Case Name in Social Security Case - Unavailable

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UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
B.L.B.,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION;
Defendant.
4:21-CV-04222-VLD
MEMORANDUM OPINION
AND ORDER
INTRODUCTION
Plaintiff, B.L.B., seeks judicial review of the Commissioner’s final
decision denying his application for social security disability benefits under
Title II and Title XVI of the Social Security Act.1 Mr. B. has filed a complaint
1 SSI benefits are called “Title XVI” benefits, and SSD/DIB benefits are called
“Title II” benefits. 	Receipt of both forms of benefits is dependent upon whether
the claimant is disabled. 	The definition of disability is the same under both
Titles. 	The difference—greatly simplified—is that a claimant’s entitlement to
SSD/DIB benefits is dependent upon one’s “coverage” status (calculated
according to one’s earning history), and the amount of benefits are also
calculated according to a formula using the claimant’s earning history. 	There
are no such “coverage” requirements for SSI benefits, but the potential amount
of SSI benefits is uniform and set by statute, dependent upon the claimant’s
financial situation, and reduced by the claimant’s earnings, if any. 	There are
corresponding and usually identical regulations for each type of benefit. 	See,
e.g., 20 C.F.R. §§ 404.1520 and 416.920 (evaluation of disability using the five-
step procedure under Title II and Title XVI). 	Mr. B. filed his application for Title
II and XVI benefits. 	His coverage status for SSD benefits expires on September
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and motion to reverse the Commissioner’s final decision denying his disability
benefits and to remand the matter to the Social Security Administration for
further proceedings. 	See Docket Nos. 1, 10. 	The Commissioner has filed her
own motion seeking affirmance of the agency’s decision below. 	See Docket
No. 14.
This appeal of the Commissioner’s final decision denying benefits is
properly before the court pursuant to 42 U.S.C. § 405(g). 	The parties have
consented to this magistrate judge handling this matter pursuant to 28 U.S.C.
§ 636(c).
FACTS2
A. 	Procedural History
This action arises from Mr. B.’s application for Social Security Disability
Insurance (SSDI) benefits and Supplemental Security Income (SSI) with a
protected filing date of December 27, 2018, alleging disability starting June 15,
2016, due to low back pain and issues with fusion surgery, arthritis and
residuals from injuries to both hands and wrists, bilateral shoulder problems
with prior surgery to the right shoulder, stomach acid, narrowed esophagus
with swallowing difficulties, right elbow recurrent tendonitis, arthritis in mid
30, 2018. 	AR11, 13. 	In other words, in order to be entitled to Title II benefits,
Mr. B. must prove disability on or before that date.
2 These facts are recited from the parties’ stipulated statement of facts.
See Docket No. 9. 	The court has made only minor grammatical and
stylistic changes and minor additions.
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and upper back/neck, asthma, swelling knees, and overwhelming pain.
AR182, 189, 236, 256, 260, 264.3
Mr. B.’s claims were denied at the initial and reconsideration levels, and
Mr. B. requested an administrative hearing. 	AR113, 118, 125, 130, 132.
Mr. B.’s administrative law judge (“ALJ”) hearing was held on February
18, 2021, where Mr. B. was represented by a non-attorney representative.
AR43. 	The hearing was conducted by phone due to Covid-19 and lasted 65
minutes. 	AR43, 77. 	An unfavorable decision was issued March 17, 2021, by
the ALJ. 	AR7.
The ALJ found that Mr. B.’s date of last insurance (“DLI”) was September
30, 2018. 	AR11, 13.
At Step One of the evaluation the ALJ found that Mr. B. had engaged in
substantial gainful activity from June 15, 2016, the alleged onset of disability
date, through June 2017. 	AR13. 	The ALJ found that the evidence did not
reflect substantial gainful activity after June 2017. 	AR14.
At Step Two, the ALJ found that Mr. B. had severe impairments of
cervical degenerative changes with right C5-C6 disc herniation; thoracic
kyphosis; thoracic degenerative changes; lumbar degenerative changes; median
neuropathy at the wrist; and asthma. 	Id.
The ALJ noted that Mr. B. had also reported shoulder pain, “which might
be related to her [sic] cervical and/or thoracic impairments.” 	Id. 	The ALJ
3 Citations to the appeal record will be cited by “AR” followed by the page
or pages.
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found that the evidence did not reflect the presence of any standalone
shoulder-related medically determinable impairment. 	Id.
The ALJ found that Mr. B. had a medically determinable impairment of
dysthymic disorder/depression which was nonsevere. 	AR14-15. 	The ALJ
found that Mr. B.’s mental impairment caused only “minimal” limitations in his
ability to perform mental work activities. 	Id. 	The ALJ found that Mr. B.’s
depression caused mild limitations in interacting with others and in his ability
to adapt or manage himself. 	AR15.
In Step Three, the ALJ found that Mr. B. did not have an impairment
that meets or medically equals a listing. 	AR16.
The ALJ determined that for the period July 1, 2017 through November
1, 2018, Mr. B. would have an residual functional capacity (“RFC”) for a range
of light work: he could lift and carry 20 pounds occasionally and 10 pounds
frequently, sit about 6 hours in an 8-hour workday, stand and/or walk about 6
hours in an 8-hour workday; frequently climb ramps and stairs, kneel, crouch,
and crawl; occasionally climb ladders, ropes, or scaffolds; stoop; and
occasionally be exposed to fumes, odors, dusts, and atmospheric
conditions. 	Id.
The ALJ found that Mr. B.’s statements concerning the intensity,
persistence, and limiting effects of his impairments were not entirely consistent
with the medical evidence and other evidence of record for the reasons
explained in the decision. 	AR17.
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The ALJ stated that she accepted that Mr. B. appeared to have
experienced some greater degree of functional limitation from November 2018.
AR19. 	The ALJ stated, however, the record clearly does not support a finding
of worsening or determination associated with any impairment, whether
considered singly or in combination with any other impairment or
impairments, indicative of an inability to reliably sustain a somewhat more
reduced range of light level tasks and work as set forth in the residual function
capacity at finding seven. 	Id.
The ALJ determined that for the period of November 1, 2018, through the
date of the decision Mr. B. would have an RFC for a reduced range of light
work: he could lift and carry 20 pounds occasionally and 10 pounds frequently,
sit about 6 hours in an 8-hour workday, stand and/or walk about 4 hours in
an 8-hour workday, frequently climb ramps and stairs, and occasionally climb
ladders, ropes, or scaffolds. 	AR18. 	Mr. B. could rarely stoop, and frequently
kneel, crouch, and crawl, only occasionally be exposed to fumes, odors, dusts,
and atmospheric conditions. 	Id. 	Mr. B. was also limited to frequent handling,
fingering, and feeling. 	Id.
The ALJ found at Step Four that Mr. B. could not perform his past
relevant work since June 2017. 	AR24.
The ALJ found at Step Five, relying on the testimony of a vocational
expert (“VE”), that there were other jobs existing in significant numbers in the
national economy Mr. B. could perform from July 1, 2017, through November
1, 2018. 	AR25-26. 	At the hearing, the ALJ specifically asked the VE whether
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the jobs identified by the VE were “available across several regions, of the
country.” 	The VE replied the jobs were. 	AR76.
The ALJ found at Step Five in finding seven, relying on the testimony of a
VE, that there were other jobs existing in significant numbers in the national
economy Mr. B. could perform from November 1, 2018, through the date of the
decision. 	AR26-27. 	The ALJ noted that the VE testified that she had reduced
the number of jobs for each of the three occupations identified by 50 percent
given “the sit/stand option” set forth in the residual functional capacity at
finding seven above. 	AR27. 	Finding seven in the decision does not contain a
“sit/stand option.” 	AR18.
The ALJ considered the opinions of the State agency medical consultants
at the initial level and reconsideration level and noted that the experts
concluded there was “insufficient evidence prior to the date last insured.”
AR23. 	The ALJ stated this was not considered as an opinion. 	Id.
The ALJ noted that at the initial level the State agency consultant found
Mr. B. able to be in the light range, but never able to perform any postural
activities. 	Id. 	The ALJ stated the postural limitations were overly
limiting. 	Id.
The ALJ noted that at the reconsideration level the State agency
consultant found Mr. B. able to be in the light range but modified the postural
limitations. 	Id. 	The ALJ found this opinion to be consistent with the record
“prior to November 2018” and mostly persuasive for that period. 	Id. 	The ALJ
stated, “[i]t is also consistent with the treatment which suggests adequate
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control with medication.” 	Id. 	The ALJ stated however the opinion did not
consider the effect of Mr. B.’s asthma and some limitations are accepted
around pulmonary irritants. 	Id.
The ALJ stated, “[i]n November 2018, the undersigned does find support
for additional postural limitations, manipulative, standing and walking
limitations particularly with the claimant’s back and intermittent reports of
hand/arm pain.” 	Id. 	The ALJ stated Mr. B. had findings in his lumbar spine
necessitating a surgery. 	Id. 	The ALJ further noted that despite this evidence
Mr. B. has maintained a normal gait, sensation, and strength but has been
observed to be stiff and walking slowly. 	Id.
The ALJ considered the opinions of consultative examiner, Dr. Young,
who in July 2019 noted restrictions to a reduced range of sedentary level
tasks/jobs with no lifting over 10 pounds, no prolonged standing or walking
and difficulties with fine motor movements with the hands and asserted that
Dr. Young’s own “fairly benign” findings on exam were inconsistent with his
opinions and the opinions were unpersuasive. 	Id.
The ALJ also noted the record contains a couple of statements from
Dr. Tinguely supportive of a finding of disability. 	The ALJ asserted that
Dr. Tinguely did not provide any work-related limitations, only stating that
Mr. B. was no longer able to perform his past work as a brick mason. 	In a
second statement, Dr. Tinguely concluded that it was in Mr. B.’s best interest
to apply for benefits. 	The ALJ found that it does not appear that Dr. Tinguely
had quantified Mr. B.’s limitations. 	AR24.
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Mr. B. requested review of the ALJ’s denial from the Appeals Council and
submitted additional evidence including a personal note from Mr. B. (AR297), a
September 7, 2021, letter from Mr. B.’s treating physician, Dr. Tinguely,
(AR39), and Sanford Health treatment records from April 28, 2021, to May 7,
2021, including a new MRI. 	AR179, 295, 632-652. 	The Appeals Council
denied the request for review on October 25, 2021, making the ALJ’s decision
the final decision of the Commissioner. 	AR1. 	The Appeals Council’s Notice
referenced the new letter from Dr. Tinguely and determined it did not show a
reasonable probability of changing the outcome of the decision. 	AR2. 	The
Appeals Council’s Order exhibited the personal note Mr. B. had written. 	AR5.
Neither the Appeals Council’s Notice nor Order mentioned the Sanford Health
treatment records that included the new MRI. 	AR1-5. 	Mr. B. timely filed this
action.
B. 	Relevant Medical Evidence
A lumbar MRI obtained on April 28, 2016, showed a left paramedian disk
protrusion at L5-S1 with cranial migration without definite spinal stenosis or
nerve root impingement, a left paramedian disk protrusion at L4-5 with caudal
migration compressing the left L5 nerve root, and a questionable tiny focal
right lateral disk protrusion at L4-5 that may abut and irritate the exiting right
L4 nerve root. 	AR460.
Cervical spine x-rays were obtained on August 28, 2017, due to ongoing
left shoulder pain and revealed no acute abnormality. 	AR337.
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Mr. B. was seen by Dr. Tinguely on January 16, 2018, for a medication
recheck. 	AR308. 	Mr. B. was prescribed Norco to be used as needed and was
taking it at night due to pain waking him up every hour or so. 	Id. 	Mr. B.
reported he was performing lightweight electrical and plumbing work for “a guy
who pays cash only.” 	He was also taking Proventil aerosol inhaler for
wheezing, Meloxicam for joint pain, and Protonix for acid reflux. 	Id. 	The
psychiatric finding was mood “one of pain, pleasant, calm.” 	AR309. 	Mr. B.’s
assessments were neck pain, lower back pain, and cigarette smoking. 	Id.
Gabapentin/Lyrica was added for his back and neck pain. 	Id.
Mr. B. was seen by Dr. Tinguely on February 27, 2018, for follow-up on
his chronic pain and reported he was struggling, could only stand for about five
minutes at a time with morning being the worst. 	AR332. 	Mr. B. was taking
Norco and Lyrica, but only taking the Lyrica at night because he didn’t trust
himself to drive if he took it in the morning. 	Id. 	Mr. B. reported he tried to
remain as active as possible—he loves fishing, hunting, and camping. 	Id.
Dr. Tinguely noted that Mr. B. did not want injections/epidurals because they
didn’t work in his shoulders after having so many of them. 	Id.
