Rojas v. O'Malley

U.S. District Court, District of Minnesota March 13, 2024

Trial Court Opinion

                UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                


Kelly L. R.,                         Case No. 22-CV-2952 (JFD)          

              Plaintiff,                                                

v.                                          ORDER                       

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

              Defendant.                                                


   Pursuant to

42 U.S.C. § 405

(g), Plaintiff Kelly L. R. seeks judicial review of a final 
decision by the Commissioner of the Social Security Administration, which denied the 
Plaintiff’s application for disability insurance benefits (“DIB”). The case is before the 
Court on the parties’ cross-Motions for Summary Judgment (Dkt. Nos. 16 and 19). Plaintiff 
raises three issues for judicial review. First, whether the administrative law judge (“ALJ”) 
properly considered the supportability and consistency of a medical opinion by Courtney 
Mike, MA/LADC, Plaintiff’s psychotherapist. Second, whether the ALJ erred by not 
including an absenteeism limitation in determining Plaintiff’s capacity for work. Third, 
whether the ALJ was constitutionally appointed, but Plaintiff acknowledges this issue is 
foreclosed by Dahle v. Kijakazi,

62 F.4th 424

 (8th Cir. 2023), cert. denied sub nom. Dahle 
v. O’Malley,

144 S. Ct. 549

(2024). Defendant opposes Plaintiff’s motion and asks the
Court to affirm the final decision. As set forth below, the Court concludes that the ALJ
erred in his consideration of Ms. Mike’s opinion. The Court therefore grants Plaintiff’s
motion, denies Defendant’s motion, reverses the final decision of the Commissioner, and
remands the matter to the Social Security Administration for further proceedings.

I. Background
Plaintiff applied for DIB on January 30, 2020, alleging she has been disabled as of
June 20, 2019, due to posttraumatic stress disorder, an intellectual disability, a learning
disability, depression, anxiety, thyroid problems, arthritis, and diabetes. (See Soc. Sec.
Admin. R. (hereinafter “R.”) 18, 258.)1 She has past relevant work experience primarily as
a janitor and fast-food employee (R. 259, 277.)

A. Evidence from Therapist Courtney Mike
One of Plaintiff’s medical providers is Courtney Mike, a therapist. Plaintiff’s goals
in treatment included increasing her adherence to prescribed medications for depression
and anxiety; improving her sleep, appetite, energy, mood, anxiety, memory, work
attendance, work functioning, concentration, and activities of daily living; developing

coping skills, problem-solving skills, emotional regulation, and self-control; identifying
and replacing maladaptive or negative thoughts; and learning how to interact with people
effectively. (R. 456–57.) Plaintiff’s documented mental impairments were generalized
anxiety disorder, mild depression, and cognitive impairment. (R. 468.)
Ms. Mike’s mental status examinations of Plaintiff often documented that Plaintiff

was cooperative, oriented, and with normal mood and affect. (R. 468, 472, 579, 591, 1107,
1111, 1120, 1136, 1139, 1141.) Other times, Plaintiff struggled with managing her anger

1 The administrative record is filed at Dkt. No. 11. The record is consecutively paginated,
and the Court cites to that pagination rather than ECF number and page.
and irritability, showed a depressed mood, or had limited concentration in sessions. (R.
472, 488, 575, 591–92.) Ms. Mike wrote in one progress note that Plaintiff experienced

high irritability and anger outbursts and lashed out verbally. (R. 489.) In December 2020,
Plaintiff reported symptoms of fatigue, poor concentration, crying spells, depressed mood,
irritability, and memory problems. (R. 1135.) Plaintiff described her symptoms to Ms.
Mike as intermittent in frequency, and mild to moderate in severity. (R. 1135.)
Ms. Mike completed a Mental Functioning Questionnaire on March 17, 2021. (R.
599–601, 1110.) Ms. Mike indicated on the questionnaire that Plaintiff was mildly limited

in her ability to remember locations and work-like procedures, but moderately-to-markedly
limited in her ability to understand and remember very short and simple instructions. (R.
599.) For the moderate-to-marked limitation, Ms. Mike explained that Plaintiff “struggles
to comprehend instructions at times and gets frustrated.” (R. 599.) Ms. Mike next indicated
that Plaintiff was mildly limited in her ability to be aware of normal hazards and take

appropriate precautions, moderately limited in responding appropriately to changes in a
routine work setting, moderately limited in dealing with normal work stress, and
moderately-to-markedly limited in her ability to travel in unfamiliar places. (R. 599.) For
the moderate-to-marked limitation, Ms. Mike explained that Plaintiff “exhibits panic
symptoms and feels overwhelmed in unfamiliar places.” (R. 599.) With respect to social-

interaction limitations, Ms. Mike found Plaintiff mildly limited in interacting appropriately
with the public, maintaining socially appropriate behavior, and adhering to basic standards
of neatness and cleanliness; mildly-to-moderately limited in getting along with coworkers
without distracting them or exhibiting behavioral extremes; and markedly limited in
accepting instructions and responding appropriately to criticism from supervisors. (R. 600.)
For the marked limitation, Ms. Mike explained that Plaintiff had difficulty accepting

