Wernersbach v. Colvin

U.S. District Court, District of Minnesota December 2, 2024

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Mark W. W.,                           No. 23-cv-3263 (ECT/DLM)           

               Plaintiff,                                                


v.                                                                       
                                           REPORT AND                    

                                       RECOMMENDATION                    
Martin J. O’Malley,                                                      
Commissioner of Social Security                                          
Administration,                                                          

               Defendant.                                                



    Pursuant to

42 U.S.C. § 405

(g), Plaintiff Mark W. W. seeks judicial review of the 
final decision of the Commissioner of Social Security (“Commissioner”) denying him 
benefits. This matter is before the Court on the parties’ briefs seeking judgment on the 
administrative record. (Docs. 14 (Plaintiff’s motion), 15 (Plaintiff’s memorandum), 17 
(Commissioner’s  brief),  19  (Plaintiff’s  reply).)  The  case  has  been  referred  to  the 
undersigned magistrate judge for a Report and Recommendation pursuant to

28 U.S.C. § 636

 and District of Minnesota Local Rule 72.1. For the reasons  below, the Court 
recommends that judgment be granted in favor of the Commissioner.         
                         BACKGROUND                                      
    In spring of 2021, Plaintiff applied for Supplemental Security Income (“SSI”) and 
Disability Insurance Benefits (“DIB”), alleging that he had been disabled since February 

22, 2021. (Tr.1 at 10, 261–63.2) The Social Security Administration (“SSA”) denied both 
applications initially (Tr. at 72–85), and upon reconsideration (Tr. at 86–99). Plaintiff then 
requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held a 
hearing by telephone on the matter on October 20, 2022. (Tr. at 143–44 (request for 
hearing), 29–66 (hearing transcript).) Counsel represented Plaintiff at the hearing, and 

Plaintiff testified on his own behalf. (Tr. at 29–31, 35–61.) A vocational expert also 
testified, concluding that if the ALJ limited Plaintiff to medium work with some postural 
and environmental limitations, he could still perform his past work as a mixer operator and 
laborer. (Tr. at 63–64.)                                                  
    On December 9, 2022, the Commissioner sent his notice of an unfavorable decision 

to Plaintiff. (Tr. at 7–9 (notice), 10–18 (decision).) The ALJ recognized that Plaintiff 
suffered from several medically determinable impairments, including “diabetes mellitus 
without  complication,  dermatitis,  groin  abscess,  essential  hypertension,  obesity, 


1 The Commissioner filed the consecutively paginated transcript of the administrative 
record on February 23, 2024. (Docs. 13–13-2.) For ease of reference, the citations to the 
transcript will treat the record like a single document and will identify the page number 
listed on the lower right corner of the document rather than the docket page number. 
2 Although the ALJ notes that Plaintiff filed both an SSI and DIB application (Tr. at 10), 
the record only contains Plaintiff’s DIB application. (Tr. at 261–63.) Plaintiff claims that 
he has only applied for SSI. (Doc. 18 at 6.) This dispute does not alter the outcome of this 
judicial review, and the Court will discuss and apply the statutes and regulations relating 
to both types of disability claims for thoroughness.                      
cervicalgia, multilevel cervical  spine degenerative  disc disease/facet arthropathy  with 
moderate  spinal  canal  narrowing  at  the  C5-6  level,  lumbar  spine  bilateral  foraminal 
narrowing without high grade central canal narrowing (post lumbar laminectomy in June 

2015),  stab  wound  to  abdomen/umbilicus,  anxiety  disorder,  depressive  disorder  and 
posttraumatic stress disorder (PTSD).” (Tr. at 12–13.) Yet the ALJ concluded that none of 
Plaintiff’s impairments, either singly or in combination, were severe because none “has 
significantly limited (or is expected to significantly limit) the ability to perform basic work-
related activities for 12 consecutive months.” (Tr. at 13 (citing

20 C.F.R. §§ 404.1521

seq., 416.921 et seq.).) In reaching this conclusion, the ALJ found that while “the
claimant’s medically determinable impairments could reasonably be expected to produce
the alleged symptoms, . . . the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms [were] not entirely consistent” with the record. (Tr.
at 15.) The ALJ thus concluded that Plaintiff “ha[d] not been under a disability, as defined

in the Social Security Act, from February 22, 2021, through the date of [the ALJ’s]
decision.” (Tr. at 18.) Plaintiff appealed the ALJ’s decision, but the SSA’s Appeals Council
denied his request for further review, making the ALJ’s decision the final decision of the
Commissioner. (Tr. at 1–3.)
Plaintiff then filed this federal action seeking judicial review of the Commissioner’s

decision. (Doc. 1.) Plaintiff raises two challenges to the ALJ’s determination that he is not
disabled: 1) substantial evidence in the record does not support the ALJ’s determination
that the combination of Plaintiff’s medically determinable impairments is not severe; and
2) the ALJ failed to sufficiently develop the record and relied solely on his lay opinion
rather than adequate medical evidence. Based on these errors, Plaintiff asks the Court to
reverse the Commissioner’s decision and award benefits or remand the matter for further
review.

ANALYSIS
This Court reviews an ALJ’s denial-of-benefits decision to determine whether it is
supported by substantial evidence in the record as a whole, and whether the decision is
infected by legal error.

42 U.S.C. § 405

(g); Austin v. Kijakazi,

52 F.4th 723

, 728 (8th Cir. 
2022). Substantial evidence means “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154

 
(2019) (internal quotations omitted); see also Nash v. Comm’r, Soc. Sec. Admin,

907 F.3d 1086, 1089

  (8th  Cir.  2018)  (characterizing  “substantial  evidence”  as  “less  than  a 
preponderance, but enough that a reasonable mind would find it adequate to support the 
Commissioner’s conclusions”). Courts reviewing ALJ decisions must look to the entire 

administrative record to ascertain whether it contains sufficient evidence to support the 
ALJ’s conclusion. Grindley v. Kijakazi,

9 F.4th 622

, 627 (8th Cir. 2021). When substantial 
evidence supports the ALJ’s decision, the Court will not reverse, even if substantial 
evidence also supports a contrary outcome. Nash,

907 F.3d at 1089

. But if an ALJ used 
erroneous legal standards, or if they incorrectly applied the law, those may be reversible 

legal errors. Joel M. B. v. Kijakazi, No. 21-cv-1660 (PAM/ECW),

2022 WL 1785224

, at 
*2 (D. Minn. June 1, 2022) (citing Collins v. Astrue,

648 F.3d 869, 871

 (8th Cir. 2011)); 
Michael B. v. Kijakazi, No. 21-cv-1043 (NEB/LIB),

2022 WL 4463901

, at *1 (D. Minn. 
Sept. 26, 2022).                                                          
    Plaintiff does not contest that the ALJ followed the five-step sequential process laid 
out in

20 C.F.R. §§ 404.1520

(a)(4) and 416.920(a)(4) for evaluating DIB and SSI claims, 
respectively.3 Rather, Plaintiff asserts that the ALJ critically erred at step two by failing to 

find that Plaintiff’s combined impairments are severe, failing to adequately develop the 
record, and improperly substituting his own lay judgment for medical evidence supporting 
his conclusion. The Court will consider Plaintiff’s challenges below.     
I.   SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTS       THE ALJ’S          
    CONCLUSION   AT  STEP  TWO  THAT  PLAINTIFF’S  IMPAIRMENTS,          
    ALONE OR IN COMBINATION, WERE NOT SEVERE.                            

