Sisson v. Berryhill
Filing
19
ORDER denying 13 Motion for Summary Judgment; granting 16 Motion for Summary Judgment(Written Opinion) Signed by Magistrate Judge Katherine M. Menendez on 3/22/2019. (LCC)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kimberly S.,
Case No. 17-cv-5219-KMM
Plaintiff,
ORDER
v.
Nancy A. Berryhill,
Defendant.
This matter is before the Court on the parties’ cross-motions for summary
judgment. (Pl.’s Mot. for Summ. J. (“Pl.’s Mot.”), ECF No. 13; Def.’s Mot. for
Summ. J. (“Def.’s Mot.”), ECF No. 16.) For the reasons set forth below, the Court
finds that Kimberly S.’s (hereafter “Ms. S.”) motion for summary judgment be
DENIED and the Commissioner’s motion for summary judgment be GRANTED.
I.
Factual Background and ALJ Decision
Ms. S. first filed for supplemental security income on December 2, 2014,
alleging disability beginning on June 1, 2011. (R. 65.) Her claim was denied initially
and upon reconsideration. (R. 89, 97.) She timely requested a hearing before
Administrative Law Judge Roger Thomas, which was held on November 29, 2016.
(R. 31.) On December 16, 2016, ALJ Thomas issued an unfavorable decision.
A.
ALJ Thomas’s Decision
ALJ Thomas followed the five-step sequential evaluation process for
determining whether Ms. S. is disabled. At Step One, ALJ Thomas determined that
Ms. S. had not engaged in substantial gainful activity since her claimed date of
disability. (R. 17.) He noted that while she had worked since her alleged onset date, it
did not rise to the level of substantial gainful activity. (Id.)
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At Step Two, ALJ Thomas determined that Ms. S. had two severe impairments:
asthma and systemic lupus erythematosus (“SLE”). (R. 17.) He also evaluated Ms.
S.’s other medically determinable mental impairments, major depression and ADHD,
but found that they were both nonsevere. (R. 18.) In making this determination, he
considered the four functional areas set out in 20 C.F.R. Part 404, Subpart P,
Appendix 1, often referred to as the “paragraph B” criteria. These four areas are
activities of daily living; social functioning; concentration, persistence, or pace; and
episodes of decompensation.
ALJ Thomas determined that Ms. S. has only mild limitations in activities of
daily living in light of her capacity for taking care of herself and a household, despite
reporting a lack of energy for doing so. (R. 19.) Ms. S. reported being able to cook
and clean, dividing household chores with her boyfriend. (R. 210–211, 229–230.) She
cares for two cats, including feeding, bathing, trimming claws, and cleaning their litter
box. (R. 210, 229.) She also shops in stores one or two times a week. (R. 212.) ALJ
Thomas also found that Ms. S. has only mild limitations in the area of social
functioning. (R. 19.) She lives with her boyfriend, and regularly chats online with and
visits her best friend. (R. 213.) Similarly, ALJ Thomas found that Ms. S. has mild
limitations in the area of concentration, persistence, or pace. (R. 19.) He found that
although she needs reminders for appointments and medication and has a somewhat
limited attention span, she is capable of working as a freelancer, as well as using a
computer and cell phone to help her organize. (R. 19.) In the fourth area, the ALJ
noted that Ms. S. has not experienced any episodes of decompensation of an extended
duration. (R. 19.) Because she did not have two or more marked limitations, or one
marked limitation and an episode of decompensation of an extended duration, ALJ
Thomas concluded that Ms. S.’s mental impairments were non-severe. (R. 19–20; see
also 20 C.F.R. § 416.920(a)(d)(1).)
At Step Three, ALJ Thomas found that none of Ms. S.’s impairments,
separately or in combination, met or equaled the severity of any listed impairments.
He considered Listing 3.03, asthma, but found that Ms. S.’s symptoms did not meet
the criteria. (R. 20.) Similarly, he considered listing 14.02 for SLE, but again found
that the criteria for the listing was not met by Ms. S.’s symptoms. (Id.)
