Jungwirth v. Kijakazi

Filing 17

ORDER denying 12 Plaintiff's Motion for Summary Judgment and granting 15 relief requested in Defendant's Brief. Let judgment be entered accordingly. Signed by Magistrate Judge John F. Docherty on 3/12/2025. (Written Opinion) (ALM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Sage P. J., 1

Case No. 23-cv-3052 (JFD)
Plaintiff,
ORDER

v.
Leland Dudek, Acting Commissioner of
Social Security,
Defendant.

Pursuant to 42 U.S.C. § 405(g), Plaintiff Sage P. J. seeks judicial review of a final
decision by the Defendant Acting Commissioner of Social Security, which denied
Plaintiff’s applications for disability insurance benefits and supplemental security income.
The matter is now before the Court on Plaintiff’s Motion for Summary Judgment (Dkt. No.
12), Defendant’s Brief (Dkt. No. 15), and Plaintiff’s Reply (Dkt. No. 16).
Plaintiff argues that the final decision should be reversed for the following reasons:
(1) the administrative law judge (“ALJ”) who authored the final decision erred in
considering opinion evidence from Plaintiff’s psychologist and psychiatrist; (2) the ALJ
did not properly consider the severity and frequency of Plaintiff’s self-reported symptoms;
(3) the ALJ failed to include symptoms of autism in the residual functional capacity

The District of Minnesota has adopted a policy of using only the first name and last initial
of nongovernmental parties in Social Security cases.

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1

(“RFC”) 2 assessment; and (4) the ALJ did not include time off-task, unscheduled breaks,
or excessive absences in the RFC. The Commissioner disagrees with Plaintiff’s positions
and asks the Court to affirm the final decision. As set forth fully below, the Court finds that
the ALJ’s decision is supported by substantial evidence on the record as a whole and that
the ALJ committed no legal error. The Court therefore affirms the Commissioner’s
decision.
I.

Background
People with disabilities can qualify for financial support from the Social Security

Administration (“SSA”) through one or both of its assistance programs: the Disability
Insurance (“DIB”) Program under Title II of the Social Security Act and the Supplemental
Security Income (“SSI”) Program under Title XVI of the Act. Smith v. Berryhill, 587 U.S.
471, 475 (2019) (citing Bowen v. Galbreath, 485 U.S. 74, 75 (1988)). DIB is a program
that provides support to those who worked and had sufficient social security taxes withheld
from their pay over their working life to qualify for coverage if they become disabled. Id.;
42 U.S.C. § 423(a) (guaranteeing benefits for insured disabled people). SSI is a public
assistance program that provides support to people with disabilities, whether or not they
have paid social security taxes, who demonstrate financial need. Smith, 587 U.S. at 475;
42 U.S.C. § 1381a (guaranteeing support to eligible “aged, blind, or disabled” people); 20
C.F.R. § 416.110 (explaining program’s purpose).

RFC is a measure of “the most [Plaintiff] can still do despite [Plaintiff’s] limitations.” See
20 C.F.R. § 404.1545(a)(1).

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2

Plaintiff filed applications for both DIB and SSI on May 27, 2021, and alleged that
her disability began on that date. (See Soc. Sec. Admin. R. (hereinafter “R.”) 11, 83, 88.) 3
She was 28 years old. (R. 83, 88.) Plaintiff’s medical conditions included autism, chronic
depression, anxiety, panic disorder, and attention deficit hyperactivity disorder (“ADHD”).
(See R. 83, 88.)
A.

Relevant Facts 4

Plaintiff attended regular psychotherapy sessions with Julie Beckmann, L.P. (R.
553–54.) In May 2021, Plaintiff told Ms. Beckman that her mother’s death in October 2020
had severely and negatively impacted her life. (R. 554.) Plaintiff was employed at that time
and reported significant stressors at her job due to irritability, anger, and lack of coping
strategies. (R. 554.) Physical examination findings included that Plaintiff’s speech was
clear and articulate; her affect was frustrated and irritable; her intellectual level of
functioning was normal; her thoughts arose at a normal speed; her judgment was impacted
by a “very negative view”; and her insight was fair. (R. 555.)
Plaintiff sought adult rehabilitative mental health services (“ARMHS”), and a
functional assessment was completed on May 13, 2021. (R. 770.) Plaintiff reported mental
health symptoms of poor concentration and memory loss, forgetfulness, anxiety, stress,
depression, insomnia, and lack of self-confidence. (R. 770.) She reported crying and
The Social Security administrative record is filed at Dkt. No. 11. The record is
consecutively paginated on the lower right corner of each page, and the Court cites to those
page numbers.

