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Andrews v. O'Malley

U.S. District Court, District of Minnesota

Andrews v. O'Malley

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Michael A.,                           Case No. 23-cv-0475 (WMW/DTS)      

                   Plaintiff,

ORDER

     v.                                                                  

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

                   Defendant.                                            


    This matter is before the Court on the parties’ cross-motions for judgment on the 
administrative record.  (Dkts. 11, 13.)  For the reasons addressed below, the Court grants 
Defendant’s motion and denies Plaintiff’s motion.                         
                         BACKGROUND                                      
    Plaintiff Michael A.1 filed an application for supplemental security income benefits 
on October 16, 2020.  Admin. Rec. (Dkt. 8) at 193-201.  This application alleged that 
Plaintiff became disabled and unable to work as of February 1, 2020, as a result of 
depression, post-traumatic stress disorder (“PTSD”), bipolar disorder and diabetes.  Id. at 
223.                                                                      
    For purposes of Social Security disability benefits, an individual is considered 
disabled if he is “unable to engage in any substantial gainful activity by reason of any 
medically determinable physical or mental impairment which can be expected to result in 

1    It is the policy of this District to use only the first name and last initial of any 
nongovernmental parties in orders in Social Security matters.             
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).  In addition, an individual is disabled “only 

if his physical or mental impairment or impairments are of such severity that he is not only 
unable to do his previous work but cannot, considering his age, education, and work 
experience, engage in any other kind of substantial gainful work which exists in the 
national economy.”  Id. § 1382c(a)(3)(B).  “[A] physical or mental impairment is an 
impairment that results from anatomical, physiological, or psychological abnormalities 
which  are  demonstrable  by  medically  acceptable  clinical  and  laboratory  diagnostic 

techniques.”  Id. § 1382c(a)(3)(D).                                       
    The Commissioner has established a sequential, five-step evaluation process to 
determine whether an individual is disabled.
20 C.F.R. § 416.920
(a)(4).  At step one, the 
claimant must establish that he is not engaged in any “substantial gainful activity.”
Id.
 
§ 416.920(a)(4)(i).  If that requirement is satisfied, the claimant must then establish that he 

has a severe medically determinable impairment or combination of impairments at step 
two.  Id. § 416.920(a)(4)(ii).  At step three, the Commissioner must find that the claimant 
is disabled, if the claimant satisfies the first two steps and the claimant’s impairment meets 
or is medically equal to one of the listings in 20 C.F.R. Part 404, Subpart P, App’x 1.  Id. 
§ 416.920(a)(4)(iii).  If the claimant’s impairment does not meet or is not medically equal 

to one of the listings, the evaluation proceeds to step four.  At step four, the claimant bears 
the burden of establishing his residual functional capacity (“RFC”) and proving that he 
cannot perform any past relevant work.  Id. § 416.920(a)(4)(iv); Young v. Apfel,
221 F.3d 1065
, 1069 n.5 (8th Cir. 2000).  If the claimant proves he is unable to perform any past 
relevant work, the burden shifts to the Commissioner to establish at step five that the 
claimant can perform other work that exists in a significant number of jobs in the national 

economy.  Bowen v. Yuckert,
482 U.S. 137
, 146 n.5 (1987).  If the claimant can perform 
such work, the Commissioner will find that the claimant is not disabled.
20 C.F.R. § 416.920
(a)(4)(v).                                                       
    Plaintiff’s application  for benefits was denied initially and on reconsideration.  
Admin. Rec. at.  74, 83.  In March 2022, an Administrative Law Judge (“ALJ”) held a 
hearing on Plaintiff’s application.
Id. at 33-62
.  Plaintiff testified at this hearing and was 

represented by an attorney.  After the hearing, the ALJ determined that Plaintiff has 
multiple severe impairments: diabetes, anxiety disorder, adjustment disorder, depressive 
disorder and PTSD.
Id. at 16
.  The ALJ found, however, that none of these impairments, 
either alone or in combination, meets or medically equals any of the listed impairments.
Id.
  The ALJ determined that Plaintiff has the capacity for medium work with some 