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At Step Four, ALJ Thomas determined that Ms. S. has the residual functional
capacity (“RFC”) to perform light work with additional restrictions. Specifically, he
limited Ms. S. to standing or walking for only two hours per eight-hour work day; a
sit/stand option after 20 minutes of weight bearing; no exposure to temperatures
above 90 degrees or below 32 degrees Fahrenheit; and no exposure to wetness,
humidity, dusts, fumes, gases, and hazards such as unprotected heights and dangerous
machinery. (R. 20.) He then determined that Ms. S. could perform her past relevant
work as a sales clerk or office clerk. (R. 23.) Instead of halting his inquiry there, ALJ
Thomas proceeded to Step Five in order to make an alternative finding.
At Step Five, ALJ Thomas found in the alternative that there were sufficient
jobs in the national economy that she is able to perform. In making this
determination, he found that transferability of job skills was not material to the
disability determination, and therefore did not engage in a transferability analysis. (R.
23–24.) Having determined that Ms. S. was capable of working, ALJ Thomas found
that she was not disabled.
After this unfavorable determination, Ms. S. sought review by the Appeals
council, which denied her request. (R. 1–6.) Thus, the ALJ’s decision became the
final determination of the Commissioner, making Ms. S.’s case ripe review by this
Court.
B.
Ms. S.’s Employment History
Of particular relevance in this case is Ms. S.’s employment history. During
college, she worked at her university as a student worker. (R. 193.) This job entailed
a variety of office tasks, such as making deliveries, filing, transcription, making copies,
and answering phones. (R. 202, 204.) She was also permitted to study during her
work hours. (R. 202, 204.) As a student worker, Ms. S. only worked 3–4 hours per
day, 3 days a week. (R. 202, 204.)
After leaving school, Ms. S. began work as a part-time manager at a comic
book store. She performed a variety of tasks in this role, including cashiering,
restocking, cleaning, organizing comics, assisting customers, taking calls, and
supervising two other employees. (R. 203.) Though her supervisor made
accommodations for her physical limitations, Ms. S. eventually quit the job because it
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was too physically and mentally demanding. (R. 44–45.) Ms. S. is not currently
employed, but earns a small income ($60–$80 per month) as a freelance artist. (R. 36–
37.)
II.
Analysis
Ms. S. challenges the ALJ’s determination on three separate grounds. First, she
argues that ALJ Thomas’s past relevant work (“PRW”) finding was improper for
several reasons: (1) the sales clerk job cannot be performed under the physical
limitations of the RFC; (2) the RFC also prevents the sales clerk job from being
performed as it actually was performed in the past; (3) the sales clerk job that Ms. S.
previous performed was actually a “composite job” and therefore it was improper to
find that she could perform it as generally performed; and (4) neither of Ms. S.’s
previous jobs rose to the level of significant gainful activity, therefore disqualifying
either one from consideration as PRW. Second, Ms. S. argues that ALJ Thomas’s
alternative finding at Step Five was improper because in concluding that she was not
disabled, he erroneously found that the question of transferability of skills was
irrelevant. Third, Ms. S. asserts that ALJ Thomas’s finding of her mental impairments
as non-severe is not supported by substantial evidence in the record and further
argues that he erred by not considering the mental impairments in his RFC
determination.
After careful review, the Court concludes that ALJ Thomas did not commit
reversible error and denies Ms. S.’s motion for summary judgment. First, the Court
determines that Ms. S.’s previous work as an office clerk is properly considered PRW.
Although Ms. S.’s arguments regarding whether she is capable of performing her
PRW as a sales clerk may have merit, the Court need not address them in light of the
ALJ’s other conclusions. Further, the Court finds that ALJ Thomas’s alternate
finding, that Ms. S. is capable of other work as described in Step Five, is properly
decided and provides an independent basis for his conclusion that Ms. S. is capable of
work. The Court also determines that ALJ Thomas’s consideration of Ms. S.’s mental
impairments was sufficient, and his conclusions supported by substantial evidence in
the record as a whole. Therefore, the Court affirms the Commissioner’s
determination.
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A.