Mr. B. was seen by Dr. Tinguely on June 20, 2018, for a pain medication
check for controlled substances. 	AR329. 	Mr. B. reported “doing pretty well”
and the Norco was “working well” for him as he was able to make his sixty
tablets last thirty days. 	Id. 	Mr. B. reported he had a job in Tennessee
involving brick work, but he indicated he could handle it. 	Id. 	Mr. B. reported
his Lyrica made him feel drunk and slur his words. 	Id. 	Mr. B. reported
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hurting his elbow lifting sheetrock three weeks earlier, but felt it was getting
better. 	Id. 	Dr. Tinguely continued the Norco, and noted that if Mr. B. obtained
insurance, it would really open up more options for him. 	AR330. 	Mr. B.’s
assessments included neck, lower back, and elbow joint pain. 	Id.
Mr. B. was seen by Dr. Tinguely on August 22, 2018, for chronic neck,
back and wrist pain and more acute right elbow pain. 	AR326. 	Mr. B. had tried
a brace for his elbow, but that made it worse. 	Id. 	Mr. B.’s mood was
dysthymic, and he was quite tearful. 	AR327. 	Mr. B.’s assessment included
elbow joint pain. 	Id. 	Naproxen was recommended for tendonitis in his elbow
and Cymbalta prescribed for his mood. 	AR328.
Mr. B. was seen by Dr. Tinguely on September 13, 2018, for his chronic
neck and hand pain and requesting to be switched to a different antidepressant
because he had tried Cymbalta for three weeks and it made him feel like he
was in a glass bottle. 	AR324. 	Mr. B. reported his chronic neck and hand pain
didn’t seem better but was not worse and he was doing some odd jobs and
trying to use as little Norco as possible. 	Id. 	Mr. B. reported that his right
elbow continued to be a problem and naproxen had not helped. 	Id. 	Mr. B.
reported he had been on Wellbutrin ten years earlier and it had worked well for
his depression and anxiety. 	Id. 	Wellbutrin was prescribed for his depression
and injections were planned for his elbow. 	AR325-26.
Mr. B. was seen by Dr. Tinguely on November 20, 2018, for follow-up on
chronic neck, shoulder, and hand pain. 	AR321. 	Mr. B. reported that the
Norco was very helpful in continuing to work around his house, but he could
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no longer work as a bricklayer. 	AR322. 	Mr. B. reported terrible spasms in his
hands if he does anything more than an hour like painting. 	Id. 	His
assessments included shoulder pain, neck pain, lower back pain, and
arthralgia of hand. 	Id.
Mr. B. was seen by Dr. Tinguely on December 19, 2018, for a medication
recheck and reported continued chronic neck and back pain with new pain in
his mid-back following a fall in the shower. 	AR319. 	The record indicates that
Mr. B. began taking opiate pain medication in June 2016. 	AR319. 	Mr. B.’s
mood was dysthymic, and his assessments were neck pain and upper back
pain. 	AR320. 	Cervical spine x-rays revealed multilevel degenerative disease
similar to prior August 24, 2017, x-rays. 	AR320, 334. 	Thoracic spine x-rays
revealed spondylosis with a mild kyphosis. 	AR321, 335.
Mr. B. was seen by Dr. Tinguely on May 9, 2019, for follow-up on chronic
neck and back pain treated with a small amount of Norco. 	AR370. 	Mr. B.
reported having a hard time with pain control and was taking Norco in the
morning, afternoon, and again sometimes at bedtime and also taking
naproxen. 	Id. 	Mr. B. reported investigating insurance options, but could not
afford the $400 per month premium, and he was applying for disability. 	Id.
Examination revealed motor dysfunction with a very stiff walk, and dysthymic
mood. 	AR371. 	X-rays were obtained of the cervical and lumbar spine. 	Id.
Dr. Tinguely submitted a letter on May 20, 2019, regarding Mr. B. in
which she stated Mr. B. struggles with pain and weakness in his low back,
neck, and elbows. 	AR342. 	Dr. Tinguely stated that Mr. B.’s earlier MRI
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revealed possible nerve root irritation at L5, and a more recent cervical spine x-
ray revealed multilevel degeneration. 	Id. 	Dr. Tinguely stated she would be
supportive of his application for disability because he could no longer do brick
mason work for which he was trained. 	Id.
The State agency ordered a physical consultative exam and Mr. B. was
examined by Dr. Young on July 11, 2019. 	AR347. 	Dr. Young stated Mr. B.
reported applying for disability due to chronic neck and back pain, and
shoulder pain with a history of left shoulder surgery. 	Mr. B. also reported so
much pain after the surgery he was unable to work, and he had a house fire
and lost his insurance. 	Id. 	Mr. B. had had no injections or physical therapy
due to his lack of insurance. 	Id. 	Mr. B. reported he was permanently hunched
over and could not extend his back but could still do some chores around the
house and take care of his dogs. 	Id. 	Mr. B.’s history also stated he had
bilateral carpal tunnel with numbness on his median nerve distribution in both
hands with some weakness and clumsiness with fine movements such as using
a pen or holding a cup. 	Id. 	Mr. B. was taking Norco twice a day that helped
his function somewhat. 	Id.
Examination revealed intact strength and sensation in upper and lower
extremities, normal neck range of motion, limited back extension, fixed in a
slightly flexed position, and he was able to fully flex with some difficulty.
AR348. 	Mr. B.’s gait was normal. 	Id. 	Hand x-rays revealed mild osteoarthritis
without acute bony abnormality. 	AR350-351. 	Dr. Young assessed chronic
neck and back pain secondary to multilevel degenerative disease of the spine
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and bilateral carpal tunnel disease. 	AR348. 	Dr. Young stated he had reviewed
the x-ray results from Falls Community Health and they were consistent with
multilevel degenerative arthritis of the spine. 	Id. 	Dr. Young stated that
examination did show significant deformity in that Mr. B. was hunched over
during the entire exam, and Mr. B. did have numbness in the median nerve
distribution of both hands, per his report. 	Id. 	Dr. Young stated, “On exam, the
sensation was fairly intact in both, but his symptoms do fit the diagnosis of
carpal tunnel.” 	Id. 	Dr. Young commented that it would be difficult to obtain
EMGs or surgery that he likely needs to improve the condition without
insurance. 	Id.
Dr. Young opined that any employment requiring prolonged standing or
walking would be difficult for Mr. B., and he doubted whether Mr. B. would be
able to lift and carry more than ten pounds. 	Id. 	Dr. Young opined Mr. B. could
probably do a sitting job, but if it required computer use or any kind of fine
movement with his hands that would be difficult due to his carpal tunnel.
AR349. 	Dr. Young also stated Mr. B. had limited ability to stoop, kneel, or
climb due to his back pain. 	Id.
Mr. B. was seen by Dr. Tinguely on August 7, 2019, for follow-up on
chronic neck and back pain treated with Norco. 	AR367. 	Mr. B. reported
increased neck and backpain and said he was applying for disability. 	Id.
Examination revealed a stiff neck with limited ability to rotate. 	AR368. 	Mr. B.
was referred to the Sanford Spine Team to get a firmer diagnosis for his
disability claim. 	AR369.
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Mr. B. was seen by Dr. Janssen at Sanford Physical Medicine and Rehab
on September 24, 2019, for low back, right leg, neck, and bilateral arm pain.
AR407. 	Mr. B.’s neck pain radiated to both arms as well as the low back with
radiation to the right leg, and he had numbness and tingling in both upper
extremities. 	Id. 	Dr. Janssen indicated he had not seen Mr. B. in more than
three years. 	Examination revealed tenderness to palpation over the right
greater than left lumbar paraspinal muscles, normal strength, sensation, in the
upper and lower extremities. 	Id. 	Dr. Janssen’s diagnoses were L4-L5 disk
herniation towards the left and right, left L5-S1 disk herniation with low back
pain, lumbar discogenic pain, and lumbar radiculitis. 	AR408.
Electrodiagnostic evaluation and lumbar and cervical spine MRIs were
planned. 	Id.
The lumbar spine MRI was obtained on September 27, 2019, and showed
multilevel degenerative changes most pronounced at L4-5 and L5-S1. 	AR356.
At L5-S1 there was a disc osteophyte complex with a shallow superimposed left
subarticular protrusion, unchanged from April 28, 2016, that approaches but
does not definitely deviate the transversing left S1 nerve root, a central annular
tear, mild facet hypertrophy, and moderate severe bilateral neural foraminal
narrowing increased from 2016. 	Id.
The cervical spine MRI was obtained on September 27, 2019, and
showed multilevel degenerative changes superimposed on a congenital canal
narrowing, a right paracentral extrusion with superior migration at C5-6 likely
impinging on the right C6 nerve root, and moderate canal narrowing at C5-6
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and C6-7. 	AR358. 	The nerve root impingement flattens and deforms the
ventral right aspect of the cord with a moderate central canal narrowing. 	Id.
Mr. B. was seen by Dr. Janssen at Sanford Physical Medicine and Rehab
on October 3, 2019, for follow-up on neck and back pain and bilateral upper
extremity numbness and tingling. 	AR380. 	Mr. B.’s back pain had not
improved since his last visit and radiated to both legs, worse with prolonged
posture or increased activity. 	Id. 	Examination revealed tenderness to
palpation over the bilateral lumbar paraspinal muscles, and slump testing4 did
not cause typical pain symptoms. 	Id. 	Electrodiagnostic evaluation was
abnormal and revealed mild median neuropathy or carpal tunnel at both
wrists. 	AR381, 387. 	Dr. Janssen also reviewed Mr. B.’s spine MRIs and stated
the lumbar pathology appeared somewhat improved and the cervical MRI
revealed a disc herniation near the C6 nerve root. 	AR381. 	Night splints were
recommended for Mr. B.’s carpal tunnel, lumbar ESI for his low back, and
possible cervical epidural for his neck. 	Id.
Mr. B. received a lumbar epidural steroid injection on October 28, 2019,
due to lumbar radiculitis. 	AR413.
4 A slump test is a clinical test used to assess the effects on the
neuromeningeal tract (e.g. nerve root injury, meningeal irritation,
meningitis, disk disease, or central nervous system tumors). 	The patient
is directed to sit slumpted forward, flexing the entire trunk. 	The
patient’s foot is dorsiflexed and the knee is then extended. 	Inability to
extent the knee fully or production of back or leg pain symptoms, or
both, are positive signs. 	See https://medical-
dictionary.thefreedictionary.com/slump+test, (last visited Oct. 12, 2022).
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Mr. B. was seen by Dr. Tinguely on November 6, 2019, for follow-up on
chronic neck and back pain and the record states Mr. B. continued on Norco
for pain and was now “locked in” with the spine team and recently had an ESI
in the lumber spine that resulted in a spinal HA (headache)5, requiring a blood
patch. 	AR363, 400. 	Mr. B. reported he thought the ESI helped with his pain
and he was not getting the intense cramping. 	AR363.
Mr. B. reported to the Physical Medicine and Rehab Clinic on November
11, 2019, that he felt pretty good and was not getting the sharp pain down the
right leg. 	AR399. 	He said he felt great up until the prior day when he started
having trouble walking and getting sore. 	Id.
Mr. B. reported to the Physical Medicine and Rehab Clinic on December
2, 2019, that he had zero improvement from the epidural injection, his pain
was back to where it was before the injection. 	Id.
Mr. B. was seen by Dr. Janssen at Sanford Physical Medicine and Rehab
on December 23, 2019, for follow-up on low back, hip and leg pain. 	AR398.
Mr. B. reported that the prior epidural injection helped for about three days.
Id. 	Examination revealed a slumped forward posture, and tenderness to
palpation of lumbar paraspinals. 	Id. 	Electrodiagnostic evaluation was
planned. 	Id.
5 A spinal headache occurs when cerebrospinal fluid leaks out of the
meninges (the tissue surrounding the spinal cord). 	See
https://my.clevelandclinic.org/health/diseases/17927-spinal-
headaches#:~:text=A%20spianl%20headache%20is%20a,the%20brain%2
0and%20spinal%20cord., (last visited Oct. 12, 2022).
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Mr. B. was seen by Dr. Johnson at Sanford Physical Medicine and Rehab
on January 7, 2020, for acute right-sided low back pain with sciatica laterally.
AR382. 	Mr. B. had low back pain with pain going down his right leg causing
him to buckle at times. 	Id. 	Mr. B. had a lumbar epidural on October 28, 2019,
but was having a hard time standing straight up due to back pain and has a
hard time finding a comfortable position. 	Id. 	Examination revealed
ambulation with a slightly forward flexed posture at the waist. 	AR384. 	EMG
testing indicated no nerve root dysfunction indicating Mr. B. appears to have a
mechanical low back problem. 	AR385. 	Dr. Johnson stated there could
certainly be some irritation of the nerve roots, but no evidence of
radiculopathy. 	Id.
Mr. B. was referred by Dr. Janssen and seen by Dr. Wellman at Sanford
Neurosurgery and Spine on January 28, 2020, for evaluation of his back pain.
AR394. 	Dr. Wellman’s examination notes for this exam appear to be missing
from the record. 	Id.
