Tucker v. Kijakazi

Filing 24

ORDER denying Plaintiff's 19 Motion for Summary Judgment; granting the Commissioner's 22 request for relief; and affirming the ALJ's decision. Signed by Magistrate Judge Tony N. Leung on 3/26/2024. (Written Opinion) (EB)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Kristopher T. T.,

Case No. 23-cv-359 (TNL)

Plaintiff,
ORDER

v.
Martin J. O’Malley,
Commissioner of Social Security
Administration, 1
Defendant.

Edward A. Wicklund, Olinsky Law Group, 250 South Clinton Street, Suite 210,
Syracuse, NY 13202; and Jyotsna Asha Sharma, Disability Partners, PLLC, 2579
Hamline Avenue North, Suite C, Roseville, MN 55113 (for Plaintiff); and
Ana H. Voss, Assistant United States Attorney, 300 South Fourth Street, Suite 600,
Minneapolis, MN 55415; and James Potter and James D. Sides, Special Assistant United
States Attorneys, Social Security Administration, 6401 Security Boulevard, Baltimore,
MD 21235 (for Defendant).
I. INTRODUCTION
Plaintiff Kristopher T. T. brings the present case, contesting Defendant
Commissioner of Social Security’s denial of his applications for disability insurance
benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and
supplemental security income (“SSI”) under Title XVI of the same, 42 U.S.C. § 1381 et
seq. The parties have consented to a final judgment from the undersigned United States
Martin J. O’Malley was sworn into office as the Commissioner of the Social Security Administration on December
20, 2023. Commissioner, Soc. Sec. Admin., https://www.ssa.gov/agency/commissioner/ (last accessed Mar. 26,
2024). The Court has substituted O’Malley for former Acting Commissioner Kilolo Kijakazi. See Fed. R. Civ. P.
25(d) (public officer’s successor “automatically substituted as a party”).

1

1

Magistrate Judge in accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D. Minn.
LR 72.1(c).
Pursuant to the Supplemental Rules for Social Security Actions Under 42 U.S.C.
§ 405(g) (“Supplemental Rules”), Plaintiff’s challenge to the Commissioner’s decision
“is presented for decision” by the Court on “the parties’ briefs.” 2 Fed. R. Civ. P. Supp.
Soc. Sec. R. 5. Rather than file a brief as provided in Rule 6 of the Supplemental Rules,
Plaintiff filed a Motion for Summary Judgment and supporting memorandum, consistent
with the procedure employed prior to the Supplemental Rules. See generally ECF Nos.
19, 20. Consistent with Rule 7 of the Supplemental Rules, the Commissioner has filed a
brief, requesting that the decision of the administrative law judge (“ALJ”) be affirmed.
See generally ECF No. 22.
Being duly advised of all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Plaintiff’s motion is denied, the Commissioner’s request for
relief is granted, and the ALJ’s decision is affirmed.
II. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI asserting that he has been disabled since
November 2019 due to, among other things, depression, intermittent explosive disorder,
anxiety disorder, obsessive compulsive disorder, and psychosis. Tr. 18, 83-84, 101-102.
Plaintiff’s applications were denied initially and again upon reconsideration. Tr. 18, 99,
117, 119-20, 123, 133, 144, 146. Plaintiff appealed the reconsideration of his DIB and

The Supplemental Rules went into effect on December 1, 2022. See, e.g., D. Minn. LR 7.2 Dec. 2022 advisory
comm. note.

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2

SSI determinations by requesting a hearing before an administrative law judge (“ALJ”).
Tr. 18, 177-78. The ALJ held a hearing in February 2022, and issued an unfavorable
decision. See generally Tr. 18-37, 50-81. Thereafter, Plaintiff requested review from the
Appeals Council, which was denied. Tr. 1-4.
Plaintiff then filed the instant action, challenging the ALJ’s decision. Compl.,
ECF No. 1. This matter is now ready for a determination on the briefs. See Fed. R. Civ.
P. Supp. Soc. Sec. R. 5.
III. MEDICAL RECORDS
Plaintiff has a history of multiple psychiatric diagnoses, including intermittent
explosive disorder, depression, anxiety, psychosis, and hallucinations. See, e.g., Tr. 44850, 481-82, 497-99; see also Tr. 801-60. He also has a history of substance abuse. See,
e.g., Tr. 448-50, 481-82, 497-99. Plaintiff was previously hospitalized in connection with
his mental impairments and last discharged in 2016. Tr. 482; see also Tr. 861-74. He
also has a history of suicide attempts prior to that hospitalization. Tr. 482. In addition,
Plaintiff has tried numerous medications to treat his mental impairments. See, e.g., Tr.
482, 768-69; see also Tr. 481. Plaintiff resides in subsidized housing in connection with
a mental-health program and has a case manager. Tr. 482; see generally Tr. 560-656.
A. 2018
In mid-December 2018, Plaintiff met with Brian Johns, M.D., for a psychiatric
follow-up appointment. 3 Tr. 481. Dr. Johns noted that Plaintiff “developed psychosis
after ingesting large quantities of an experimental drug” he obtained overseas. Tr. 481.
3

Plaintiff’s care was transitioned to Dr. Johns after his previous provider left the facility. See Tr. 801.

3

Plaintiff reported that he experienced auditory hallucinations “occasionally when he does
not sleep or is stressed.” Tr. 481. He found Haldol 4 to be helpful in addressing the
hallucinations and reported that “he only needs Haldol approximately once or twice a
month.” Tr. 481. Dr. Johns noted that Plaintiff’s hallucinations had been “far worse in
the past.” Tr. 481. Plaintiff also reported that he self-medicated with marijuana and
cannabinoid oil. Tr. 481. Dr. Johns and Plaintiff “discussed the risk of these compounds
worsening psychosis.” Tr. 481. Plaintiff’s primary complaint was his depression and he
was interested an increased dose of pramipexole, 5 which he had found to be “very helpful
for [his] mood.” Tr. 481.
Dr. Johns observed that Plaintiff was oriented and casually dressed with good
hygiene and eye contact. Tr. 483. His mood was “[n]ot super dysphoric but definitely
dysthymic” and his affect was calm. Tr. 483. Plaintiff’s speech and thought processes
were normal, and he denied currently experiencing auditory or visual hallucinations. Tr.
483.

Plaintiff’s memory was grossly intact without formal testing and his fund of

knowledge was adequate. Tr. 483. Dr. Johns described Plaintiff’s insight as poor to fair
and his judgment as fair. Tr. 483.

Haldol is a brand name for haloperidol, a medication “used to treat psychotic disorders (conditions that cause
difficulty telling the difference between things or ideas that are real and things or ideas that are not real).”
Haloperidol, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/druginfo/meds/a682180.html (last accessed
Mar. 26, 2024).
5
Among other things, pramipexole can be used to treat conditions that cause “difficulties with movement” and
“works by acting in place of dopamine.” Pramipexole, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/
druginfo/meds/a697029.html (last accessed Mar. 26, 2024). Mirapex is a brand name for pramipexole. Id.
4

4

Dr. Johns made several changes to Plaintiff’s medications.