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4

The Court limits its summary of relevant facts to the issues presented for judicial review.
3

hyperventilating before her shifts at a previous job at a pet kennel due to stress and feelings
of inadequacy. (R. 772.) At the time of the ARMHS assessment, Plaintiff was working at
a crisis response center and said she was “satisfied” with her job. (R. 772.) She struggled,
however, with financial paperwork and household chores. (R. 776.)
On June 9, 2021, Plaintiff sought treatment for anxiety at an emergency department.
(R. 546.) She reported having a panic attack, but her symptoms had resolved by the time
she reached the clinic. (R. 546.) Her mood and affect were normal on examination. (R.
547.) Three weeks later, Ms. Beckmann described Plaintiff as “very emotional” and
sobbing during a therapy session. (R. 859.) Ms. Beckman assessed Plaintiff with
“moderately severe” depressive disorder. (R. 860.)
To support her DIB and SSI applications, Plaintiff completed a Function Report on
July 22, 2021. (R. 268–75.) She described her work-related limitations as struggling to
concentrate on tasks, feeling overwhelmed easily, not understanding expectations,
struggling to communicate, and not understanding nonverbal communications. (R. 268.)
She needed reminders to shower “at times” but did not need reminders to take medications
or take care of other personal needs. (R. 270.) She prepared her own meals daily. (R. 270.)
She performed, without assistance, household chores such as sweeping, doing dishes,
making her bed, and washing laundry. (R. 270.) She went outside every day and traveled
by car, foot, and bicycle. (R. 271.) She shopped in stores and had no issues handling money.
(R. 271.) Her hobbies included art, video games, reading, music, riding a bike, gardening,
and pet sitting. (R. 272.) She did these activities daily and “pretty well.” (R. 272.) She
talked on the phone and spent time with people monthly. (R. 272.) Plaintiff reported she
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was sometimes irritable toward other people and could not read social or nonverbal cues.
(R. 272.) She believed her mental impairments limited her ability to complete tasks,
concentrate, understand, follow instructions, and get along with others. (R. 273.)
On July 29, 2021, Plaintiff’s psychotherapist Ms. Beckmann wrote that Plaintiff was
talkative and engaged, and had reported a decrease in suicidal ideation. (R. 833.) Plaintiff
had recently pet-sat for three weeks, which brightened her mood. (R. 833.) The severity of
her symptoms was mild to moderate, according to Ms. Beckmann. (R. 833.)
Plaintiff’s ARMHS case manager was Rachel Olson. On August 5, 2021, Plaintiff
and Ms. Olson telephoned a local clinic together and asked for a referral to an outpatient
psychiatrist because Plaintiff was having suicidal thoughts. (R. 829.) Plaintiff said she felt
overwhelmed and was having more frequent suicidal thoughts. (R. 829.) Plaintiff said she
had a safety plan in place, however, and agreed to go to the emergency department if her
symptoms worsened. (R. 829.) Plaintiff saw Ms. Beckmann twelve days later, on August
17, 2021. Ms. Beckmann wrote that Plaintiff was very upset, angry, and frustrated because
she misunderstood the appointment time and had to wait 30 minutes. (R. 822.) Plaintiff
described an incident that had occurred the previous day, where she felt frustrated and cried
in a pharmacy because of a problem with her insurance. (R 822.) But Plaintiff also told Ms.
Beckman that her suicidal ideation had declined and that she was finding it easier to think
and talk about her mother. (R. 822.) On examination, Ms. Beckman noted alertness,
orientation, adequate eye contact, and scattered thoughts. (R. 822.) Ms. Beckmann’s
examination findings the following month included alertness, full orientation, irritability,
stress, and no suicidal ideation. (R. 809.)
5

Plaintiff attended occupational therapy appointments with Samantha Barrie for
sensory processing and emotional dysregulation. At the first appointment in July 2021,
Plaintiff said that her depression affected her hygiene to the point that she was not able to
brush her teeth. (R. 851.) She also struggled with daily routines and finishing tasks. (R.
849–50.) Sensory processing testing revealed dysregulation in the areas of tactile
sensitivity, taste/smell sensitivity, movement sensitivity, sensory-seeking behavior, and
low energy/weakness. (R. 852.) As a coping mechanism, Plaintiff used headphones in
public to reduce dysregulating noises. (R. 831.) Using fidgets in social situations was also
helpful but not an option when she needed them most, like at work. (R. 851.) In September
2021, Plaintiff told Ms. Barrie that her new dental hygiene routine, which included the use
of a chew tube to transition to teeth brushing, was working “fabulously.” (R. 792.) Ms.
Barrie recorded that Plaintiff had made continuous improvement with self-care and homemanagement strategies. (R. 793.) She had achieved the goals of 100% compliance with
home programming recommendations and using different calming strategies during times
of emotional dysregulation. (R. 793.)
Plaintiff had a medication management appointment with Joshua Baruth, M.D.,
Ph.D., in October 2021. (R. 1005.) She described her mood as “surprisingly good,” despite
having brain fog caused by a concussion three weeks earlier. (R. 1005.) Her anxiety had
improved, including fewer panic symptoms. (R. 1005.) Mental status examination findings
were generally normal. (R. 1006.) Dr. Baruth thought she was “managing relatively well
with her psychiatric symptoms” and responding well to current medications. (R. 1007.)