Mr. B. was seen by Dr. Tinguely on February 4, 2020, for a pre-operative
physical prior to lumbar spine surgery scheduled for February 19, 2020.
AR466.
Mr. B. was seen by Dr. Glatt at Sanford Surgical Associates on February
4, 2020, for evaluation of anterior exposure for planned back surgery due to
intractable back pain. 	AR501-502.
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Mr. B. underwent an L4-5, L5-S1 anterior lumbar interbody fusion
surgery performed by Dr. Wellman on February 19, 2020, with an L5-S1 plate
and screw construct. 	AR477, 481.
Mr. B. was seen by Dr. Tinguely on March 10, 2020, for follow-up after
his back surgery and reported being extremely stiff and sore if he sits too long
or lays down too long. 	AR612. 	He said he was not as hunched over as prior to
the surgery. 	Id. 	Dr. Tinguely described Mr. B. as doing pretty well from a
post-op perspective but started him on Norco for pain. 	AR613.
Mr. B. was seen by Dr. Tinguely on June 4, 2020, for follow-up after his
back surgery and reported feeling he was still recovering and had concerns that
the surgery did not help much at all. 	AR615. 	He was taking Norco and
reported his pain was bothering him more in his upper back, he had trouble
bending since the fusion, and had trouble wiping after bowel movements.
Examination revealed he was still pretty stiff and walked “straight-backed” and
slowly. 	AR616. 	Dr. Tinguely noted that unfortunately it did not seem that the
surgery helped much with Mr. B.’s pain or mobility, and he would greatly
benefit from physical therapy, but he could not afford it. 	Id.
Dr. Tinguely submitted a letter on June 12, 2020, in support of Mr. B.’s
disability claim in which she stated Mr. B. had severe arthritis and
radiculopathy in his cervical, thoracic, and lumbar spine, and his recent spine
surgery failed to provide the relief needed to get back to work. 	AR611.
Dr. Tinguely stated that given Mr. B.’s ongoing pain and mobility difficulties
she felt it was in his best interest to apply for disability. 	Id.
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Mr. B. was seen by Dr. Tinguely on August 28, 2020, for follow-up on his
chronic pain. 	AR618. 	Mr. B. continued to take Norco for pain. 	Id. 	He had
recently clipped in the shower, which exacerbated his upper back pain. 	Id.
Examination revealed Mr. B. was very stiff and walked hunched over. 	AR619.
Referral to the Spine Center was planned if Mr. B. could obtain insurance. 	Id.
Mr. B. was seen by Dr. Tinguely on January 7, 2021, for follow-up on his
chronic pain, and also reported having extreme pain in his toes in both feet,
and a popping sensation in his toes when he walks or bends them. 	AR628.
Dr. Tinguely’s assessments included chronic pain syndrome, low back pain,
and pain in left and right toes. 	AR629.
A cervical spine MRI was obtained on Mr. B. on May 7, 2021, that
showed multilevel disc desiccation, with mild disc space height loss at C5-6
and C6-7. 	AR644. 	The MRI showed that left neural foraminal stenosis at C4-5
had progressed since September 27, 2019, a disc bulge asymmetric to the
right, bilateral facet arthropathy, and bilateral uncovertebral hypertrophy
resulting in moderate thecal sac stenosis and indentation of the cord without
cord edema, and neural foraminal stenosis moderate to severe on the right and
moderate on the left, a disc bulge at C6-7 with moderate thecal sac stenosis
and contact with the cord without edema, and moderate to severe bilateral
neural foraminal stenosis, unchanged. 	Id. 	The impression was multilevel
degenerative spondylosis with progression at C4-5 and C5-6 and a diagnosis of
cervical radiculopathy. 	AR641, 644. 	The MRI had been planned in February
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but not completed due to anxiety, and then was delayed again due to illness.
AR650.
Dr. Tinguely submitted a letter on September 7, 2021, in support of
Mr. B.’s disability claim in which she stated Mr. B. had severe arthritis and
radiculopathy in his cervical, thoracic, and lumbar spine, and his recent spine
surgery failed to provide relief and Mr. B. continues to struggle with pain and
stiffness. 	AR39. 	Dr. Tinguely stated that given Mr. B.’s ongoing pain and
mobility difficulties she felt it was in his best interest to apply for disability. 	Id.
C. 	State Agency Assessments
The State agency medical consultant at the initial level reviewed the file
on August 8, 2019, and stated that for the evaluation period of “Date Last
Insured: 9/30/2018” there was insufficient medical evidence in the file to
assess the claim for that period. 	AR80. 	The medical consultant found Mr. B.
had severe impairments of disorders of the back and inflammatory arthritis
and nonsevere impairments of asthma, other disorders of the gastrointestinal
system, and other unspecified arthropathies of the musculoskeletal system. 	Id.
For the “current period” the medical consultant found Mr. B. could occasionally
lift 20 pounds, frequently lift 10 pounds, stand/walk about six hours and sit
about six hours in an 8-hour workday, and Mr. B. could never perform
climbing, balancing, stooping, kneeling, crouching, or crawling.
AR81-2. 	The medical consultant included no manipulative limitations and
stated there was insufficient evidence in the file to establish a medically
determinable impairment of carpal tunnel syndrome “without specialist input
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and no objective evidence to base an MDI.” 	AR82. 	There is no indication in the
State agency reports at the initial level that a psychological consultant ever
reviewed the file, and no mental RFC was provided. 	AR79-83.
The State agency medical consultant at the reconsideration level
reviewed the file on April 2, 2020, and stated that for the evaluation period of
“Date Last Insured: 9/30/2018” there was insufficient evidence in the file to
assess the claim for that period. 	AR95. 	The medical consultant found Mr. B.
had severe impairments of disorders of the back and inflammatory arthritis
and nonsevere impairments of asthma, other disorders of the gastrointestinal
system, and other unspecified arthropathies of the musculoskeletal system. 	Id.
For the “current period” the medical consultant found Mr. B. could occasionally
lift 20 pounds, frequently lift 10 pounds, stand/walk about six hours and sit
about six hours in an 8-hour workday. 	AR105. 	The reconsideration level
consultant found Mr. B. could climb, kneel, crouch, and crawl frequently,
occasionally stoop, and had unlimited balancing. 	Id. 	The medical consultant
included no manipulative limitations and again stated there was insufficient
evidence in the file to establish a medically determinable impairment of carpal
tunnel syndrome “without specialist input and no objective evidence to base an
MDI.” 	AR106.
The psychological consultant at the reconsideration level reviewed the file
on April 3, 2020, and found that Mr. B. had nonsevere depressive disorders
and substance abuse disorders. 	AR95-96. 	The consultant found that Mr. B.
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had mild limitations in interacting with others and in adapting or managing
himself. 	AR96. 	No mental RFC was provided by the consultant. 	Id.
D. 	Mr. B.’s Testimony at the ALJ Hearing
Mr. B.’s hearing was held strictly by telephone due to Covid-19. 	AR43.
Mr. B.’s non-attorney representative informed the ALJ that Mr. B. had recently
been scheduled for a new upper back MRI at Sanford and he had been unable
to complete the MRI due to a panic attack, and it was being rescheduled.
AR44-45. 	The ALJ stated she would not leave the record open for the new
MRI. 	AR46.
Mr. B. testified that his problems with his lower and upper back, knees,
elbows, and feet keep him from working fulltime. 	AR50. 	Mr. B. said his back
surgery limited his mobility, but he still had the pain, and instead of crouching
over for relief the fusion holds him straight up. 	AR50-51. 	He said sitting or
standing too long or lifting causes back pain. 	AR51. 	Mr. B. said he lays down
to take the pressure off his back and estimated he does that five times per day
at least. 	Id. 	Mr. B. said he gets seventy-five hydrocodone pills per month for
his pain, which wasn’t nearly enough to take the pain away, but he had
stomach issues so that is it. 	AR55.
Mr. B. testified his elbow problems come and go and are triggered by
repetitive motion. 	AR54. 	Mr. B. said he had prior surgery on his right
shoulder, and it was not so bad, but he had received at least ten shots in his
left shoulder when he was trying to work. 	AR54-55. 	Mr. B. said that now that
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he was not working as much, he still felt the pain in his left shoulder, and he
could not raise his arm above his shoulder. 	AR55.
Mr. B. testified his normal weight was 155 pounds and he had gained
twenty to twenty-five pounds since his back surgery. 	AR56. 	Mr. B. attributed
his weight gain to being less active and depression. 	Id. 	Mr. B. said his pain
affects his concentration, and he gets angry and short-tempered. 	AR57. 	The
ALJ asked him if he got counseling or medication to help with his depression
and Mr. B. said he did not have insurance and just does what he can. 	AR58.
The ALJ asked Mr. B. how he was managing during the hearing and
Mr. B. testified that the ALJ could not see him because it was a phone hearing,
but he was up and moving, then back sitting. 	Id.
Mr. B. testified that his lack of insurance had a huge impact on his
treatment. 	Id. 	He said he had been unable to get “aftercare” treatment. 	AR59.
E. 	The Vocational Expert Testimony
The VE was asked a hypothetical that reflected the limitations identified
in the RFC determined by the ALJ for the period July 1, 2017, through
November 1, 2018, and the VE testified the individual would be unable to
perform any of Mr. B.’s past work. 	AR71. 	The VE testified there would be
other jobs the individual could perform and identified occupations in response
providing the number of jobs available nationally for each occupation. 	Id.
The VE was asked a hypothetical that reflected the limitations identified
in the RFC determined by the ALJ for the period November 1, 2018, through
the date of the decision. 	AR71-72. 	The VE asked the ALJ if that hypothetical
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was more of a “sit/stand option” and the ALJ stated the hypothetical was as
stated. 	AR72. 	The VE testified it would put a person at the sedentary level.
Id. 	The ALJ stated she wanted light jobs, not sedentary and the VE testified
that would require a “sit/stand option.” 	AR72-74. 	The VE testified that light
jobs would have to be reduced in numbers by half with a “sit/stand option,”
and the ALJ stated, “All right. Okay. All right, go ahead.” 	AR74. 	The VE then
identified the occupations of small parts assembler, parking lot attendant, and
photocopy operator giving the number of jobs available nationally and cutting
them in half due to the “sit/stand option.” 	Id. 	The VE testified that the
“sit/stand option” meant the person could sit and stand at will and they would
be provided a stool. 	Id. 	The VE stated that the person could change position
with any frequency, but they must remain on task when they change positions.
AR75. 	The VE testified that the issue of a “sit/stand option” is not addressed
in the Dictionary of Occupational Titles (“DOT”) and her answers were based on
her education and work experience. 	AR76. 	The VE testified that an individual
who was off task more than five percent of the time would be unable to
maintain employment. 	Id.
The ALJ asked the VE, “And regarding your testimony today, you gave
several jobs. 	Are these jobs available across several regions, of the country?”
and the VE answered, “Yes.” 	Id.
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DISCUSSION
A. 	Standard of Review
When reviewing a denial of benefits, the court will uphold the
Commissioner’s final decision if it is supported by “substantial evidence [i]n the
record as a whole.” 	42 U.S.C. § 405(g); Minor v. Astrue, 574 F.3d 625, 627 (8th
Cir. 2009) (citing Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997)).
“[S]ubstantial evidence [is] defined as ‘more than a mere scintilla. 	It means
such relevant evidence as a reasonable mind might accept as adequate to
support [the Commissioner’s] conclusion.’ ” Klug v. Weinberger, 514 F.2d 423,
425 (8th Cir. 1975) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“This review is more than a search of the record for evidence supporting the
[Commissioner’s] findings, and requires a scrutinizing analysis, not merely a
rubber stamp of the [Commissioner’s] action.” 	Scott ex rel. Scott v. Astrue, 529
F.3d 818, 821 (8th Cir. 2008) (internal quotations and citations omitted). 	Yet,
“[i]n conducting [its] limited and deferential review of the final agency
determination under the substantial-evidence standard, [the court] must view
the record in the light most favorable to that determination.” 	Chismarich v.
Berryhill, 888 F.3d 978, 980 (8th Cir. 2018).
In assessing the substantiality of the evidence, the evidence that detracts
from the Commissioner’s decision must be considered, along with the evidence
supporting it. Minor, 574 F.3d at 627. 	The Commissioner’s decision may not
be reversed “merely because substantial evidence would have supported an
opposite decision.” 	Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)
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(quoting Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992)); Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). 	“[I]f it is possible to draw two
inconsistent positions from the evidence and one of those positions represents
the [Commissioner’s] findings,” the Commissioner must be affirmed. 	Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993) (quoting Robinson v. Sullivan, 956
F.2d 836, 838 (8th Cir. 1992)). 	“In short, a reviewing court should neither
consider a claim de novo, nor abdicate its function to carefully analyze the
entire record.” 	Mittlestedt v. Apfel, 204 F.3d 847, 851 (8th Cir. 2000)
(citations omitted).