He prescribed

Effexor, 6 increased the dose of pramipexole, increased the dose of gabapentin, 7
discontinued clonazepam, 8 and prescribed Xanax. 9 Tr. 483. Dr. Johns also prescribed a
mood light and noted that he previously encouraged Plaintiff to start therapy. Tr. 483.
Plaintiff was directed to return in two to three months. Tr. 484.
B. 2019
In mid-February 2019, Plaintiff returned for a follow-up appointment with Dr.
Johns. Tr. 477, 756. Plaintiff reported that he was “no longer using psychoactive
substances, such as THC,” just “CBD oil, which he feels helps with anxiety.” Tr. 477;
accord Tr. 756. Dr. Johns “review[ed] coping techniques to remain sober” and Plaintiff
understood his “risk of relapse is high.” Tr. 477; accord Tr. 756. Plaintiff’s auditory
hallucinations had “largely resolved since [his] last visit two months ago and his
cessation of THC.” Tr. 477; accord Tr. 756. Plaintiff reported that he took “Haldol
occasionally when he feels the need to ensure he will sleep or if worried about psychosis
returning due to triggers,” “taking it once a month presently.” Tr. 477; accord Tr. 756.

6
Effexor is a brand name for venlafaxine, a medication “used to treat depression.” Venlafaxine, MedlinePlus, Nat’l
Lib. of Med., https://medlineplus.gov/druginfo/meds/a694020.html (last accessed Mar. 26, 2024).
7
Among other things, gabapentin can be used to treat certain types of “seizures by decreasing abnormal excitement
in the brain.” Gabapentin, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/druginfo/meds/a694007.html
(last accessed Mar. 26, 2024).
8
Clonazepam can be “used to relieve panic attacks (sudden, unexpected attacks of extreme fear and worry about
these attacks)” and is in a class of medications called benzodiazepines.” Clonazepam, MedlinePlus, Nat’l Lib. of
Med., https://medlineplus.gov/druginfo/meds/a682279.html (last accessed Mar. 26, 2024). “It works by decreasing
abnormal electrical activity in the brain.” Id. Klonopin is a brand name for clonazepam. Id.
9
Xanax is a brand name for alprazolam, a medication “used to treat anxiety disorders and panic disorder (sudden,
unexpected attacks of extreme fear and worry about these attacks).” Alprazolam, MedlinePlus, Nat’l Lib. of Med.,
https://medlineplus.gov/druginfo/meds/a684001.html (last accessed Mar. 26, 2024). “Alprazolam is in a class of
medications called benzodiazepines” and “works by decreasing abnormal excitement in the brain.” Id.

5

Dr. Johns encouraged him “to maintain sobriety in order to ensure success of his mental
health symptoms.” Tr. 477; accord Tr. 756.
Plaintiff also felt that his mood was “relatively stable” and “denie[d] overt
depressive symptoms,” which he “attribute[d] . . . to having structured things to do with
his time.” Tr. 477; accord Tr. 756. Plaintiff felt the increased dose of pramipexole was
helpful and did not feel a need to increase any of his antidepressant medications. Tr. 477,
756. Plaintiff had been unable to obtain Xanax for insurance reasons and continued
taking clonazepam three times a day for his anxiety. Tr. 477, 756. Plaintiff reported
feeling sedated and Dr. Johns encouraged him not to take this medication so frequently.
Tr. 477, 756. Plaintiff was, however, “reluctant to make any changes regarding this
regimen.” Tr. 477; accord Tr. 756.
Plaintiff had also spent two weeks caring for his adult disabled brother while their
mother was away and recovering from an illness. Tr. 478, 756. “This went well.” Tr.
478; accord Tr. 756.
Dr. Johns made similar findings when conducting a mental status examination of
Plaintiff. See Tr. 479-80, 758. Plaintiff’s mood was described as “[t]oo busy to notice.”
Tr. 480; accord Tr. 758.

Dr. Johns formally discontinued Xanax and restarted

clonazepam, but otherwise maintained Plaintiff’s medications at their current levels. Tr.
480, 759. Plaintiff was directed to return in three to four months. Tr. 481, 759.
Plaintiff next saw Dr. Johns in mid-August. Tr. 474, 750. He reported that he
continued to experience auditory hallucinations twice per month, for which he used
Haldol, but they were “overall improved since cessation of THC.” Tr. 474; accord Tr.
6

750.

While Plaintiff continued to benefit from pramipexole, he reported having a

“relatively low” mood and wanted to try an increase in Effexor. Tr. 474; accord Tr. 750.
Plaintiff also reported that he had started working for a pizza restaurant “a few months
ago.” Tr. 474; accord Tr. 750.
Compared to prior mental status examinations, Plaintiff’s mood was noted to be
“bored” and his affect described as “restricted.” Tr. 476; accord Tr. 752. Plaintiff was
described as having “moderate hygiene and eye contact.” Tr. 476; accord Tr. 752.
Plaintiff’s thought content included “some mild” auditory hallucinations. Tr. 476; accord
Tr. 752.

Dr. Johns noted that Plaintiff’s “[s]ubstance use remains relatively well

controlled for him.” Tr. 476; accord Tr. 752. Among other things, Dr. Johns increased
Plaintiff’s Effexor dose and directed him to return in three to four months. Tr. 476, 754.
Towards the middle of November, Plaintiff’s mother contacted a crisis line,
concerned over a text message she had received from Plaintiff stating that he would not
“be around for more than a month or so.” Tr. 525; see also Tr. 597. Plaintiff’s mother
reported that it was possible he was using a controlled substance. Tr. 525. Plaintiff’s
mother additionally noted that Plaintiff had lost his job at the pizza restaurant and had
stated “the voices are quiet right now and that is how I want to go out.” Tr. 525. Mentalhealth professionals attempted to reach Plaintiff at his residence and were unsuccessful.
Tr. 525.
When Plaintiff saw Dr. Johns again approximately two months later in midNovember, he was “struggling emotionally.” Tr. 471; accord Tr. 746. Plaintiff had lost
two jobs in the last several months following personality conflicts with coworkers. Tr.
7

471, 746. He was terminated from one position after an outburst and the second position
after he “threatened to potentially harm [a coworker] in a letter to his manager.” Tr. 471;
accord Tr. 746.

Plaintiff “note[d] some conflicts historically with people who are

‘jerks.’” Tr. 471; accord Tr. 746.
Plaintiff’s mood did not improve with the increased Effexor dose and he wanted to
try an additional increase.

Tr. 471, 746.

Plaintiff also wanted to try increasing

pramipexole again. Tr. 471, 746. Dr. Johns noted that Plaintiff was not currently seeing
his therapist. Tr. 471, 746. Plaintiff’s mental status examination remained the same. Tr.
473, 748. Dr. Johns increased the doses of both Effexor and pramipexole and directed
Plaintiff to return in two months. Tr. 473, 748-49.
C. 2020
When Plaintiff was next seen by Dr. Johns in mid-January 2020, he reported that
his mood had improved with the increased Effexor and pramipexole doses. Tr. 468, 742.
He also had not used Haldol recently. Tr. 469, 742. Plaintiff did, however, report “some
increase in impulsive behaviors and spent some money on a sale for cannabinoids.” Tr.
468; accord Tr. 742. Plaintiff was also “playing games on his telephone” and “wak[ing]
up in the middle of the night to engage in this.” Tr. 468; accord Tr. 742. Plaintiff told
Dr. Johns that he “has not been looking for work and currently feels overwhelmed with
just basic living arrangements.” Tr. 468; accord Tr. 742. Plaintiff continued to work
with his case manager. Tr. 469, 742.
During this visit, Dr. Johns observed that Plaintiff had “poor hygiene and
moderate eye contact.” Tr. 470; accord Tr. 742. Plaintiff’s affect remained restricted,
8