6

In an ARMHS individual treatment plan completed by Plaintiff and Ms. Olson in
December 2021, Plaintiff reflected progress in not feeling overwhelmed by emotions. (R.
1084.) She had a good familial support system, lived successfully in her own apartment,
and was involved in a local autism awareness group. (R. 1084.) However, she struggled in
understanding nonverbal communication, did not always respond appropriately in social
situations, overanalyzed communications, and had difficulty communicating her emotions
to others. (R. 1084.) Individual ARMHS services were authorized to help Plaintiff achieve
her goals of (1) maintaining and improving her mental health and (2) following up on
household responsibilities, with two hours per week designated for each goal. (R. 1085–
86.)
Plaintiff told Ms. Beckmann in January 2022 that she had nightmares about
working. (R. 972.) She described a 12-year pattern of employment in which she could begin
a job but became overwhelmed with uncertainty and self-doubt. (R. 972.) Plaintiff felt
“socially inept” due to autism and “doomed to never be able to properly get along with
people in the world.” (R. 972.) Ms. Beckmann wrote, “She is an emotional wreck. She is
plagued with constant anxiety and fear that she is going to do something wrong to the point
that it is crippling.” (R. 972.) Ms. Beckmann wrote, “Severity level today was severe. There
is a need for treatment on a monthly basis.” (R. 972.)
In a progress note dated February 2, 2022, Ms. Beckmann documented that Plaintiff
was “talkative and engaged” and had enjoyed “a surprisingly pleasant few weeks.” (R.
963.) She had become more involved with an autism organization, participated in a pancake
fundraiser, and gone to the gym every day. (R. 963.) Plaintiff was concerned about finances
7

and had earned some money caring for pets and children. (R. 963.) The mental status
examination was generally normal. (R. 964.)
ARMHS session notes from mid-2021 through 2022 document home visits by Ms.
Olson, which generally lasted about an hour and occurred every week or two. (R. 1120–
1137.) The sessions focused on Plaintiff’s anxiety caused by opening mail, her lack of
motivation to complete household responsibilities, and her feelings of being overwhelmed
by daily tasks. (R. 1120–21, 1125.) Plaintiff’s ARMHS-focused goals were to (1) maintain
and improve her overall mental health and (2) complete financial and household
responsibilities. (R. 1120–1137.) To achieve these goals, Ms. Olson helped Plaintiff open
her mail one piece at a time, role-played calling an Internet service provider and insurance
company, helped Plaintiff complete an online application and other forms, and reviewed
upcoming appointments, among other things. (R. 1120–21, 1123–25.)
Plaintiff also saw Samantha Plaehn for occupational therapy. On February 17, 2022,
Ms. Plaehn noted that Plaintiff “rate[d] her last couple weeks at an A+. Her routines and
sensory systems ha[ve] been in a regulated state.” (R. 954.) Using fidgets, changing seats
in public places, and using self-talk had been successful strategies, in particular. (R. 955.)
Plaintiff met with Ms. Beckmann on March 14, 2022, and reported low energy and
brain fog caused by being sick for five weeks with a cough. (R. 935.) She had mismanaged
some appointments, was “behind in things that she would like to accomplish,” and did not
have the energy to do things she normally enjoyed. (R. 935.) Plaintiff brought up feelings
of anger, and Ms. Beckmann noted that Plaintiff was developing insight into her problems.

8

(R. 935.) Mental status examination findings were similar to previous progress notes. (R.
935.) Plaintiff did not express any thoughts of self-harm. (R. 935.)
At an appointment with Dr. Baruth on March 24, 2022, Plaintiff said that her allergy
symptoms were interfering with sleep and that her ADHD symptoms were causing
restlessness and lack of concentration. (R. 931.) Although Dr. Baruth noted that Plaintiff
was “unemployed,” he also documented her comment that a “change in schedule at work
now taking on both morning and evening shifts [disrupted] her daily planning to a certain
extent.” (R. 931.) Plaintiff also reported that she enjoyed being outside and gardening and
that her emotional standpoint was “very stable.” (R. 931.) The mental status examination
findings included alertness, intermittent eye contact, no overt abnormalities in memory or
concentration, euthymic affect, and no abnormalities in thought content. (R. 931.) Dr.
Baruth and Plaintiff discussed increasing her Adderall dosage but ultimately decided
against it. (R. 931.)
In an individual treatment plan note dated April 27, 2022, Plaintiff’s ARMHS case
manager, Ms. Olson, reported that Plaintiff was making progress in not feeling
overwhelmed, was living successfully in her own apartment, and was involved with a local
autism awareness group. (R. 501.) But Plaintiff also struggled in reading nonverbal
communication and overanalyzed remarks made to her, which caused some conflict with
others. (R. 501.)
Plaintiff was discharged from occupational therapy in April 2022 because she had
met all of her goals. (R. 1190.) She had made “great progress” throughout 19 sessions. (R.
1190.) In particular, Plaintiff had developed strategies to assist with daily routines,
9