criticism, felt angry, and would walk away or argue. (R. 600.) Concerning concentration,
persistence, and pace limitations, Ms. Mike found Plaintiff would be mildly limited in
carrying out very short and simple instructions, sustaining an ordinary routine without
special supervision, and performing at a consistent pace without an unreasonable number
and length of rest periods; moderately limited in performing activities within a schedule,
maintaining regular attendance, being punctual, working in proximity to others without

distraction, working in coordination with others, making simple work-related decisions;
and moderately-to-markedly limited in maintaining attention and concentration for
extended periods and completing a normal workday/workweek without interruptions from
psychological symptoms. (R. 600.) For the moderate-to-marked limitations Ms. Mike
explained that Plaintiff has difficulty maintaining focus for extended periods of time

without breaks and “often needs to take mental health days depending on the week,” up to
two times a week. (R. 600.)
Ms. Mike estimated on the questionnaire that Plaintiff would be “off task,” meaning
her symptoms would be severe enough to interfere with the attention and concentration
needed to perform simple work tasks, 20% of the workday. (R. 601.) Plaintiff would also

need to take 20-minute breaks every few hours for arthritis pain and mental functioning.
(R. 601.) Ms. Mike thought Plaintiff’s impairments and treatments would cause her to be
absent or tardy more than four times a month, because Plaintiff needed “mental health
days” up to twice a week. (R. 601.)
Plaintiff discontinued therapy with Ms. Mike the following month, in April 2021,
because Ms. Mike was leaving the practice. Plaintiff indicated that her depression and

anxiety were manageable, but that her irritability and angry outbursts could affect her
relationships. (R. 1104.) Ms. Mike indicated that Plaintiff had made slight progress in all
of her goals. (R. 1104–05.) Plaintiff said she had started a new job, which she loved. (R.
1108.)
B. Procedural History
Plaintiff’s DIB application was denied at both the initial review and reconsideration

stages. She requested an administrative hearing before an ALJ, and that hearing was held
on June 17, 2021. (R. 43.) Plaintiff testified in relevant part that she called in sick to work
when she felt very overwhelmed or stressed by work or family relationships. (R. 74.) She
took these “mental health days” about two or three times per month. (R. 74–75.)
On October 13, 2021, the ALJ issued a written decision finding Plaintiff not

disabled. (R. 18–32.) The ALJ followed the familiar five-step sequential analysis outlined
in

20 C.F.R. § 404.1520

. At each step, the ALJ considered whether Plaintiff was disabled 
based on the criteria of that step. If she was not, the ALJ proceeded to the next step. See

20 C.F.R. § 404.1520

(a)(4).                                                  
   The ALJ first determined that Plaintiff had engaged in substantial gainful activity 

between April 16 and June 30, 2021, and thus was not disabled during that period of time. 
(R. 20–21.) The ALJ then continued with the analysis for the remainder of the period at 
issue. At the second step of the sequential analysis, the ALJ found that Plaintiff had the 
following severe impairments: obesity, posttraumatic stress disorder, hearing loss with a 
history  of  tympanomastoidectomy,  attention-deficit  hyperactivity  disorder,  depressive 
disorder, anxiety disorder, and an unspecified intellectual disorder. (R. 21.) At step three, 

the ALJ concluded that Plaintiff’s impairments did not meet or medically equal the severity 
of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix I. (R. 22.)  
   Before  proceeding  to  step  four,  the  ALJ  assessed  Plaintiff’s  RFC,  which is  a 
measure  of  “the  most  [she]  can  still  do  despite  [her]  limitations.”

20 C.F.R. § 404.1545

(a)(1). As part of the RFC assessment, the ALJ considered Ms. Mike’s opinion
rendered in the Mental Functioning Questionnaire on March 17, 2021. The ALJ’s

discussion of Ms. Mike’s opinion is set forth in full below.
Courtney Mike, MA LADC opined the claimant had moderate to marked
mental limitations. She will be off task 20% of the time and will be absent 4
or more days per month. (Ex. C7F). This is not persuasive. The opinion is
not consistent with the normal mental status examinations in the record. The
claimant’s attitude was cooperative. Mood was normal. Affect was
appropriate. Thought content was logical and goal directed. Remote memory
was intact. Attention span and concentration were focused. (Ex. C2F/3, 8,
51). The claimant reported having a little bit of irritability with her family,
but overall is doing well. (Ex. C6F/4, 8).