but his mood was “better.” Tr. 470; accord Tr. 744. Plaintiff had mild psychomotor
retardation. Tr. 470, 744. Dr. Johns also continued to note the presence of “some mild,
occasional” auditory hallucinations. Tr. 470; accord Tr. 744. Dr. Johns continued
Plaintiff’s medications as prescribed and directed him to return in three to four months.
Tr. 470-71, 745.
In March, Plaintiff was assessed for continued receipt of services through the
mental-health program. See Tr. 460-68, 732-41. As part of this assessment, Plaintiff
reported that his depression makes it “[v]ery difficult for him to do his work, take care of
things at home, or get along with other people.” Tr. 464; accord Tr. 736. Plaintiff’s
mood was dysthymic and his affect was flat. Tr. 466, 738. His eye contact, speech,
attention, concentration, thought processes, and memory were normal. Tr. 466, 738.
Plaintiff’s judgment and insight were both noted to be impaired. Tr. 466, 738. Plaintiff
was diagnosed with major depressive disorder, generalized anxiety disorder, psychosis,
and polysubstance abuse. Tr. 467, 740. Plaintiff was found eligible to continue to
receive services through the mental-health program. Tr. 468, 741.
Plaintiff’s next visit with Dr. Johns occurred in mid-April and “was conducted via
telehealth due to the COVID-19 pandemic.” Tr. 457; accord Tr. 728. Plaintiff’s “life
remain[ed] largely unchanged.” Tr. 457; accord Tr. 728. He continued to benefit from
the increased Effexor and pramipexole doses, which he found “helpful for maintaining
his euthymic mood.” Tr. 457; accord Tr. 728. Plaintiff did not feel a need to change his
medications and felt that “his brain [was] healing after several years of psychotic
symptoms due to drug overdose.” Tr. 457 (quotation omitted); accord Tr. 728. Plaintiff
9

reported that he had not needed Haldol for the past year and had not “had hallucinations
for longer than that.” Tr. 457 (quotation omitted); accord Tr. 728. Plaintiff thought it
might “be time to start looking for another job.” Tr. 457; accord Tr. 728. While Plaintiff
still had a case manager, he had “little contact with them aside from moral support.” Tr.
457 (quotation omitted); accord Tr. 728.
Plaintiff’s affect continued to be restricted and his mood was “okay.” Tr. 459. Dr.
Johns noted that his auditory hallucinations had resolved. Tr. 459. Plaintiff was directed
to continue with his medications as prescribed and return in three to four months. Tr.
459.
Plaintiff had another telehealth appointment with Dr. Johns in early July. Tr. 454,
724. Plaintiff reported feeling “more anxious than usual,” but was uncertain as to why.
Tr. 454; accord Tr. 724. Plaintiff had also recently ordered a substance online from
overseas that he had taken in the past and found helpful, but believed a neighbor may
have stolen the package. Tr. 454, 724. Dr. Johns asked Plaintiff why he did not just
make an appointment to increase his clonazepam dose, and Plaintiff responded that he did
not “think that would be an option.” Tr. 454; accord Tr. 724. Dr. Johns advised Plaintiff
“not to take substance[s] in addition to prescribed medications or he would risk losing
those as well.” Tr. 454; accord Tr. 724.
Plaintiff additionally reported spending time playing games on his phone and
“spending money on his game” as well as “over $100 on medications from the internet.”
Tr. 454; accord Tr. 724. Plaintiff thought the pramipexole might be contributing to his
spending, but he did not want to adjust the dose due to the mood benefits. Tr. 454, 724.
10

Plaintiff had also been talking with a therapist weekly, which he found helpful, and was
going to “discuss his impulse control issues further with the therapist.” Tr. 454; accord
Tr. 724. Plaintiff did not feel that gabapentin was helping his anxiety and wanted to
discontinue it in favor of an increased dose of clonazepam. Tr. 454, 724. Plaintiff had
not “taken Haldol in months” as he had not had hallucinations. Tr. 454; accord Tr. 724.
Plaintiff discovered that a prior application for disability benefits had been
rejected over a year ago and his case manager had put him in touch with an attorney. Tr.
454, 724. Plaintiff also had a job interview with a fast-food restaurant. Tr. 454, 724.
Plaintiff’s affect continued to be restricted and his mood was “a little bit furious.”
Tr. 456; accord Tr. 726. Dr. Johns noted that Plaintiff’s insight and judgment were both
limited to fair.

Tr. 456, 726.

Dr. Johns discontinued gabapentin, increased the

clonazepam dose, and directed Plaintiff to return in three months. Tr. 456, 726.
At his next appointment in early October, Plaintiff reported some fatigue from the
increased clonazepam, but felt he had adjusted to it and did not always take it three times
a day if he was not feeling anxious. Tr. 451, 720. Plaintiff continued to struggle with
sleep due to gaming on his phone. Tr. 451, 720. He continued to remain free of auditory
hallucinations. Tr. 451, 720. Plaintiff did not “follow-through with a job at [the fastfood restaurant] because he doesn’t have an ID and SS card so has been working with his
case manager to get those.” Tr. 451; accord Tr. 720. Plaintiff was considering applying
for other jobs or becoming a PCA for his brother. Tr. 451, 720. Plaintiff was also
making better food choices and had not purchased “designer drugs online.” Tr. 452;
accord Tr. 720. Additionally, Plaintiff had reapplied for disability benefits with the
11

assistance of an attorney. Tr. 451, 720. Plaintiff’s mental status examination remained
largely the same with his mood being described as “not great, not awful.” Tr. 453; see
Tr. 451; accord Tr. 720, 722. Dr. Johns continued Plaintiff’s medications at their current
levels and directed Plaintiff to follow up in two to three months. Tr. 453, 723.
Towards the end of December, Plaintiff contacted a crisis line due to auditory
hallucinations. Tr. 520-23.

During the first call, Plaintiff reported “concerns about

hearing voices over the past few days and . . . [that] he may not be able to see his family
over the holidays.” Tr. 523. Plaintiff reported that it had been “a long time” since he had
heard voices. Tr. 523. Plaintiff was not currently taking his medication. Tr. 523.
During a follow-up call two days later, Plaintiff reported that he had taken some old
Haldol and felt better. Tr. 520, 521. It was noted that Plaintiff had an upcoming
appointment with Dr. Johns in two weeks. Tr. 521. Plaintiff was described as “brief,
superficial, guarded, and minimizing his symptoms.” Tr. 521. His thought processes
were “rambling” and his insight and judgment were fair. Tr. 521.
D. 2021
Plaintiff had a telehealth appointment with Dr. Johns in early January 2021. Tr.
530. Plaintiff’s chief complaints were hallucinations, depression, and anxiety. Tr. 530.
Plaintiff described his mood as “kinda a roller coaster.” Tr. 530. Plaintiff told Dr. Johns
that, before Christmas, he experienced auditory hallucinations “at 7/10.”

Tr. 530.

Plaintiff reported that it had “been 2 years since the last episode.” Tr. 530. Plaintiff
believed the hallucinations were possibly caused by “not eating and sleeping.” Tr. 530.