physical and mental restrictions.
Id. at 18
.  Although this RFC meant that Plaintiff cannot 
return to his previous work as a pallet builder, the ALJ found that there are jobs that 
Plaintiff can perform in the national economy.
Id. at 21-22
.  For this reason, the ALJ 
concluded that Plaintiff is not disabled.
Id. at 23
.  The Appeals Council denied Plaintiff’s 
request for review of the ALJ’s decision, and this lawsuit followed.  See
42 U.S.C. § 405
(g) 

(providing for judicial review of final decisions of the Commissioner of the Social Security 
Administration).                                                          
                           ANALYSIS                                      
    The  Court’s  review  of  the  Commissioner’s  decision  is  limited  to  determining 

whether that decision is “supported by substantial evidence on the record as a whole.”  
McKinney v. Apfel,
228 F.3d 860, 863
 (8th Cir. 2000).  “Substantial evidence . . . is more 
than a mere scintilla.”  Biestek v. Berryhill,
139 S. Ct. 1148, 1154
 (2019) (quotation 
omitted).  It is “such relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion.”
Id.
 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229
 
(1938)).  This “threshold . . . is not high.”
Id.
  “If, after reviewing the record, the court 

finds it is possible to draw two inconsistent positions from the evidence and one of those 
positions represents the [ALJ’s] findings, the court must affirm the [ALJ’s] decision.”  
Perks v. Astrue,
687 F.3d 1086, 1091
 (8th Cir. 2012) (quotation omitted). 
    Plaintiff  argues  that  the  ALJ  did  not  appropriately  evaluate the  opinions of  a 
consultative examiner and failed to fully develop the record regarding Plaintiff’s mental-

health limitations.                                                       
    I.   Evaluation of Medical Opinion                                   
    In August 2021, Dr. Grace Totoe performed a consultative physical examination on 
Plaintiff.  Admin. Rec. at 470-74.  This examination found that Plaintiff has normal 
strength, muscle tone, and sensation; the only abnormal finding was that he is “slightly 

unsteady” walking on his heels.  Id. at 471.  In addition, Plaintiff has a normal range of 
motion in all of his joints, although Dr. Totoe noted that Plaintiff experiences some pain 
with certain movements of his shoulder, elbow, wrist, ankle, back and neck.  Id. at 473-74. 
    Despite these normal examination findings, Dr. Totoe opined that Plaintiff would 
be able to walk for less than an hour and stand for less than an hour in an eight-hour 

workday and would be able to lift no more than 30 pounds.  Id. at 472.  The ALJ found 
Dr. Totoe’s opinion about Plaintiff’s physical limitations unpersuasive “as it is not at all 
supported by the exam findings, nor is it consistent with the exam findings or treatment 
notes throughout the record.”  Id. at 20.  Plaintiff argues that the ALJ’s evaluation of Dr. 
Totoe’s opinion is insufficient under the governing regulations.          
    Those  regulations  require  the  ALJ to “evaluate  the persuasiveness of  medical 

opinions by considering (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)).  
“The first two factors—supportability and consistency—are the most important.”
Id.
 

(citing
20 C.F.R. § 404
.1520c(a)).  The regulations further provide that the ALJ “will 
explain how he considered the supportability and consistency factors for a medical source’s 
medical opinions . . . in your determination or decision.”
20 C.F.R. § 404
.1520c(b)(2).  
But  “[n]o  talismanic  language  is  required  for  the  ALJ  to  meet  the  requirements  of 
§ 404.1520c, only that the ALJ make it clear that [the ALJ] 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), R. & R. adopted by
2023 WL 136590
 (D. 
Minn. Jan. 9, 2023).                                                      
    The  ALJ’s  discussion  of  Dr.  Totoe’s  opinion  appropriately  addresses  the 
supportability and consistency of that opinion.  After finding the opinion not persuasive, 