(R. 28.) Based on the ALJ’s consideration of this opinion and other relevant evidence of
record, the ALJ assessed Plaintiff’s RFC as follows:
[Plaintiff] has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) except she can work in environments that are
of moderate noise or quieter as defined in the SCO, and can occasionally
perform tasks that require talking and hearing. She can perform simple,
routine tasks. She may work in an environment with routine, predictable
changes. She can have superficial interactions with others, such as taking
instructions, relaying information, and transferring materials.
(R. 24.) With this RFC, the ALJ concluded, Plaintiff could not perform her past work, but
could work as a sorter, merchandise marker, or office helper. (R. 29–30.) Consequently,

Plaintiff was not disabled. (R. 32.)
The Appeals Council denied Plaintiff’s request for review of the ALJ’s written
decision. (R. 1.) This made the ALJ’s decision the final decision of the Commissioner for
the purpose of judicial review.
II. Standard of Review

Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence in the record as a whole supports the decision,

42 U.S.C. § 405

(g), or whether the ALJ committed an error of law, Nash v. Commissioner, Social 
Security Administration,

907 F.3d 1086, 1089

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

294 F.3d 1019, 1022

 

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

201 F.3d 1010, 1012

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

Id.

 (citing Craig v. Apfel,

212 F.3d 433, 436

 (8th Cir. 2000)). 
The Court may not reverse the ALJ’s decision simply because substantial evidence would 
support a different outcome or because the Court would have decided the case differently.

Id.

 (citing Woolf v. Shalala,

3 F.3d 1210, 1213

 (8th Cir. 1993)). In other words, if it is 
possible to reach two inconsistent positions from the evidence and one of those positions 
is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan,

956 F.2d 836, 838

 (8th Cir. 1992).                                            
   A claimant has the burden to prove disability. See Roth v. Shalala,

45 F.3d 279, 282

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

that 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 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). The disability, not just the impairment, must have 
lasted or be expected to last for at least twelve months. Titus v. Sullivan,

4 F.3d 590, 594

 
(8th Cir. 1993).                                                          

III.  Discussion                                                          
   A.   The ALJ Did Not Properly Consider Ms. Mike’s Opinion.           
   Title

20 C.F.R. § 404

.1520c sets forth the standards under which an ALJ considers 
medical opinion evidence. An ALJ considers how “persuasive” an opinion is according to 
five factors: supportability, consistency, relationship with the claimant, specialization, and 

any other relevant factors.

20 C.F.R. § 404

.1520c(c)(1)–(5). The “most important factors” 
are supportability and consistency.

20 C.F.R. § 404

.1520c(b)(2). The regulatory language 
pertaining  to  supportability  provides  that  “[t]he  more  relevant  the  objective  medical 
evidence and supporting explanations presented by a medical source are to support his or 
her medical opinion(s) or prior administrative medical finding(s), the more persuasive the 

medical  opinions  or  prior  administrative  medical  finding(s)  will  be.”

20 C.F.R. § 404

.1520c(c)(1). In evaluating consistency, “[t]he more consistent a medical opinion(s) 
or prior administrative medical finding(s) is with the evidence from other medical sources 
and nonmedical sources in the claim, the more persuasive the medical opinions or prior 
administrative medical finding(s) will be.”

20 C.F.R. § 404

.1520c(c)(2). In other words, 
supportability looks to how well the medical source justifies their own opinion, and 

consistency looks to how well the medical source’s opinion fits with evidence from other 
sources.                                                                  
   Given that the supportability and consistency factors are the most important factors 
to the persuasiveness determination, an ALJ “will explain how [the ALJ] considered the 
supportability and consistency factors for a medical source’s medical opinions . . . .”

20 C.F.R. § 404

.1520c(b)(2) (emphasis added). “The ALJ need not use the magic words of 

‘supportability’ and ‘consistency,’ but it must be clear they were addressed.” Svendsen v. 
Kijakazi, No. 1:21-CV-1029-CBK,

2022 WL 2753163

, at *8 (D.S.D. July 14, 2022). The 
ALJ’s failure to articulate how he or she considered these factors is a legal error that 
warrants remand. Susan H. v. Kijakazi, No. 21-CV-2688 (ECT/ECW),

2023 WL 2142786

, 
at *3 (D. Minn. Feb. 21, 2023); Michael B. v. Kijakazi, No. 21-CV-1043 (NEB/LIB),

2022 WL 4463901

, at *2 (D. Minn. Sept. 26, 2022); Joel M. B. v. Kijakazi, No. 21-CV-1660 
(PAM/ECW),

2022 WL 1785224

, at *3 (D. Minn. June 1, 2022) (citing Lucus v. Saul,

960 F.3d 1066, 1070

 (8th Cir. 2020)).                                         
        1.   Supportability                                             
   In this case, the ALJ did not explain how he considered the supportability of Ms. 

Mike’s opinion. The ALJ did not mention the word “supportability” (or any variant of that 
word), nor did the ALJ otherwise articulate how he considered the supportability factor. 
Not only did the ALJ fail to explain how he considered the supportability factor, but it is 
not apparent from the ALJ’s discussion of Ms. Mike’s opinion that he considered it at all.  
   The Commissioner suggests that the ALJ’s reference to certain exhibits—“Ex. 
C2F/3, 8, 51” and “Ex. C6F/4, 8” should suffice for the supportability discussion. The 

Court disagrees. Pages 3 and 8 of Exhibit C2F are references to a progress note by Shannon 
Meyers, DNP, APRN/CNP (R. 435, 440), not to any evidence from Ms. Mike, and thus do 
not relate to supportability. See

20 C.F.R. § 404

.1520c(c)(1) (explaining that supportability 
relates to “the objective medical evidence and supporting explanations presented by a 
medical source” to support her medical opinion). The same is true for page 51 of Exhibit 
C2F, which is a reference to a progress note by Hilary Winkelmann, APRN/CNP. (R. 483.)  