Standard
In reviewing the Commissioner’s denial of Ms. S.’s application for benefits the
Court determines whether the decision is supported by “substantial evidence on the
record as a whole” and whether it results from an error of law. Gann v. Berryhill, 864
F.3d 947, 950 (8th Cir. 2017); Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see also
42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance of the evidence,
but is such relevant evidence as a reasonable mind would find adequate to support the
Commissioner’s conclusion.” Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014)
(internal citations and quotation marks omitted). The Court considers not only the
evidence supporting the Commissioner’s decision, but also the evidence in the record
that “fairly detracts from that decision.” Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
2005). However, the Court does not reverse the Commissioner’s decision merely
because substantial evidence also supports a contrary outcome or because the record
might support a different conclusion. Gann, 864 F.3d at 950; Reed, 399 F.3d at 920.
The Court should reverse the Commissioner’s decision only where it falls outside “the
available zone of choice,” meaning that the Commissioner’s conclusion is not among
the reasonable positions that can be drawn from the evidence in the record. See
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v. Astrue, 528 F.3d
1113, 1115 (8th Cir. 2008).
B.
Past Relevant Work
The Court finds that Ms. S.’s previous work as a student worker qualifies as
PRW. In order to serve as PRW, that work must have been “done within the last 15
years, lasted long enough for [the claimant] to learn to do it, and [have been]
substantial gainful activity.” 20 C.F.R. §§ 404.1565, 416.965(a). Ms. S.’s only
challenge to the student worker position as PRW is the substantial gainful activity
requirement. In order to qualify as substantial gainful activity, that work must be:
(a) Substantial work activity. Substantial work activity is work activity
that involves doing significant physical or mental activities. Your work
may be substantial even if it is done on a part-time basis or if you do
less, get paid less, or have less responsibility than when you worked
before.
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(b) Gainful work activity. Gainful work activity is work activity that you
do for pay or profit. Work activity is gainful if it is the kind of work
usually done for pay or profit, whether or not a profit is realized.
20 C.F.R. § 404.1572; see also id. § 416.972 (same). Though earnings derived from
work activities are a primary consideration of whether a job was substantial and
gainful, reduced earnings “will not necessarily show that [the claimant] is not able to
do substantial gainful activity.” 20 C.F.R. § 416.974(a)(1). “Work activity may be
considered gainful whether or not a profit is realized.” Pickner v. Sullivan, 985 F.2d
401, 403 (8th Cir. 1993).
Ms. S.’s only challenge to ALJ Thomas’s treatment of her student office worker
job as PRW is that her earnings were too low for it to qualify. This argument is not
persuasive. As the Eighth Circuit held in Pickner, “earnings below the guidelines are
not inconsistent with substantial gainful activity as a matter of law.” Id. The Pickner
court found that the appellant’s work as a secretary, bookkeeper, and apartment
manager was “gainful” because “it is the kind of work usually done for pay or profit,
even though her earnings were minimal.” Id.; see also Reeder v. Apfel, 214 F.3d 984, 989
(8th Cir. 2000) (“[W]ork may be considered gainful even if no profit is realized if it is
the type of work usually done for pay or profit.”) Pickner also noted that the
appellant’s low earnings were due to the fact that she only worked part-time. Ms. S.’s
case is substantially similar. Her work as a student worker was substantial gainful
activity, despite not meeting the income thresholds. The fact that she worked a
relatively light schedule does not change this conclusion.
Ms. S. attempts to distinguish her work as a student worker, designating it
“essentially a work study type position.” The Court disagrees. First, the student
worker position was done for regular competitive pay, not in exchange for tuition or
room and board. (R. 202, 204.) Second, the position involved tasks typically
performed by an office clerk or secretary, such as making deliveries, filing,
transcription, making copies, and answering phones. (R. 202, 204.) Such tasks are
substantial and require significant mental activity. E.g., Pickner, 985 2d at 403 (finding
secretarial work to be substantial). These facts support ALJ Thomas’s conclusion that
the student worker position was substantial gainful activity. In sum, the ALJ did not
err when he determined that the student worker position would be considered PRW.
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Ms. S.’s other arguments regarding PRW tackle the question of whether the
ALJ properly found that she was capable of performing her PRW as a sales clerk.
