Rygmyr v. O'Malley

U.S. District Court, District of Minnesota March 11, 2024

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Katie R., Civ. No. 23-1139 (PAM/DLM)

Plaintiff,

v. MEMORANDUM AND ORDER

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

Defendant.

This matter is before the Court on the parties’ cross-Motions for judgment on the
administrative record. For the following reasons, Plaintiff’s Motion is denied, Defendant’s
Motion is granted, and this matter is dismissed with prejudice.
BACKGROUND
Plaintiff Katie R.1 filed an application for supplemental security income benefits on
September 16, 2019. (Admin. R. (Docket No. 8) at 348.) Plaintiff alleges that she became
disabled on January 23, 2019, as a result of chronic pain, low back and neck issues, post-
traumatic stress disorder (“PTSD”), depression, and anxiety. (Id. at 389.) The alleged
onset date for Plaintiff’s disability is the day after the Commissioner denied the second of
Plaintiff’s two previous applications for disability benefits. (See id. at 127-149 (ALJ

1 This District has adopted the policy of using only the first name and last initial of any
nongovernmental parties in orders in Social Security matters.
decision dated January 22, 2019); see also id. at 106-126 (ALJ decision dated June 8,
2016).)2

An individual is considered disabled for purposes of Social Security disability
benefits 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). In addition, an individual is disabled “only
if [her] physical or mental impairment or impairments are of such severity that [s]he is not

only unable to do [her] previous work but cannot, considering [her] age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 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 she is not engaged in any “substantial gainful activity.”

Id.

 
§ 416.920(a)(4)(i).  If she is not, the claimant must then establish that she 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, 


2 Plaintiff relied on the same or similar disabling conditions in her previous applications. 
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.  The claimant then bears the 
burden of establishing her residual functional capacity (“RFC”) and proving that she 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 she is unable to perform any past relevant 
work, the burden shifts to the Commissioner to establish at step five that the claimant can 

perform other work existing in a significant number of jobs in the national economy.  
Bowen v. Yuckert,

482 U.S. 137

, 146 n.5 (1987).  If the claimant can perform 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. R. at 171, 190.)  In July 2021, at Plaintiff’s request, an Administrative Law Judge 

(“ALJ”) held a hearing on Plaintiff’s application.  The transcript of this hearing does not 
appear to be included in the Administrative Record.  (See

id. at 41

(ALJ decision referring
to initial hearing in July 2021).) After the initial hearing, Plaintiff underwent a consultative
examination. The ALJ then held a supplemental hearing for which there is a transcript in
the Administrative Record. (Id. at 67-105.) Plaintiff testified and was represented by an

attorney at this hearing. (Id. at 67.) Thereafter, the ALJ issued his written decision. (Id.
at 41-60.)
The ALJ determined that Plaintiff had several severe impairments: discogenic and
degenerative disorders of the cervical and lumbar spine, chronic pain syndrome, major
depressive disorder, generalized anxiety disorder, and PTSD. (Id. at 44.) The ALJ found,
however, that none of Plaintiff’s impairments met or medically equaled any listed

impairments. (Id. at 44-46.) The ALJ next determined that Plaintiff had the capacity for
light work with both exertional and non-exertional limitations such as never climbing
ladders, ropes, or scaffolds; occasional climbing of stairs; occasional stooping, crouching,
crawling, kneeling, and overhead reaching; no work in high, exposed places; only simple,
routine, repetitive tasks with only occasional changes in work setting; brief and superficial
interactions with coworkers and supervisors; no complex decisionmaking; and no rapid,

assembly-line paced work. (Id. at 47.)
After considering testimony from a vocational expert, the ALJ determined that there
were jobs Plaintiff could perform in sufficient numbers in the national economy, and
therefore found that Plaintiff was not disabled. (Id. at 59-60.) 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).                                      
DISCUSSION                                                                
    Judicial 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 challenges a single aspect of the ALJ’s determination. She contends that
the ALJ erred in formulating her RFC by defining “brief and superficial contact” as limited
to jobs in which the “fifth digit of the DOT code3 is a 6, 7, or 8.” (Admin. R. at 47.)
Plaintiff does not contend that it was erroneous for the ALJ to limit Plaintiff to “superficial”

contact. Rather, she argues that the error lay in the ALJ defining what “superficial contact”
means in the context of the codes the DOT uses, because that definition ostensibly usurped
the vocational expert’s role to determine what jobs Plaintiff could perform with her
limitations and is not grounded in medical evidence in the record.
The ALJ did not err in defining what he meant by “superficial” with reference to the

DOT code. Rather, “[t]he ALJ expounded on the definition of ‘superficial’ in the context

3 “In making disability determinations, SSA relies primarily on the Dictionary of
Occupational Titles (DOT) (including its companion publication, the Selected
Characteristics of Occupations (SCO)) for information about the requirements of work in
the national economy.” Social Security Administration, Guidelines For Using
Occupational Information in Electronic Tools, https://secure.ssa.gov/apps10/reference.nsf/
links/10292021113305AM (archived at https://perma.cc/T9JK-43NY). Each occupation
has a nine-digit code in the DOT, with each set of three digits having a specific purpose or
meaning. Dep’t of Labor, OALJ Law Library, Dictionary of Occupational Titles, Parts,
https://www.dol.gov/agencies/oalj/PUBLIC/DOT/REFERENCES/DOTPARTS#
(archived at https://perma.cc/T36R-6XHS). The fifth digit of this nine-digit code is the
“people” digit, defining the “broadest level of responsibility or judgment required in
relation to . . . people.”