   That leaves only pages 4 and 8 of Exhibit C6F, which are references to progress 
notes by Ms. Mike. (R. 575, 579.). The ALJ cited to these pages to support the statement, 
“The claimant reported having a little bit of irritability with her family, but overall is doing 
well.” (R. 28.) Page 8, however, does not contain a finding from Ms. Mike that Plaintiff 
was doing well; rather, Ms. Mike noted that Plaintiff reported “having some trouble” with 

her spouse and “feeling frustrated.” (R. 589.) On page 4 of the exhibit, the relevant 
notations are a “slight improvement,” an irritable mood, Plaintiff’s reported improvement 
of her relationship with her spouse, and Plaintiff’s reported irritability with other family 
members. The latter two notations on the progress note are Plaintiff’s subjective reports, 
not “objective medical evidence” or “supporting explanations” by Ms. Mike. Thus, they 

do not relate to the supportability analysis. See

20 C.F.R. § 404

.1520c(c)(1). The second
notation evidences an irritable mood, which would actually support the persuasiveness of
Ms. Mike’s opinion. And the first notation speaks only in vague language of a “slight
improvement,” not even that Plaintiff was “doing well.”
The ALJ’s citation to the two pages of Ms. Mike’s progress notes cannot be
construed as a discussion of how irritability and a “slight improvement” would relate to the

vast majority of limitations opined by Ms. Mike, such as that Plaintiff would be
moderately-to-markedly limited in her ability to understand and remember very short and
simple instructions, moderately limited in responding appropriately to changes in a routine
work setting, moderately limited in performing activities within a schedule, moderately
limited in maintaining regular attendance, moderately limited in being punctual,
moderately limited in making simple work-related decisions, and moderately-to-markedly

limited in maintaining attention and concentration for extended periods. Ms. Mike provided
supporting explanations for these limitations on the Mental Functioning Questionnaire
itself, such as Plaintiff “struggles to comprehend instructions at times,” “exhibits panic
symptoms and feels overwhelmed in unfamiliar places,” and “has difficultly keeping focus
for extended periods of time without breaks.” (R. 599–600.)

The Commissioner offers several post-hoc rationalizations for the ALJ’s
consideration of the supportability factor and cites to other evidence from Ms. Mike that
the ALJ did not cite in his consideration of the supportability factor. The Court cannot
accept these post-hoc rationalizations and identifications of supporting evidence. See
Stafford v. Kijakazi, No. 4:20-CV-1011-NKL,

2022 WL 358061

, at *4 (W.D. Mo. Feb. 7, 

2022); Shanda v. Colvin, No. 14-CV-1838 (MJD/JSM),

2015 WL 4077511

, at *30 (D. 
Minn. July 6, 2015) (citing S.E.C. v. Chenery Corp.,

318 U.S. 80, 87

 (1943)) (limiting 
judicial review of an agency’s final decision to the bases given in the decision)). “It is not 
the role of this Court to speculate on the reasons that might have supported the ALJ’s 
decision or supply a reasoned basis for that decision that the ALJ never gave.” Stacey S. v. 
Saul, No. 18-cv-3358 (ADM/TNL),

2020 WL 2441430

, at *15 (D. Minn. Jan. 30, 2020), 

R. & R. adopted,

2020 WL 1271163

 (D. Minn. Mar. 17, 2020).                
   The ALJ’s failure to articulate how he considered the supportability factor is a legal 
error  that  warrants  remand.  Accordingly,  the  Court  will  reverse  the  Commissioner’s 
decision and remand the matter to the Social Security Administration. On remand, the ALJ 
must reconsider Ms. Mike’s opinion and explain how the ALJ considers the supportability 
factor, in accordance with

20 C.F.R. § 404

.1520c.

2. Consistency
Plaintiff argues the ALJ erred in his consideration of the consistency factor because
there is ample evidence in the record that is consistent with Ms. Mike’s opinion. Plaintiff
does not argue that the ALJ committed a legal error, but that substantial evidence does not
support the ALJ’s consideration of the consistency factor. Plaintiff focuses on three areas

of functioning: accepting supervisory criticism, time off task during the workday, and
absenteeism.
The ALJ specifically acknowledged Ms. Mike’s opinion that Plaintiff would be off-
task 20% of the time and absent four or more days per month, just before finding Ms.
Mike’s opinion “not persuasive.” (R. 28.) The ALJ remarked that the opinion was not

consistent with normal mental status examinations and cited two progress reports. The
relevant findings in the progress reports, as recounted by the ALJ, were that Plaintiff was
cooperative, had a normal mood, had an appropriate affect, had logical and goal-directed
thought content, had intact remote memory, and had focused concentration and attention.
This is a sufficient articulation of the ALJ’s consideration of the consistency factor. The
ALJ explained how he considered the consistency factor and cited evidence from other

sources that was not consistent with Ms. Mike’s off-task, absenteeism, and acceptance-of-
supervisory-criticism limitations. See