assembled a sensory tool kit with items to use in moments of emotional or sensory
dysregulation, and identified strategies to help manage anxiety. (R. 1190–91.)
On August 26, 2022, Plaintiff had an annual ARMHS assessment to assess her needs
and eligibility for continued services. (R. 507.) Under “Social and Interpersonal”
considerations, the assessor documented “good relationships with some of her family,” “no
issues in communication,” a “few close-knit friends,” “some social activities,” and
“interpersonal deficits due to ASD[5] diagnosis” that “limit her socialization and ability to
form and maintain a strong social support network.” (R. 509.) Under “Vocational,” the
assessor wrote that Plaintiff struggled with her emotional regulation and had difficulty with
interpersonal relationships, irritability, and anger. (R. 509-10.) The mental status
examination revealed good hygiene, a variable and appropriate affect, rapid but controlled
speech, detailed and articulate conversation, knowledge and insight about her mental
condition, a cooperative and reflective demeanor, and coherent and linear thoughts. (R.
510.) The clinical summary section reflected that Plaintiff lived independently and
managed her own finances and transportation. (R. 511.) Recommendations included
continuing with current medications, mental health case management, ARMHS services,
and psychiatric appointments. (R. 512.)
Ms. Beckmann completed a Medical Source Assessment form on September 8,
2022. (R. 1142–46.) Ms. Beckman indicated that Plaintiff would be occasionally unable to
remember locations and work-like procedures and to understand and remember short,

5

Autism Spectrum Disorder
10

simple instructions. (R. 1142.) In addition, Ms. Beckman found, Plaintiff would be
frequently unable to understand and remember detailed instructions. (R. 1142.) In support
of these limitations, Ms. Beckmann explained that Plaintiff experienced debilitating
anxiety when she was under pressure to perform and had difficulty controlling emotional
responses and outbursts. (R. 1142.)
Ms. Beckmann also indicated that Plaintiff would be frequently unable to carry out
detailed instructions, maintain attention and concentration for extended periods, perform
activities within a schedule, sustain ordinary routines without special supervision, work in
coordination with or proximity to others without being distracted, complete a normal
workday and workweek without interruptions from psychological symptoms, and perform
at a consistent pace without an unreasonable number and length of rest periods. (R. 1143.)
In support of these limitations, Ms. Beckmann explained that frustration and anxiety caused
Plaintiff to feel overwhelmed, which could lead to tears, and that emotional regulation was
difficult for her. (R. 1143.)
Ms. Beckmann next indicated that Plaintiff would be frequently unable to interact
appropriately with the general public, accept instructions and respond appropriately to
criticism from supervisors, get along with coworkers without distracting them or exhibiting
behavioral extremes, respond appropriately to changes in the work setting, and travel in
unfamiliar places or use public transportation. (R. 1144.) In support of these limitations,
Ms. Beckmann wrote that Plaintiff’s perceptions about herself make social interactions
stressful and that Plaintiff does not “perceive things the same as her neuro-normal peers.”
(R. 1144.) Ms. Beckmann next opined that Plaintiff would be off-task due to her symptoms
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for 25% or more of the workday and would be absent from work three or more days per
month. (R. 1145–46.)
Ms. Beckmann retired in September 2022, and Plaintiff continued care with Dr.
Baruth. In late September 2022, Plaintiff told Dr. Baruth that she was having difficulty
balancing time for herself with a more active social life. (R. 1157.) Plaintiff said her mood
was “really good” and denied having symptoms of depression. (R. 1157.) The mental status
examination was unremarkable. (R. 1158.)
As reflected in an ARMHS functional assessment completed in October 2022,
Plaintiff reported having concentration and memory problems, depression and anxiety, lack
of self-confidence, and feelings that other people misunderstood her and she misunderstood
them. (R. 513.) She struggled with remembering her scheduled appointments but using a
calendar helped. (R. 514.) Plaintiff said she quit a previous job at a pet kennel because of
stress and feeling that her supervisor did not think highly of her. (R. 515.) She was
terminated from another employer “due to a misunderstanding with whether something
was available for her to take home.” (R. 515.) She ceased working at a crisis response
center due to unmanageable symptoms of anxiety, depression, and grief after her mother
died. (R. 515.) Her grief worsened symptoms of autism, depression, and anxiety, and
caused symptoms of suicidal ideation, but were becoming more manageable. (R. 517.) In
her spare time, Plaintiff rode her bike, played video and computer games, threw a
Halloween party every year with friends, hung out with friends, went to movies with
friends, and volunteered at autism organizations. (R. 516.) Plaintiff had good
communication skills, speaking clearly and articulating her needs. (R. 517.) Racing
12

thoughts sometimes hindered communication. (R. 517.) She struggled to brush her teeth
due to obsessive thoughts about unsanitariness. (R. 518.) Cleaning her apartment caused
her to feel overwhelmed. (R. 518.)
Ms. Olson responded to an email from Plaintiff’s disability representative in
November 2022 and said that Plaintiff’s symptoms of anxiety, depression, being
overwhelmed, suicidal ideation, and autism interfered with her ability to work. (R. 524.)
That same month, Plaintiff’s representative asked Dr. Baruth if he agreed with Ms.
Beckmann’s Medical Source Statement, and Dr. Baruth summarily indicated he did. (R.
1222–23.)
B.

