 627

 (8th Cir. 2021). The ALJ’s 
decision “will not [be] reverse[d] simply because some evidence supports a conclusion 
other than that reached by the ALJ.” Boettcher,

652 F.3d at 863

; accord Grindley,

9 F.4th at 627

. “The court must affirm the [ALJ’s] decision if it is supported by substantial 

evidence on the record as a whole.” Chaney v. Colvin,

812 F.3d 672, 676

 (8th Cir. 2016) 
(quotation omitted). Thus, “[i]f, 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).                           

    B. Medical Opinion Evidence                                          
    Plaintiff challenges the ALJ’s evaluation of medical opinion evidence. See Pl.’s 
Mem. in Supp. at 6-11, ECF No. 18; see also Pl.’s Reply, ECF No. 21. Plaintiff specifically 
challenges the ALJ’s evaluation of a consultative examiner’s opinion and two state agency 
psychologists’ opinions, including whether the ALJ failed to address a part of the state 

psychologists’ opinions.

Id.

 In evaluating the persuasiveness of medical opinions, an ALJ 
must consider “(1) whether they are supported by objective medical evidence, (2) whether 
they are consistent with other medical sources, (3) the relationship that the source has with 
the claimant, (4) the source’s specialization, and (5) any other relevant factors.” Bowers v. 
Kijakazi,

40 F.4th 872, 875

 (8th Cir. 2022) (citing

20 C.F.R. § 404

.1520c(c)2). “The first 
two factors—supportability3 and consistency4—are the most important.”

Id.

 (citing

20 C.F.R. § 404

.1520c(a)). But “[n]o talismanic language is required for the ALJ to meet the 
requirements of [20  C.F.R.] § 404.1520c,  only that the  ALJ make it clear that they 
considered the supportability and consistency of an opinion.” Mario O. v. Kijakazi, No. 21-
cv-2469 (NEB/ECW),

2022 WL 18157524

, at *11 (D. Minn. Dec. 13, 2022), report and 
recommendation adopted,

2023 WL 136590

 (D. Minn. Jan. 9, 2023). Explicit use of the 
terms “supportability” and “consistency” is not required. See

20 C.F.R. § 416

.920c(b).  

         1.  Consultative Examiner Dr. Ward’s Opinion                    
    In April 2019, consultative examiner Dr. Ward examined Plaintiff, Tr. 534-41, and 
offered four opinions. Dr. Ward first opined that Plaintiff’s testing performance “was 
suggestive  of  difficulty  understanding  complex  and  more  sophisticated  one-step 
instructions” and “suggestive of difficulty remembering complex and more sophisticated 

one-step instructions.” Tr. 540. Dr. Ward next opined that Plaintiff “appeared to have 
difficulty with attention and focus based on the need for regular repetition of questions.” 


2 The standard is the same for the regulations governing SSI. See

20 C.F.R. § 416

.920c.  

3 The regulations define the factor of “supportability” as follows:       
    The more relevant the objective medical evidence and supporting explanations presented by a 
    medical source are to support his or her medical opinion(s) or prior administrative medical 
    finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will 
    be.

20 C.F.R. § 416

.920c(c)(1).                                               

4 The regulations define the factor of “consistency” as follows:          
    The more consistent a medical opinion(s) or prior administrative medical finding(s) is with the 
    evidence from other medical sources and nonmedical sources in the claim, the more persuasive the 
    medical opinion(s) or prior administrative medical finding(s) will be.

20 C.F.R. § 416

.920c(c)(2).
Tr. 540. Third, Dr. Ward opined that Plaintiff “presented with indications of depression
which may impact interpersonal interaction in work settings including limited or negative

578 F.3d 838, 843

 (8th Cir. 2009) (“It is permissible for an ALJ to discount an opinion of a treating 

physician that is inconsistent with the physician’s clinical treatment notes.”); Gayla J. C. 
v. Kijakazi, No. 21-cv-1687 (TNL),