12

Plaintiff also reported “taking kratom for pain,” which “may have contributed.” 10 Tr.
530. Plaintiff noted that he “took Haldol and started eating regularly as well.” Tr. 530.
Dr. Johns noted that both Plaintiff’s therapist and caseworker were currently on vacation.
Tr. 530. Plaintiff was interested in increasing his dose of Wellbutrin. 11 Tr. 530.
Plaintiff’s mental status examination was similar to previous examinations with
his mood being described as “up and down.” Tr. 532. Dr. Johns increased the Wellbutrin
dose and directed Plaintiff to return in three months. Tr. 532-33.
Plaintiff had another telehealth appointment with Dr. Johns in mid-February. Tr.
542, 716. Plaintiff did not notice a difference with the increased dose of Wellbutrin and
his mood continued to be up and down. Tr. 542, 716. Plaintiff had not had any auditory
hallucinations since the prior visit. Tr. 542, 716. Dr. Johns noted that Plaintiff had
“stopped playing his online phone game and deleted it,” which “was a huge step for
[Plaintiff], as he was very addicted to it and has been going through ‘withdrawals.’” Tr.
542; accord Tr. 716. Dr. Johns again increased Plaintiff’s Wellbutrin dose and directed
him to return in three months. Tr. 545, 719.
In early May, Plaintiff presented to the emergency room for auditory
hallucinations. Tr. 660. Plaintiff reported that the voices had “drastically increased as of
late” and had “also caused issues with keeping up on taking his medications.” Tr. 660.
Plaintiff reported that he considered taking “all of his clonazepam” to try to silence them.
Kratom “commonly refers to an herbal substance that can produce opioid- and stimulant-like effects.” Kratom,
Nat’l Inst. on Drug Abuse, https://nida.nih.gov/research-topics/kratom (last accessed Mar. 26, 2024). “Kratom and
kratom-based products are currently legal.” Id.
11
Wellbutrin is a brand name for bupropion, a medication used to treat depression and seasonal affective disorder.
Bupropion, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/druginfo/meds/a695033.html (last accessed
Mar. 26, 2024).
10

13

Tr. 660. Plaintiff additionally reported that alcohol use made the voices worse and, “a
couple weeks ago he drank 750ml of vodka,” which caused the voices to get worse. Tr.
662; see Tr. 762 (“did drink to black out a couple of times with hard alcohol”). This was
a “significant increase” from his usual consumption. Tr. 662. Plaintiff also reported
increased anxiety, which he described as “pent up energy,” and said he was “doing
pushups in the ED lobby.” Tr. 662. Plaintiff had been unable to connect with his case
manager or therapist due to a broken cell phone. Tr. 662-63; see Tr. 673.
Plaintiff was noted to have a “flat affect” and “depressed mood.”

Tr. 668.

Plaintiff remained overnight and was discharged the following day. Tr. 669, 671-72.
Plaintiff improved with medication and was “feeling much better” with a decrease in his
auditory hallucinations at the time of discharge. Tr. 672.
In mid-May, Plaintiff had another telehealth appointment with Dr. Johns. Tr. 762.
Plaintiff discussed his recent episode, noting that he had been having auditory
hallucinations on a daily basis in the month leading up to his emergency room visit. Tr.
762. Plaintiff reported that the voices did not “want him to take medications.” Tr. 762.
Plaintiff told Dr. Johns that he received Abilify 12 at the hospital, has continued taking it,
and found it to be helpful with his mood. Tr. 762. Plaintiff reported that he felt “very
depressed” prior to the auditory hallucinations. Tr. 762. Plaintiff’s sleep was also poor at
the time of the hallucinations, but had since improved. Tr. 762.

Abilify is a brand name for aripiprazole, a medication that can be used to treat schizophrenia, among other things,
and in conjunction with other medications “to treat depression when symptoms cannot be controlled by the
antidepressant alone.” Aripiprazole, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/druginfo/meds/
a603012.html (last accessed Mar. 26, 2024).
12

14

Plaintiff was interested in trying to increase Effexor. Tr. 762. He had also
stopped taking pramipexole “due to the [auditory hallucinations].” Tr. 762. Plaintiff was
concerned about continuing with this medication as, when he restarted it, “he became
obsessed with video games again.” Tr. 762. Plaintiff had also stopped taking Wellbutrin,
but was interested in restarting this medication. Tr. 762.
Dr. Johns noted that Plaintiff’s memory was impaired and his attention decreased.
Tr. 764. Plaintiff’s mood was also low and he had high anxiety. Tr. 764. Dr. Johns
increased Plaintiff’s Effexor dose, restarted Wellbutrin, and formally discontinued
pramipexole. Tr. 764.
In mid-June, Plaintiff began treating with Joseph A. Hanson, D.O., via telehealth.
Tr. 688, 712; see Tr. 545, 719 (noting care transfer). Plaintiff told Dr. Hanson that his
“psychotic episode” lasted approximately three weeks and “[t]he triggering events were
sleep deprivation and stress in his life.” Tr. 688; accord Tr. 712. Plaintiff reported that
“he was having visual hallucinations that look like characters of people that were close to
him and they were saying negative things about him.” Tr. 688; accord Tr. 712. Plaintiff
stated he was given Abilify in the hospital and, after continuing with this medication, he
“noticed a total resolution of his psychotic symptoms” over the course of several days.
Tr. 688; accord Tr. 712. Plaintiff had “been stable for over 2 weeks now,” was “sleeping
well,” and had “a good appetite.” Tr. 688; accord Tr. 712.
Dr. Hanson noted that Plaintiff was alert and oriented, had good concentration,
and normal thought processes. Tr. 689, 713. Plaintiff’s affect was appropriate and his
mood was euthymic. Tr. 689, 713. Plaintiff also had good insight and judgment. Tr.
15

689, 713. Dr. Hanson prescribed Abilify, continued Plaintiff’s other medications, and
directed him to follow up in one month. Tr. 690, 714.
When he followed up with Dr. Hanson a month later, Plaintiff reported that “he
now only hears murmur in the voice” and cannot make out what the voice is saying. Tr.
685; accord Tr. 709. Plaintiff reported being compliant with his medications and denied
any side effects. Tr. 685, 709. Plaintiff wanted “to make more time to read now that he
is feeling better.” Tr. 685; accord Tr. 709. “On good days,” Plaintiff was “productive
and [able to] get himself to do yoga or some form of exercise to create structure in his
day.” Tr. 685; accord Tr. 709. He was also sleeping regularly and had a good appetite.
Tr. 685, 709.

Unlike the previous visit, Dr. Hanson described Plaintiff’s mood as

depressed, his insight poor, and his judgment fair. Tr. 686, 710. Dr. Hanson increased
Plaintiff’s Effexor dose and continued his other medications at existing levels. Tr. 687,
711. Plaintiff was to follow up in three months. Tr. 687, 711.
Plaintiff met with Dr. Johns via telehealth in mid-October. Tr. 766. Dr. Johns
noted that Plaintiff was continuing to see Dr. Hanson. Tr. 766. Plaintiff reported that,
following his episode of psychosis, he “had been feeling good through the summer until
recently.” Tr. 766. Plaintiff noted some weight gain with Abilify. Tr. 766. Plaintiff also
experienced mild auditory hallucinations occasionally and his mood remained low with
fleeting suicidal ideation despite the increase in medication. Tr. 766. Plaintiff was