The court must also review the decision by the ALJ to determine whether
an error of law has been committed. 	Smith v. Sullivan, 982 F.2d 308, 311
(8th Cir. 1992); 42 U.S.C. § 405(g). 	Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability analysis. 	Walker
v. Apfel, 141 F.3d 852, 853 (8th Cir. 1998) (citations omitted). 	“Erroneous
interpretations of law will be reversed.” 	Id. 	The Commissioner’s conclusions of
law are only persuasive, not binding, on the reviewing court. 	Smith, 982 F.2d
at 311 (finding “appropriate deference” should be given to the SSA’s
interpretation of the Social Security Act).
B. 	The Disability Determination and the Five-Step Procedure
Social Security law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
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months. 	42 U.S.C. §§ 416(I), 423(d)(1)(A); 20 C.F.R. § 404.1505.6 The
impairment must be severe, making the claimant unable to do his previous
work, or any other substantial gainful activity which exists in the national
economy. 	42 U.S.C. § 423(d)(2); 20 C.F.R. §§ 404.1505-404.1511.
The ALJ applies a five-step procedure to decide whether an applicant is
disabled. 	This sequential analysis is mandatory for all SSI and SSD/DIB
applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R.
§ 404.1520. 	The five steps are as follows:
Step One: Determine whether the applicant is presently engaged
in substantial gainful activity. 20 C.F.R. § 404.1520(b). 	If the
applicant is engaged in substantial gainful activity, she is not
disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or
combination of impairments that are severe, i.e., whether any of
the applicant’s impairments or combination of impairments
significantly limit her physical or mental ability to do basic work
activities. 	20 C.F.R. § 404.1520(c). 	If there is no such impairment
or combination of impairments, the applicant is not disabled and
the inquiry ends at this step. 	NOTE: the regulations prescribe a
special procedure for analyzing mental impairments to determine
whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992); 20 C.F.R. § 404.1520a. 	This special procedure
includes completion of a Psychiatric Review Technique Form
(PRTF).
Step Three: Determine whether any of the severe impairments
identified in Step Two meets or equals a “Listing” in Appendix 1,
Subpart P, Part 404. 	20 C.F.R. § 404.1520(d). 	If an impairment
meets or equals a Listing, the applicant will be considered disabled
without further inquiry. 	Bartlett v. Heckler, 777 F.2d 1318, 1320
6 Although Mr. B. has applied for both Title II and Title XVI benefits, for
the sake of simplicity, the court herein cites to only the regulations
applicable to one of the Titles where the corresponding regulation is
identical. 	It is understood that both Titles are applicable to Mr. B.’s
application. 	Any divergence between the regulations for either Title will
be noted.
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n.2 (8th Cir. 1985). 	This is because the regulations recognize the
“Listed” impairments are so severe that they prevent a person from
pursuing any gainful work. 	Heckler v. Campbell, 461 U.S. 458,
460 (1983). 	If the applicant’s impairment(s) are severe but do not
meet or equal a Listed impairment, the ALJ must proceed to step
four. 	NOTE: The “special procedure” for mental impairments also
applies to determine whether a severe mental impairment meets or
equals a Listing. 	20 C.F.R. § 1520a(c)(2).
Step Four: Determine whether the applicant is capable of
performing past relevant work (PRW). 	To make this determination,
the ALJ considers the limiting effects of all the applicant’s
impairments, (even those that are not severe) to determine the
applicant’s residual functional capacity (RFC). 	If the applicant’s
RFC allows him to meet the physical and mental demands of his
past work, he is not disabled. 	20 C.F.R. §§ 404.1520(e)-(f);
404.1545(e). 	If the applicant’s RFC does not allow him to meet the
physical and mental demands of his past work, the ALJ must
proceed to Step Five. 	20 C.F.R. § 404.1520(f).
Step Five: Determine whether any substantial gainful activity
exists in the national economy which the applicant can perform.
To make this determination, the ALJ considers the applicant’s
RFC, along with his age, education, and past work experience.
20 C.F.R. § 404.1520(g).
C. 	Burden of Proof
The plaintiff bears the burden of proof at Steps One through Four of the
five-step inquiry. 	Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994);
Mittlestedt, 204 F.3d at 852; 20 C.F.R. § 404.1512(a). The burden of proof
shifts to the Commissioner at Step Five. 	Nevland v. Apfel, 204 F.3d 853, 857
(8th Cir. 2000); Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994). 	“This
shifting of the burden of proof to the Commissioner is neither statutory nor
regulatory, but instead, originates from judicial practices.” 	Brown v. Apfel, 192
F.3d 492, 498 (5th Cir. 1999). 	The burden shifting is “a long-standing judicial
gloss on the Social Security Act.” 	Walker v. Bowen, 834 F.2d 635, 640 n.3 (7th
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Cir. 1987). 	Moreover, “[t]he burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of
production shifts to the Commissioner at step five.” 	Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004).
D. 	Assignments of Error
Plaintiff asserts four errors with multiple subparts. 	First, Mr. B. alleges
that the ALJ failed to identify all medically determinable impairments and
determine the severity at Step Two. 	Docket No. 11, p. 1. 	Second, plaintiff
alleges that at Step Four, the ALJ erred in calculating Mr. B.’s RFC because (1)
the ALJ bifurcated the claim, (2) the RFCs were not supported by substantial
evidence, and (3) the ALJ failed to consider Mr. B.’s mental limitations. 	Docket
No. 11, pp. 1, 15. 	Third, plaintiff alleges the Commissioner failed to fully and
fairly develop and consider the evidence (1) when the ALJ failed to hold the
record open to obtain and consider Mr. B’s new MRI and subsequently, (2)
when the Appeals Council failed to address the submitted new MRI in its
written denial. 	Docket No. 11, p. 1. 	Fourth, the plaintiff alleges the ALJ failed
to meet its burden to identify jobs Mr. B could perform in the national
economy. 	Id.
1. 	At Step Two, Whether the ALJ Failed to Identify All Medically
Determinable Impairments.
a. 	The Applicable Law
Plaintiff alleges that the ALJ at Step Two failed to identify severe
impairments related to Mr. B.’s upper extremities: Mr. B.’s hands, wrists,
elbows, and both shoulders. 	AR236; Docket No. 16, p. 1. 	Mr. B. alleges that
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the ALJ failed to find a severe impairment of carpal tunnel. 	Docket No. 11,
p. 6.
At Step Two, “[a] physical or mental impairment is an impairment that
results from anatomical, physiological, or psychological abnormalities which
are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. § 423(d)(3); see Kirby v. Astrue, 500 F.3d 705, 709 (8th
Cir. 2007) (A claimant’s “subjective complaints” alone are not sufficient to
establish an impairment.). 	The claimant bears the burden to show that their
impairment is severe. 	42 U.S.C. § 423(d)(2)(A).
The principal requirement regarding impairment severity is “the
individual’s inability to engage in any SGA by reason of the impairment.”
Social Security Ruling (“SSR”) 85-28, 1985 WL 56856 *1 (1/1/85).7 “An
impairment or combination of impairments is not severe if it does not
significantly limit [the claimant’s] physical or mental ability to do basic work
activities.”8 20 C.F.R. § 416.922(a). 	Alternatively, a claimant has severe
impairments when they demonstrate through medical evidence that they
possess more than slight abnormalities or a combination of abnormalities
7 Social Security Rulings are agency rulings “published under the
authority of the Commissioner of Social Security and are binding on all
components of the Social Security Administration.” 20 C.F.R. § 422.408
(1989); see Heckler v. Edwards, 465 U.S. 870, 873, n. 3 (1984).
8 Basic work activities include: physical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying or handling;
capacities for seeing, hearing, and speaking; understanding, carrying
out, and remembering simple instructions; use of judgment; responding
appropriately to supervision, co-workers and usual work situations; and
dealing with changes in routine work setting. 	20 C.F.R. § 416.922(b).
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which would have more than a minimal impact on their ability work. 	SSR 85-
28, 1985 WL 56856 *3 (1/1/85); see also Newell v. Comm’r of Soc. Sec., 347
F.3d 541, 546 (3rd Cir. 2003) (“If the evidence presented by the claimant
presents more than a ‘slight abnormality,’ the step-two requirement of ‘severe’
is met, and the sequential evaluation process should continue.”). 	Any severe
impairments established at Step Two will be considered at subsequent steps of
the sequential evaluation process. 	See 20 C.F.R. § 416.945(e) (“[The Social
Security Administration] will consider the limiting effects of all your
impairment(s), even those that are not severe, in determining your residual
functional capacity [at Step Four].).”
Mr. B. cites Nicola v. Astrue, 480 F.3d 885, 886-87 (8th Cir. 2007), for
the proposition that the failure to identify a severe impairment at Step Two is
not harmless error but is instead grounds for reversal. 	See Docket No. 11,
p. 3. 	In Nicola, the severe impairment the claimant alleged the ALJ failed to
identify was borderline intellectual functioning. 	Nicola, 480 F.3d at 887. 	The
Eighth Circuit noted when such a diagnosis is supported by sufficient medical
evidence, it should be considered severe. 	Id. 	The court held the ALJ’s failure
to identify the impairment as severe was not harmless error. 	Id. 	The court
reversed and remanded the case to the Commissioner for further
proceedings. 	Id.
As noted in Lund v. Colvin, Civ. No. 13-113 (JSM), 2014 WL 1153508
(D. Minn. Mar. 21, 2014), the district courts within the Eighth Circuit are not
in agreement about the holding of Nicola. 	Some courts have interpreted it to
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mean that an ALJ’s erroneous Step Two failure to include an impairment as
severe warrants reversal and remand, even when the ALJ found other
impairments to be severe and therefore continued the sequential analysis.
Other courts have declined to interpret Nicola as establishing a per se rule that
any error at Step Two is reversible error, so long as the ALJ continues with the
sequential analysis. 	See Lund, 2014 WL 1153508, at *26 (gathering cases).
The central theme in the cases which hold reversal is not required is that “an
error at Step Two may be harmless where the ALJ considers all of the
claimant’s impairments in the evaluation of the claimant’s RFC.” 	Id. (quoting
Johnson v. Comm’r Soc. Sec., Civ. No. 11-1268 (JRT/SER), 2012 WL 4328413,
at *21-22 (D. Minn. July 11, 2012)).
b. 	The ALJ Decision
The ALJ determined that Mr. B. had the following severe impairments:
cervical degenerative changes with right C5-C6 disc herniation; thoracic
kyphosis; thoracic degenerative changes; lumbar degenerative changes; median
neuropathy at the wrist; and asthma under “SSRs 85-28 and 96-3p and 20
CFR 404.1521 and 416.921.” 	AR14.
The ALJ addressed Mr. B.’s pain in his toes and determined that it did
not meet a medically determinable impairment. 	Id. 	The ALJ reported that
Mr. B.’s shoulder pain “might be related to his cervical and/or thoracic
impairments. 	However, the evidence does not reflect the presence of any
standalone shoulder-related medically determinable impairment.” 	Id. 	Mr. B.’s
gastrointestinal reflux disease was found to be a non-severe medically
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determinable impairment because it did not limit his ability to engage in basic
work tasks. 	Id. 	Similarly, Mr. B’s medically determinable mental impairment9
of dysthymic disorder/depression was determined non-severe as it caused no
more than a minimal limitation to his ability to perform basic mental work
activities under “20 CFR 404.1520a(d)(1) and 416.920a(d)(1).” 	AR15. 	The ALJ
did not address Mr. B.’s elbow pain, nor specifically, Mr. B.’s “carpal tunnel” at
Step Two. 	AR14-16. 	The ALJ stated:
As for medical opinion(s) and prior administrative medical
finding(s), the undersigned cannot defer or give any specific
evidentiary weight, including controlling weight, to any prior
administrative medical finding(s) or medical opinion(s), including
those from medical sources. 	The undersigned has fully considered
the medical opinions and prior administrative medical findings.
AR23.
Such a statement is consistent with 20 C.F.R. § 404.1520(c). 	Having found a
severe or combination of severe medically determinable impairments, the ALJ
continued the sequential evaluation process. 	AR16.
c. 	The Record Evidence on Mr. B.’s Upper Extremities
An August 28, 2017, diagnostic imagining ordered in response to Mr. B.’s
shoulder pain revealed no acute osseous abnormality. 	AR337. 	The report by
Dr. Jordahl M.D., found normal cervical spine alignment, tissues
unremarkable, and no displaced cervical spine fracture. 	AR337.
9 In his brief, Mr. B. alleges the ALJ erred at Step Four when addressing
his mental evaluations in calculating his RFC, not a Step Two. The court
will address the ALJ’s evaluation of Mr. B.’s mental impairments and
limitations at Step Four. 	Docket No. 11, pp. 1-7.