However, the Court declines to discuss these questions, because any error resulting
from the ALJ’s PRW analysis is harmless for two reasons. First, as explored above,
Ms. S.’s officer worker job was properly classified as PRW, which is enough to
support the ALJ’s overall conclusion denying her benefits claim. Second, any error in
the ALJ’s treatment of the store clerk position is irrelevant due to his alternative
finding that there are other jobs available in the national economy that Ms. S. can
perform.
C.
Transferability
Ms. S. argues that ALJ Thomas’s conclusion that she is capable of work as a
receptionist or information clerk was erroneous because he failed to establish the
transferability of Ms. S.’s skills. Specifically, Ms. S. claims that because the work the
ALJ ultimately found she could perform is semi-skilled work, an assessment of
whether her past skills were transferable to the recommended job was required. The
Court disagrees.
Transferability of work skills is at issue in cases with specific circumstances: (1)
an individual’s impairments are severe but do not meet or equal the criteria in the
Listing of Impairments; (2) the individual’s impairments prevent the performance of
past relevant work; and (3) that work has been determined to be skilled or semiskilled.
SSR 82-41. Admittedly, Ms. S.’s case could have fallen within these circumstances had
the ALJ not properly treated her office job as PRW. However, even had that been the
case, for individuals of Ms. S.’s age, educational background, communication abilities,
and exertional and non-exertional limitations, transferability of skills is not material to
the disability analysis.
Both Ms. S. and the Commissioner focus on the Grids in their arguments. The
“Grids” are a set of rules contained within Appendix 2 of 20 C.F.R. Section 404,
Subpart P. They “reflect the major functional and vocational patterns which are
encountered in cases which cannot be evaluated on medical considerations alone,”
and provide a quick analysis of the interaction of vocational factors including age,
education, and work experience with an individual’s residual functional capacity in
order to determine disability status. 20 C.F.R. § 404 Subpt. P, App. 2, Rule 200(a).
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“Where the findings of fact made with respect to a particular individual’s vocational
factors and residual functional capacity coincide with all of the criteria of a particular
rule, the rule directs a conclusion as to whether the individual is or is not disabled.”
Id. These rules are arranged in a grid pattern, where different combinations of age,
education, and previous work experience (including whether a claimant has
transferrable skills) result in a finding of that person being either disabled or not
disabled. For example, Rule 201.02 indicates that an individual limited to sedentary
work, who is of advanced age with limited or less education and who has no
transferable skills is disabled. By contrast, Rule 201.03 directs that an individual with
the same age, education, and limitations, but who does have transferable skills, is not
disabled.
If the Grids were applied to Ms. S., they would direct a finding of not disabled
regardless of whether she had transferable skills. Compare 20 C.F.R. § 404 Subpt. P,
App. 2, Rule 202.21 with id., Rule 202.22. Ms. S. argues that the Grids do not apply
because she has exertional and nonexertional limitations, which precludes the Grids
from being given conclusive weight. It is true that when a claimant’s impairments
lead to a combination of exertional and nonexertional limitations, the Grids are not
directly applied, but instead provide a “framework to guide [the] decision.” 20 C.F.R.
§ 404.1569a(d); 20 C.F.R. § 404 Subpt. P, App. 2, Rule 200(e); see also SSR 83-14. In
other words, the Grids become advisory and help guide the analysis regarding an
individual’s ability to work, but they are not controlling. Instead, “[f]ull consideration
must be given to all of the relevant facts in the case in accordance with the definitions
and discussions of each factor in the appropriate sections of the regulations….” 20
C.F.R. § 404 Subpt. P, App. 2, Rule 200(e)(2).
This, however, does not end the analysis regarding the Grids in Ms. S.’s case.
An exception to the rule about the Grids being less relevant in the case of
nonexertional limitations exists. When the nonexertional restrictions do not
substantially affect the number of occupations the claimant is capable of performing,
the conclusion directed by the Grids may nonetheless be appropriate. Ellison v.