    Plaintiff first challenges the ALJ’s conclusion that his mental impairments are not 
severe. He argues that the standard to find severity is not a high one, and that SSA decisions 
to deny disability based on a finding of no severe impairments are thus rare. He claims that 
the ALJ wrongly credited Plaintiff’s ability to work at McDonald’s for up to 12 hours each 
week as evidence that his mental impairments were non-severe, and that a review of the 

3 Step one of this process involves determining whether a claimant is engaged in substantial 
gainful activity.

20 C.F.R. §§ 404.1520

(a)(4)(i), 416.920(a)(4)(i). If not, the ALJ must next 
decide (in step two) whether the claimant’s impairments are severe, and of a duration of 
least 12 continuous months.

Id.

 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The ALJ here only 
proceeded through step two at which he found Plaintiff’s impairments were neither severe, 
nor of a duration of at least 12 continuous months. (Tr. at 13.) Had the ALJ continued 
through the remaining steps, at step three, an ALJ determines whether the claimant’s 
impairments are severe enough to equal a listed impairment under Appendix 1 to Subpart 
P of Part 404.

20 C.F.R. §§ 404.1520

(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is 
considered disabled without further inquiry. If not, the ALJ must determine the claimant’s 
residual functional capacity (“RFC”), and decide (at step four) whether the claimant can 
still do their past work given their limitations.

Id.

 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 
Finally, if the ALJ concludes a claimant cannot perform their prior work, step five requires 
the  ALJ  to  determine  whether  they  can  do  other  work  considering  their  RFC,  age, 
education, and work experience. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 
record shows that his severe mental impairments result in significant difficulty interacting 
with  others.  According  to  Plaintiff,  these  errors  are  not  harmless  because  the  ALJ 
prematurely stopped his sequential evaluation at step two when he should have proceeded 

to analyze the record evidence under the remaining steps.                 
    The Commissioner contends that the ALJ properly considered whether Plaintiff’s 
medically determinable mental impairments resulted in more than minimal limitations to 
his ability to perform basic work activities, concluding that he had no greater than mild 
limitations  in  one  functional  area—interacting  with  others.  According  to  the 

Commissioner, Plaintiff has failed to point to record evidence that his mental impairments 
had a greater than minimal impact on his ability to perform basic work activities, and 
therefore, the Court should reject Plaintiff’s unsubstantiated argument.  
    The SSA defines “disability” as an “inability to engage in any substantial gainful 
activity by reason of any medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be expected to last for a continuous 
period  of  not  less  than  12  months.”

42 U.S.C. § 423

(d)(1)(A);  see  also

20 C.F.R. §§ 404.1509

,  416.909.  At step two of  the  five-step  sequential  process,  an  ALJ  must 
determine whether a plaintiff has “a severe medically determinable physical or mental 
impairment that  meets  the  [twelve-month  duration  requirement  in  §§ 404.1509  and 

416.909],  or  a  combination  of  impairments  that  is  severe  and  meets  the  duration 
requirement.”

20 C.F.R. §§ 404.1520

(a)(4)(ii),  416.920(a)(4)(ii).  To  be  severe,  an 
impairment must “significantly limit[ ] [a plaintiff’s] physical or mental ability to do basic 
work  activities.”

Id.

 §§ 404.1520(c),  416.920(c).  By  contrast,  “[a]n  impairment  or 
combination of impairments is . . . ‘not severe’ . . . when medical evidence establishes only 
a slight abnormality or a combination of slight abnormalities which would have no more 
than a minimal effect on an individual’s ability to work.” Social Security Ruling (“SSR”) 

85-28,

1985 WL 56856

, at *3 (Jan. 1, 1985). It is a claimant’s burden at step two to prove 
disability. See Rickey P. V. v. Kijakazi, No. 20-cv-2199 (JFD),

2022 WL 3214991

, at *6 
(D. Minn. Aug. 9, 2022). “Although severity is not an onerous requirement, ‘it is also not 
a toothless standard, and [the Eighth Circuit has] upheld on numerous occasions the 
Commissioner’s finding that a claimant failed to make this showing.’” Kaitlin W. v. 

O’Malley, No. 24-cv-6 (DJF),

2024 WL 4534725

, at *4 (D. Minn. Oct. 21, 2024) (quoting 
Kirby v. Astrue,

500 F.3d 705, 708

 (8th Cir. 2007) (collecting cases)). That said, the SSA 
has cautioned it adjudicators that “[g]reat care should be exercised in applying the not 
severe impairment concept” and, if in doubt, mandates that “the sequential evaluation 
process should not end with the not severe evaluation step.” SSR 85-28,

1985 WL 56856

, 

at *4. However, if an ALJ finds that the record shows a claimant does not have a severe 
impairment or combination of impairments, they must conclude “that the individual’s 
ability to engage in [substantial gainful activity] is not seriously affected.”

Id.

 
    Here, the ALJ made a finding at step two of the sequential evaluation process that 
none of Plaintiff’s impairments, either singly or in combination, have significantly limited 

his ability to perform basic work-related activities4 for a duration of 12 consecutive months 


4 Basic work-related activities include physical movement, use of senses, ability to follow 
instructions, use of judgment, ability to respond appropriately to others, and ability to deal 
with routine changes. (Tr. at 13 (citing SSR 85-29,

1985 WL 56856

, at *2 (Jan. 1, 1985).) 
or are expected to result in death. (Tr. at 13–14.) Upon review of the briefing, Plaintiff 
appears to focus his challenge not on the severity of his physical impairments,5 but on the 
limitations caused by his mental impairments. As to those mental impairments, which 

include anxiety, depression, and PTSD, the ALJ determined none of these disorders has 
interfered with Plaintiff’s ability to work at McDonald’s part-time. (Tr. at 15–16.) The ALJ 
concluded  that  Plaintiff’s  ability  to  sustain  this  part-time  work  shows  that  he  can 
understand, remember, and carry out instructions, use his judgment to complete tasks, 
respond appropriately to others in the workplace, demonstrate appropriate mood and 

behavior, and deal with routine changes in his workplace. (Id.) The ALJ also noted that 
Plaintiff had seen some improvement to his anxiety and depression with medication, but 
that even when he had been noncompliant with medications, he could still function to 
perform his part-time work. (Id.) The ALJ specifically found that, as to Plaintiff’s ability 
to interact with others, although his girlfriend had stabbed him during a fight and although 