the ALJ analyzed Plaintiff’s medical history in detail, noting that Plaintiff had received 
“very limited care with respect to physical impairments.”  Admin. Rec. at 20.  This analysis 
provides more than adequate explanation for the ALJ’s conclusion that Dr. Totoe’s opinion 
was neither supported by nor consistent with the medical evidence as a whole. 
    In addition, in his application for disability benefits, Plaintiff did not rely on any 
physical impairments other than diabetes.  It appears that any physical difficulties he now 

experiences arose as a result of a fall that occurred during the administrative process.  See
id.
 (Plaintiff first reported low back pain after a fall shortly before a physical-therapy 
appointment in November 2021).  Therefore, his belated attempt to claim error from a 
failure to adequately evaluate non-disabling physical impairments is not persuasive.  But 
even  if  Plaintiff  claimed  additional  physical  impairments  as  a  basis  for  his  alleged 

disability, the ALJ evaluated all of Plaintiff’s physical and mental impairments and the 
RFC included physical restrictions to address those physical ailments that are supported in 
the record.  The ALJ’s evaluation of the evidence is not contrary to the regulation’s 
requirements, and the ALJ’s conclusions are supported by substantial evidence. 
    II.  RFC and Duty to Develop the Record                              

    Plaintiff  next  argues  that  the  ALJ  erred  by  not  ordering  another  consultative 
psychological examination and by including in the RFC mental limitations that are not 
supported by any opinion in the record.  Plaintiff contends that the ALJ should have ordered 
an additional examination because the only opinions in the record regarding Plaintiff’s 
mental-health impairments are from two state agency consultants whose opinions the ALJ 
found  were  not  wholly  persuasive.    Therefore,  Plaintiff  argues,  the  ALJ  improperly 

formulated  the  RFC  based  on  the  ALJ’s  lay  opinion  of  the  limitations  Plaintiff’s 
psychological diagnoses imposed.                                          
    Contrary to Plaintiff’s argument, the RFC is not based on the ALJ’s lay opinions.  
The ALJ addressed the mental-health evidence in the record, noting that although Plaintiff 
occasionally appeared anxious and depressed, Plaintiff’s mental-status examinations were 
usually normal.  E.g., Admin. Rec. at 21.  The ALJ also considered Plaintiff’s daily 

activities, finding those activities inconsistent with Plaintiff’s claim of disabling mental-
health symptoms.
Id. at 17
; see Myers v. Colvin,
721 F.3d 521, 527
 (8th Cir. 2013) 
(determining that the RFC must be “based on all of the relevant evidence, including the 
medical records, observations of treating physicians and others, and an individual’s own 
description of his limitations”).  The RFC properly accounted for all evidence in the record 

in  limiting  Plaintiff  to  simple,  routine  tasks  and  only  occasional  interactions  with 
supervisors, coworkers and the public.  Id. at 18.  The ALJ’s determination of the limiting 
effects of Plaintiff’s mental-health issues is fully supported by substantial evidence, despite 
the absence of a specific opinion that included those restrictions.  See Hensley v. Colvin,
829 F.3d 926, 932
 (8th Cir. 2016) (finding that “there is no requirement that an RFC finding 

be supported by a specific medical opinion”).

ORDER

    Substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled.  

Therefore, based on the foregoing analysis and all the files, records and proceedings herein, 
IT IS HEREBY ORDERED:                                                     
    1.   Defendant  Martin  J.  O’Malley’s  motion  for  judgment,  (Dkt.  13),  is
GRANTED.                                                                  
    2.   Plaintiff Michael A.’s motion for judgment, (Dkt. 11), is DENIED.
    3.   This matter is DISMISSED with prejudice.                        