2022 WL 4017504

, at *9 (D. Minn. Sept. 2, 2022) 
(finding that “the ALJ properly considered the supportability factor by finding that Dr. 
Kaiser did not provide detailed support for her opinion”). And Dr. Ward’s opinion is made 
up of vague and conclusory statements. See Wildman v. Astrue,

596 F.3d 959, 964

 (8th Cir. 
2010)  (“[A]  treating  physician’s  opinion  deserves  no  greater  respect  than  any  other 

physician’s opinion when it consists of nothing more than vague, conclusory statements.” 
(citation  omitted)); Thomas v. Berryhill,

881 F.3d 672, 675

physician where other medical assessments are supported by better or more thorough
medical evidence.” Fentress v. Berryhill,

854 F.3d 1016, 1020

 (8th Cir. 2017) (citations 
omitted). Because the ALJ supported his findings with substantial evidence in the record, 
the ALJ was not required to adopt Dr. Ward’s opinion. See Seth K. v. Kijakazi, No. 21-cv-
76 (MJD/LIB),

2022 WL 3718601

, at *5 (D. Minn. July 27, 2022) (“[T]he ALJ is not 

required to believe the opinion of a treating physician when, on balance, the medical 
evidence convinces h[im] otherwise.”), report and recommendation adopted,

2022 WL 3717043

 (D. Minn. Aug. 29, 2022).                                         
    In sum, the Court concludes that the ALJ did not err in considering the supportability 
and consistency factors in finding Dr. Ward’s opinion not persuasive, and that the ALJ’s 



5 Plaintiff highlights her reports at the psychiatric exam in August 2020 of feeling anxious, fearful, depressed as well 
as difficulties with sleeping, excessive worrying, fatigue, paranoia, and racing thoughts. See Pl.’s Mem. in Supp. at 8. 
Plaintiff’s subjective complaints, however, are not enough to establish a disability. See

20 C.F.R. § 416.929

(a). “There 
must be objective medical evidence from an acceptable medical source that shows you have a medical impairment(s) 
which could reasonably be expected to produce the pain or other symptoms alleged.”

Id.

 Plaintiff is essentially asking 
this Court to reweigh the evidence by pointing out her subjective complaints from August 2020. See infra. 
decision is supported by substantial evidence in the record as a whole. It is not the role of 
the Court to reweigh the evidence presented to the ALJ. See Schmitt v. Kijakazi,

27 F. 4th 1353, 1361

 (8th Cir. 2022) (“Despite [the claimant’s] dissatisfaction with how the ALJ 
weighed the evidence, it is not this Court’s role to reweigh that evidence.”). Plaintiff points 
to evidence in the record to support her position, however, the Court must not reweigh the 
evidence. And “[w]hile it is not surprising that, in an administrative record which exceeds 
1,500  pages,  [Plaintiff]  can  point  to  some  evidence  which  detracts  from  the 
Commissioner’s determination, good reasons and substantial evidence on the record as a 

whole support the Commissioner’s [residual functional capacity] determination and the 
decision to discount [Dr. Ward’s] opinion.” See Fentress,

854 F.3d at 1021

 (citing Igo v. 
Colvin,

839 F.3d 724, 731

 (8th Cir. 2016). See also Goff v. Barnhart,

421 F.3d 785, 789

(8th Cir. 2005) (“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

648 F.3d at 615

. Based on 
the Court’s review of the record, the Court concludes that the ALJ did not overlook the 

state psychologists’ limitation of no demand for a fast pace. Such limitation was implicitly 
discussed  in  the  ALJ’s  analysis  of  Dr.  Ward’s  opinion  and  the  state  psychologists’ 
opinions, see Tr. 681-83, therefore; the ALJ did not disregard or ignore the opined pace 
limitation. Further, “an arguable deficiency in opinion-writing technique does not require 
[the Court] to set aside an administrative finding when that deficiency had no bearing on 

the outcome.” Robinson v. Sullivan,

956 F.2d 836, 841

 (8th Cir. 1992) (quotation omitted). 
An arguable deficiency in the ALJ’s opinion writing in this matter had no bearing on the 
outcome of this case because—as the ALJ pointed out—the state psychologists “had no 
opportunity  to  review  the  later  specialized  mental  status  observations  .  .  .  featuring 
recurrent clinician reporting of ‘average’ estimated intelligence, no memory loss, and 