Sullivan, 921 F.2d 816, 820 (8th Cir. 1990) (“The guidelines do not apply to a claimant
whose residual functional capacity is reduced [by nonexertional limitations], unless the
reduction is insignificant.”); see also Skeens v. Barnhart, 57 Fed. Appx. 718, 2003 WL
1193738 at *1 (8th Cir. Mar. 10, 2003) (“[W]here it is clear that added limitation or
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restriction has very little effect on exertional occupation base, conclusion directed by
Grids would not be affected.”); Bandy v. Shalala, 16 F.3d 1227 (Table), 1994 WL 33151
at *2 (8th Cir. Feb. 7, 1994) (supporting reliance on the Grids in the presence of
nonexertional limitations, where despite nonexertional limitations the claimant could
perform full range of exertional work); Robinson v. Sullivan, 956 F.2d 836, 841–42 (8th
Cir. 1992) (same).
Ellison is particularly instructive for this case. There, the court found that the
guidelines could not apply to the claimant due to nonexertional impairments, but the
circumstances directing this conclusion were highly distinguishable from Ms. S.’s case.
In Ellison, the claimant’s nonexertional impairment reduced the number of jobs
available to the claimant by half. 921 F.2d at 820. Thus, the court held, the Grids
themselves could not “direct a conclusion of disabled or not disabled.” Id.
A situation more analogous to Ms. S.’s is explored in Program Policy Statement
105, SSR-83-14. The policy statement discusses a nonexertional impairment that
would have an insignificant effect on a person’s ability to work—an allergy to ragweed
pollen. SSR 83-14 ¶ 1. The hypothetical worker in this example can perform
sedentary jobs, which are primarily performed indoors. Id. Because exposure to
ragweed pollen occurs nearly exclusively outdoors, the pool of jobs that the worker is
capable of performing is not significantly compromised by the nonexertional
limitations. Id. This type of obvious conclusion does not require the assistance of a
vocational expert, although other closer calls regarding the impact of nonexertional
limitations might. Id.
In the end, the Court agrees that the Grids not only apply to Ms. S.’s case, but
support a finding of her being not disabled. Therefore, the above guidance supports
the Commissioner’s argument that transferability is immaterial in this case and did not
need to be considered. Many of the nonexertional limitations in Ms. S.’s RFC are
similar to the ragweed example above—no exposure to extremes of temperature,
wetness, humidity, dusts, fumes, gases, or hazards such as unprotected heights and
dangerous machinery. (R. 20.) However, the work that Ms. S. is capable of
performing with her RFC is not the type that generally occurs in such environmental
conditions. Thus, the occupational base is not substantially affected by those
limitations. Ms. S.’s nonexertional limitations that limit her standing to two hours a
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day, and require a sit/stand option after 20 minutes of weightbearing are a closer call;
however, the vocational expert specifically testified that many jobs would be available
to Ms. S. with these limitations. (R. 59–61.) Because Ms. S.’s nonexertional
limitations do not substantially limit the occupational base, the conclusion of not
disabled directed by the Grids still applies. See Ellison, 921 F.2d at 820.
Applying the Grids to Ms. S., it is clear that transferability becomes immaterial.
Ms. S. is a younger individual, 1 who is limited to light work, possesses more than a
high school education, and whose previous work experience was semi-skilled. Under
both the rule that applies if skills are transferable—Rule 202.21—and the rule that
applies if they are not—Rule 202.22—a finding of “not disabled” is directed. Thus,
there was no error in the ALJ’s decision not to assess the transferability of skills.
D.
Mental Impairments
Ms. S.’s final argument is that ALJ Thomas did not properly consider her
mental limitations. Specifically, she argues that he erred when he found her mental
impairments to be nonsevere, and that he failed to include adequate mental limitations
in the RFC. Applying the required deferential standard of review, the Court finds
these arguments do not carry the day. The ALJ’s handling of Ms. S.’s mental
impairments is supported by the substantial evidence in the record as a whole.
First, the Court notes that although Ms. S. has diagnoses of depression and
ADHD, such diagnoses do not automatically establish the existence of severe
impairments. See, e.g., Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011) (“[N]ot every
diagnosis…warrants a finding that a claimant is disabled.”); see 20 C.F.R. § 404.1522(a)
(severity of an impairment is related to its impact on ability to do work activities, not
whether a diagnosis exists); cf. 20 C.F.R. § 404.1525(d) (noting that at step three,
diagnosis alone does not mean an impairment meets the requirements of a listing).