Procedural History

Plaintiff’s DIB and SSI applications were denied at both the initial and
reconsideration stages of review. She requested an administrative hearing before an ALJ,
which was held on November 23, 2022. (See R. 37.)
Plaintiff offered the following testimony at the hearing. She occasionally worked as
a pet-sitter or house-sitter for friends. (R. 54.) Plaintiff also volunteered about seven hours
a month with an autism organization. (R. 55–56.) Plaintiff’s mother, who had provided
much of her emotional and mental support, died in 2020. (58–59.) Plaintiff struggled with
daily tasks like brushing her teeth, opening the mail, and showering due to sensory issues,
anxiety, and falling out of routines. (R. 63–65.) Plaintiff used headphones when she became
overwhelmed by too many sounds in crowded places. (R. 64.) Medication controlled her
panic attacks, but she still experienced stress, anxiety, and emotional dysregulation. (R.
66–69.) Her daily activities included walking, listening to music and audiobooks, shopping
13

for groceries, going to appointments, talking with friends, and playing video games. (R.
69–71.) When Plaintiff felt overwhelmed, she shut down, and when she had been
employed, she estimated, that occurred about every other day. (R. 72.) When she worked
at the crisis response center, her supervisors were “wonderful” and “amazing,” and her
coworkers were helpful and supportive. (R. 56–57.) Dealing with customers was the
hardest part. (R. 57.)
The ALJ issued a written decision on December 23, 2022, finding that Plaintiff was
not disabled. (R. 8–22.) The ALJ followed the familiar five-step sequential analysis
described in 20 C.F.R. §§ 404.1520 and 416.920 in making that determination. 6 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),
416.920(a)(4).
The ALJ determined at the first step that Plaintiff had not engaged in substantial
gainful activity since May 27, 2021, the alleged onset-of-disability date. (R. 13.) At the
second step, the ALJ found Plaintiff had the following severe impairments: “major
depressive disorder, generalized anxiety disorder, panic disorder, autism spectrum
disorder, and attention deficit hyperactivity disorder (ADHD).” (R. 14.)

The five steps are “(1) whether claimant is engaged in substantial gainful activity,
(2) whether claimant has a severe impairment, (3) whether the impairment meets or equals
the severity of a listed impairment, (4) whether claimant has the residual functional
capacity to perform past relevant work activity, and (5) if claimant is unable to do past
work, whether claimant can perform other work.” Delph v. Astrue, 538 F.3d 940, 946 (8th
Cir. 2008) (citing Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993)).

6

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At step three, the ALJ found that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 14.) The ALJ considered listings
for depressive, bipolar, and related disorders (Listing 12.04); anxiety and obsessivecompulsive disorders (Listing 12.06); autism spectrum disorder (Listing 12.10); and
neurodevelopment disorders (Listing 12.11). (R. 14.)
One of the ways in which a claimant can meet a listed impairment is to satisfy certain
criteria, commonly referred to as the paragraph A, B, and C criteria. See 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 12.04. The paragraph B criteria are (1) “Understand, remember, or
apply information”; (2) “Interact with others”; (3) “Concentrate, persist, or maintain pace”;
and (4) “Adapt or manage oneself.” See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.B.
The ALJ found that Plaintiff was mildly limited in three of these four categories:
understanding, remembering, or applying information; concentrating, persisting, or
maintaining pace; and adapting or managing herself. (R. 15–16.) These findings were based
on evidence that Plaintiff reportedly had trouble following instructions, but no medical
evidence of cognitive disorders or memory issues; Plaintiff’s providers’ descriptions of her
as detailed, articulate, intelligent, and knowledgeable; Plaintiff’s presentation with
sometimes scattered thoughts, but other times linear and logical thoughts and normal
concentration; and Plaintiff’s engagement in activities such as gaming, dog walking, petsitting, childcare, housecleaning, house-sitting, driving, gardening, grocery shopping,
preparing meals, managing her personal care, washing dishes, doing laundry, sweeping,
and managing her finances. (R. 15–16.) In addition, the ALJ noted, Plaintiff’s treatment
15