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At a February 27, 2018, visit to Dr. Tinguely, Mr. B. discussed his pain
for his back and neck. 	AR332. 	Mr. B. stated that “he tries to remain as active
as possible . . . [that] he doesn’t want injections/epidurals because they didn’t
work in his shoulders after having so many of them.” 	AR332. 	No acute
distress was noted. 	AR332. 	Dr. Tinguely made no assessments on Mr. B.’s
upper extremities. 	AR333.
At a June 20, 2018, visit to Dr. Tinguely, Mr. B. discussed his meds for
his back and neck pain. 	AR329. 	Mr. B. stated that he had hurt his right
elbow lifting drywall and was treating the injury with ibuprofen, heat, and ice.
AR329. 	He informed Dr. Tinguely that it seemed to be finally getting better.
AR329. 	Mr. B. stated that both his hands were numb the morning of the
exam, that this was typical and that things got better throughout the day.
AR330. 	Mr. B. planned to travel to Tennessee to do brick work stating, “he can
handle it.” 	AR329. 	He also informed Dr. Tinguely that he still had work in
Sioux Falls. 	AR329. 	No acute distress was noted. 	AR330. 	Dr. Tinguely’s
assessment included elbow joint pain and that the plan was to continue
conservative treatment. 	AR330.
At an August 22, 2018, visit to Dr. Tinguely, Mr. B. reported chronic
wrist pain and acute pain in his right elbow. 	AR326. 	Mr. B. thought his elbow
was getting better but now was getting worse again after picking up a gallon of
paint. 	AR326. 	Mr. B. was medicating with Norco, ibuprofen, and Tylenol.
AR326. 	Mr. B. stated that he was “getting by on his current medications” to
manage his wrist pain. 	AR326. 	No acute distress was noted. 	AR327. 	Mr. B.
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told Dr. Tinguely that he was applying for disability as he finds that he cannot
do the work he was trained to do as a brick mason. 	AR326. 	Dr. Tinguely
reported that Mr. B.’s right elbow pain was consistent with tendonitis. 	AR327.
Naproxen was prescribed for his elbow and wrist pain. 	AR327.
At a September 13, 2018, visit to Dr. Tinguely, Mr. B. reported chronic
pain in his hands and right elbow pain. 	AR324. 	Mr. B. informed Dr. Tinguely,
that “things don’t seem to be getting better, but they’re also not getting worse”
regarding his chronic hand pain. 	AR324. 	Mr. B. reported that he “still does
odd jobs around town.” 	AR324. 	No acute distress was noted. 	AR325.
Dr. Tinguely assessed Mr. B. with elbow joint pain, with no mention of other
upper extremities. 	AR325. 	X-rays were performed on Mr. B.’s right elbow with
AP, lateral, and oblique views being normal. 	AR325. 	Dr. Halgeson, M.D., who
performed the x-rays reported “no acute osseous abnormality” of the right
elbow. 	AR336. 	Dr. Tinguely referred Mr. B. to the procedures clinic for elbow
injections. 	AR326. 	Mr. B. was to continue prescription Norco and naproxen
for pain. 	AR325.
At a November 20, 2018, visit, Mr. B. reported shoulder and hand pain to
Dr. Tinguely. 	AR321. 	Mr. B. reported “terrible spasms in his hands if he does
anything more than an hour or so.” 	AR322. 	No acute distress was noted.
AR324. 	Dr. Tinguely assessed Mr. B. with arthralgia of hand and shoulder
joint pain. 	Id. 	Dr. Tinguely reported that Mr. B was “doing well on his current
dose of pain medication” and no changes were made to his treatment plan.
AR323.
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Dr. Tinguely wrote a letter in support of Mr. B.’s disability application on
May 20, 2019. 	AR342. 	In the letter, Dr. Tinguely referenced Mr. B.’s pain and
weakness in his lower back, neck, and elbows, his possible nerve root irritation
of his lumbar spine, his multilevel degeneration of his cervical spine, but made
no mention of any other upper extremities. 	AR342.
At a May 9, 2019, visit with Dr. Tinguely, Mr. B. reported chronic neck
and back pain, no upper extremities were reported or assessed. 	AR370. 	No
acute distress was noted. 	AR371. 	No changes in medications were ordered for
his reported pain. 	AR371.
Dr. Reinschmidt, M.D., who x-rayed Mr. B.’s hands on July 11, 2019,
determined that Mr. B. had “mild osteoarthritis without acute bony
abnormality.” AR350.
Dr. William Young, M.D.’s assessment of Mr. B. at a July 17, 2019, visit
was that Mr. B. had “chronic neck and back pain secondary to multilevel
degenerative disease of the spine, and carpal tunnel disease, bilaterally.”
AR348. 	Mr. B. reported numbness in the median nerve distribution of both
hands. 	AR348. 	Dr. Young examined Mr. B. and found “sensation in his hands
to be fairly intact in both, but his symptoms do fit the diagnosis of carpal
tunnel.” 	AR348.
At an August 7, 2019, visit with Dr. Tinguely, Mr. B. reported chronic
neck and back pain, no upper extremities were reported or assessed. 	AR367.
No acute distress was noted. 	AR368. 	No changes in medications were ordered
for his reported pain. 	AR369.
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On October 3, 2019, Dr. Christopher Janssen, M.D. examined Mr. B.
Mr. B reported pain in his neck occasionally radiating into his arm, and
bilateral upper extremity numbness and tingling. 	AR380. 	Dr. Janssen
reported that Mr. B. was in no apparent distress. 	AR380. 	Dr. Janssen
conducted an electrodiagnostic evaluation and diagnosed Mr. B. with mild
median neuropathy at the wrist. 	AR381. 	For the treatment plan, Dr. Janssen
stated, “for carpal tunnel syndrome,10 recommend resting night splints.”
AR381.
At a November 6, 2019, visit with Dr. Tinguely, Mr. B. reported chronic
neck and back pain, no upper extremities were reported or assessed. 	AR363.
No acute distress was noted. 	AR364. 	No changes in medications were ordered
for his reported pain. 	AR365.
At a January 7, 2020, visit, Dr. Janssen, ordered an EMG nerve
conduction study from Dr. Peter Johnson, M.D. 	AR385. 	Dr. Johnson stated
that “in addition to this exam [the EMG] all prior diagnostic tests and findings
have been reviewed in the medical records.” 	AR397. 	The results were a
diagnosis of paresthesia of the right arm, but no evidence of peripheral
neuropathy. 	AR385. 	Results were “normal right sural sensory nerve
conduction study and also normal right fibular and tibial motor nerve
conduction studies.” 	AR385.
10 Dr. Janssen appears to use the diagnosis for carpal tunnel syndrome
and mild median neuropathy at the wrists interchangeably.
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At this same visit, Dr. Janssen cited evidence from Mr. B.’s
electrodiagnostic study of “mild bilateral median neuropathy at the wrist
(carpal tunnel syndrome) affecting sensory components.” 	AR387. 	Further,
“there is no electrodiagnostic evidence of any other cervical radiculopathy or
generalized peripheral neuropathy in either upper limb.” 	Id.
On May 7, 2021, Mr. B. obtained a cervical spine MRI, several months
after his ALJ February hearing and subsequent March ALJ determination.
AR644. 	This MRI was compared with Mr. B.’s previous MRI conducted in
September 2019. 	Id. 	The new MRI showed, “left neural foraminal stenosis has
progressed” at C4-C5, “progression of left neural foraminal stenosis” at C5-C6.
Id. 	Impression by Dr. David Krause, M.D. was, “multilevel degenerative
spondylosis that is progressed at C4-C5 and C5-C6. . . . The remaining levels
are unchanged.” 	Id. 	The diagnosis was cervical radiculopathy. 	AR639. 	The
May 7, 2021, MRI was submitted as additional evidence to the Appeals
Council. 	Docket No. 15 p. 20.
d. 	Mr. B.’s Testimony Regarding his Upper Extremities
At the ALJ hearing held on February 24, 2022, Mr. B. testified to his
issues preventing him from fulltime employment. 	AR50. 	Mr. B. mentioned
issues with his lower and upper back, feet, knees, elbows, and toes. 	AR50.
When asked whether he experienced neck pain, he responded, “[n]ot so much.
That can come and go.” 	AR53. 	When asked more about his elbows or arms,
Mr. B. responded, “My elbows can come and go, and they’re kind of triggered
by repetitive motion. . . . My shoulders, my right one is not so bad, I’ve had
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surgery on that one. . . . My left shoulder now, when I was working it was
painful, and I had been going in for shots.” 	AR54-55. 	Mr. B. did not testify to
any other issues with his upper extremities including his hands or wrists.
AR54-55.
e. 	The Court’s Conclusion
This court finds that Nicola does not justify reversal because the ALJ
found several severe impairments and continued the sequential process past
Step Two. 	However, this court finds that at Step Two, the ALJ must consider
the May 7, 2021, MRI submitted as additional evidence to the Appeals Council
for a determination of the severity of Mr. B.’s upper extremity impairments as
explained below.
Plaintiff asserts that the ALJ erred in not finding Mr. B.’s carpal tunnel
syndrome a severe impairment. 	Docket No. 11 p. 5. 	The Commissioner asserts
that Mr. B. was never diagnosed with carpal tunnel. 	Docket No. 15 p. 6. 	Both
parties are incorrect. 	The ALJ found that Mr. B. had a severe medically
determinable impairment of “median neuropathy at the wrists.” 	AR14. 	A
diagnosis of carpal tunnel was made by Dr. Young in July 2019. 	This was
again diagnosed by Dr. Janssen on October 3, 2019, after reviewing Mr. B.’s
electrodiagnostic evaluation. 	AR381. 	Dr. Janssen referred to this condition as
both “mild bilateral median neuropathy at the wrists” and “carpal tunnel
syndrome”11 at the October 3, 2019, visit and the subsequent January 7, 2020,
11 The Mayo Clinic defines carpal tunnel syndrome as, “pressure on the
median nerve. . . . When the median nerve is compressed, symptoms can
include numbness, tingling, and weakness in the hand and arm.” 	See
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visit. 	See AR381, 387. 	Further, the Commissioner conceded in the Joint
Statement of Material Facts that Mr. B. had been diagnosed with carpal tunnel
syndrome. 	Docket No. 9 p. 9. 	The ALJ appropriately considered the diagnosis
of carpal tunnel syndrome, i.e., median neuropathy at the wrist, by including
the severe impairment of median neuropathy of the wrists at Step Two.
Plaintiff asserts the ALJ should have found Mr. B.’s elbow impairment
severe. 	The ALJ did not address Mr. B.’s elbow issue at Step Two. 	Mr. B. first
reported pain in his right elbow to Dr. Tinguely in June 2018 after injuring his
elbow lifting drywall. 	“He reported using ibuprofen as well as heat and ice on
the elbow with notation of improvement.” 	AR18. 	He was planning to travel to
Tennessee for a job that would involve brick work and stated that “he felt he
could handle the job.” 	Id. 	It was not until a later visit that X-rays were
performed on Mr. B.’s right elbow with AP, lateral, and oblique views being
normal. 	AR325. 	Dr. Halgeson, M.D., who performed the X-rays reported “no
acute osseous abnormality” of the right elbow. 	AR336. 	At the June 2019 exam
with Dr. Young, “[c]laimant had normal strength in the upper extremities”
(referring to Ex. 8F, pg. 6.) 	AR20. 	In November 2018, Mr. B. reported that he
was able to work around the house. 	Id. 	Dr. Tinguely reported that Mr. B.’s
elbow issues “seem c/w [consist with] tendonitis.” 	AR327. 	Dr. Tinguely
referred Mr. B. to the procedures clinic for elbow injections and continued
Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/carpal-
tunnel-syndrome/symptoms-causes/syc-20355603 (last visited Oct. 20,
2022).
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Mr. B. on naproxen for the pain. 	AR326. 	Mr. B. admits during his testimony
that his elbow pain comes and goes and is related to repetitive motion. 	AR54.
The ALJ addressed Mr. B.’s reported shoulder issue and assessed that it
“might be related to her [sic] cervical and/or thoracic impairments” and was
not a medically determinable impairment. 	AR14. 	Mr. B. did have surgery on
his right shoulder and receive injections for his shoulder pain, however by his
own testimony, Mr. B. stated his right shoulder was not so bad post-surgery,
and it was his left shoulder that caused him pain. 	AR54-55. 	Cervical spine x-
rays were obtained on August 28, 2017, due to Mr. B.’s ongoing left shoulder
pain and revealed no acute abnormality. 	AR337. 	In February 2018, Mr. B.
declined further injections on his shoulders. 	AR332. 	Throughout the medical
record, Mr. B. reported shoulder pain and was responding to Dr. Tinguely’s
planned prescriptions for pain management up until he stopped working. 	In
October 2019, Dr. Janssen examined Mr. B. 	Mr. B reported pain in his neck
occasionally radiating into his arm, and bilateral upper extremity numbness
and tingling. 	AR380. 	The electrodiagnostic evaluation revealed cervical,
lumbar, and wrist issues, but no radiculopathy. 	AR381. 	The May 7, 2021,
MRI included a diagnosis of cervical radiculopathy.12
12 “Cervical radiculopathy is a pain and/or sensorimotor deficit syndrome
that is defined as being caused by compression of a cervical nerve root
[1–4]. The compression can occur as a result of disc herniation,
spondylosis, instability, trauma, or rarely, tumors. Patient presentations
can range from complaints of pain, numbness, and/or tingling in the
upper extremity to electrical type pains or even weakness.” John M.