    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 
Dated:  January 2, 2024                 s/ Wilhelmina M. Wright           
                                       Wilhelmina M. Wright              
                                       United States District Judge

Trial Court Opinion

                 UNITED STATES DISTRICT COURT                            
                    DISTRICT OF MINNESOTA                                


Michael A.,                           Case No. 23-cv-0475 (WMW/DTS)      

                   Plaintiff,

ORDER

     v.                                                                  

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

                   Defendant.                                            


    This matter is before the Court on the parties’ cross-motions for judgment on the 
administrative record.  (Dkts. 11, 13.)  For the reasons addressed below, the Court grants 
Defendant’s motion and denies Plaintiff’s motion.                         
                         BACKGROUND                                      
    Plaintiff Michael A.1 filed an application for supplemental security income benefits 
on October 16, 2020.  Admin. Rec. (Dkt. 8) at 193-201.  This application alleged that 
Plaintiff became disabled and unable to work as of February 1, 2020, as a result of 
depression, post-traumatic stress disorder (“PTSD”), bipolar disorder and diabetes.  Id. at 
223.                                                                      
    For purposes of Social Security disability benefits, an individual is considered 
disabled if he is “unable to engage in any substantial gainful activity by reason of any 
medically determinable physical or mental impairment which can be expected to result in 

1    It is the policy of this District to use only the first name and last initial of any 
nongovernmental parties in orders in Social Security matters.             
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).  In addition, an individual is disabled “only 

if his physical or mental impairment or impairments are of such severity that he is not only 
unable to do his previous work but cannot, considering his age, education, and work 
experience, engage in any other kind of substantial gainful work which exists in the 
national economy.”  Id. § 1382c(a)(3)(B).  “[A] physical or mental impairment is an 
impairment that results from anatomical, physiological, or psychological abnormalities 
which  are  demonstrable  by  medically  acceptable  clinical  and  laboratory  diagnostic 

techniques.”  Id. § 1382c(a)(3)(D).                                       
    The Commissioner has established a sequential, five-step evaluation process to 
determine whether an individual is disabled.
20 C.F.R. § 416.920
(a)(4).  At step one, the 
claimant must establish that he is not engaged in any “substantial gainful activity.”
Id.
 
§ 416.920(a)(4)(i).  If that requirement is satisfied, the claimant must then establish that he 

has a severe medically determinable impairment or combination of impairments at step 
two.  Id. § 416.920(a)(4)(ii).  At step three, the Commissioner must find that the claimant 
is disabled, if the claimant satisfies the first two steps and the claimant’s impairment meets 
or is medically equal to one of the listings in 20 C.F.R. Part 404, Subpart P, App’x 1.  Id. 
§ 416.920(a)(4)(iii).  If the claimant’s impairment does not meet or is not medically equal 

to one of the listings, the evaluation proceeds to step four.  At step four, the claimant bears 
the burden of establishing his residual functional capacity (“RFC”) and proving that he 
cannot perform any past relevant work.  Id. § 416.920(a)(4)(iv); Young v. Apfel,
221 F.3d 1065
, 1069 n.5 (8th Cir. 2000).  If the claimant proves he is unable to perform any past 
relevant work, the burden shifts to the Commissioner to establish at step five that the 
claimant can perform other work that exists in a significant number of jobs in the national 

economy.  Bowen v. Yuckert,
482 U.S. 137
, 146 n.5 (1987).  If the claimant can perform 
such work, the Commissioner will find that the claimant is not disabled.
20 C.F.R. § 416.920
(a)(4)(v).                                                       
    Plaintiff’s application  for benefits was denied initially and on reconsideration.  
Admin. Rec. at.  74, 83.  In March 2022, an Administrative Law Judge (“ALJ”) held a 
hearing on Plaintiff’s application.
Id. at 33-62
.  Plaintiff testified at this hearing and was 

represented by an attorney.  After the hearing, the ALJ determined that Plaintiff has 
multiple severe impairments: diabetes, anxiety disorder, adjustment disorder, depressive 
disorder and PTSD.
Id. at 16
.  The ALJ found, however, that none of these impairments, 
either alone or in combination, meets or medically equals any of the listed impairments.
Id.
  The ALJ determined that Plaintiff has the capacity for medium work with some 

physical and mental restrictions.
Id. at 18
.  Although this RFC meant that Plaintiff cannot 
return to his previous work as a pallet builder, the ALJ found that there are jobs that 
Plaintiff can perform in the national economy.
Id. at 21-22
.  For this reason, the ALJ 
concluded that Plaintiff is not disabled.
Id. at 23
.  The Appeals Council denied Plaintiff’s 
request for review of the ALJ’s decision, and this lawsuit followed.  See
42 U.S.C. § 405
(g) 