16

interested in trying ketamine injections and transcranial magnetic stimulation (“TMS”) 13
as possible treatment options. Tr. 766.
Dr. Johns’ examination findings remained unchanged. See Tr. 770-71. Dr. Johns
noted that Plaintiff “has a long history of depression” and was currently experiencing
“severe, treatment resistant depression.” Tr. 771. Dr. Johns noted that Plaintiff had
“failed numerous antidepressants” and “treated with psychotherapy without resolution of
depression.” Tr. 771. Dr. Johns continued Plaintiff’s existing medications, prescribed a
course of ketamine injections for three weeks, and authorized TMS. Tr. 771.
During the next telehealth appointment with Dr. Hanson in early November,
Plaintiff reported feeling more depressed lately, which he attributed to the change in
seasons. Tr. 706. Plaintiff had “a sad light” and said “he will be trying to use it more.”
Tr. 706. Plaintiff had also undergone “a few courses of IV ketamine infusions,” which he
felt helped his mood, but “he still endorse[d] significant feelings of depression.” Tr. 706.
Plaintiff’s appetite and sleep were “fair.” Tr. 706. Plaintiff denied experiencing any
hallucinations. Tr. 706.
Plaintiff’s mental status examination was overall a bit better this time. Although
his mood remained depressed, his insight and judgment were good. Tr. 708. Dr. Hanson
increased Plaintiff’s Abilify dose and continued his remaining medications. Tr. 708.
Plaintiff was directed to follow up in three months. Tr. 708.

“TMS uses magnetic fields to stimulate nerve cells in the brain to improve symptoms of depression.”
Transcranial Magnetic Stimulation (TMS) – Treatment for Depression, U.S. Dep’t of Veterans Affairs,
https://www.va.gov/montana-health-care/programs/transcranial-magnetic-stimulation-tms-treatment-for-depression/
(last accessed Mar. 26, 2024).
13

17

Plaintiff had another telehealth appointment with Dr. Hanson the following month.
Tr. 703. Both his mood and hallucinations were better. Tr. 703. Plaintiff reported that
“his auditory hallucinations have decreased and at one point he was not hearing any.” Tr.
703; see Tr. 703 (“jokingly states that he thought the voices were finished”). Plaintiff
described his depression as “slightly improved.” Tr. 703. Plaintiff had some concerns
about weight gain, and indicated that he would try to get outdoors more and stay active.
Tr. 704. Dr. Hanson noted that Plaintiff’s mood was euthymic. Tr. 704. Plaintiff’s
medications were continued at their current levels and he was again directed to follow up
in three months. Compare Tr. 705 with Tr. 708.
A few days later, Plaintiff also had a telehealth appointment with Dr. Johns. Tr.
773. Plaintiff felt that his mood was improving with the ketamine injections, but “[h]e
continues to play online games incessantly.” Tr. 773. Plaintiff continued to spend time
helping his brother and was “paid to be his brother’s PCA.”

Tr. 773.

Plaintiff

experienced additional weight gain with an increased dose of Abilify, but the medication
continued to be helpful in managing his auditory hallucinations. Tr. 773.
Compared to prior findings, Dr. Johns noted that Plaintiff’s memory was intact,
but his attention was decreased.

Tr. 774.

Plaintiff’s mood and anxiety were both

improving. Tr. 774. Dr. Johns reviewed Plaintiff’s history of psychosis with him at
length and concluded that Plaintiff met the criteria for schizoaffective disorder,
depressive type. Tr. 773, 774. Dr. Johns added Topamax 14 to Plaintiff’s medication

Topamax is a brand name for topiramate, a medication often used for the treatment of certain seizures, but “also
sometimes used for the management of alcohol dependence and for the treatment of binge eating disorder.”
14

18

regimen to address the weight gain, but otherwise did not make changes to Plaintiff’s
treatment plan. Tr. 774; see Tr. 777-98 (continued ketamine therapy).
E. Scott Kamilar
From at least November 2018 through December 2021, Plaintiff appears to have
regularly attended therapy with Scott Kamilar. See Tr. 509-13, 536, 679-80, 700; cf. Tr.
857 (treatment note from January 2017 stating Plaintiff sees Kamilar “for regular
counseling and has been seeing him for many years”). As the ALJ noted, Kamilar’s
“notes are handwritten and difficult to read.” Tr. 31. Generally speaking, they appear to
contain a few short notes from each visit, often less than a sentence or two in length.
IV. OPINION EVIDENCE
A. Dr. Johns
In March 2021, Dr. Johns completed a mental capacity assessment. 15 See Tr. 55153. The form asked Dr. Johns to rate Plaintiff’s degree of limitation in understanding,
remembering, or applying information; concentration, persistence, or maintaining pace;
adapting or managing oneself; and interacting with others. Tr. 551-53. After each
section, the form asked for the medical/clinical findings supporting the assessment. Tr.
551-53.
As for understanding, remembering or applying information, Dr. Johns opined that
Plaintiff had moderate limitation in his ability to follow one or two-step oral instructions
to carry out a task and in his ability to recognize a mistake, correct it, or identify and
Topiramate, MedlinePlus, Nat’l Lib. of Med., https://medlineplus.gov/druginfo/meds/a697012.html (last accessed
Mar. 26, 2024).
15
Dr. Johns also completed a physical assessment. Tr. 549-50. Only Plaintiff’s mental impairments are at issue
here.

19

solve problems. Tr. 551. Plaintiff had marked limitation in his ability to sequence multistep activities. Tr. 551. Plaintiff had extreme limitation in his ability to use reason and
judgment to make work-related decisions. Tr. 551. Dr. Johns did not complete the
medical/clinical findings section here.
With respect to concentrating, persisting, or maintaining pace, Plaintiff had
moderate limitation in his abilities to initiate and perform a known task and to work at an
appropriate and consistent pace/complete tasks in a timely manner. Tr. 552. Plaintiff had
marked limitation in his abilities to ignore or avoid distractions while working and to
work closely to or with others without interrupting or distracting them. Tr. 552. Plaintiff
had extreme limitation in his abilities to sustain an ordinary routine with regular
attendance at work and to work a full day without needing more than customary rest
periods. Tr. 552. Dr. Johns also did not complete the medical/clinical findings section
here.
As for adapting and managing oneself, Plaintiff had moderate limitation in his
ability to make plans independent of others. Tr. 552. Plaintiff had marked limitation in
his abilities to adapt to change; distinguish between acceptable and unacceptable work
performance; set realistic goals; and be aware of normal hazards and take appropriate
precautions.

Tr. 552.

Plaintiff had extreme limitation in his abilities to manage

psychologically based symptoms and to maintain appropriate personal hygiene and attire.
Tr. 552. Here, Dr. Johns explained that Plaintiff had a history of “psychosis and poor
insight and judgement, as well as personality conflicts with others.” Tr. 552. Dr. Johns
noted that Plaintiff “has ongoing depression, anxiety, poor focus, concentration, attention
20

and memory.” Tr. 552. Dr. Johns also noted that Plaintiff has limited daily activities.
Tr. 552.
With respect to interacting with others, Plaintiff had moderate limitation in his
abilities to cooperate with others and ask for help when needed. Tr. 553. Plaintiff had
marked limitation in his abilities to understand and respond to social cues and to respond
to requests, suggestions, criticism, correction, and challenges. Tr. 553. Plaintiff had
extreme limitation in his abilities to handle conflict with others and to keep interactions
free from excessive irritability, sensitivity, argumentativeness, or suspiciousness. Tr.
553. As for the medical/clinical findings, Dr. Johns wrote: “See above.” Tr. 553.
Dr. Johns additionally noted that Plaintiff had a history of obtaining legal
substances online from overseas, “resulting in psychosis and likely permanent
impartment.” Tr. 553.
B. State Agency Psychological Consultants
Both initially and on reconsideration, the state agency psychological consultants
found that Plaintiff had no understanding or memory limitations, but did have some
limitation in the areas of concentration and persistence, social interaction, and adaptation.
See Tr. 94-97, 112-15, 131-32, 142-43. The state agency psychological consultants
opined that, based on Plaintiff’s psychological symptoms, inattention, personality issues,
and limited coping skills, Plaintiff would be able to “concentrate, persist and keep pace
for detailed tasks with brief, superficial interaction with others” and “would do best with
low workplace changes, pressures and responsibilities.” Tr. 95, 97; accord Tr. 113, 115,
131, 132, 142, 143; see also Tr. 96 (“brief, superficial interaction with public and
21