5  The  ALJ  considered  Plaintiff’s  physical  impairments,  including  obesity,  diabetes 
mellitus, dermatitis, groin abscess, hypertension, umbilical stab wound/hernia, and spinal 
degeneration. (Tr. at 14–15.) Of these impairments, neither Plaintiff’s obesity nor his spinal 
degeneration had resulted in motor limitations; his diabetes mellitus, dermatitis, groin 
abscess, and hypertension had been controllable with medications; his diabetes mellitus, 
dermatitis, groin abscess, and spinal degeneration had not lasted at a “severe” level for 12 
months continuously or longer and were not expected to result in death; and there were no 
other indications that a basic functional ability was severely impacted. (Id.) Thus, even 
though Plaintiff claimed he cannot work because of these impairments that cause hip, back, 
neck, leg, and foot pain and an inability to lift more than 20 pounds, the ALJ found the 
record did not support his level of pain from these physical impairments and pointed out 
that  Plaintiff  could  still  bike  to  work  and  has  had  mostly  unremarkable  physical 
examinations. (Tr. at 16.)                                                
he testified that he tries to avoid interacting with others, the record also showed that 
Plaintiff could regularly work part-time and take public transportation. (Id.)  
     The ALJ then considered the four broad areas of mental functionality to determine 

whether, and to what extent, Plaintiff’s mental impairments limit any of these areas.6 (Tr. 
at 16–17.) As to the first area—understanding, remembering, or applying information—
the ALJ found that Plaintiff suffered from no limitation because he could do simple math, 
read, write, follow steps to complete tasks, remember things, and apply information. (Id.) 
In the second area of mental functionality—interacting with others—the ALJ determined 

that Plaintiff had only a mild limitation because he had generally normal mood and affect, 
had been able to respond appropriately in the workplace to maintain a job, could take public 
transportation, and had remained functional even when noncompliant with his anxiety and 
depression medications. (Tr. at 17.) Reviewing the third functional area—concentrating, 
persisting, or maintaining pace—the ALJ again found no limitation where Plaintiff could 

answer  questions  during  the  hearing  and  had  maintained  part-time  employment  by 
following instructions and completing tasks at an acceptable pace. (Id.) Finally, as to the 
fourth functional area—adapting or managing oneself—the ALJ determined that Plaintiff 
had no limitation because he has been able to make independent decisions, regulate his 



6 These are: (1) the person’s ability to understand, remember, or apply information; (2) the 
person’s ability to interact with others; (3) the person’s ability to concentrate, persist, or 
maintain  pace;  and  (4)  the  person’s  ability  to  adapt  or  manage  themself.

20 C.F.R. §§ 404

.1520a(c)(3), 416.920a(c)(3). The ALJ is required to rate the degree of a person’s 
limitations in each of these functional areas on a five-point scale: none, mild, moderate, 
marked, and extreme.

Id.

 §§ 404.1520a(c)(4), 416.920a(c)(4).              
emotions, control his behaviors, avoid workplace hazards, and manage his psychiatric 
symptoms with medications. (Id.)                                          
    The substantial evidence in the record standard requires the Court to review both 

evidence that supports the ALJ’s conclusions, and evidence that detracts from it. See 
Hartfield v. Barnhart,

384 F.3d 986, 988

 (8th Cir. 2004). There must be enough evidence 
supporting an ALJ’s conclusions that a reasonable mind would agree the decision makes 
sense—even if inconsistent conclusions could be reached—so long as the ALJ’s conclusion 
is one of the possible conclusions. See Hall v. Chater,

109 F.3d 1255, 1258

 (8th Cir. 1997). 

    Reviewing the record here, the Court notes that Plaintiff testified at the hearing that 
he struggles with depression and anxiety and finds interacting with people to be difficult. 
(Tr. at 55.) It also appears from the record that Plaintiff received mental health care during 
the relevant period from various healthcare providers who adjusted his depression and 
anxiety  medications  based  on  his  mood  and  side-effects,  and  that  Plaintiff  reported 

medications provided some help with his mood. (See, e.g., Tr. at 364–65, 367–68, 371–72, 
383, 386.) During some medical appointments Plaintiff had depressed or anxious moods, 
while other times he exhibited normal mood and affect. (See, e.g., Tr. at 75, 91, 369, 372, 
383, 442, 469.) It also appears  that Plaintiff had an appointment with a psychiatrist 
scheduled, although the record lacks evidence of what occurred during that visit. (Tr. at 

513, 518.) On this mixed record, the Court cannot conclude the ALJ’s determination that 
Plaintiff’s mental impairments were non-severe lacks substantial support in the record as a 
whole. Nash,

907 F.3d at 1089

.                                            
    Plaintiff argues that the ALJ should not be permitted to infer that working 15 hours 
or less each week shows that he has the functional capacity to work full-time. The Court 
agrees that finding a person not disabled means finding that they “have the ability to 

perform the requisite acts day in and day out, in the sometimes competitive and stressful 
conditions in which real people work in the real world.” Lori M. S. v. O’Malley, No. 23-
cv-1771 (DLM),

2024 WL 3949333

, at *6 (D. Minn. Aug. 27, 2024) (quoting Reed v. 
Barnhart,

399 F.3d 917, 923

 (8th Cir. 2005)). However, an ALJ must consider all record 
evidence in reaching this conclusion, and considering a person’s ability to work part-time 

in determining disability benefit eligibility is expressly permitted by regulation as part of 
that evidence:                                                            
    The work . . . that you have done during any period in which you believe you 
    are disabled may show that you are able to work at the substantial gainful 
    activity level. If you are able to engage in substantial gainful activity, we will 
    find that you are not disabled. . . . Even if the work you have done was not 
    substantial gainful activity, it may show that you are able to do more work 
    than you actually did. We will consider all of the medical and vocational 
    evidence in your file to decide whether or not you have the ability to engage 
    in substantial gainful activity.

20 C.F.R. §§ 404.1571

, 416.971. Additionally, courts in this Circuit have concluded that 
part-time work ability can contribute support to an ALJ’s conclusion that an individual is 
not disabled. See, e.g., Goff v. Barnhart,

421 F.3d 785, 792

 (8th Cir. 2005); Phillip F. v. 
O’Malley, No. 23-cv-3666 (DJF),

2024 WL 3791993

, at *7, *8 (D. Minn. Aug. 13, 2024); 
Lopez v. Colvin,

959 F. Supp. 2d 1160, 1171

 (N.D. Iowa 2013); Meyerpeter v. Astrue,

902 F. Supp. 2d 1219, 1237

 (E.D. Mo. 2012). Evidence that Plaintiff can perform basic work 
activities cuts against Plaintiff’s claims that his impairments are severe, and it remains 
Plaintiff’s burden to point to substantial record evidence the ALJ so overlooked that a 
reasonable person could not reach the ALJ’s conclusions. Hey v. Colvin,

136 F. Supp. 3d 1021, 1029

 (D. Minn. 2015) (citing Brown v. Shalala,

15 F.3d 97, 99

(8th Cir. 1994)).

Because Plaintiff has not met this burden, the Court cannot recommend reversal of the
ALJ’s conclusions at step two of his decision.
II. SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTS THE ALJ’S
CONCLUSIONS BASED ON A SUFFICIENTLY DEVELOPED RECORD.

Plaintiff next argues that the record does not contain substantial support for the
ALJ’s decision because the ALJ failed to adequately develop the record and substituted his
own lay judgment in place of medical evidence to evaluate Plaintiff’s back impairments.
Specifically, Plaintiff contends that the state agency consultants opined that the record
lacked sufficient evidence to render a decision, and while the ALJ had a duty to resolve
that evidentiary gap, he instead used his own lay judgment to fill it. Plaintiff thus claims
that remand is warranted so that a qualified medical professional can review a more
complete record, render a decision, and provide an appropriate evidentiary basis on which
the SSA can determine Plaintiff’s eligibility for disability benefits.