20 C.F.R. § 404

.1520c(c)(2). The Court declines to 
reweigh the evidence, as Plaintiff requests. The Court’s duty is to consider evidence that 
supports and detracts from the ALJ’s decision and where it is possible to reach two 
inconsistent positions from the evidence, one of which is the position of the Commissioner, 
to affirm the decision. Robinson,

956 F.2d at 838

. Substantial evidence supports the ALJ’s 

consideration of the consistency factor.                                  
   B.   The Absenteeism Limitation                                      
   Plaintiff argues that the ALJ failed to include an absenteeism limitation in Plaintiff’s 
RFC. As support for this argument, Plaintiff relies on the opinion of Ms. Mike, Plaintiff’s 
own hearing testimony, evidence from the State Medical Review Team (“SMRT”), and 

paystubs from Smart Data documenting absences.                            
   A  claimant’s  RFC  is  the  measure  of  the  most  a  claimant  can  do  despite  her 
limitations.

20 C.F.R. § 404.1545

(a)(1); see Bowers v. Kijakazi,

40 F.4th 872, 875

 (8th Cir. 
2022) (“A claimant’s residual functional capacity is a measurement of their ability to do 
sustained physical or mental work, despite their health limitations.”). The ALJ “must 

determine a claimant’s RFC based on all of the relevant evidence, including the medical 
records, observations of treating physicians and others, and an individual’s own description 
of h[er] limitations.” McKinney v. Apfel,

228 F.3d 860, 863

(8th Cir. 2000). Here, the ALJ
determined, relevant to work attendance, that Plaintiff could do simple and routine tasks,
could work in an environment with routine and predictable changes, and could have
superficial interactions with others, including taking instructions, relaying information, and

transferring materials. The ALJ did not include any absenteeism limitations.
The only time the ALJ expressly addressed absenteeism in the written decision was
in his consideration of Ms. Mike’s opinion. The Court has already determined that the ALJ
erred in that consideration. On remand, the ALJ must necessarily reconsider the
absenteeism limitation opined by Ms. Mike as part of the reconsideration of her opinion.
The Court need not address that evidence further at this time.

With respect to Plaintiff’s hearing testimony, the ALJ specifically mentioned
Plaintiff’s testimony about taking time off for mental health days in his assessment of
whether Plaintiff’s symptoms limited her ability to do work-related activities. (R. 25.) The
ALJ did not fully accept, however, the degree of intensity, persistence, and limiting effects
of the symptoms that Plaintiff claimed would contribute to absenteeism. (R. 25.) Plaintiff’s

reliance on her hearing testimony fails for two reasons. First, Plaintiff has not challenged
the ALJ’s evaluation of the intensity, persistence, or limiting effects of her symptoms.
Second, even if she had, the ALJ’s evaluation of her symptoms is supported by substantial
evidence. Namely, the ALJ identified discrepancies between Plaintiff’s claimed symptoms
on the one hand, and on the other, objective medical evidence from mental status

examinations, Plaintiff’s ability to engage in substantial gainful activity from April to June
2021, her ability to do other work in 2020 and 2021, and her assertion (made in connection
with receipt of unemployment benefits) that she was ready, willing, and able to work. (R.
26–27.) Consequently, the ALJ did not err in considering Plaintiff’s symptoms as they
related to potential absenteeism from work.

Turning to evidence from the SMRT, that team was tasked with determining
whether Plaintiff was eligible for state disability benefits. (R. 860.) In relevant part, the
SMRT determined that Plaintiff was not able to maintain pace and persistence for a 40-
hour work week. (R. 864.) The ALJ specifically mentioned this finding in the written
decision but found it not persuasive because it was not consistent with normal mental status
examinations that showed a cooperative attitude, normal mood, appropriate affect, logical

and goal-directed thought content, intact remote memory, and focused concentration and
attention. (R. 28.) Substantial evidence supports the ALJ’s finding. (E.g., R. 440, 443, 446,
450, 454, 459, 476 (mental status examinations documenting these findings).)
Finally, regarding paystubs that documented Plaintiff’s absences from work,
Plaintiff has not shown that these documented absences were due to her medical

impairments. The earnings statements simply state “unpaid time off.” (R. 240–44.) They
say nothing about why Plaintiff took time off. Plaintiff also has not shown that her
impairments would cause her to be absent from work in the future or on a continuing basis.
In addition, it is not surprising that Plaintiff can point to some evidence in a 1,900-page
record that detracts from the ALJ’s decision, but the Court may not reverse the decision

simply because other evidence would support a different conclusion. See Fentress v.
Berryhill,

854 F.3d 1016, 1021

 (8th Cir. 2017). Lastly, the ALJ’s failure to cite to the 
paystubs “does not indicate that such evidence was not considered.” Black v. Apfel,

143 F.3d 383, 386

 (8th Cir. 1998). Therefore, the ALJ did not err by failing to include an 
absenteeism limitation based on Plaintiff’s paystubs.                     