others”); accord Tr. 114, 132, 143. At both stages, the state agency psychological
consultants noted that Plaintiff reported his symptoms were stable with ongoing
treatment. Tr. 97, 132, 115, 143.
On reconsideration, the state agency psychological consultant noted the following
with respect to Dr. Johns’ opinion:
[This opinion] is now dated and is not fully persuasive,
supported, or consistent. [Plaintiff] has reported difficulties
holding jobs due [to] interpersonal conflicts at work.
However, he has been generally cooperative at visits and
appears able to sustain attention/concentration adequately for
activities of interest such as video games and yoga. [Plaintiff]
was evaluated overnight in the [emergency room in April
2021] . . . for worsening [auditory hallucinations], which he
attributed to life stressors and sleep deprivation. He endorsed
[suicidal ideation] with an intention to [overdose] on
prescribed medication.
[His] condition improved with
treatment and he declined admission.
[Plaintiff] has
subsequently established care with another psychiatrist and
his [mental-health] conditions are generally described as
stable on his current medications. Overall, [Dr. Johns’
opinion] is overly restrictive with regard to [Plaintiff’s]
limitations in social functioning, stress tolerance, and
concentration/persistence/pace. [Plaintiff] has no recent
psychiatric hospitalizations and has denied recent [suicidal
ideation/homicidal ideation]. [Plaintiff] has denied a history
of [chemical dependency] treatment. While motivation
appears to be limited, he has reported at recent visits
compliance with prescribed medications.
Tr. 129; accord Tr. 140.
V. HEARING TESTIMONY
At the hearing, Plaintiff testified that he currently lived on his own in an apartment
and had lived by himself for almost ten years. Tr. 55. Plaintiff received rental assistance
and participated in other assistance programs. Tr. 55-56. Plaintiff testified that his case
22

manager generally assisted him with completing the necessary forms as he would become
overwhelmed by the process. Tr. 69-70.
When asked how his psychological impairments affected his ability to work,
Plaintiff testified that his symptoms were unpredictable and severe enough to “render[
him] unable to work completely.”

Tr. 60.

Plaintiff still experienced auditory

hallucinations occasionally, describing them as “just a sentence or two every day or two”
and typically when he was trying to fall asleep. Tr. 71. Plaintiff testified that he was
currently on several medications and recalled that his last hospitalization was in
approximately April 2021. Tr. 63. Plaintiff testified that he tried ketamine therapy for
approximately three months, with his last injection occurring approximately three weeks
prior, but stopped because they were not helping. Tr. 64. Plaintiff also testified that he
had been terminated from previous employment due to an inability to get along with
others. Tr. 68.
Additionally, Plaintiff testified that he has been working as a PCA for his brother
since 2021. Tr. 57. Plaintiff worked approximately 20 hours per month providing
services for his brother, stepping in when his mother was not able to be home. Tr. 57-58.
Plaintiff testified that his responsibilities primarily involved keeping an eye on his brother
to prevent “him from doing things he shouldn’t be doing.” Tr. 59. Plaintiff testified that
he did not believe his psychological impairments significantly impacted his ability to care
for his brother and, if he thought that were the case on a given day, he would let his
mother know. Tr. 65-66. Plaintiff acknowledged, however, that at one point he was a
co-guardian for his brother, but his mother made the decision to “revoke[] it.” Tr. 70.
23

VI. ALJ’S DECISION
The ALJ found that Plaintiff had the severe impairments of intermittent explosive
disorder; dysthymia; major depressive disorder; generalized anxiety disorder;
schizoaffective disorder, depressive type; and alcohol and polysubstance use disorders.
Tr. 21. The ALJ concluded that these impairments did not individually or in combination
meet or equal a listed impairment in 20 C.F.R. pt. 404, subpt. P, app. 1. Tr. 21-22. As to
Plaintiff’s residual functional capacity, the ALJ concluded that Plaintiff had the residual
functional capacity to perform work at all exertional levels with the following nonexertional limitations:
he can perform simple, routine, and repetitive tasks, but not at
a production rate pace (so, for example, no assembly line
work); can respond appropriately to occasional interaction
with supervisors and co-workers, but should have no team or
tandem work with co-workers and no interaction with the
general public; and can tolerate few changes in the work
setting, defined as routine job duties that remain static and are
performed in a stable, predictable work environment.
Tr. 25. In reaching this residual-functional-capacity determination, the ALJ found Dr.
Johns’ opinion to be unpersuasive. See Tr. 33-34.
Based on Plaintiff’s age, education, work experience, and residual functional
capacity as well as the testimony of a vocational expert, the ALJ found that Plaintiff was
capable of performing the representative jobs of kitchen helper, routing clerk, and
document preparer. Tr. 36. Accordingly, the ALJ concluded that Plaintiff was not under
a disability. Tr. 36-37.

24

VII. ANALYSIS
This Court’s “task is to determine whether the ALJ’s decision complies with the
relevant legal standards and is supported by substantial evidence in the record as a
whole.” Lucus v. Saul, 960 F.3d 1066, 1068 (8th Cir. 2020) (quotation omitted); accord
Kraus v. Saul, 988 F.3d 1019, 1024 (8th Cir. 2021); see also Biestek v. Berryhill, 139 S.
Ct. 1148, 1154 (2019). “Legal error may be an error of procedure, the use of erroneous
legal standards, or an incorrect application of the law.”

Lucus, 960 F.3d at 1068

(quotation omitted).
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains sufficient evidence to support the
agency’s factual determinations.” Biestek, 139 S. Ct. at 1154 (quotation omitted). “[T]he
threshold for such evidentiary sufficiency is not high.” Id. “It means—and means
only—such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quotation omitted); see, e.g., Chismarich v. Berryhill, 888 F.3d 978,
979 (8th Cir. 2018) (defining “substantial evidence as less than a preponderance but
enough that a reasonable mind would find it adequate to support the conclusion”
(quotation omitted)).
This standard requires the Court to “consider both evidence that detracts from the
[ALJ’s] decision and evidence that supports it.” Boettcher v. Astrue, 652 F.3d 860, 863
(8th Cir. 2011); see Grindley v. Kijakazi, 9 F.4th 622, 627 (8th Cir. 2021). The ALJ’s
decision “will not [be] reverse[d] simply because some evidence supports a conclusion
other than that reached by the ALJ.” Boettcher, 652 F.3d at 863; accord Grindley, 9
25