The Commissioner disagrees, arguing that the ALJ appropriately considered the
record evidence on Plaintiff’s back-related impairments but found that they did not last for
the required durational period of at least 12 continuous months, improved with treatment,
and did not limit Plaintiff’s daily activities as much as claimed. The Commissioner points
out that the ALJ found Plaintiff’s back conditions did not appear to worsen until about a

year after his alleged disability onset date, and that they showed some improvement with a
short course of chiropractic treatment. The Commissioner also notes that Plaintiff could
bike to work, which the ALJ found inconsistent with the level of impairment that Plaintiff
had claimed. As to Plaintiff’s argument that even the expert agency consultants found the

record too light to make a determination, the Commissioner observes that the SSA received
additional record evidence on Plaintiff’s back-related impairments after the experts
performed their evidentiary review—which the ALJ considered—and that an ALJ need not
seek new expert guidance each time a record is updated. The Commissioner also argues
that Plaintiff has not shown he suffered prejudice or unfair treatment because of the ALJ’s

development of the record. If the record were truly underdeveloped, the Commissioner
claims, then Plaintiff’s counsel would have raised this during the hearing and would have
requested a medical expert’s testimony. The Commissioner also points out that the ALJ
held the record open for outstanding medical evidence after the hearing, received additional
evidence, then evaluated all of the evidence—including medical evidence—to conclude

that Plaintiff was not disabled. This does not amount to an inappropriate substitution of a
lay opinion, according to the Commissioner, but reflects the reality that an ALJ weighs all
the evidence to reach a conclusion that need not rely on any one medical opinion, but
reflects an administrative judgment based on the combined record evidence.
An ALJ must “develop the record fully and fairly . . . because an administrative

hearing is not an adversarial proceeding.” Battles v. Shalala,

36 F.3d 43, 44

 (8th Cir. 1994) 
(quoting Boyd v. Sullivan,

960 F.2d 733, 736

 (8th Cir. 1992)). Sometimes an ALJ may find 
the evidence in a claimant’s case is “insufficient or inconsistent” such that the record “does 
not contain all the information . . . need[ed] to make [a] determination or decision.”

20 C.F.R. §§ 404

.1520b(b),  416.920b(b).  Should  this  occur,  an  ALJ  may  recontact  a 
claimant’s medical source(s) for additional evidence or clarification, request additional 
already-existing evidence, order a consultative examination, or ask the claimant for more 

information.

Id.

 §§ 404.1520b(b)(2), 416.920b(b)(2). That said, ALJs are “not required to 
seek additional clarifying statements from a treating physician unless a crucial issue is 
undeveloped.” Grindley, 9 F.4th at 630 (quoting Jones v. Astrue,

619 F.3d 963, 969

 (8th 
Cir. 2010)) (cleaned up). A crucial issue may be undeveloped “when the report from [a] 
medical source contains a conflict or ambiguity that must be resolved, the report does not 

contain  all  the  necessary  information,  or  does  not  appear  to  be  based  on  medically 
acceptable clinical and laboratory diagnostic techniques.”

Id.

 (citing Jones,

619 F.3d at 969

).
Reviewing the record evidence here concerning Plaintiff’s back impairments, in
Plaintiff’s disability report completed on March 23, 2021, Plaintiff does not identify back-

related issues among the conditions that limit his ability to work. (Tr. at 298, 304.) Plaintiff
testified at the hearing on October 20, 2022, that his back problems began in May 2022
after McDonald’s hired him to perform work that included unloading food from trucks but
did not provide him with a requested back brace. (Tr. at 38–39.) At that point, Plaintiff
testified that he had to reduce his hours at McDonald’s from 25 to about 12 each week. (Tr.

at 39.) Consistent with Plaintiff’s account of the timeline, the record reflects that Plaintiff
began chiropractic treatments on his back-related condition in July 2022. (Tr. at 354, 525–
57.) Before that date, Plaintiff’s physical evaluations showed only mild degeneration of his
shoulders and spine with a slight lower thoracic curve, but otherwise showed no
deformities, tenderness, or reduced range of motion. (See, e.g., Tr. at 442, 465–66, 468,
470, 497.) Plaintiff testified that, after spring of 2022 when he had “messed up [his] back,”
performing even daily chores had become challenging because his pain increased when

walking, standing, sitting for longer periods, and lifting things. (Tr. at 57.) At the hearing,
Plaintiff explained that he had just completed updated imaging on his back, and the ALJ
responded that he would need those records and agreed to hold the record open to receive
them. (Tr. at 57, 59–61.) The SSA received those records from September and October
2022 into the record soon after, and the imaging they contained showed moderate

narrowing involving several vertebrae and moderate to severe bilateral nerve compression.
(Tr. at 558–64.) During chiropractic treatments that spanned from July through October
2022, Plaintiff saw some improvements. (See, e.g., Tr. at 528, 530, 532, 534, 536, 540,
543, 545, 547, 549, 551, 553, 555.)
The ALJ reviewed the record of Plaintiff’s back-related conditions described above

and concluded that the “back pain [that] started in May 2022 . . . does not meet the
durational requirement for a severe impairment.” (Tr. at 15, 16.) The ALJ observed that
“even with treatment for less than three months, the claimant’s spinal conditions have
improved,” underscoring that a severity finding was not appropriate concerning Plaintiff’s
back conditions. (Tr. at 15.) The ALJ also found that the level of pain Plaintiff alleged was

inconsistent with his ability to bike to work. (Tr. at 16.)
A court’s role on review is not to reweigh the evidence, but to ask whether, on the
above record, an ALJ reached a conclusion that the record substantially supports. Renstrom
v. Astrue,

680 F.3d 1057, 1064

 (8th Cir. 2012). On this record, the Court cannot find that 
the ALJ’s conclusion on Plaintiff’s back-related impairments lacks substantial support in 
the  record  as  a  whole.  By  statute  and  regulation,  where—as  here—the  durational 
requirement  is  not  met,  the  very  definition  of  disability  is  not  met.

42 U.S.C. § 423

(d)(1)(A); see also

20 C.F.R. §§ 404.1509

, § 416.909.                
    Plaintiff claims that the record is insufficiently developed here because the ALJ 
lacked appropriate medical opinion evidence on which to rely. But Plaintiff has not 
explained why the record, which contains medical evaluations and treatments of his back-
related impairments, fails to provide enough evidence to substantially support the ALJ’s 

conclusion that the 12-month durational requirement to find severity was not met. See 
McCoy v. Astrue,

648 F.3d 605, 612

 (8th Cir. 2011) (“While an ALJ does have a duty to 
develop the record, this duty is not never-ending . . . .”). Relevant here, Plaintiff does not 
claim that there are any records that would show the durational requirement had, in fact, 
been met, nor would that be expected since Plaintiff said his problems developed just a few 

months before the hearing. Therefore, the Court respectfully disagrees that the ALJ failed 
in his duty to adequately develop the record on the severity of Plaintiff’s back-related 
impairments.                                                              
    To the extent that Plaintiff claims the ALJ should have sought updated state agency 
expert  opinions  after  receiving  new  record  evidence  on  Plaintiff’s  back-related 

impairments,  the  Court  finds  this  argument  unpersuasive.  While  the  SSA  received 
additional medical evidence after the expert evaluations, the ALJ reasonably determined 
that nothing could change the severity outcome on Plaintiff’s back-related impairments 
because they did not meet the 12-month durational requirement.