Caridi, Cervical Radiculopathy: a Review, PubMed.gov, Sept. 9, 2011
https://pubmed.ncbi.nlm.nih.gov/23024624/ (last visited Oct. 26,
2022).
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The ALJ’s determination of whether Mr. B.’s elbow and shoulder
impairments are severe must consider the May 7, 2021, MRI cervical
radiculopathy diagnosis. 	Dr. Tinguely in her June 2020 letter described
Mr. B.’s severe arthritis and radiculopathy effected his mobility issues, but she
did not quantify Mr. B.’s functional capacity. 	AR24, 611, 639. 	The ALJ in its
decision prior to the new MRI speculated whether Mr. B.’s shoulder issues were
related to the cervical impairments. 	AR14. 	The new MRI reveals increased
deterioration and a new diagnosis. 	For these reasons, this court reverses the
Commissioners’ decision and remands for a new Step Two analysis on the
severity of Mr. B.’s upper extremity impairments in consideration of the May 7,
2021, MRI.
2. 	At Step Four, Whether the ALJ Erred When Formulating
Mr. B.’s RFC.
a. 	The Applicable Law
Plaintiff alleges that at Step Four, the ALJ erred in calculating Mr. B.’s
RFC because (1) the ALJ bifurcated the claim, (2) the RFCs were not supported
by substantial evidence, and (3) the ALJ failed to consider Mr. B.’s mental
limitations. 	Docket No. 11 pp. 1, 15.
Residual functional capacity (“RFC”) is “defined as what the claimant can
still do despite his or her physical or mental limitations.” 	Lauer v. Apfel, 245
F.3d 700, 703 (8th Cir. 2001) (citations omitted, punctuation altered). 	“The
RFC assessment is an indication of what the claimant can do on a ‘regular and
continuing basis’ given the claimant’s disability.” 	Cooks v. Colvin, CIV. 12-
4177-KES, 2013 WL 5728547, at *6 (D.S.D. Oct. 22, 2013) (quoting 20 C.F.R. §
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404.1545(b)). 	The formulation of the RFC has been described as “probably the
most important issue” in a Social Security case. 	McCoy v. Schweiker, 683 F.2d
1138, 1147 (8th Cir. 1982), abrogation on other grounds recognized in Higgins
v. Apfel, 222 F.3d 504 (8th Cir. 2000).
When determining the RFC, the ALJ must consider all of a claimant’s
mental and physical impairments in combination, including those impairments
that are severe and those that are nonsevere. 	Lauer, 245 F.3d at 703; SSR 96-
8p, 1996 WL 374184 (7/2/96). 	Although the ALJ “bears the primary
responsibility for assessing a claimant’s residual functional capacity based on
all the relevant evidence . . . a claimant’s residual functional capacity is a
medical question.” 	Lauer, 245 F.3d at 703 (citations omitted). 	Therefore,
“[s]ome medical evidence must support the determination of the claimant’s
RFC, and the ALJ should obtain medical evidence that addresses the
claimant’s ability to function in the workplace.” 	Id. (citations omitted).
“The RFC assessment must always consider and address medical source
opinions.” 	SSR 96-8p, 1996 WL 374184 (7/2/96). 	If the ALJ’s assessment of
RFC conflicts with the opinion of a medical source, the ALJ “must explain why
the [medical source] opinion was not adopted.” 	Id.
For cases filed after March 2017, like this one, medical opinions from
accepted medical sources about the nature and severity of an individual’s
impairment(s) are evaluated according to how supported the opinion is by
objective medical evidence and supporting explanations and how consistent the
opinion is with other medical and nonmedical evidence in the record. 	20
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C.F.R. § 404.1520c(c)(1) - (2). 	Other considerations are the relationship the
medical source had with the claimant, the length of their treatment
relationship, the frequency of examinations, the purpose of the treatment
relationship, the kinds and extent of testing or examinations, and whether the
medical opinion is in an area in which the medical source has expertise or
specialization. 	20 C.F.R. § 404.1520c(c)(3) – (5).
Acceptable medical sources include licensed physicians and
psychologists. 	20 C.F.R. § 416.902(a)(1) & (2). 	It also includes licensed
advanced practice registered nurses and physician assistants for issues within
the scope of their licensed practice. 	20 C.F.R. § 416.902(a)(7) & (8).
Ultimate issues such as RFC, “disabled,” or “unable to work” are issues
reserved to the ALJ. 	SSR 96-8p, 1996 WL 374184 *7 (7/2/96). 	Medical source
opinions on these ultimate issues must still be considered by the ALJ in
making these determinations. 	Id. 	However, the ALJ is not required to give
such opinions special significance because they were rendered by a treating
medical source. 	20 C.F.R. § 404.1520c.
“Where there is no allegation of a physical or mental limitation or
restriction of a specific functional capacity, and no information in the case
record that there is such a limitation or restriction, the adjudicator must
consider the individual to have no limitation or restriction with respect to that
functional capacity.” 	SSR 96-8p, 1996 WL 374184 (7/2/96). 	However, the
ALJ “must make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC.” 	Id.
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When writing its opinion, the ALJ “must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical
facts . . . and nonmedical evidence . . . In assessing RFC, the adjudicator must
. . . explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved.” 	Id. 	“Impairments found at Step
Two or Step Three, whether severe or not, should be considered while
formulating the RFC but do not automatically translate into limitations on the
claimant's ability to work.” 	Gann v. Colvin, 92 F. Supp. 3d 857, 885 (N.D. Iowa
2015) (concluding that “the RFC is not simply a laundry list of impairments
and limitations” and an RFC is not flawed simply because it does not reflexively
recite the ALJ’s prior findings under a previous step.); see also 20 C.F.R.
§ 404.1545(a)(1).
Finally, “to find that a claimant has the [RFC] to perform a certain type of
work, the claimant must have the ability to perform the requisite acts day in
and day out, in the sometimes competitive and stressful conditions in which
real people work in the real world.” 	Reed v. Barnhart, 399 F.3d 917, 923 (8th
Cir. 2005) (citations omitted, punctuation altered); SSR 96-8p, 1996 WL
374184 *1 (7/2/96) (“RFC is an assessment of an individual’s ability to do
sustained work-related physical and mental activities in a work setting on a
regular and continuing basis” for “8 hours a day, for 5 days a week, or an
equivalent work schedule.”). 	The ultimate question is whether “substantial
evidence [i]n the record as a whole” supports the ALJ’s RFC formulation.
Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006).
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b. 	The ALJ Decision
The ALJ’s first RFC formulation considered the time period from Mr. B.’s
onset date of July 1, 2017, to November 1, 2018. 	AR16. 	The ALJ found Mr. B.
capable of performing light work with the following limitations:
[The] claimant could lift and/or carry 20 pounds occasionally, 10
pounds frequently, stand and/or walk about 6 hours in a 8 hour
work day, sit about 6 hours in an 8 hour work day and had
unlimited push and pull except for the limitations in lifting and
carrying. 	The claimant could frequently climb ramps and stairs,
and could occasionally climb ladders, ropes or scaffolds. 	The
claimant could occasionally stoop; and frequently kneel, crouch,
and crawl. 	The claimant could have occasional exposure to fumes,
odors, dusts, and atmospheric conditions in defined in the SCO.
AR16.
The ALJ noted a change of RFC post-November 2018 to the date of
decision as reduced light work with the following limitations:
[The] claimant can lift and/or carry 20 pounds occasionally, 10
pounds frequently, stand and/or walk about 4 hours in an 8-hour
work day, sit about 6 hours in an 8-hour work day, and has
unlimited push and pull except for the limitations in lifting and
carrying. The claimant can frequently climb ramps and stairs, and
could occasionally climb ladders, ropes or scaffolds. The claimant
can rarely stoop; and frequently kneel, crouch, and crawl. The
claimant can have occasional exposure to fumes, odors, dusts,
atmospheric conditions as defined in the SCO. The claimant can
frequently handle, finger, and feel.13
AR18.
13 The ALJ analyzed Mr. B.’s impairments chronologically. 	Differences
between the first RFC and second RFC are italicized. 	Both RFCs were
used to determine whether Mr. B. could perform his past relevant work
at Step Four and whether there were jobs in the national economy that
would accommodate reduced light work with the stated limitations at
Step Five. 	AR24-25. 	Neither RFC includes limitations for “reaching.”
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c. 	The Record Evidence
In formulating Mr. B.’s first RFC, the ALJ considered Mr. B.’s testimony
from the hearing and relevant evidence from the record. 	AR17-18. 	Mr. B.
testified that he could not lift more than fifteen pounds, could not stand for
more than fifteen minutes at most, and walk only about fifty steps before
needing a rest. 	AR17, 51. 	The ALJ opined that “[Mr. B.] testified at the hearing
to limitations that would make the regular, reliable, and sustained performance
of even sedentary level tasks and work difficult.” 	AR17.
The ALJ found that the claimant’s statements about the intensity,
persistence, and limiting effects of his symptoms of both severe and nonsevere
impairments were “not entirely consistent” with the record during this time
period. 	AR17. 	The ALJ cited to a June 20, 2018, examination by Dr. Jennifer
Tinguely, in which “[Mr. B.] was doing pretty well, including reasonable relief
with pain medication management.” 	AR18. 	Notably, Mr. B. was performing
jobs below the substantial gainful activity which the ALJ assessed as, “reflects
generally good overall functioning.”14 AR17.
At the initial consideration phase, Dr. Ammie Maravelli, M.D. found that
there was insufficient medical evidence in Mr. B.’s file to assess the medical
claims for the time period since last insured (September 30, 2018). 	AR80. 	The
assessment is dated August 8, 2019. 	AR80. 	The state agency consultant,
14 Mr. B. was performing electrical and plumbing work in January 2018;
traveled to Tennessee in June 2018 for what he thought would be a brick
laying job but ended up successfully staining a deck; as of September
2018, he was still doing odd jobs around town. 	AR18, 324.
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Dr. Maravelli found that Mr. B.’s symptoms were “partially consistent” with the
medical record. 	AR80. 	Dr. Maravelli’s RFC assessment included: occasionally
lift and/or carry 20 pounds, frequently lift and/or carry 10 pounds, stand
and/or walk (with normal breaks) for 6 out of 8 hours in a workday, the same
time period for sitting, and no limitations on push and/or pull in upper or
lower extremities. 	AR81. 	Dr. Maravelli found that Mr. B. had postural
limitations of never climbing, balancing, stooping, kneeling, crouching, or
crawling. 	AR82. 	No manipulative limitations, or limitations for asthma were
included. 	AR82. 	The state agency did not perform a mental RFC assessment.
AR88.
At the reconsideration phase, Dr. Kevin Whittle, M.D. found that there
was insufficient medical evidence in Mr. B.’s file to assess the medical claims
for the time period since last insured (September 30, 2018). 	AR95. 	The
assessment is dated April 2, 2020. 	AR91. 	However, Dr. Whittle did review
what medical records were available. 	Dr. Whittle believed that Dr. Young’s RFC
evaluation was more restrictive than was supported by his assessment of
Mr. B.’s records. 	AR106. 	Dr. Whittle’s RFC assessment was similar to Dr.
Maravelli’s RFC except that Dr. Whittle included the following postural
limitations: frequently climbing ramps/stairs, kneeling, crouching, crawling;
occasionally climbing ladders and stooping; and unlimited balancing. 	AR105.
The ALJ found that the medical evidence of back arm/hand pain for
post-November 2018, justified a more restrictive RFC with additional postural
limitations. 	AR23. 	Additional limitations included hand manipulation, and
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length of time standing, sitting, and walking. 	AR23. 	Further, the ALJ cited
medical evidence of Mr. B.’s lumbar spine issues necessitating surgery around
this time. 	Id. 	The ALJ also considered Dr. Young’s July 2019 opinion and Dr.