‘normal’ attention span and concentration.” Tr. 681 (citing Tr. 1086-87, 1092-93, 1104). 
This is not the type of circumstance that warrants remand. See Senne v. Apfel,

198 F.3d 1065, 1067-68

 (8th Cir. 1999) (rejecting the argument that deficiency in the ALJ’s opinion 
writing alone warrants remand, but finding remand appropriate when the ALJ’s findings 
were not sufficient to ascertain whether the ALJ’s decision was supported by substantial 
evidence on the record); Benskin v. Bowen,

830 F.2d 878, 883

 (8th Cir. 1987) (finding 

harmless error where “the deficiency probably had no practical effect on the outcome of 
the case.”).                                                              
    As for the consistency analysis, the ALJ properly found the state psychologists’ 
opinions  to  be  inconsistent  with  more  recent  medical  records  on  Plaintiff’s  mental 
functioning that the state psychologists had not reviewed but which directly contradicted 
the state psychologists’ opinions. See Tr. 681 (citing Tr. 1086-87, 1092-93, 1104). The ALJ 

must consider all the evidence. See Pearsall v. Massanari,

274 F.3d 1211, 1217

 (8th Cir. 
2001)  (“It  is  the  ALJ’s  responsibility  to  determine  a  claimant’s  [residual  functional 
capacity]  based  on  all  relevant  evidence,  including  medical  records,  observations  of 
treating physicians and others, and claimant’s own descriptions of his limitations.”). As 
such,  there  is  no  requirement  that  a  residual-functional-capacity  determination  “be 

supported by a specific medical opinion.” Schmitt,

27 F. 4th at 1360

 (quotation omitted).   
    The ALJ also considered other evidence showing, among other things, that Plaintiff 
generally presented throughout her medical history (including since the amended alleged 
onset date of disability) with a normal mood, affect, alertness, orientation, speech, thought 
content, intellect, memory, and cognition, Tr. 681; see, e.g., Tr. 359-60, 399, 453-54, 464-

66, 471, 477, 482, 500, 505, 524-26, 553, 556, 559, 561-62, 620, 626, 629, 641, 994, 1121-
22, 1137-38, 1213-15, 1257, 1276. Thus, the ALJ properly considered the medical opinions 
by  addressing  the  supportability  and  consistency  of the  state  psychologists’  partially 
persuasive  medical opinions. The  Court concludes that the ALJ’s residual functional 
capacity determination—in particular that Plaintiff is limited to performing “jobs that only 
require up to detailed but uninvolved tasks with few concrete variables, little in the way of 

change in the job process from day to day, and jobs with multistep tasks, easily resumed 
after momentary distraction”, see Tr. 674—is supported by substantial evidence in the 
record as a whole. “Because a claimant’s [residual functional capacity] is a medical 
question, an ALJ’s assessment of it must be supported by some medical evidence of the 
claimant’s ability to function in the workplace.” Perks,

687 F.3d at 1092

 (quotation 
omitted). “Even though the [residual functional capacity] assessment draws from medical 

sources  for  support,  it  is  ultimately  an  administrative  determination  reserved  to  the 
Commissioner.”

Id.

 (quotation omitted); see

20 C.F.R. § 416.946

(c).       
                        V. CONCLUSION                                    
    Based upon the record, memoranda, and proceedings herein, and for the reasons 
stated above, IT IS HEREBY ORDERED that:                                  

    1.   Plaintiff’s Motion for Summary Judgment, ECF No. 17, is DENIED. 

    2.   Defendant’s request for relief, ECF No. 20, is GRANTED.         

    3.   The Commissioner’s decision is AFFIRMED.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      
Date: September 17, 2024           s/ Tony N. Leung                       
                                  Tony N. Leung                          
                                  United States Magistrate Judge         
                                  District of Minnesota                  


                                  Dixie J. P. v. O’Malley                
                                  Case No. 23-cv-1104 (TNL)

Reference

Status: Unknown