42 U.S.C. § 423

(d)(1)(A); 
see also

20 C.F.R. §§ 404.1509

, § 416.909; Carlson v. Astrue,

604 F.3d 589, 595

 (8th Cir. 
2010) (affirming a district court’s decision where an ALJ did not obtain an updated medical 
expert opinion where substantial evidence supported the ALJ’s conclusions, rendering 

additional  testimony  unnecessary).  And  the  Court  has  already  concluded  above  that 
substantial evidence in the record as a whole supported the ALJ’s severity determinations 
at step two.                                                              
    Plaintiff  also  claims  that,  with  an  insufficient  record  before  him,  the  ALJ 
impermissibly substituted his own lay opinion for the medical opinions that the record 

lacked. However, the Court has determined the record provides sufficient evidence to 
support the ALJ’s conclusions about Plaintiff’s back-related impairments. In this Circuit, 
judicial concerns about lay opinions typically arise when a plaintiff’s residual functional 
capacity  (“RFC”)—what  a  person  can  do  despite  their  severe  and  non-severe 
impairments—is determined by an ALJ without medical evidence in the record about those 

impairments. See, e.g., Lauer v. Apfel,

245 F.3d 700

, 703–04 (8th Cir. 2001); Hannah L. v. 
O’Malley, No. 22-cv-3102 (ECT/LIB),

2024 WL 407352

, at *6 (D. Minn. Jan. 17, 2024) 
(explaining that a claimant’s RFC is an administrative assessment left to the ALJ to 
determine based on the entire record, although it must rely on some medical evidence), R. 
& R. adopted,

2024 WL 406687

 (D. Minn. Feb. 2, 2024). But here, the ALJ did not reach 

beyond  step  two  in  the  sequential  analysis;  he  never  determined  the  parameters  of 
Plaintiff’s RFC because he found that Plaintiff did not have any severe impairments. See

20 C.F.R. §§ 404.1520

(a)(4), 416.920(a)(4) (“Before we go from step three to step four, 
we assess your residual functional capacity.”); see also Eichelberger v. Barnhart,

390 F.3d 584, 591

(8th Cir. 2004) (“The fourth step in this analysis requires the ALJ to determine a
claimant’s RFC.”). In sum, substantial evidence in the sufficiently developed record
supports the ALJ’s step two conclusion that Plaintiff had no severe impairments. The Court

finds no basis for reversal as to the development of the record of the ALJ’s reliance upon
it to reach his conclusion.
RECOMMENDATION
Based on the above, as well as the files, records, and proceedings in this case, IT
IS RECOMMENDED that:

1. Plaintiff’s brief seeking judgment on the administrative record (Doc. 14) be
DENIED; and

2. Defendant’s brief seeking judgment on the administrative record (Doc. 17)
be GRANTED.

DATED: December 2, 2024 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge

NOTICE
Filing Objections: This Report and Recommendation is not an order or judgment of the
District Court and is therefore not appealable directly to the Eighth Circuit Court of
Appeals. Under Local Rule 72.2(b)(1), “a party may file and serve specific written
objections to a magistrate judge’s proposed findings and recommendations within 14 days
after being served with a copy” of the Report and Recommendation.
A party may respond to those objections within 14 days after being served a copy of the
objections. See Local Rule 72.2(b)(2). All objections and responses must comply with the
word or line limits set forth in Local Rule 72.2(c).

Trial Court Opinion

                UNITED STATES DISTRICT COURT                             
                    DISTRICT OF MINNESOTA                                


Mark W. W.,                           No. 23-cv-3263 (ECT/DLM)           

               Plaintiff,                                                


v.                                                                       
                                           REPORT AND                    

                                       RECOMMENDATION                    
Martin J. O’Malley,                                                      
Commissioner of Social Security                                          
Administration,                                                          

               Defendant.                                                



    Pursuant to

42 U.S.C. § 405

(g), Plaintiff Mark W. W. seeks judicial review of the 
final decision of the Commissioner of Social Security (“Commissioner”) denying him 
benefits. This matter is before the Court on the parties’ briefs seeking judgment on the 
administrative record. (Docs. 14 (Plaintiff’s motion), 15 (Plaintiff’s memorandum), 17 
(Commissioner’s  brief),  19  (Plaintiff’s  reply).)  The  case  has  been  referred  to  the 
undersigned magistrate judge for a Report and Recommendation pursuant to

28 U.S.C. § 636

 and District of Minnesota Local Rule 72.1. For the reasons  below, the Court 
recommends that judgment be granted in favor of the Commissioner.         
                         BACKGROUND                                      
    In spring of 2021, Plaintiff applied for Supplemental Security Income (“SSI”) and 
Disability Insurance Benefits (“DIB”), alleging that he had been disabled since February 

22, 2021. (Tr.1 at 10, 261–63.2) The Social Security Administration (“SSA”) denied both 
applications initially (Tr. at 72–85), and upon reconsideration (Tr. at 86–99). Plaintiff then 
requested a hearing before an Administrative Law Judge (“ALJ”), and the ALJ held a 
hearing by telephone on the matter on October 20, 2022. (Tr. at 143–44 (request for 
hearing), 29–66 (hearing transcript).) Counsel represented Plaintiff at the hearing, and 

Plaintiff testified on his own behalf. (Tr. at 29–31, 35–61.) A vocational expert also 
testified, concluding that if the ALJ limited Plaintiff to medium work with some postural 
and environmental limitations, he could still perform his past work as a mixer operator and 
laborer. (Tr. at 63–64.)                                                  
    On December 9, 2022, the Commissioner sent his notice of an unfavorable decision 

to Plaintiff. (Tr. at 7–9 (notice), 10–18 (decision).) The ALJ recognized that Plaintiff 
suffered from several medically determinable impairments, including “diabetes mellitus 
without  complication,  dermatitis,  groin  abscess,  essential  hypertension,  obesity, 


1 The Commissioner filed the consecutively paginated transcript of the administrative 
record on February 23, 2024. (Docs. 13–13-2.) For ease of reference, the citations to the 
transcript will treat the record like a single document and will identify the page number 
listed on the lower right corner of the document rather than the docket page number. 
2 Although the ALJ notes that Plaintiff filed both an SSI and DIB application (Tr. at 10), 
the record only contains Plaintiff’s DIB application. (Tr. at 261–63.) Plaintiff claims that 
he has only applied for SSI. (Doc. 18 at 6.) This dispute does not alter the outcome of this 
judicial review, and the Court will discuss and apply the statutes and regulations relating 
to both types of disability claims for thoroughness.                      
cervicalgia, multilevel cervical  spine degenerative  disc disease/facet arthropathy  with 
moderate  spinal  canal  narrowing  at  the  C5-6  level,  lumbar  spine  bilateral  foraminal 
narrowing without high grade central canal narrowing (post lumbar laminectomy in June 

2015),  stab  wound  to  abdomen/umbilicus,  anxiety  disorder,  depressive  disorder  and 
posttraumatic stress disorder (PTSD).” (Tr. at 12–13.) Yet the ALJ concluded that none of 
Plaintiff’s impairments, either singly or in combination, were severe because none “has 
significantly limited (or is expected to significantly limit) the ability to perform basic work-
related activities for 12 consecutive months.” (Tr. at 13 (citing