Tinguely’s May 2019 letter in its RFC analysis. 	The ALJ found that Dr. Young’s
opinion that Mr. B. should be limited to sedentary work was contradicted by
the medical evidence. 	AR23. 	The ALJ found Dr. Tinguely’s opinion was also
contradicted by the medical evidence. 	AR24.
d. 	The Court’s Conclusion
The supposed “bifurcation” of the RFC determination is justified based
on change in Mr. B.’s medical record after November 2018. 	The court agrees
with the ALJ that there was a marked change in Mr. B.’s record including
spondylosis/DDD in the thoracic spine and degenerative changes in the
cervical spine. 	AR20. 	Additionally, the ALJ properly evaluated and considered
plaintiff’s mental limitations when calculating both RFCs. 	However, the court
finds that the ALJ’s RFC calculation is not supported by substantial evidence
because both RFC calculations did not consider the May 7, 2021, MRI, thus
remand for a new Step Four analysis is necessary.
i. 	The Bifurcation of the Claim
The ALJ calculated two RFCs for Mr. B., one representing the period
between the onset date to November 2018, and the second RFC representing
the period between November 2018 to the date of decision. 	Plaintiff contends
that the “ALJ’s bifurcation of [Mr. B.]’s claim with pre and post November 1,
2018, RFCs is arbitrary and left unexplained by the ALJ or supported by the
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record.” Docket No. 11 p. 7. 	This court finds that such a distinction in time
was justified and sufficiently explained by the ALJ. 	For the period before
November 2018, the ALJ compared Mr. B.’s testimony from the hearing to
record evidence that Mr. B. had been performing electrical and plumbing work
and traveling to Tennessee for work. 	AR17-18. 	Further, Dr. Jennifer
Tinguely’s June 20, 2018, examination notes stated that Mr. B. had reasonable
relief with pain medication management, that the numbness in his hands
subsided throughout the day, and that he had normal mental status. 	AR18.
As of November 2018, the ALJ stated, “the undersign accepts that
[Mr. B.] appears to have experienced some greater degree of functional
limitation from November 2018.” 	AR19. 	The November examination by
Dr. Tinguely is the first time Mr. B. spoke of spasms in his hands. 	Mr. B.
reported to Dr. Tinguely that he could still work around the house. 	AR20. 	X-
rays at a December 2018 visit showed spondylosis/DDD of the thoracic spine
and degenerative changes in the cervical spine and reduced lumbar range of
motion. 	The ALJ explained, “the undersigned does find support for additional
postural limitations, manipulative, standing and walking limitations
particularly with the claimant’s back and intermittent reports of hand/arm
pain.” 	AR23.
This court finds that those suggested limitations are accurately reflected
in the second RFC and are supported by the record. 	Because the ALJ
identified two time periods that resulted in two different RFCs (one for a full
range of light work, the other for a reduced range of light work with additional
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postural and manipulation limitations), both RFCs were considered at Step
Four and Step Five. 	Both RFCs resulted in a finding that Mr. B. would be
unable to perform any past relevant work, and that there were jobs that exist
in the significant numbers in the national economy that Mr. B. could perform.
AR24-26. 	The ALJ did not err when it found two different RFCs for the periods
before and after November 2018.
ii. 	Substantial Evidence for the RFCs
Plaintiff asserts the RFCs are not supported by substantial evidence.
Namely, that the ALJ erred when it relied on the state agency RFC assessments
despite both medical consultants stating that “there was insufficient medical
evidence in the file to assess the claim for the date last insured,” and not
including a reaching limitation in either RFC. AR80, 95.
As to the first assertion, the ALJ did not solely rely on the state agency
RFC assessments. 	AR23. 	The ALJ stated that it “fully considered the medical
opinions and prior administrative medical findings.” 	AR23. 	In doing so, the
ALJ determined that the DDS medical consultants stating that there was
insufficient evidence prior to the date last insured was not considered a
medical opinion. 	AR23. 	The ALJ found that Dr. Maravelli’s RFC assessment of
never being able to perform any postural activity was overly limiting. 	When
considering Dr. Whittle’s RFC, the ALJ noted that additional posturing,
walk/stand/sit, manipulation and asthma limitations were warranted by the
medical record. 	AR23. 	(The ALJ cited to Mr. B.’s testimony (AR17),
Dr. Tinguely’s June 2018, November 2018, June 2020, August 2020,
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examinations, her May 2010 letter, (AR18-24), Dr. Young’s July 2019
examination (AR20-21, AR23-24), and Dr. Janssen’s December 2019
examination (AR21)). 	The resulting RFCs were neither copied from the state
assessments nor from Dr. Young’s report. 	They were the determination of the
ALJ based on the record.
Plaintiff asserts there was sufficient evidence to justify a “reaching”
limitation in the RFCs. 	The record evidence is mixed with regards to justifying
a reaching limitation. 	Mr. B. did have a diagnosis of carpal tunnel, tendonitis
of the elbow, documented pain in his upper extremities and back as of the ALJ
hearing. 	The May 7, 2021, MRI confirmed cervical radiculopathy and likely
impingement on the C6 nerve root. 	AR407. 	However, there was equal evidence
in the record of upper extremity strength. 	AR89.
At the hearing, Mr. B. testified that issues with his elbows were triggered
by repetitive motion. 	AR54. 	Mr. B. stated that his shoulder pain prevented
him from lifting his arm above his shoulders. 	AR55. 	The ALJ acknowledged
testimony of Mr. B.’s lifting no more than fifteen pounds, but only if he is
careful. 	AR17. 	The ALJ stated that “[Mr. B.’s medically determinable
impairments could reasonably be expected to cause the alleged symptoms;
however [Mr. B.]’s statements concerning the intensity, persistence, and
limiting effects of these symptoms are not entirely consistent with the medical
evidence.” 	AR17, 19.
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Before November 2018, the ALJ cites to Mr. B. continuing to work with
his upper extremities.15 AR18. 	“While not expressly indicative of substantial
gainful activity reflects generally good overall functioning.” 	AR17. 	At the June
2018 exam, Mr. B. reported that his elbow pain was mitigated by ibuprofen,
heat and ice, and that the numbness in his hands was inconsistent. 	AR18. 	No
acute distress was noted. 	AR18.
After November 2018, the ALJ cited to examinations by Dr. Tinguely in
which Mr. B. stated that the pain medications allowed him to continue working
around his house. 	AR20. 	Mediation by pain medication is noted in the ALJ’s
decision and throughout the medical record. 	AR20. 	The ALJ referenced an
examination in December 2018 found that Mr. B. “had normal strength in the
upper and lower extremities, intact sensation, and normal gait.” 	AR20. 	The
ALJ noted that Dr. Young’s assessment that Mr. B. should be limited to
sedentary level tasks was inconsistent with Dr. Young’s findings that “strength
and sensation was intact bilaterally in his upper and lower extremities.” 	AR21.
Mr. B. was able to fully flex his back, albeit with some difficulty. 	AR21. 	Post
back surgery, Mr. B. continued to complain of pain and lack of flexibility in his
back. 	AR612, 615.
The ALJ cited to Dr. Janssen’s assessment that Mr. B. “exhibited a
slumped forward posture and had some tenderness to palpitation over the
lumbar paraspinal muscles,” however Mr. B. did not present apparent distress
during the examination. 	AR21. 	The ALJ referenced a February 2020 exam at
15 Supra note 14.
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Surgical Associates, in which Mr. B. exhibited no distress, and having no motor
or sensory deficits and was likewise ambulating without difficulty. 	AR22. 	Also,
a June 2020 examination with Dr. Tinguely noted post-surgery that Mr. B. was
stiff but did not reference particular problems with his ability to effectively
ambulate. 	AR22. 	Based on all this information, the ALJ determined that
Mr. B.’s post-surgical recovery would allow for a range of light level tasks
including standing/walking for four hours in an eight-hour day. 	Id.
The ALJ “bears the primary responsibility for assessing a claimant’s
residual functional capacity based on all the relevant evidence . . . a claimant’s
residual functional capacity is a medical question.” 	Lauer, 245 F.3d at 703
(citations omitted) (emphasis added). 	Here, the evidence concerning Mr. B.s
ability to reach is divided. 	On the one hand the 2019 MRI of his cervical spine
documented nerve impingement, which might constitute objective medical
evidence explaining Mr. B’s symptoms of pain in his shoulders and resulting
loss of function in reaching. AR407. 	But his daily activities and some exam
results point to no loss of function. 	AR407.
A major piece of evidence that the ALJ did not have and so did not
consider was the May 7, 2021, MRI of Mr. B.’s cervical spine. 	That MRI
documented a worsening of his cervical spine condition and diagnosed cervical
radiculopathy, or impingement of nerve(s). 	Because, as explained below, this
court is reversing and remanding with instructions to consider that May 7,
2021, MRI, the court finds the ALJ should also on remand reweigh all the
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evidence connected to Mr. B.’s neck/shoulders and determine whether his RFC
should have more restrictive limitations on reaching in light of all the evidence.
All the jobs cited by the ALJ in the decision under Step Five included a
reaching limitation of frequent – 1/3 to 2/3 time in an 8-hour workday. (Jobs
listed under the first RFC for light work included: Photocopy machine operator
– 207.685-014, Order Caller – 209.667.014, Cafeteria Attendant – 311.677-
010; jobs listed under the second RFC for reduced light work included:
Photocopy machine operator – 207.685-014, Small parts assembler – 706.684-
022, Parking Lot attendant – 207.685-014). 	AR25-27.16 	The ALJ should
consider whether the evidence points to a physical RFC for Mr. B. that includes
a restriction to something less than “frequent” reaching.
iii. 	Mental RFC Evaluation
Plaintiff asserts that the ALJ erred when formulating Mr. B.’s RFCs by
not including mental limitations associated with Mr. B.’s Step Two mental
impairment and not explaining the omission. 	Docket No. 11 p. 15. 	The ALJ
did not err because Mr. B.’s mental impairments were sufficiently considered
when formulating both of his RFCs.
16 During the hearing, the ALJ asked the VE for sedentary jobs, applying
the proposed limitations of the second RFC with no reaching limitation.
AR75-76. The VE supplied the following jobs which include a frequent
reaching limitation: 249.587-018 document preparer, 669.687-014 dowel
inspector, and 209.587-010 addresser. 	Under 20 C.F.R. § 404.1597(b) if
an individual can perform light work, they can also perform sedentary
work unless there are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
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The ALJ first considered Mr. B.’s mental functioning at Step Two, finding
that his medically determinable mental impairment of dysthymic
disorder/depression was nonsevere. 	AR14-15. 	The ALJ evaluated Mr. B.’s
mental function under “paragraph B” criteria independently from the mental
evaluation conducted by the state agency.17 AR15, 96. 	The ALJ found that
Mr. B. had no limitations in the areas of understanding, remembering or
applying information or concentrating, persisting or maintaining pace. 	AR15.
The ALJ found that Mr. B. had mild limitation in the areas of interacting with
others and adapting or managing oneself. 	These determinations are consistent
with the record evidence, Mr. B.’s testimony at the hearing, and the
assessment of the state agency. 	AR96.
The state agency opinions at the initial and reconsideration stages did
not assess Mr. B.’s mental RFC. 	The ALJ stated in its opinion, “[t]he mental
RFC used at steps 4 and 5 of the sequential evaluation process requires a more
detailed assessment.” 	AR16. 	The detailed assessment the ALJ is referring to a
consideration of severe and nonsevere impairments and any symptoms that
would limit an individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing basis for 8
hours a day, for 5 days a week, or an equivalent work schedule. 	AR19; SSR
96-8p 1996 WL 374184 *1 (7/2/96). 	The ALJ included such an analysis at
17 Paragraph B criteria considers (1) understanding, remembering or
applying information, (2) interacting with others, (3) concentrating,
persisting or maintaining pace, (4) adapting or managing oneself. 	20
C.F.R., Part 404, Subpart P, Appendix 1.
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Step Four. 	AR16-24. 	The ALJ explained that “the claimant’s medically
determinable impairments could reasonably be expected to cause the alleged
symptoms; however, the claimant’s statements concerning the intensity,
persistence and limiting effects of these symptoms are not entirely consistent
with the medical evidence and other evidence in the record.” 	AR17. 	Thus,
taking the record as a whole, the ALJ found no additional mental limitations
were warranted.
In Mr. B.’s testimony, he associated his mental health with his pain.
AR57. 	As to Mr. B.’s mental state, he testified to his depression in the context
of weight gain. 	AR56. 	In response to symptoms affecting his mental health,
Mr. B. stated that he felt angry, but that he was not undergoing counseling or
taking medication. 	AR58. 	The ALJ noted that Dr. Tinguely reported in June
2018, that Mr. B. had “a normal mental status, including notation that he was
oriented, had normal speech, and had a euthymic mood.”18 AR18. 	Mr. B. was
first diagnosed with dysthymic disorder by Dr. Tinguely on August 22, 2018.
AR325. 	Mr. B.’s mood was “quite down.” 	AR328. 	Dr. Tinguely offered
counseling, but Mr. B. declined. 	AR328. 	He was prescribed Wellbutrin. 	Id.
Jerry Buchkoski, Ph.D. assessed Mr. B.’s mental limitations as: no limitation
on ability to understand, remember, or apply information; mild limitation on
interacting with others; no limitation on concentration, persistence, or to
maintain pace; and mild limitation to adapt or manage oneself. 	AR104.
18 Euthymic mood is defined as “a normal, tranquil mental state or
mood” See Merriam-Webster, https://www.merriam-
webster.com/medical/euthymia (last visited Oct. 20, 2022).