   C.   The ALJ and Appeals Council Members Were Properly Appointed     

   Plaintiff argues that the ALJ and members of the Appeals Council were not properly 
appointed because a previous Acting Commissioner of Social Security was not properly 
serving when the appointments of the ALJ and Appeals Council members were ratified. 
As Plaintiff acknowledges, this argument is foreclosed by Dahle v. Kijakazi,

62 F.4th 424

 
(8th  Cir.  2023),  cert.  denied  sub  nom.  Dahle  v.  O’Malley,

144 S. Ct. 549

  (2024). 
Accordingly, the Court does not grant remand on this basis.               
IV.  Conclusion                                                           
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
1.  Plaintiff’s Motion for Summary Judgment (Dkt. No. 16) is GRANTED;   

2.  The Commissioner’s decision is reversed and the matter is remanded for further 
   consideration of Ms. Mike’s opinion and explanation of how the ALJ considers the 
   supportability factor, in accordance with

20 C.F.R. § 404

.1520c; and 
3.  Defendant’s Motion for Summary Judgment (Dkt No. 19) is DENIED.     

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Date: March 13, 2024            s/  John F. Docherty                    
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge

Trial Court Opinion

                UNITED STATES DISTRICT COURT                            
                   DISTRICT OF MINNESOTA                                


Kelly L. R.,                         Case No. 22-CV-2952 (JFD)          

              Plaintiff,                                                

v.                                          ORDER                       

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

              Defendant.                                                


   Pursuant to

42 U.S.C. § 405

(g), Plaintiff Kelly L. R. seeks judicial review of a final 
decision by the Commissioner of the Social Security Administration, which denied the 
Plaintiff’s application for disability insurance benefits (“DIB”). The case is before the 
Court on the parties’ cross-Motions for Summary Judgment (Dkt. Nos. 16 and 19). Plaintiff 
raises three issues for judicial review. First, whether the administrative law judge (“ALJ”) 
properly considered the supportability and consistency of a medical opinion by Courtney 
Mike, MA/LADC, Plaintiff’s psychotherapist. Second, whether the ALJ erred by not 
including an absenteeism limitation in determining Plaintiff’s capacity for work. Third, 
whether the ALJ was constitutionally appointed, but Plaintiff acknowledges this issue is 
foreclosed by Dahle v. Kijakazi,

62 F.4th 424

 (8th Cir. 2023), cert. denied sub nom. Dahle 
v. O’Malley,

144 S. Ct. 549

was cooperative, oriented, and with normal mood and affect. (R. 468, 472, 579, 591, 1107,
1111, 1120, 1136, 1139, 1141.) Other times, Plaintiff struggled with managing her anger

disabled. (R. 18–32.) The ALJ followed the familiar five-step sequential analysis outlined
in

20 C.F.R. § 404.1520

. At each step, the ALJ considered whether Plaintiff was disabled 
based on the criteria of that step. If she was not, the ALJ proceeded to the next step. See

20 C.F.R. § 404.1520

(a)(4).                                                  
   The ALJ first determined that Plaintiff had engaged in substantial gainful activity 

between April 16 and June 30, 2021, and thus was not disabled during that period of time. 
(R. 20–21.) The ALJ then continued with the analysis for the remainder of the period at 
issue. At the second step of the sequential analysis, the ALJ found that Plaintiff had the 
following severe impairments: obesity, posttraumatic stress disorder, hearing loss with a 
history  of  tympanomastoidectomy,  attention-deficit  hyperactivity  disorder,  depressive 
disorder, anxiety disorder, and an unspecified intellectual disorder. (R. 21.) At step three, 

the ALJ concluded that Plaintiff’s impairments did not meet or medically equal the severity 
of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix I. (R. 22.)  
   Before  proceeding  to  step  four,  the  ALJ  assessed  Plaintiff’s  RFC,  which is  a 
measure  of  “the  most  [she]  can  still  do  despite  [her]  limitations.”

20 C.F.R. § 404.1545

(a)(1). As part of the RFC assessment, the ALJ considered Ms. Mike’s opinion
rendered in the Mental Functioning Questionnaire on March 17, 2021. The ALJ’s

Judicial review of the Commissioner’s denial of benefits is limited to determining
whether substantial evidence in the record as a whole supports the decision,

42 U.S.C. § 405

(g), or whether the ALJ committed an error of law, Nash v. Commissioner, Social 
Security Administration,

907 F.3d 1086, 1089

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

294 F.3d 1019, 1022

 

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

201 F.3d 1010, 1012

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

Id.

 (citing Craig v. Apfel,

212 F.3d 433, 436

 (8th Cir. 2000)). 
The Court may not reverse the ALJ’s decision simply because substantial evidence would 
support a different outcome or because the Court would have decided the case differently.

Id.