20 C.F.R. §§ 404.1521

42 U.S.C. § 405

(g); Austin v. Kijakazi,

52 F.4th 723

, 728 (8th Cir. 
2022). Substantial evidence means “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” Biestek v. Berryhill,

139 S. Ct. 1148, 1154

 
(2019) (internal quotations omitted); see also Nash v. Comm’r, Soc. Sec. Admin,

907 F.3d 1086, 1089

  (8th  Cir.  2018)  (characterizing  “substantial  evidence”  as  “less  than  a 
preponderance, but enough that a reasonable mind would find it adequate to support the 
Commissioner’s conclusions”). Courts reviewing ALJ decisions must look to the entire 

administrative record to ascertain whether it contains sufficient evidence to support the 
ALJ’s conclusion. Grindley v. Kijakazi,

9 F.4th 622

, 627 (8th Cir. 2021). When substantial 
evidence supports the ALJ’s decision, the Court will not reverse, even if substantial 
evidence also supports a contrary outcome. Nash,

907 F.3d at 1089

. But if an ALJ used 
erroneous legal standards, or if they incorrectly applied the law, those may be reversible 

legal errors. Joel M. B. v. Kijakazi, No. 21-cv-1660 (PAM/ECW),

2022 WL 1785224

, at 
*2 (D. Minn. June 1, 2022) (citing Collins v. Astrue,

648 F.3d 869, 871

 (8th Cir. 2011)); 
Michael B. v. Kijakazi, No. 21-cv-1043 (NEB/LIB),

2022 WL 4463901

, at *1 (D. Minn. 
Sept. 26, 2022).                                                          
    Plaintiff does not contest that the ALJ followed the five-step sequential process laid 
out in

20 C.F.R. §§ 404.1520

(a)(4) and 416.920(a)(4) for evaluating DIB and SSI claims, 
respectively.3 Rather, Plaintiff asserts that the ALJ critically erred at step two by failing to 

find that Plaintiff’s combined impairments are severe, failing to adequately develop the 
record, and improperly substituting his own lay judgment for medical evidence supporting 
his conclusion. The Court will consider Plaintiff’s challenges below.     
I.   SUBSTANTIAL EVIDENCE IN THE RECORD SUPPORTS       THE ALJ’S          
    CONCLUSION   AT  STEP  TWO  THAT  PLAINTIFF’S  IMPAIRMENTS,          
    ALONE OR IN COMBINATION, WERE NOT SEVERE.                            

    Plaintiff first challenges the ALJ’s conclusion that his mental impairments are not 
severe. He argues that the standard to find severity is not a high one, and that SSA decisions 
to deny disability based on a finding of no severe impairments are thus rare. He claims that 
the ALJ wrongly credited Plaintiff’s ability to work at McDonald’s for up to 12 hours each 
week as evidence that his mental impairments were non-severe, and that a review of the 

3 Step one of this process involves determining whether a claimant is engaged in substantial 
gainful activity.

20 C.F.R. §§ 404.1520

(a)(4)(i), 416.920(a)(4)(i). If not, the ALJ must next 
decide (in step two) whether the claimant’s impairments are severe, and of a duration of 
least 12 continuous months.

Id.

 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). The ALJ here only 
proceeded through step two at which he found Plaintiff’s impairments were neither severe, 
nor of a duration of at least 12 continuous months. (Tr. at 13.) Had the ALJ continued 
through the remaining steps, at step three, an ALJ determines whether the claimant’s 
impairments are severe enough to equal a listed impairment under Appendix 1 to Subpart 
P of Part 404.

20 C.F.R. §§ 404.1520

(a)(4)(iii), 416.920(a)(4)(iii). If so, the claimant is 
considered disabled without further inquiry. If not, the ALJ must determine the claimant’s 
residual functional capacity (“RFC”), and decide (at step four) whether the claimant can 
still do their past work given their limitations.

Id.

 §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). 
Finally, if the ALJ concludes a claimant cannot perform their prior work, step five requires 
the  ALJ  to  determine  whether  they  can  do  other  work  considering  their  RFC,  age, 
education, and work experience. Id. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 
record shows that his severe mental impairments result in significant difficulty interacting 
with  others.  According  to  Plaintiff,  these  errors  are  not  harmless  because  the  ALJ 
prematurely stopped his sequential evaluation at step two when he should have proceeded 

to analyze the record evidence under the remaining steps.                 
    The Commissioner contends that the ALJ properly considered whether Plaintiff’s 
medically determinable mental impairments resulted in more than minimal limitations to 
his ability to perform basic work activities, concluding that he had no greater than mild 
limitations  in  one  functional  area—interacting  with  others.  According  to  the 

Commissioner, Plaintiff has failed to point to record evidence that his mental impairments 
had a greater than minimal impact on his ability to perform basic work activities, and 
therefore, the Court should reject Plaintiff’s unsubstantiated argument.  
    The SSA defines “disability” as an “inability to engage in any substantial gainful 
activity by reason of any medically determinable physical or mental impairment which can 

be expected to result in death or which has lasted or can be expected to last for a continuous 
period  of  not  less  than  12  months.”

42 U.S.C. § 423

(d)(1)(A);  see  also

20 C.F.R. §§ 404.1509

,  416.909.  At step two of  the  five-step  sequential  process,  an  ALJ  must 
determine whether a plaintiff has “a severe medically determinable physical or mental 
impairment that  meets  the  [twelve-month  duration  requirement  in  §§ 404.1509  and 

416.909],  or  a  combination  of  impairments  that  is  severe  and  meets  the  duration 
requirement.”

20 C.F.R. §§ 404.1520

(a)(4)(ii),  416.920(a)(4)(ii).  To  be  severe,  an 
impairment must “significantly limit[ ] [a plaintiff’s] physical or mental ability to do basic 
work  activities.”

Id.

 §§ 404.1520(c),  416.920(c).  By  contrast,  “[a]n  impairment  or 
combination of impairments is . . . ‘not severe’ . . . when medical evidence establishes only 
a slight abnormality or a combination of slight abnormalities which would have no more 
than a minimal effect on an individual’s ability to work.” Social Security Ruling (“SSR”) 

85-28,

1985 WL 56856

, at *3 (Jan. 1, 1985). It is a claimant’s burden at step two to prove 
disability. See Rickey P. V. v. Kijakazi, No. 20-cv-2199 (JFD),

2022 WL 3214991

, at *6 
(D. Minn. Aug. 9, 2022). “Although severity is not an onerous requirement, ‘it is also not 
a toothless standard, and [the Eighth Circuit has] upheld on numerous occasions the 
Commissioner’s finding that a claimant failed to make this showing.’” Kaitlin W. v. 

O’Malley, No. 24-cv-6 (DJF),

2024 WL 4534725

, at *4 (D. Minn. Oct. 21, 2024) (quoting 
Kirby v. Astrue,

500 F.3d 705, 708

 (8th Cir. 2007) (collecting cases)). That said, the SSA 
has cautioned it adjudicators that “[g]reat care should be exercised in applying the not 
severe impairment concept” and, if in doubt, mandates that “the sequential evaluation 
process should not end with the not severe evaluation step.” SSR 85-28,

1985 WL 56856

, 

at *4. However, if an ALJ finds that the record shows a claimant does not have a severe 
impairment or combination of impairments, they must conclude “that the individual’s 
ability to engage in [substantial gainful activity] is not seriously affected.”