was “routine and conservative.” (R. 16.) The ALJ pointed out that Plaintiff had described
her mental state as an A+ in February 2022 and discontinued individual therapy in August
2022. (R. 16.) In late 2022, the ALJ recounted, Plaintiff said that her mental symptoms
were well-controlled and that she was the most social she had ever been. (R. 16.)
The ALJ also found Plaintiff moderately limited in the fourth Paragraph B category:
interacting with others. (R. 15.) In reaching this finding, the ALJ considered evidence of
Plaintiff’s irritability toward others, inability to read social cues, anger management issues,
and difficulty interacting with customers in past employment, along with evidence of
Plaintiff’s appropriate and cooperative behavior around medical professionals, working out
daily at a YMCA, volunteering with an autism group, participating in a fundraiser and a
grief group, attending a class reunion, gaming with friends and at public events, and doing
pet-sitting, housecleaning, and childcare for money for friends and family. (R. 15.)
Because Plaintiff did not satisfy the paragraph B criteria by having a mental
impairment or combination of impairments that resulted in one extreme limitation or two
marked limitations, she did not meet or equal the severity of a listed impairment and was
not disabled under the paragraph B criteria. (R. 16.) The ALJ therefore resumed the
sequential analysis.
Between steps three and four, the ALJ assessed Plaintiff’s RFC, which is a measure
of “the most [Plaintiff] can still do despite [Plaintiff’s] limitations.” See 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1). As part of this assessment, the ALJ considered
Plaintiff’s self-reported symptoms and found that the claimed intensity, persistence, and
limiting effect of those symptoms were not consistent with the medical and other evidence
16

of record. (R. 18–20.) The ALJ also considered the medical source statements from Ms.
Beckman and Dr. Baruth, which he explained were not persuasive because the opinions
were not supported by or consistent with their own treatment records, treatment records
from others, and Plaintiff’s relatively conservative mental health treatment. (R. 20.)
Nevertheless, to accommodate Plaintiff’s mental impairments, the ALJ limited her to
occasional interactions with coworkers and the general public. (R. 20.) The ALJ also
accounted for Plaintiff’s subjective symptoms to the extent they were consistent with
minimal objective mental health findings, her successful response to routine and
conservative care, her wide range of activities, and the paragraph B functional limitations.
(R. 20.)
Ultimately, the ALJ determined that Plaintiff had the RFC “to perform a full range
of work at all exertional levels but with the following nonexertional limitations: she can
tolerate occasional coworker and general public interaction, and can tolerate ordinary
levels of supervision found in a customary work setting.” (R. 17.)
Proceeding to step four in the sequential evaluation, the ALJ considered whether
Plaintiff could perform her past relevant work as a customer service representative and
determined she could not. (R. 21.) Thus, the ALJ proceeded to step five to consider whether
jobs existed in the national economy that Plaintiff could perform, based on her age,
education, work experience, and RFC. (R. 21.) Relying on hearing testimony from a
vocational expert, the ALJ concluded that Plaintiff could work as a laundry worker, store
laborer, or hand packager. (R. 22.) Therefore, Plaintiff was not disabled as defined by the
Social Security Act. (R. 22.)
17

The Appeals Council denied Plaintiff’s request for review of the ALJ’s 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 on the record as a whole supports the decision, 42 U.S.C.
§ 405(g), or whether the ALJ’s decision resulted from an error of law, Nash v. Comm’r,
Soc. Sec. Admin., 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 or SSI, the claimant must
establish that he or she is unable “to engage in any substantial gainful activity by reason of
18

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); see 42 U.S.C. § 1382c(a)(3)(A).
III.

Discussion
A.

The ALJ Properly Considered Opinion Evidence from Ms. Beckmann
and Dr. Baruth.