F.4th at 627; Perks v. Astrue, 687 F.3d 1086, 1091 (8th Cir. 2012). “The court must
affirm the [ALJ’s] decision if it is supported by substantial evidence on the record as a
whole.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016) (quotation omitted). Thus,
“[i]f, 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, 687 F.3d at 1091 (quotation omitted);
accord Chaney, 812 F.3d at 676.
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. §§ 423(a)(1), 1381a; accord 20 C.F.R. §§ 404.315, 416.901. An
individual is considered to be 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 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); accord 42
U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). This standard is
met when a severe physical or mental impairment, or impairments, renders the individual
unable to do his previous work or “any other kind of substantial gainful work which
exists in the national economy” when taking into account his age, education, and work
experience. 42 U.S.C. § 423(d)(2)(A); accord 42 U.S.C. § 1382c(a)(3)(B); see also 20
C.F.R. §§ 404.1505(a), 416.905(a).
Disability is determined according to a five-step, sequential evaluation process.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

26

To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) []he was severely impaired; (3) h[is] impairment was, or
was comparable to, a listed impairment; (4) []he could
perform past relevant work; and if not, (5) whether []he could
perform any other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). In general, the burden of proving
the existence of disability lies with the claimant. 20 C.F.R. §§ 404.1512(a), 416.912(a).
Plaintiff asserts that the ALJ erred in determining his residual functional capacity
by not properly considering Dr. Johns’ opinion.
A. Residual Functional Capacity
A claimant’s “residual functional capacity is the most [he] can do despite [his]
limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (same); see McCoy v. Astrue,
648 F.3d 605, 614 (8th Cir. 2011) (“A claimant’s [residual functional capacity] represents
the most he can do despite the combined effects of all of his credible limitations and must
be based on all credible evidence.”); see also, e.g., Schmitt v. Kijakazi, 27 F.4th 1353,
1360 (8th Cir. 2022). “Because a claimant’s [residual functional capacity] is a medical
question, an ALJ’s assessment of it must be supported by some medical evidence of the
claimant’s ability to function in the workplace.” Perks, 687 F.3d at 1092 (quotation
omitted); accord Schmitt, 27 F.4th at 1360.
At the same time, the residual-functional-capacity determination “is a decision
reserved to the agency such that it is neither delegated to medical professionals nor
determined exclusively based on the contents of medical records.” Norper v. Saul, 964
F.3d 738, 744 (8th Cir. 2020); see Perks, 687 F.3d at 1092; see also 20 C.F.R.
27

§§ 404.1546(c), 416.946(c).

“An ALJ determines a claimant’s [residual functional

capacity] based on all the relevant evidence, including the medical records, observations
of treating physicians and others, and an individual’s own description of [his or her]
limitations.” Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (quotation omitted);
accord Schmitt, 27 F.4th at 1360; Norper, 964 F.3d at 744-45. As such, there is no
requirement that a residual-functional-capacity determination “be supported by a specific
medical opinion.” Schmitt, 27 F.4th at 1360 (quotation omitted). Nor is an ALJ “limited
to considering medical evidence exclusively.” Id. (quotation omitted). Accordingly,
“[e]ven though the [residual-functional-capacity] assessment draws from medical sources
for support, it is ultimately an administrative determination reserved to the
Commissioner.” Perks, 687 F.3d at 1092 (quotation omitted); accord Schmitt, 27 F.4th at
1360; see 20 C.F.R. §§ 404.1546(c), 416.946(c). Plaintiff bears the burden to establish
his residual functional capacity. Mabry v. Colvin, 815 F.3d 386, 390 (8th Cir. 2016).
B. Evaluation of Opinion Evidence
The evaluation of opinion evidence is governed by the criteria set forth in 20
C.F.R. §§ 404.1520c and 416.920c. Although the opinion of a treating provider, Dr.
Johns’ opinion is not entitled to special deference. Bowers v. Kijakazi, 40 F.4th 872, 875
(8th Cir. 2022); see 20 C.F.R. §§ 404.1520c(a) (“We will not defer or give any specific
evidentiary weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.”),
416.920c(a) (same).

28

Instead, ALJs 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, 40 F.4th at 875; accord Austin v. Kijakazi, 52 F.4th 723, 728 (8th Cir. 2022); see
generally 20 C.F.R. §§ 404.1520c(c), 416.920c(c) (listing factors).
“The first two factors—supportability and consistency—are the most important.”
Bowers, 40 F.4th at 875; accord Austin, 52 F.4th at 723; see 20 C.F.R. §§ 404.1520c(a),
(b)(2), 416.920c(a), (b)(2).

With respect to supportability, “[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) . . . , the more persuasive the medical
opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1); 20 C.F.R. § 416.920c(c)(1) (same).
As for consistency, “[t]he more consistent a medical opinion(s) . . . is with the evidence
from other medical sources and nonmedical sources in the claim, the more persuasive the
medical opinion(s) . . . will be.” 20 C.F.R. § 404.1520c(c)(2); 20 C.F.R. § 416.920c(c)(2)
(same). The regulations provide that the ALJ “will explain how [he or she] considered
the supportability and consistency factors for a medical source’s opinions in [the] . . .
decision.” 20 C.F.R. § 404.1520c(b)(2); 20 C.F.R. § 416.920c(b)(2) (same); see, e.g.,
Bonnett v. Kijakazi, 859 F. App’x 19, 20 (8th Cir. 2021) (per curiam) (“ALJ must explain
how both supportability and consistency factors are considered”).
C. Consideration of Dr. Johns’ Opinion
When evaluating the opinion evidence, the ALJ found that Dr. Johns’ opinion was
not persuasive. See Tr. 33-34. The ALJ noted that, although
29

this opinion was based on regular examination of [Plaintiff] in
the course of treatment, . . . [Plaintiff’s] visits were at 3- to 4month intervals or longer and the conclusions about marked
and extreme limitations in most areas of mental functioning
are not supported by the whole body of evidence regarding
the claim period, including the current psychiatric treatment
records.
Tr. 34. The ALJ also recited the comments of the state agency psychological consultant
on reconsideration and stated that “[t]he medical evidence of record received into the
record since the reconsideration review shows a stable condition since that time, and
remains fully consistent with their analysis of the inconsistencies between the opinion of
Dr. Johns and the medical evidence of record regarding [Plaintiff’s] functioning during
the present claim period.” Tr. 34.
Plaintiff does not assert that the ALJ failed to follow the applicable regulations.
Instead, Plaintiff asserts that the ALJ’s “reasoning is grossly inadequate.” Pl. Mem. in
Supp. at 11, ECF No. 20. Plaintiff asserts that the record reflects he regularly sought
treatment for his mental impairments and the finding that these impairments were stable
ignores evidence to the contrary. According to Plaintiff, “there is ample evidence in this
case that [his] numerous mental[-]health diagnoses cause him very serious limitations
such that he could not function in any full-time work setting.” Pl. Mem. in Supp. at 11.
Plaintiff asserts that “Dr. Johns has been [his] treating psychiatrist for many years”
and his “opinion is well-supported by his treatment notes and consistent with the record.”
Pl. Mem. in Supp. at 9. He additionally asserts that he “has an excellent and continuous
record of treatment” with his case manager, therapist, and Dr. Johns during the relevant
period and “[t]he ALJ’s claim that Dr. Johns has a sporadic/irregular treating history with
30

[him] is false.” Pl. Mem. in Supp. at 12. Plaintiff likewise asserts that “it is unreasonable
to allow the ALJ to use frequency of treatment with Dr. Johns—particularly as here,
during the COVID-19 Pandemic—as a basis for discounting Dr. Johns[’] opinion, while
accepting the opinion of sources who have never examined Plaintiff.” Pl. Mem. in Supp.
at 12.