Id.

 
    Here, the ALJ made a finding at step two of the sequential evaluation process that 
none of Plaintiff’s impairments, either singly or in combination, have significantly limited 

his ability to perform basic work-related activities4 for a duration of 12 consecutive months 


4 Basic work-related activities include physical movement, use of senses, ability to follow 
instructions, use of judgment, ability to respond appropriately to others, and ability to deal 
with routine changes. (Tr. at 13 (citing SSR 85-29,

1985 WL 56856

, at *2 (Jan. 1, 1985).) 
or are expected to result in death. (Tr. at 13–14.) Upon review of the briefing, Plaintiff 
appears to focus his challenge not on the severity of his physical impairments,5 but on the 
limitations caused by his mental impairments. As to those mental impairments, which 

include anxiety, depression, and PTSD, the ALJ determined none of these disorders has 
interfered with Plaintiff’s ability to work at McDonald’s part-time. (Tr. at 15–16.) The ALJ 
concluded  that  Plaintiff’s  ability  to  sustain  this  part-time  work  shows  that  he  can 
understand, remember, and carry out instructions, use his judgment to complete tasks, 
respond appropriately to others in the workplace, demonstrate appropriate mood and 

behavior, and deal with routine changes in his workplace. (Id.) The ALJ also noted that 
Plaintiff had seen some improvement to his anxiety and depression with medication, but 
that even when he had been noncompliant with medications, he could still function to 
perform his part-time work. (Id.) The ALJ specifically found that, as to Plaintiff’s ability 
to interact with others, although his girlfriend had stabbed him during a fight and although 




5  The  ALJ  considered  Plaintiff’s  physical  impairments,  including  obesity,  diabetes 
mellitus, dermatitis, groin abscess, hypertension, umbilical stab wound/hernia, and spinal 
degeneration. (Tr. at 14–15.) Of these impairments, neither Plaintiff’s obesity nor his spinal 
degeneration had resulted in motor limitations; his diabetes mellitus, dermatitis, groin 
abscess, and hypertension had been controllable with medications; his diabetes mellitus, 
dermatitis, groin abscess, and spinal degeneration had not lasted at a “severe” level for 12 
months continuously or longer and were not expected to result in death; and there were no 
other indications that a basic functional ability was severely impacted. (Id.) Thus, even 
though Plaintiff claimed he cannot work because of these impairments that cause hip, back, 
neck, leg, and foot pain and an inability to lift more than 20 pounds, the ALJ found the 
record did not support his level of pain from these physical impairments and pointed out 
that  Plaintiff  could  still  bike  to  work  and  has  had  mostly  unremarkable  physical 
examinations. (Tr. at 16.)                                                
he testified that he tries to avoid interacting with others, the record also showed that 
Plaintiff could regularly work part-time and take public transportation. (Id.)  
     The ALJ then considered the four broad areas of mental functionality to determine 

whether, and to what extent, Plaintiff’s mental impairments limit any of these areas.6 (Tr. 
at 16–17.) As to the first area—understanding, remembering, or applying information—
the ALJ found that Plaintiff suffered from no limitation because he could do simple math, 
read, write, follow steps to complete tasks, remember things, and apply information. (Id.) 
In the second area of mental functionality—interacting with others—the ALJ determined 

that Plaintiff had only a mild limitation because he had generally normal mood and affect, 
had been able to respond appropriately in the workplace to maintain a job, could take public 
transportation, and had remained functional even when noncompliant with his anxiety and 
depression medications. (Tr. at 17.) Reviewing the third functional area—concentrating, 
persisting, or maintaining pace—the ALJ again found no limitation where Plaintiff could 

answer  questions  during  the  hearing  and  had  maintained  part-time  employment  by 
following instructions and completing tasks at an acceptable pace. (Id.) Finally, as to the 
fourth functional area—adapting or managing oneself—the ALJ determined that Plaintiff 
had no limitation because he has been able to make independent decisions, regulate his 



6 These are: (1) the person’s ability to understand, remember, or apply information; (2) the 
person’s ability to interact with others; (3) the person’s ability to concentrate, persist, or 
maintain  pace;  and  (4)  the  person’s  ability  to  adapt  or  manage  themself.

20 C.F.R. §§ 404

.1520a(c)(3), 416.920a(c)(3). The ALJ is required to rate the degree of a person’s 
limitations in each of these functional areas on a five-point scale: none, mild, moderate, 
marked, and extreme.

Id.

 §§ 404.1520a(c)(4), 416.920a(c)(4).              
emotions, control his behaviors, avoid workplace hazards, and manage his psychiatric 
symptoms with medications. (Id.)                                          
    The substantial evidence in the record standard requires the Court to review both 

evidence that supports the ALJ’s conclusions, and evidence that detracts from it. See 
Hartfield v. Barnhart,

384 F.3d 986, 988

 (8th Cir. 2004). There must be enough evidence 
supporting an ALJ’s conclusions that a reasonable mind would agree the decision makes 
sense—even if inconsistent conclusions could be reached—so long as the ALJ’s conclusion 
is one of the possible conclusions. See Hall v. Chater,

109 F.3d 1255, 1258

 (8th Cir. 1997). 

    Reviewing the record here, the Court notes that Plaintiff testified at the hearing that 
he struggles with depression and anxiety and finds interacting with people to be difficult. 
(Tr. at 55.) It also appears from the record that Plaintiff received mental health care during 
the relevant period from various healthcare providers who adjusted his depression and 
anxiety  medications  based  on  his  mood  and  side-effects,  and  that  Plaintiff  reported 

medications provided some help with his mood. (See, e.g., Tr. at 364–65, 367–68, 371–72, 
383, 386.) During some medical appointments Plaintiff had depressed or anxious moods, 
while other times he exhibited normal mood and affect. (See, e.g., Tr. at 75, 91, 369, 372, 
383, 442, 469.) It also appears  that Plaintiff had an appointment with a psychiatrist 
scheduled, although the record lacks evidence of what occurred during that visit. (Tr. at 

513, 518.) On this mixed record, the Court cannot conclude the ALJ’s determination that 
Plaintiff’s mental impairments were non-severe lacks substantial support in the record as a 
whole. Nash,

907 F.3d at 1089

.                                            
    Plaintiff argues that the ALJ should not be permitted to infer that working 15 hours 
or less each week shows that he has the functional capacity to work full-time. The Court 
agrees that finding a person not disabled means finding that they “have the ability to 

perform the requisite acts day in and day out, in the sometimes competitive and stressful 
conditions in which real people work in the real world.” Lori M. S. v. O’Malley, No. 23-
cv-1771 (DLM),

2024 WL 3949333

, at *6 (D. Minn. Aug. 27, 2024) (quoting Reed v. 
Barnhart,

399 F.3d 917, 923

 (8th Cir. 2005)). However, an ALJ must consider all record 
evidence in reaching this conclusion, and considering a person’s ability to work part-time 

in determining disability benefit eligibility is expressly permitted by regulation as part of 
that evidence:                                                            
    The work . . . that you have done during any period in which you believe you 
    are disabled may show that you are able to work at the substantial gainful 
    activity level. If you are able to engage in substantial gainful activity, we will 
    find that you are not disabled. . . . Even if the work you have done was not 
    substantial gainful activity, it may show that you are able to do more work 
    than you actually did. We will consider all of the medical and vocational 
    evidence in your file to decide whether or not you have the ability to engage 
    in substantial gainful activity.