(providing for judicial review of final decisions of the Commissioner of the Social Security 
Administration).                                                          
                           ANALYSIS                                      
    The  Court’s  review  of  the  Commissioner’s  decision  is  limited  to  determining 

whether that decision is “supported by substantial evidence on the record as a whole.”  
McKinney v. Apfel,
228 F.3d 860, 863
 (8th Cir. 2000).  “Substantial evidence . . . is more 
than a mere scintilla.”  Biestek v. Berryhill,
139 S. Ct. 1148, 1154
 (2019) (quotation 
omitted).  It is “such relevant evidence as a reasonable mind might accept as adequate to 
support a conclusion.”
Id.
 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229
 
(1938)).  This “threshold . . . is not high.”
Id.
  “If, after reviewing the record, the court 

finds it is possible to draw two inconsistent positions from the evidence and one of those 
positions represents the [ALJ’s] findings, the court must affirm the [ALJ’s] decision.”  
Perks v. Astrue,
687 F.3d 1086, 1091
 (8th Cir. 2012) (quotation omitted). 
    Plaintiff  argues  that  the  ALJ  did  not  appropriately  evaluate the  opinions of  a 
consultative examiner and failed to fully develop the record regarding Plaintiff’s mental-

health limitations.                                                       
    I.   Evaluation of Medical Opinion                                   
    In August 2021, Dr. Grace Totoe performed a consultative physical examination on 
Plaintiff.  Admin. Rec. at 470-74.  This examination found that Plaintiff has normal 
strength, muscle tone, and sensation; the only abnormal finding was that he is “slightly 

unsteady” walking on his heels.  Id. at 471.  In addition, Plaintiff has a normal range of 
motion in all of his joints, although Dr. Totoe noted that Plaintiff experiences some pain 
with certain movements of his shoulder, elbow, wrist, ankle, back and neck.  Id. at 473-74. 
    Despite these normal examination findings, Dr. Totoe opined that Plaintiff would 
be able to walk for less than an hour and stand for less than an hour in an eight-hour 

workday and would be able to lift no more than 30 pounds.  Id. at 472.  The ALJ found 
Dr. Totoe’s opinion about Plaintiff’s physical limitations unpersuasive “as it is not at all 
supported by the exam findings, nor is it consistent with the exam findings or treatment 
notes throughout the record.”  Id. at 20.  Plaintiff argues that the ALJ’s evaluation of Dr. 
Totoe’s opinion is insufficient under the governing regulations.          
    Those  regulations  require  the  ALJ to “evaluate  the persuasiveness of  medical 

opinions by considering (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)).  
“The first two factors—supportability and consistency—are the most important.”
Id.
 

(citing
20 C.F.R. § 404
.1520c(a)).  The regulations further provide that the ALJ “will 
explain how he considered the supportability and consistency factors for a medical source’s 
medical opinions . . . in your determination or decision.”
20 C.F.R. § 404
.1520c(b)(2).  
But  “[n]o  talismanic  language  is  required  for  the  ALJ  to  meet  the  requirements  of 
§ 404.1520c, only that the ALJ make it clear that [the ALJ] 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), R. & R. adopted by
2023 WL 136590
 (D. 
Minn. Jan. 9, 2023).                                                      
    The  ALJ’s  discussion  of  Dr.  Totoe’s  opinion  appropriately  addresses  the 
supportability and consistency of that opinion.  After finding the opinion not persuasive, 