Furthermore, there is significant evidence to suggest that Ms. S’s impairments respond
well to treatment. Ms. S.’s treatment records reveal that her ADHD is well-controlled
on her current medication, but becomes worse when she forgets to take a dose. (E.g.,
R. 319 (noting that Ms. S. finds ADHD medication “very beneficial,” and that she is
A “younger individual” is a person who is between the ages of 18 and 49. 20 C.F.R.
§ 404 Subpt. P, App. 2 passim.
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“actually able to finish tasks”), 359 (noting that Ms. S. is seeing “significant benefits”
upon starting medication for ADHD), 464 (“She can tell when she does not take it
that she has more distraction.”); see also R. 376, 394, 396–97, 452, 488.)
Similarly, her treatment records show that Ms. S.’s depression is stable and
controlled by medication and therapy. (E.g., R. 340 (“She feels that the [depression
medication] helps manage her symptoms adequately.”), 342 (noting stable depression);
see also R. 350–51, 376, 378, 392.) Impairments that are sufficiently controlled by
treatment are not considered severe. E.g., Phillips v. Colvin, 721 F.3d 623, 631 (8th Cir.
2013); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007); cf. 20 C.F.R. § 404.1530(b)
(failure to follow prescribed treatment will result in a finding of not disabled).
Ms. S.’s medical records further demonstrate that her remaining depression
symptoms are related to situational stress. (R. 376 (mood fluctuates due to period),
384 (noting that depression seemed situational after stressful family gathering), 394–
97 (noting depression due to situational stressors such as death, family, and finances.))
However, situational depression does not support a finding of severe impairment. See
Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (holding that situational
depression did not contradict ALJ’s finding that depression was nonsevere); Dunahoo
v. Apfel, 241 F.3d 1033, 1039–40 (8th Cir. 2001) (finding that depression was
nonsevere in part because it was situational).
Additionally, the record demonstrates that Ms. S. is capable of participating in a
wide array of daily activities, which supports ALJ Thomas’s conclusion that her
mental impairments were not severe. Ms. S. regularly shares household chores, such
as cleaning, cooking, and grocery shopping, with her partner. (R. 42–43.) In the
spring of 2015, she cared for her partner as he recovered from surgery while she also
prepared for an upcoming art show. (R. 399.) And Ms. S. can manage her own
finances and pursue hobbies such as art, reading, hiking, and playing video games. (R.
213–14, 232–33.) She also maintains social relationships by talking online or eating
dinner together. (R. 233.) This evidence supports ALJ Thomas’s findings that Ms. S.
suffered no more than mild limitations from her mental impairments. Buckner v.
Astrue, 646 F.3d 549, 555 (8th Cir. 2011); see also 20 C.F.R. §§ 404.1520a(d)(1),
416.920a(d)(1) (impairments not severe when only mild limitations exist and there is
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no evidence that there is more than minimal limitation in ability to do basic work
activities).
Finally, the Court finds that ALJ Thomas was not required to incorporate Ms.
S.’s nonsevere mental impairments into her RFC because there was no evidence that
they imposed any limitation on her ability to work. E.g., Hilkemeyer v. Barnhart, 380
F.3d 441, 447 (8th Cir. 2004); see also Lane v. Colvin, 650 Fed. Appx. 908, 911 (8th Cir.
2016); Gilbertson v. Astrue, No. 09-cv-1824 (PJS/AJB), 2010 WL 5690391 at *16 (D.
Minn. Sept. 20, 2010). Accordingly, the Court determines that Ms. S.’s RFC was
properly supported by substantial evidence.
ORDER
For all the reasons stated above, IT IS HEREBY ORDERED THAT:
1.
Plaintiff’s motion for summary judgment (ECF No. 13) is DENIED;
2.
Defendant’s motion for summary judgment (ECF No. 16) is
GRANTED; and
3.
This matter is dismissed with prejudice.
Let Judgment be entered accordingly.
s/ Katherine Menendez________
Katherine Menendez
United States Magistrate Judge
Dated: March 22, 2019
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