20 C.F.R. §§ 404.1571

, 416.971. Additionally, courts in this Circuit have concluded that 
part-time work ability can contribute support to an ALJ’s conclusion that an individual is 
not disabled. See, e.g., Goff v. Barnhart,

421 F.3d 785, 792

 (8th Cir. 2005); Phillip F. v. 
O’Malley, No. 23-cv-3666 (DJF),

2024 WL 3791993

, at *7, *8 (D. Minn. Aug. 13, 2024); 
Lopez v. Colvin,

959 F. Supp. 2d 1160, 1171

 (N.D. Iowa 2013); Meyerpeter v. Astrue,

902 F. Supp. 2d 1219, 1237

 (E.D. Mo. 2012). Evidence that Plaintiff can perform basic work 
activities cuts against Plaintiff’s claims that his impairments are severe, and it remains 
Plaintiff’s burden to point to substantial record evidence the ALJ so overlooked that a 
reasonable person could not reach the ALJ’s conclusions. Hey v. Colvin,

136 F. Supp. 3d 1021, 1029

 (D. Minn. 2015) (citing Brown v. Shalala,

15 F.3d 97, 99

(8th Cir. 1994)).

hearing is not an adversarial proceeding.” Battles v. Shalala,

36 F.3d 43, 44

 (8th Cir. 1994) 
(quoting Boyd v. Sullivan,

960 F.2d 733, 736

 (8th Cir. 1992)). Sometimes an ALJ may find 
the evidence in a claimant’s case is “insufficient or inconsistent” such that the record “does 
not contain all the information . . . need[ed] to make [a] determination or decision.”

20 C.F.R. §§ 404

.1520b(b),  416.920b(b).  Should  this  occur,  an  ALJ  may  recontact  a 
claimant’s medical source(s) for additional evidence or clarification, request additional 
already-existing evidence, order a consultative examination, or ask the claimant for more 

information.

Id.

 §§ 404.1520b(b)(2), 416.920b(b)(2). That said, ALJs are “not required to 
seek additional clarifying statements from a treating physician unless a crucial issue is 
undeveloped.” Grindley, 9 F.4th at 630 (quoting Jones v. Astrue,

619 F.3d 963, 969

 (8th 
Cir. 2010)) (cleaned up). A crucial issue may be undeveloped “when the report from [a] 
medical source contains a conflict or ambiguity that must be resolved, the report does not 

contain  all  the  necessary  information,  or  does  not  appear  to  be  based  on  medically 
acceptable clinical and laboratory diagnostic techniques.”

Id.

 (citing Jones,

619 F.3d at 969

).
Reviewing the record evidence here concerning Plaintiff’s back impairments, in
Plaintiff’s disability report completed on March 23, 2021, Plaintiff does not identify back-

680 F.3d 1057, 1064

 (8th Cir. 2012). On this record, the Court cannot find that 
the ALJ’s conclusion on Plaintiff’s back-related impairments lacks substantial support in 
the  record  as  a  whole.  By  statute  and  regulation,  where—as  here—the  durational 
requirement  is  not  met,  the  very  definition  of  disability  is  not  met.

42 U.S.C. § 423

(d)(1)(A); see also

20 C.F.R. §§ 404.1509

, § 416.909.                
    Plaintiff claims that the record is insufficiently developed here because the ALJ 
lacked appropriate medical opinion evidence on which to rely. But Plaintiff has not 
explained why the record, which contains medical evaluations and treatments of his back-
related impairments, fails to provide enough evidence to substantially support the ALJ’s 

conclusion that the 12-month durational requirement to find severity was not met. See 
McCoy v. Astrue,

648 F.3d 605, 612

 (8th Cir. 2011) (“While an ALJ does have a duty to 
develop the record, this duty is not never-ending . . . .”). Relevant here, Plaintiff does not 
claim that there are any records that would show the durational requirement had, in fact, 
been met, nor would that be expected since Plaintiff said his problems developed just a few 

months before the hearing. Therefore, the Court respectfully disagrees that the ALJ failed 
in his duty to adequately develop the record on the severity of Plaintiff’s back-related 
impairments.                                                              
    To the extent that Plaintiff claims the ALJ should have sought updated state agency 
expert  opinions  after  receiving  new  record  evidence  on  Plaintiff’s  back-related 

impairments,  the  Court  finds  this  argument  unpersuasive.  While  the  SSA  received 
additional medical evidence after the expert evaluations, the ALJ reasonably determined 
that nothing could change the severity outcome on Plaintiff’s back-related impairments 
because they did not meet the 12-month durational requirement.

42 U.S.C. § 423

(d)(1)(A); 
see also

20 C.F.R. §§ 404.1509

, § 416.909; Carlson v. Astrue,

604 F.3d 589, 595

 (8th Cir. 
2010) (affirming a district court’s decision where an ALJ did not obtain an updated medical 
expert opinion where substantial evidence supported the ALJ’s conclusions, rendering 

additional  testimony  unnecessary).  And  the  Court  has  already  concluded  above  that 
substantial evidence in the record as a whole supported the ALJ’s severity determinations 
at step two.                                                              
    Plaintiff  also  claims  that,  with  an  insufficient  record  before  him,  the  ALJ 
impermissibly substituted his own lay opinion for the medical opinions that the record 

lacked. However, the Court has determined the record provides sufficient evidence to 
support the ALJ’s conclusions about Plaintiff’s back-related impairments. In this Circuit, 
judicial concerns about lay opinions typically arise when a plaintiff’s residual functional 
capacity  (“RFC”)—what  a  person  can  do  despite  their  severe  and  non-severe 
impairments—is determined by an ALJ without medical evidence in the record about those 

impairments. See, e.g., Lauer v. Apfel,

245 F.3d 700

, 703–04 (8th Cir. 2001); Hannah L. v. 
O’Malley, No. 22-cv-3102 (ECT/LIB),

2024 WL 407352

, at *6 (D. Minn. Jan. 17, 2024) 
(explaining that a claimant’s RFC is an administrative assessment left to the ALJ to 
determine based on the entire record, although it must rely on some medical evidence), R. 
& R. adopted,

2024 WL 406687

 (D. Minn. Feb. 2, 2024). But here, the ALJ did not reach 

beyond  step  two  in  the  sequential  analysis;  he  never  determined  the  parameters  of 
Plaintiff’s RFC because he found that Plaintiff did not have any severe impairments. See

20 C.F.R. §§ 404.1520

(a)(4), 416.920(a)(4) (“Before we go from step three to step four, 
we assess your residual functional capacity.”); see also Eichelberger v. Barnhart,

390 F.3d 584, 591

1. Plaintiff’s brief seeking judgment on the administrative record (Doc. 14) be
DENIED; and

2. Defendant’s brief seeking judgment on the administrative record (Doc. 17)
be GRANTED.

DATED: December 2, 2024 s/Douglas L. Micko
DOUGLAS L. MICKO
United States Magistrate Judge

Reference

Status: Unknown