Plaintiff argues that the ALJ erred in considering the persuasiveness of Ms.
Beckmann’s and Dr. Baruth’s opinions. Under 20 C.F.R. §§ 404.1520c and 416.920c,
when a medical source provides a medical opinion, the ALJ must consider the
persuasiveness of the opinion “using the factors listed in paragraphs (c)(1) through (c)(5)
of this section, as appropriate.” 20 C.F.R. §§ 404.1520c(a); see 20 C.F.R. § 416.920c(a).
Those five factors are supportability, consistency, relationship with the claimant,
specialization, and any other relevant considerations. 20 C.F.R. §§ 404.1520c(c)(1)–(5),
416.920c(c)(1)–(5). The two most important factors are supportability and consistency. 20
C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). “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 “may, but [is] not required to,” explain how the remaining factors were considered.
20 C.F.R. § 404.1520c(b)(2); see 20 C.F.R. § 416.920c(b)(2). The ALJ’s failure to
articulate how the ALJ considered the consistency factor or the supportability factor is a
legal error that requires 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
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(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)).
An ALJ assesses supportability by analyzing how well the medical source’s opinion
is justified by that source’s use of objective medical evidence. “The 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); see 20 C.F.R. § 416.920c(c)(1). Simply put, the more objective
evidence a medical source adduces to support an opinion, the more persuasive the opinion
is. 20 C.F.R. § 404.1520c(c)(1); see 20 C.F.R. § 416.920c(c)(1).
An ALJ assesses consistency by considering that “[t]he more consistent a medical
opinion[] or prior administrative finding[] is with the evidence from other medical sources
and nonmedical sources in the claim, the more persuasive the medical opinion[] or prior
administrative medical finding[] will be.” 20 C.F.R. § 404.1520c(c)(2); see 20 C.F.R.
§ 416.920c(c)(2). That is, the ALJ evaluates whether the medical opinion at issue is
consistent with evidence from sources other than the source who rendered the opinion. 20
C.F.R. § 404.1520c(c)(2); see 20 C.F.R. § 416.920c(c)(2).
The Court finds here that the ALJ adequately considered and articulated both the
consistency and the supportability factors, and substantial evidence on the record as a
whole supports the ALJ’s findings. With respect to supportability, the ALJ explained that
Ms. Beckmann’s and Dr. Baruth’s opinions were not supported by their own treatment
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records, which generally documented minimal mental status examination findings, reports
of minimal mental symptoms by Plaintiff, and extensive involvement in daily and social
activities. (R. 20.) Ms. Beckmann’s progress notes primarily described Plaintiff’s
symptoms as “mild to moderate.” (E.g., R. 833, 982, 997, 1172.) Ms. Beckmann described
Plaintiff’s symptoms as “moderately severe” or “severe” only twice. Dr. Baruth’s
description of Plaintiff’s symptoms was even more benign than Ms. Beckmann’s. Further,
the ALJ explained, the extreme limitations denoted by Ms. Beckman and Dr. Baruth were
not consistent with the conservative course of mental health treatment Plaintiff received
from them, nor did they recommend “more intensive mental health treatment.” (R. 20.)
As to the consistency factor, it is apparent from the ALJ’s discussion that the ALJ
considered Ms. Beckmann’s opinion to be inconsistent with evidence from Dr. Baruth, and
Dr. Baruth’s opinion to be inconsistent with evidence from Ms. Beckmann. (See R. 20.)
For example, Ms. Beckmann’s opinion was not supported by Dr. Baruth’s mental status
examination findings, and Dr. Baruth’s opinion was not supported by Ms. Beckmann’s
mental status examination findings.
Plaintiff has identified other evidence in the record that could be considered
consistent with or supportive of Ms. Beckmann’s and Dr. Baruth’s opinions, but that does
not mean the ALJ’s persuasiveness assessment is not supported by substantial evidence.
See Pierce v. Kijakazi, 22 F.4th 769, 771 (8th Cir. 2022). It was the ALJ’s duty to resolve
the conflicting evidence in the record, Richardson v. Perales, 402 U.S. 389, 399 (1971),
and the ALJ adequately articulated why he did not find the opinions of Ms. Beckmann and

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Dr. Baruth supported by their own treatment records or consistent with evidence from other
sources.
Plaintiff takes issue with the ALJ’s comment that Ms. Beckmann and Dr. Baruth
did not recommend any “more intensive” treatment, but an ALJ does not err by considering
a physician’s approach to treatment. Pierce, 22 F.4th at 773. Therefore, the ALJ
appropriately considered that Ms. Beckmann and Dr. Baruth did not recommend more
“intensive” treatment than the relatively conservative treatment they were providing.
Plaintiff also faults the ALJ for not mentioning records from Ms. Olson that
documented her assistance to Plaintiff with opening and responding to mail, role-playing
interactions, and making appointments. That assertion is incorrect. The ALJ did cite to the
exhibit containing the ARMHS records from Ms. Olson and specifically noted that Plaintiff
received assistance with paperwork, mail, and phone calls. (R. 16.) It is true that the ALJ
commented that “the record contains no reports of any routine case management
appointments” (R. 16 (emphasis added)), but the Court reads this as meaning that the
appointments were not “routine,” not that there were no reports at all. That interpretation
would correspond with the ALJ’s discussion of the sporadic and infrequent nature of the
ARMHS appointments. (See R. 16.) But even if the ALJ had failed to mention Ms. Olson’s
notes, “an ALJ is not required to discuss every piece of evidence submitted,” Black v. Apfel,
143 F.3d 383, 386 (8th Cir. 1998), and “an ALJ’s failure to cite specific evidence does not
indicate that it was not considered,” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).

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B.

The ALJ Properly Considered Plaintiff’s Symptoms.