 (citing Woolf v. Shalala,

3 F.3d 1210, 1213

 (8th Cir. 1993)). In other words, if it is 
possible to reach two inconsistent positions from the evidence and one of those positions 
is that of the Commissioner, the Court must affirm the decision. Robinson v. Sullivan,

956 F.2d 836, 838

 (8th Cir. 1992).                                            
   A claimant has the burden to prove disability. See Roth v. Shalala,

45 F.3d 279, 282

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

that 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 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). The disability, not just the impairment, must have 
lasted or be expected to last for at least twelve months. Titus v. Sullivan,

4 F.3d 590, 594

 
(8th Cir. 1993).                                                          

III.  Discussion                                                          
   A.   The ALJ Did Not Properly Consider Ms. Mike’s Opinion.           
   Title

20 C.F.R. § 404

.1520c sets forth the standards under which an ALJ considers 
medical opinion evidence. An ALJ considers how “persuasive” an opinion is according to 
five factors: supportability, consistency, relationship with the claimant, specialization, and 

any other relevant factors.

20 C.F.R. § 404

.1520c(c)(1)–(5). The “most important factors” 
are supportability and consistency.

20 C.F.R. § 404

.1520c(b)(2). The regulatory language 
pertaining  to  supportability  provides  that  “[t]he  more  relevant  the  objective  medical 
evidence and supporting explanations presented by a medical source are to support his or 
her medical opinion(s) or prior administrative medical finding(s), the more persuasive the 

medical  opinions  or  prior  administrative  medical  finding(s)  will  be.”

20 C.F.R. § 404

.1520c(c)(1). In evaluating consistency, “[t]he more consistent a medical opinion(s) 
or prior administrative medical finding(s) is with the evidence from other medical sources 
and nonmedical sources in the claim, the more persuasive the medical opinions or prior 
administrative medical finding(s) will be.”

20 C.F.R. § 404

.1520c(c)(2). In other words, 
supportability looks to how well the medical source justifies their own opinion, and 

consistency looks to how well the medical source’s opinion fits with evidence from other 
sources.                                                                  
   Given that the supportability and consistency factors are the most important factors 
to the persuasiveness determination, an ALJ “will explain how [the ALJ] considered the 
supportability and consistency factors for a medical source’s medical opinions . . . .”

20 C.F.R. § 404

.1520c(b)(2) (emphasis added). “The ALJ need not use the magic words of 

‘supportability’ and ‘consistency,’ but it must be clear they were addressed.” Svendsen v. 
Kijakazi, No. 1:21-CV-1029-CBK,

2022 WL 2753163

, at *8 (D.S.D. July 14, 2022). The 
ALJ’s failure to articulate how he or she considered these factors is a legal error that 
warrants remand. Susan H. v. Kijakazi, No. 21-CV-2688 (ECT/ECW),

2023 WL 2142786

, 
at *3 (D. Minn. Feb. 21, 2023); Michael B. v. Kijakazi, No. 21-CV-1043 (NEB/LIB),

2022 WL 4463901

, at *2 (D. Minn. Sept. 26, 2022); Joel M. B. v. Kijakazi, No. 21-CV-1660 
(PAM/ECW),

2022 WL 1785224

, at *3 (D. Minn. June 1, 2022) (citing Lucus v. Saul,

960 F.3d 1066, 1070

 (8th Cir. 2020)).                                         
        1.   Supportability                                             
   In this case, the ALJ did not explain how he considered the supportability of Ms. 

Mike’s opinion. The ALJ did not mention the word “supportability” (or any variant of that 
word), nor did the ALJ otherwise articulate how he considered the supportability factor. 
Not only did the ALJ fail to explain how he considered the supportability factor, but it is 
not apparent from the ALJ’s discussion of Ms. Mike’s opinion that he considered it at all.  
   The Commissioner suggests that the ALJ’s reference to certain exhibits—“Ex. 
C2F/3, 8, 51” and “Ex. C6F/4, 8” should suffice for the supportability discussion. The 

Court disagrees. Pages 3 and 8 of Exhibit C2F are references to a progress note by Shannon 
Meyers, DNP, APRN/CNP (R. 435, 440), not to any evidence from Ms. Mike, and thus do 
not relate to supportability. See

20 C.F.R. § 404

.1520c(c)(1) (explaining that supportability 
relates to “the objective medical evidence and supporting explanations presented by a 
medical source” to support her medical opinion). The same is true for page 51 of Exhibit 
C2F, which is a reference to a progress note by Hilary Winkelmann, APRN/CNP. (R. 483.)  