Id.

  A low number—zero is the lowest digit in the code—is the 
greatest level of such responsibility or judgment.

Id.

  Eight is the highest number in that 
code, and means the lowest level of responsibility or judgment in that area.

Id.

 
of Plaintiff’s RFC, in essence describing how a vocational expert might incorporate the 
limitation into the expert’s evaluation of whether jobs exist in the national economy that 

are consistent with Plaintiff's functional limitations.”  Jamie E. v. Kijakazi, No. 22-CV-
2393  (ECT/JFD),

2023 WL 5021807

,  at  *2  (D.  Minn.  Aug.  7,  2023)  (Tostrud,  J.).  
Moreover, as the Commissioner points out, the Vocational Expert did not consider herself 
limited to any particular DOT rating.  She testified that she “want[ed[] to clarify that the 
issues of interactions with supervisors [and ] coworkers . . . are not specifically addressed 
by the DOT or SCO, so for that information I rely on my education, training and experience 

as  a  vocational  counselor.”   (Admin.  R.  at 99.)    The  ALJ  appropriately  determined 
Plaintiff’s functional restrictions, described those restrictions to the Vocational Expert, and 
the Vocational Expert took those restrictions into account in formulating her opinion that 
there were jobs Plaintiff could perform.  Plaintiff’s challenge to the RFC fails.  
CONCLUSION                                                                

    Substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled. 
Accordingly, IT IS HEREBY ORDERED that:                                   
    1.   Plaintiff’s Motion for Judgment (Docket No. 9) is DENIED; and   
    2.   Defendant’s Motion for Judgment (Docket No. 11) is GRANTED; and 
    3.   This matter is DISMISSED with prejudice.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      

Date:    3/8/2024                       s/Paul A. Magnuson                
                                  Paul A. Magnuson                       
                                  United States District Court Judge

Trial Court Opinion

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Katie R., Civ. No. 23-1139 (PAM/DLM)

Plaintiff,

v. MEMORANDUM AND ORDER

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

Defendant.

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 she is not engaged in any “substantial gainful activity.”

Id.

 
§ 416.920(a)(4)(i).  If she is not, the claimant must then establish that she 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, 


2 Plaintiff relied on the same or similar disabling conditions in her previous applications. 
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.  The claimant then bears the 
burden of establishing her residual functional capacity (“RFC”) and proving that she 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 she is unable to perform any past relevant 
work, the burden shifts to the Commissioner to establish at step five that the claimant can 

perform other work existing in a significant number of jobs in the national economy.  
Bowen v. Yuckert,

482 U.S. 137

, 146 n.5 (1987).  If the claimant can perform 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. R. at 171, 190.)  In July 2021, at Plaintiff’s request, an Administrative Law Judge 

(“ALJ”) held a hearing on Plaintiff’s application.  The transcript of this hearing does not 
appear to be included in the Administrative Record.  (See

id. at 41

42 U.S.C. § 405

(g) (providing for judicial review of final decisions of the Commissioner of 
the Social Security Administration).                                      
DISCUSSION                                                                
    Judicial 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

DOT code. Rather, “[t]he ALJ expounded on the definition of ‘superficial’ in the context

Id.

  A low number—zero is the lowest digit in the code—is the 
greatest level of such responsibility or judgment.

Id.

  Eight is the highest number in that 
code, and means the lowest level of responsibility or judgment in that area.

Id.

 
of Plaintiff’s RFC, in essence describing how a vocational expert might incorporate the 
limitation into the expert’s evaluation of whether jobs exist in the national economy that 

are consistent with Plaintiff's functional limitations.”  Jamie E. v. Kijakazi, No. 22-CV-
2393  (ECT/JFD),

2023 WL 5021807

,  at  *2  (D.  Minn.  Aug.  7,  2023)  (Tostrud,  J.).  
Moreover, as the Commissioner points out, the Vocational Expert did not consider herself 
limited to any particular DOT rating.  She testified that she “want[ed[] to clarify that the 
issues of interactions with supervisors [and ] coworkers . . . are not specifically addressed 
by the DOT or SCO, so for that information I rely on my education, training and experience 

as  a  vocational  counselor.”   (Admin.  R.  at 99.)    The  ALJ  appropriately  determined 
Plaintiff’s functional restrictions, described those restrictions to the Vocational Expert, and 
the Vocational Expert took those restrictions into account in formulating her opinion that 
there were jobs Plaintiff could perform.  Plaintiff’s challenge to the RFC fails.  
CONCLUSION                                                                

    Substantial evidence supports the ALJ’s conclusion that Plaintiff is not disabled. 
Accordingly, IT IS HEREBY ORDERED that:                                   
    1.   Plaintiff’s Motion for Judgment (Docket No. 9) is DENIED; and   
    2.   Defendant’s Motion for Judgment (Docket No. 11) is GRANTED; and 
    3.   This matter is DISMISSED with prejudice.                        

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      

Date:    3/8/2024                       s/Paul A. Magnuson                
                                  Paul A. Magnuson                       
                                  United States District Court Judge

Reference

Status: Unknown