Plaintiff argues that the ALJ erred in considering her subjective statements about
her symptoms. (Pl.’s Mem. at 13.) The ALJ considered Plaintiff’s testimony and statements
about her symptoms and found that her impairments could cause the alleged symptoms but
that the claimed intensity, persistence, and limiting effects of her symptoms were not
consistent with the record. (R. 18.)
In evaluating the intensity, persistence, and limiting effects of a claimant’s
symptoms, an ALJ considers the objective medical evidence and other relevant factors such
as:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received
for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to
20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s functional limitations and
restrictions due to pain or other symptoms.
SSR 16-3p, 2016 WL 1119029, at *7 (S.S.A. Mar. 16, 2016); see 20 C.F.R. §§ 404.1529(c),
416.929(c). An ALJ need not discuss every factor, but only the factors relevant to assessing
the persistence, intensity, and limiting effects of symptoms. SSR 16-3p, 2016 WL 1119029,
at *7.
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Here, the ALJ determined that Plaintiff’s statements about the intensity, persistence,
and limiting effects of her mental symptoms (i.e., emotional dysregulation, crying spells,
shutting down when overwhelmed, and nervous breakdowns) were not consistent with the
objective medical evidence and other evidence of record. Beginning with daily activities,
the ALJ pointed out that Plaintiff engaged in pet-sitting and attended large weekend gaming
events and a class reunion.7 (R. 18.) Plaintiff also engaged in daily activities such as
household chores, shopping, working out at the YMCA, attending a grief group, and
volunteering with an autism organization. (R. 18.)
Turning to the objective medical evidence and efficacy of medications, mental
status examination findings were frequently minimal, and her medications were working
well. (R. 19.) The severity of her symptoms was most often rated “mild” or “moderate.”
(R. 19.) Increased ADHD symptoms in March 2022 were due to a reported “change in
schedule at work.” (R. 19.) Plaintiff grieved the loss of her mother. (R. 18.)
Plaintiff also made subjective statements that contradicted the claimed intensity,
persistence, and limiting effects of her symptoms. On self-reported inventories for
depression and anxiety, Plaintiff reported only moderate symptoms. (R. 18.) On other
occasions, Plaintiff described her mood as “surprisingly good,” therapy as “wonderful,”
Plaintiff argues that being able to occasionally pet-sit and attend social events does not
mean she is capable of competitive employment. (Pl.’s Reply at 2.) The ALJ did not use
Plaintiff’s participation in these activities as support for a conclusion that she was capable
of competitive employment. The ALJ considered activities like pet-sitting and social events
in evaluating the intensity, persistence, and limiting effects of Plaintiff’s symptoms, which
is expressly permitted by SSR 16-3p, § 404.1529(c), and § 416.929(c). Those conclusions,
in turn and in combination with other evidence, led to a determination by the ALJ that
Plaintiff was not disabled within the meaning of the Social Security Act.

7

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former coworkers as “amazing,” and her mental status as an “A+.” (R. 18–19.) In late
September 2022, she told Dr. Baruth she was more social than she had ever been. (R. 19.)
The Court finds that the ALJ did not err in evaluating Plaintiff’s symptoms.
Substantial evidence on the record as a whole supports the ALJ’s conclusion that the
claimed intensity, persistence, and limiting effects of Plaintiff’s subjective symptoms were
inconsistent with the objective medical evidence and other relevant evidence of record.
Moreover, the ALJ still accounted for some intensity, persistence, and limiting effects of
Plaintiff’s symptoms and limited her RFC to occasional interactions with coworkers and
the general public. (R. 17.)
C.

The ALJ Did Not Wrongly Omit Symptoms of Autism in the RFC.

Plaintiff argues that the ALJ “ignored” evidence of autism symptoms, particularly
sensory dysregulation. (Pl.’s Mem. at 17, 26.) She acknowledges, however, that she worked
with an occupational therapist for almost a year to develop techniques and routines to cope
with sensory dysregulation. By February 2022, Plaintiff told her occupational therapist that
her last few weeks had been “an A+,” and the therapist wrote that Plaintiff’s “routines and
sensory systems ha[ve] been in a regulated state.” (R. 954.) Plaintiff was discharged from
occupational therapy in April 2022 because she had met all of her goals. The Court
concludes that this substantial evidence on the record as a whole supported the ALJ’s
decision not to include symptoms of sensory dysregulation in the RFC.

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D.

The ALJ Properly Omitted Time Off-Task, Unscheduled Breaks, and
Excessive Absences from the RFC.

Plaintiff faults the ALJ for not including in the RFC time off-task, unscheduled
breaks, or excessive absences in the RFC. (Pl.’s Mem. at 28–30.) These limitations were
opined by Ms. Beckmann and agreed to by Dr. Baruth. The Court has determined that the
ALJ properly considered Ms. Beckmann’s and Dr. Baruth’s opinions and found them not
persuasive. Plaintiff suggests there is other evidence to support limitations for time offtask, unscheduled breaks, and absences (Pl.’s Mem. at 30), but Plaintiff does not pinpoint
that evidence or explain how “some” time off-task or “some” breaks or absences should be
quantified in an RFC.

Accordingly, 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. 12) is DENIED;
2. The relief requested in Defendant’s Brief (Dkt. No. 15) is GRANTED; and
3. The Commissioner’s final decision is affirmed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Date: March 12, 2025

s/ John F. Docherty
JOHN F. DOCHERTY
United States Magistrate Judge

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