   That leaves only pages 4 and 8 of Exhibit C6F, which are references to progress 
notes by Ms. Mike. (R. 575, 579.). The ALJ cited to these pages to support the statement, 
“The claimant reported having a little bit of irritability with her family, but overall is doing 
well.” (R. 28.) Page 8, however, does not contain a finding from Ms. Mike that Plaintiff 
was doing well; rather, Ms. Mike noted that Plaintiff reported “having some trouble” with 

her spouse and “feeling frustrated.” (R. 589.) On page 4 of the exhibit, the relevant 
notations are a “slight improvement,” an irritable mood, Plaintiff’s reported improvement 
of her relationship with her spouse, and Plaintiff’s reported irritability with other family 
members. The latter two notations on the progress note are Plaintiff’s subjective reports, 
not “objective medical evidence” or “supporting explanations” by Ms. Mike. Thus, they 

do not relate to the supportability analysis. See

20 C.F.R. § 404

2022 WL 358061

, at *4 (W.D. Mo. Feb. 7, 

2022); Shanda v. Colvin, No. 14-CV-1838 (MJD/JSM),

2015 WL 4077511

, at *30 (D. 
Minn. July 6, 2015) (citing S.E.C. v. Chenery Corp.,

318 U.S. 80, 87

 (1943)) (limiting 
judicial review of an agency’s final decision to the bases given in the decision)). “It is not 
the role of this Court to speculate on the reasons that might have supported the ALJ’s 
decision or supply a reasoned basis for that decision that the ALJ never gave.” Stacey S. v. 
Saul, No. 18-cv-3358 (ADM/TNL),

2020 WL 2441430

, at *15 (D. Minn. Jan. 30, 2020), 

R. & R. adopted,

2020 WL 1271163

 (D. Minn. Mar. 17, 2020).                
   The ALJ’s failure to articulate how he considered the supportability factor is a legal 
error  that  warrants  remand.  Accordingly,  the  Court  will  reverse  the  Commissioner’s 
decision and remand the matter to the Social Security Administration. On remand, the ALJ 
must reconsider Ms. Mike’s opinion and explain how the ALJ considers the supportability 
factor, in accordance with

20 C.F.R. § 404

.1520c.

sources that was not consistent with Ms. Mike’s off-task, absenteeism, and acceptance-of-
supervisory-criticism limitations. See

20 C.F.R. § 404

.1520c(c)(2). The Court declines to 
reweigh the evidence, as Plaintiff requests. The Court’s duty is to consider evidence that 
supports and detracts from the ALJ’s decision and where it is possible to reach two 
inconsistent positions from the evidence, one of which is the position of the Commissioner, 
to affirm the decision. Robinson,

956 F.2d at 838

. Substantial evidence supports the ALJ’s 

consideration of the consistency factor.                                  
   B.   The Absenteeism Limitation                                      
   Plaintiff argues that the ALJ failed to include an absenteeism limitation in Plaintiff’s 
RFC. As support for this argument, Plaintiff relies on the opinion of Ms. Mike, Plaintiff’s 
own hearing testimony, evidence from the State Medical Review Team (“SMRT”), and 

paystubs from Smart Data documenting absences.                            
   A  claimant’s  RFC  is  the  measure  of  the  most  a  claimant  can  do  despite  her 
limitations.

20 C.F.R. § 404.1545

(a)(1); see Bowers v. Kijakazi,

40 F.4th 872, 875

 (8th Cir. 
2022) (“A claimant’s residual functional capacity is a measurement of their ability to do 
sustained physical or mental work, despite their health limitations.”). The ALJ “must 

determine a claimant’s RFC based on all of the relevant evidence, including the medical 
records, observations of treating physicians and others, and an individual’s own description 
of h[er] limitations.” McKinney v. Apfel,

228 F.3d 860, 863

simply because other evidence would support a different conclusion. See Fentress v.
Berryhill,

854 F.3d 1016, 1021

 (8th Cir. 2017). Lastly, the ALJ’s failure to cite to the 
paystubs “does not indicate that such evidence was not considered.” Black v. Apfel,

143 F.3d 383, 386

 (8th Cir. 1998). Therefore, the ALJ did not err by failing to include an 
absenteeism limitation based on Plaintiff’s paystubs.                     

   C.   The ALJ and Appeals Council Members Were Properly Appointed     

   Plaintiff argues that the ALJ and members of the Appeals Council were not properly 
appointed because a previous Acting Commissioner of Social Security was not properly 
serving when the appointments of the ALJ and Appeals Council members were ratified. 
As Plaintiff acknowledges, this argument is foreclosed by Dahle v. Kijakazi,

62 F.4th 424

 
(8th  Cir.  2023),  cert.  denied  sub  nom.  Dahle  v.  O’Malley,

144 S. Ct. 549

  (2024). 
Accordingly, the Court does not grant remand on this basis.               
IV.  Conclusion                                                           
   Based on the foregoing, and on all of the files, records, and proceedings herein, IT 
IS HEREBY ORDERED THAT:                                                   
1.  Plaintiff’s Motion for Summary Judgment (Dkt. No. 16) is GRANTED;   

2.  The Commissioner’s decision is reversed and the matter is remanded for further 
   consideration of Ms. Mike’s opinion and explanation of how the ALJ considers the 
   supportability factor, in accordance with

20 C.F.R. § 404

.1520c; and 
3.  Defendant’s Motion for Summary Judgment (Dkt No. 19) is DENIED.     

LET JUDGMENT BE ENTERED ACCORDINGLY.                                      


Date: March 13, 2024            s/  John F. Docherty                    
                                JOHN F. DOCHERTY                        
                                United States Magistrate Judge

Reference

Status: Unknown