the ALJ analyzed Plaintiff’s medical history in detail, noting that Plaintiff had received 
“very limited care with respect to physical impairments.”  Admin. Rec. at 20.  This analysis 
provides more than adequate explanation for the ALJ’s conclusion that Dr. Totoe’s opinion 
was neither supported by nor consistent with the medical evidence as a whole. 
    In addition, in his application for disability benefits, Plaintiff did not rely on any 
physical impairments other than diabetes.  It appears that any physical difficulties he now 

experiences arose as a result of a fall that occurred during the administrative process.  See
id.
 (Plaintiff first reported low back pain after a fall shortly before a physical-therapy 
appointment in November 2021).  Therefore, his belated attempt to claim error from a 
failure to adequately evaluate non-disabling physical impairments is not persuasive.  But 
even  if  Plaintiff  claimed  additional  physical  impairments  as  a  basis  for  his  alleged 

disability, the ALJ evaluated all of Plaintiff’s physical and mental impairments and the 
RFC included physical restrictions to address those physical ailments that are supported in 
the record.  The ALJ’s evaluation of the evidence is not contrary to the regulation’s 
requirements, and the ALJ’s conclusions are supported by substantial evidence. 
    II.  RFC and Duty to Develop the Record                              

    Plaintiff  next  argues  that  the  ALJ  erred  by  not  ordering  another  consultative 
psychological examination and by including in the RFC mental limitations that are not 
supported by any opinion in the record.  Plaintiff contends that the ALJ should have ordered 
an additional examination because the only opinions in the record regarding Plaintiff’s 
mental-health impairments are from two state agency consultants whose opinions the ALJ 
found  were  not  wholly  persuasive.    Therefore,  Plaintiff  argues,  the  ALJ  improperly 

formulated  the  RFC  based  on  the  ALJ’s  lay  opinion  of  the  limitations  Plaintiff’s 
psychological diagnoses imposed.                                          
    Contrary to Plaintiff’s argument, the RFC is not based on the ALJ’s lay opinions.  
The ALJ addressed the mental-health evidence in the record, noting that although Plaintiff 
occasionally appeared anxious and depressed, Plaintiff’s mental-status examinations were 
usually normal.  E.g., Admin. Rec. at 21.  The ALJ also considered Plaintiff’s daily 

activities, finding those activities inconsistent with Plaintiff’s claim of disabling mental-
health symptoms.
Id. at 17
; see Myers v. Colvin,
721 F.3d 521, 527
 (8th Cir. 2013) 
(determining that the RFC must be “based on all of the relevant evidence, including the 
medical records, observations of treating physicians and others, and an individual’s own 
description of his limitations”).  The RFC properly accounted for all evidence in the record 

in  limiting  Plaintiff  to  simple,  routine  tasks  and  only  occasional  interactions  with 
supervisors, coworkers and the public.  Id. at 18.  The ALJ’s determination of the limiting 
effects of Plaintiff’s mental-health issues is fully supported by substantial evidence, despite 
the absence of a specific opinion that included those restrictions.  See Hensley v. Colvin,
829 F.3d 926, 932
 (8th Cir. 2016) (finding that “there is no requirement that an RFC finding 

be supported by a specific medical opinion”).

ORDER

    Substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled.  

Therefore, based on the foregoing analysis and all the files, records and proceedings herein, 
IT IS HEREBY ORDERED:                                                     
    1.   Defendant  Martin  J.  O’Malley’s  motion  for  judgment,  (Dkt.  13),  is
GRANTED.                                                                  
    2.   Plaintiff Michael A.’s motion for judgment, (Dkt. 11), is DENIED.
    3.   This matter is DISMISSED with prejudice.                        

    LET JUDGMENT BE ENTERED ACCORDINGLY.                                 
Dated:  January 2, 2024                 s/ Wilhelmina M. Wright           
                                       Wilhelmina M. Wright              
                                       United States District Judge

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