Plaintiff also asserts that the ALJ improperly relied on the state agency

psychological consult’s characterization of Dr. Johns’ opinion as “dated” on
reconsideration when the opinion was issued just six months earlier. Pl. Mem. in Supp.
at 13.
First, contrary to Plaintiff’s assertion, the ALJ did not find that he had “a
sporadic/irregular treating history” with Dr. Johns. Pl. Mem. in Supp. at 12. Indeed, the
ALJ noted that Dr. Johns’ opinion was “based on regular examination of [Plaintiff] in the
course of treatment.” Tr. 33. The ALJ then permissibly took into account the frequency
with which Plaintiff saw Dr. Johns, accurately noting that these appointments were often
three to four months apart, compared to the marked and extreme limitations set forth in
Dr. Johns’ opinion. Plaintiff points to a decision from the Northern District of Iowa
wherein the district court disagreed with an ALJ’s characterization of psychiatric
treatment occurring “anywhere from four weeks to four months” apart as “relatively
infrequent.” Sidney v. Kijakazi, 630 F. Supp. 3d 1077, 1093-94 (N.D. Ia. 2022). But,
whether it is possible to view the frequency of Plaintiff’s appointments differently is not
the relevant question. See Nash, 907 F.3d at 1089; see also Sidney, 630 F. Supp. 3d at
1093.

31

Second, again contrary to Plaintiff’s assertion, the ALJ did not find Dr. Johns’
opinion to be unpersuasive because a state agency psychological consultant found it to be
“dated.” Pl. Mem. in Supp. at 13. A careful reading of the ALJ’s decision reflects that
the ALJ was summarizing the comments of the state agency psychological consultant on
reconsideration, which included the consultant’s opinion that Dr. Johns’ “opinion was
now outdated.” Tr. 34. The salient part of the ALJ’s analysis comes, however, after this
summary, wherein the ALJ explains that “[t]he medical evidence received into the record
since the reconsideration review shows a stable condition since that time, and remains
fully consistent with their analysis of the inconsistencies between the opinion of Dr.
Johns and the medical evidence of record regarding [Plaintiff’s] functioning during the
present claim period.” Tr. 34. Thus, the ALJ did not find Dr. Johns’ opinion to be
unpersuasive because of the age of the opinion, but because the marked and extreme
limitations contained in the opinion were inconsistent with other medical evidence in the
record, including the more recent psychiatric treatment records.
Fundamentally, Plaintiff asserts that his medication regimen “has been
unsuccessful in treating his symptoms” and the record reflects that he “has repeatedly
tried and failed to hold low-level jobs because he inevitably gets into verbal
confrontations with coworkers and mangers.” Pl. Mem. in Supp. at 10. Plaintiff asserts
that the ALJ did “not cite to the record” when concluding that Plaintiff was generally
stable on his medications as of 2021 and “[a] lack of suicidal or homicidal ideation is not
a reasonable basis for denying disability.” Pl. Mem. in Supp. at 14. Plaintiff asserts that

32

Dr. Johns’ decision to pursue TMS and ketamine therapy to address the symptoms of his
mental impairments reflects that these conditions were far from stable.
Here too, Plaintiff’s assertion that the ALJ “omit[ted] evidence refuting the
assertion of stability” is incorrect. Pl. Mem. in Supp. at 14. When discussing the medical
evidence, the ALJ discussed how there were times when Plaintiff experienced
“breakthrough psychotic symptoms.” Tr. 28; see, e.g., Tr. 28 (“breakthrough symptoms
about twice a month”), 30 (“had been having auditory hallucinations”).

The ALJ

contextualized these episodes, pointing out that they tended to occur when Plaintiff was
using non-prescribed substances and not sleeping and eating regularly.

Plaintiff’s

psychotic episodes resolved with medication and he reported improvements in his mood
with medication adjustments. See Hensley v. Colvin, 829 F.3d 926, 933-34 (8th Cir.
2016) (“If an impairment can be controlled by treatment or medication, it cannot be
considered disabling.”).
Nor was it outside the zone of choice for the ALJ to find that Plaintiff’s condition
overall remained stable since his April 2021 episode. In mid-June 2021, Dr. Hanson
noted that Plaintiff had been stable for over two weeks. The following month, Plaintiff
reported feeling better despite occasionally hearing a “murmur.” Tr. 685; accord Tr. 709.
Plaintiff told Dr. Johns a few months later that he “had been feeling good” up until
recently with the change in seasons and experienced mild auditory hallucinations
occasionally.

Tr. 766.

And while Plaintiff reported feeling more depressed in

November, he told both Dr. Hanson and Dr. Johns that he was doing better in December.

33

Thus, the more recent psychiatric records reflect that Plaintiff’s symptoms and
functioning improved with medication.
Similarly, while Plaintiff emphasizes that he was diagnosed with “treatment
resistant depression,” Pl. Mem. in Supp. at 10, 14, the fact that Plaintiff continued to have
medically documented impairments during this time “does not perforce result in a finding
of disability,” Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). Even if this
characterization of Plaintiff’s depression combined with Dr. Johns’ notation that Plaintiff
had “failed numerous antidepressants” and the treatment decision to pursue TMS and
ketamine therapy could support an alternative conclusion, this alone does not warrant
reversal. Fentress v. Berryhill, 854 F.3d 1016, 1020 (8th Cir. 2017) (“[W]e will not
reverse simply because some evidence supports a conclusion other than that reached by
the Commissioner.”).

Moreover, the ALJ considered other evidence in the record

indicating Plaintiff overall exhibited greater functioning than reflected in Dr. Johns’
opinion. Among other things, the ALJ noted that Plaintiff lived on his own in an
apartment and was working at least part time as a PCA for his brother.

“Despite

[Plaintiff’s] dissatisfaction with how the ALJ weighed the evidence, it is not this Court’s
role to reweigh that evidence.” Schmitt, 27 F.4th at 1361.
Lastly, although the ALJ did not find Dr. Johns’ opinion to be persuasive, the ALJ
did include limitations in the residual functional capacity related to Plaintiff’s mental
impairments, including difficulties getting along with others. The ALJ limited Plaintiff to
“simple, routine, and repetitive tasks” to “address the complaints of difficulty with focus
and periods of diminished attention and concentration in mental status examinations.”
34

Tr. 27. The ALJ included limitations regarding pace (no “production rate pace”) and
variability (“few changes in the work setting, defined as routine job duties that remain
static and are performed in a stable, predictable work environment”) to “address
moderate difficulties with adapting and managing the self.” Tr. 25, 27. The ALJ also
limited Plaintiff’s “interaction with others” to address the difficulties he experienced in
previous employment situations while also taking into account that he was able to interact
with others in other settings, including with his brother, case manager, and treatment
providers. Tr. 27.
In sum, there is substantial evidence in the record as a whole to support the ALJ’s
conclusion that Dr. Johns’ opinion was unpersuasive.
VIII. ORDER
Based upon the record, memoranda, and the proceedings herein, and for the
reasons stated above, IT IS HEREBY ORDERED that:
1. Plaintiff’s Motion for Summary Judgment, ECF No. 19, is DENIED.
2. The Commissioner’s request for relief, ECF No. 22, is GRANTED.
3. The ALJ’s decision is AFFIRMED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March

26

, 2024

s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Kristopher T. T. v. O’Malley
Case No. 23-cv-359 (TNL)
35