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Explanation on the assessment acknowledged that Mr. B. was prescribed
Cymbalta then subsequently Wellbutrin for his depression. 	AR104.
The ALJ noted that Dr. Tinguely reported in November 2018, that Mr. B. had “a
normal mental status, including notation that he was alert, oriented, and
pleasant with euthymic mood.” 	AR18.
Admittedly, the ALJ does not specifically name Mr. B.’s nonsevere
dysthymic disorder/depression at Step Four, however in narrative fashion, the
ALJ discussed Mr. B.’s treatment plans including medications for pain,
medications for depression, medical evaluations on Mr. B.’s mood and mental
status, and Mr. B.’s self-care. 	AR16-24. 	The ALJ referenced Mr. B.’s normal
mental status at exams five times between June 2018 and August 2020. 	There
is no record evidence of Mr. B. seeing a psychiatrist or counselor. 	He was
responding to Wellbutrin to manage his depression and pain. 	AR22. 	Mr. B.
did testify that his mental health is affected by his pain, that he feels angry,
but not violent. 	AR57. 	Mr. B. mentioned no other specific limitations. 	AR57-
59. 	When asked whether he was able to keep a schedule or routine, he
responded, “I can.” 	AR58. 	He testified that he was not seeking counseling or
medication to help with his anger issues because he doesn’t have insurance.
AR58. 	However, when offered counseling for his depression by his Community
Health physician in August 2018, Mr. B. declined treatment. 	AR328.
Additionally, the ALJ asked if Mr. B. had ever paid for any service by Falls
Community Health, and he responded, “No, I have no income.” 	AR68-69. 	The
ALJ did not err because the RFCs were consistent with the record and the
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determination on limitations was sufficiently explained with citations to the
record.
3. 	Whether the Commissioner Failed to Fully and Fairly Develop
and Consider the Evidence.
Plaintiff asserts that the ALJ erred when it did not keep the record open
after the hearing to accept Mr. B.’s new MRI, and that the Appeals Council
erred when they failed to consider the new MRI thus failing to fully and fairly
develop and consider the evidence. 	Docket No. 11 p. 17-20.
a. 	The Applicable Law
An ALJ has the duty to fully and fairly develop the record. 	Nevland v
Apfel, 204 F3d 853, 857 (8th Cir. 2000) (citing Warner v. Heckler, 722 F.2d
428, 431 (8th Cir.1983). 	The ALJ must ensure before the close of the hearing
that there is no additional evidence to submit or disclose. 	See Hearings,
Appeals and Litigation Law Manual “HALLEX” I-2-6-52 E. 	“If the claimant or
any representative indicates that there is additional evidence to submit, the
ALJ will determine whether to leave the record open for submission of the
evidence.” 	See 20 C.F.R. §§ 404.935(b),404.1513(b), 416.913(b), 416.1435(b);
HALLEX I-2-6-59 B. 	The ALJ must consider whether the evidence has a direct
bearing on the outcome of the hearing; and the evidence could not have been
obtained before the hearing. 	SSA POMS DI 33015.030 (9/5/19). 	The ALJ has
discretion whether to keep the record open however, the SSA notes that these
two factors should be applied in a flexible manner. 	Id.
A claimant may submit evidence to the Appeals Council with their
request for review. 	See 20 C.F.R. §§ 404.970(a)(5), 416.1470(a)(5). 	The
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evidence must be new, material, relate to the period on and before the date of
the hearing decision, and there must be a reasonable probability that the
additional evidence would change the outcome of the decision. 	Id. 	“To be
‘new,’ evidence must be more than merely cumulative of other evidence in the
record.” 	See Lamp v. Astrue, 531 F.3d 629, 632 (8th Cir. 2008) (quoting
Bergmann v. Apfel, 207 F.3d 1065, 1069 (8th Cir. 2000)). 	Further, to qualify
as material, the additional evidence must not merely detail after-acquired
conditions or post-decision deterioration of a preexisting condition. 	Id.; Perks
v. Astrue, 687 F.3d 1086, 1093 (8th Cir. 2012) (an MRI submitted to the
Appeals Council contained no new information that was not already
represented in the administrative record.).
After it has reviewed all the evidence in the ALJ hearing record and any
additional evidence received, subject to the limitations on Appeals Council
consideration of additional evidence under 20 C.F.R. § 404.970(a)(5), the
Appeals council will make a decision or remand the case. 	20 § C.F.R.
§ 404.979. 	“When the Appeals Council has considered new and material
evidence and declined review, [the Appeals Council] must decide whether the
ALJ's decision is supported by substantial evidence in the whole record,
including the new evidence.” 	Mackey v. Shalala, 47 F.3d 951, 953 (8th
Cir.1995) (noting that the Eighth Circuit, unlike some other circuits, does
consider “tardy evidence” in the “substantial evidence equation.”).
The Eighth Circuit has remanded cases where it was unclear whether the
Appeals Council considered new evidence. 	See Lamp v. Astrue, 531 F.3d 629,
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632 (8th Cir. 2008) (the Appeals Council decision letter noted that it considered
new evidence in the record as “Exhibit 10F” however it was unclear if “Exhibit
10F” included the explanatory letter.); Gartman v. Apfel, 220 F.3d 918, 922
(8th Cir. 2000) (the Appeals Council decision letter mentioned “the additional
evidence also identified on the attached Order of the Appeals Council” but
failed to specifically mention a doctor’s letter.).
b. 	The ALJ and Appeals Council Decision
During the hearing, the ALJ asked Non-Attorney Representative Heather
Mueller if all exhibits had been received into the record. 	AR44. 	Ms. Mueller
informed the ALJ that an attempt had been made to complete a second MRI,
but that it was not completed due to Mr. B. having a panic attack. 	AR45.
Ms. Mueller informed the ALJ that the MRI had not been rescheduled as of the
hearing. 	The MRI had been scheduled for February 11, 2021, over two weeks
prior to the hearing. 	AR45. 	The MRI was reportedly going to be of Mr. B.’s
upper back. 	AR45. 	Based on lack of rescheduling and the fact that the panic
attack occurred over two weeks before the hearing, the ALJ decided not to leave
the record open. 	AR46.
Mr. B. submitted a request for review to the Appeals Council on May 14,
2021. 	Accompanying the review request was (1) a letter from Dr. Tinguely, (2) a
brief by Disability Representative Heather Mueller, (3) a statement from Mr. B.,
and (4) the new MRI that was completed May 7, 2021. 	AR1-4, AR633-52;
Docket No. 15 p. 20. 	The Appeals Council denied Mr. B.’s request for review.
AR1. 	The Appeals Council notice stated,
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We will review your case if . . . we receive additional evidence that
you show is new, material, and relates to the period on or before
the date of the hearing decision. 	You must also show there is a
reasonable probability that the additional evidence would change
the outcome of the decision. 	You must show good cause for why
you missed informing us about or submitting it earlier.
AR1-2.
Under “Additional Evidence,” the Appeals Council responded: “You
submitted letter from Jennifer Tinguely, M.D., dated September 7, 2021 (1
page). 	We find this evidence does not show a reasonable probability that it
would change the outcome of the decision. 	We did not exhibit this evidence.”
AR2. 	The Appeals Council exhibited the following evidence received:
Exhibit 12B 	Request for Review of Hearing Decision (i520) received
May 14, 2021 (3 pages)
Exhibit 15E 	Representative’s Brief from Heather Mueller dated
June 5, 2021 (2 pages)
Exhibit 16E 	Undated Statement from Brian Bohner received June
5, 2921 (1 page)
AR4.
The May 7, 2021, MRI that was submitted with the request for review is not
referenced in “Additional Evidence” nor was it exhibited. 	AR2, 4. 	The MRI
appears nowhere in the decision letter. 	AR1-4. 	The May 7, 2021, MRI appears
only in the administrative record. 	AR633-52.
The MRI was conducted on May 7, 2021, and examined Mr. B.’s cervical
spine and diagnosed cervical radiculopathy. 	AR639. 	Findings included normal
alignment and normal vertebral body heights with benign bone marrow signal.
AR644. 	There was normal morphology and signal of the spinal cord. 	Id. 	There
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was multilevel disc desiccation, with mild disc space height loss at C5-C6 and
C6-C7. 	The epidural space was unremarkable. 	Id. 	The paravertebral soft
tissues and imaged intracranial contents were unremarkable. 	Id. 	The MRI
showed progression of the left neural foraminal stenosis. 	Id. 	The final
impression was multilevel degenerative spondylosis that is progressed at C4-C5
and C5-C6. 	Id.
c. 	The Court’s Conclusion
This court finds that the ALJ did not err when choosing not to keep the
record open for the MRI after the hearing. 	This court finds that the Appeals
Council did err when it omitted analysis and discussion of the May 7, 2021,
MRI in its decision letter.
The ALJ used appropriate discretion when deciding to close the record at
the hearing. 	In applying the SSA standard, the ALJ must consider whether the
evidence has a direct bearing on the outcome of the hearing; and the evidence
could not have been obtained before the hearing. 	The ALJ asked what body
part the MRI would pertain to and was told the “upper back.” 	Back
impairments were included in Mr. B.’s social security claim. 	A previous MRI
had been submitted into the record, however it was from September 2019, a
year and a half before the hearing. 	AR354-59. 	It was reasonable that the new
MRI would have direct bearing on the outcome of the hearing. 	However, in
response to whether the MRI had yet to be rescheduled, Ms. Mueller reported it
had not been rescheduled. 	The circumstances of missing the MRI appointment
were that Mr. B. had a panic attack. 	Yet the missed appointment was over two
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weeks prior to the hearing date and no MRI had been scheduled as of the
hearing. 	The ALJ was under no duty to keep the record open for an
unspecified time when Mr. B. had opportunity to get an MRI completed prior to
the hearing or at least get it rescheduled.
However, this court finds that the Appeals Council erred when it did not
address the May 7, 2021, MRI in its decision letter. 	The Eighth Circuit has
determined that additional evidence must be reviewed and a determination
under 20 C.F.R. § 404.970(a)(5) must be included in the Appeals Council
decision if it is unclear to the court whether the evidence was considered. 	See
Lamp, 531 F.3d at 632; Gartman, 220 F.3d at 922.
The MRI was new, material, related to the period, and there was a
reasonable probability that the additional evidence would change the outcome
of the decision (as discussed in Step Two and Step Four of this opinion). 	The
May 7, 2021, MRI contained a new diagnosis of cervical radiculopathy, and
noted additional deterioration likely related to Mr. B.’s ongoing pain and
limitations. 	It was not cumulative to the previous MRI conducted a year and a
half prior for this reason. 	The MRI had been scheduled to be performed in
February prior to the hearing and was conducted less than two months after
the ALJ’s decision.
The Commissioner concedes that the May 7, 2021, MRI was not
mentioned or exhibited in the Appeals Council decision. 	Docket No. 15 p. 20-
21. 	In brief, the Commissioner contends however, that per SSA policy, the MRI
was included in the administrative record thus reviewed and determined that it
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would not have changed the outcome of the decision. 	Id. 	This is a post hoc
statement. 	Such assumptions on what the Appeals Council did or did not
consider do not relieve the Appeals Council of their obligations to report
determinations to claimants. 	The Appeals Council reported on Dr. Tinguely’s
letter under “Additional Evidence” and exhibited Mr. B.’s letter, both of which
made referenced Mr. B.’s MRI. 	No mention was made of the MRI. 	The MRI is a
notable omission.
The Commissioner cites to Van Vickle v. Astrue, 539 F.3d 825, 830-831
(8th Cir. 2008), and Buckner v. Astrue, 646 F.3d 549, 559-560 (8th Cir. 2011),
for the proposition that the omission does not require remand. 	Id. 	These cases
are incongruous with the issue presented before this court. 	In Van Vickle, the
Eighth Circuit found that the ALJ’s misread of a hand-written notation was
harmless error. 	In Buckner, the Eighth Circuit found that the ALJ need not
explicitly explain reasons for discrediting third-party statements about the
claimant’s condition. 	Neither case cited by the Commissioner addresses
whether the Appeals Council is required to review and report additional
evidence received from a claimant. 	This court must apply applicable Eighth
Circuit case law.
This court finds as to Issue Three, the omission of the MRI in the Appeals
Council decision letter resulted in the Commissioner failing to fully and fairly
consider the evidence. 	Plaintiff’s request for reversal is granted and this case is
remanded for an evaluation of the May 7, 2021.
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4. 	At Step Five, Whether the ALJ Properly Identified Jobs Mr. B.
Could Perform.
Mr. B. asserts that the ALJ failed to show work which existed in
significant numbers either in the region where Mr. B. lived or in several regions
of the country. 	Docket No. 11 p. 21. 	Both parties ask this court to adopt a
different interpretation of 42 U.S.C. § 423(d)(2)(A). 	Mr. B. asks this court to
rule similarly as in this district court’s recent Benthin and Flatequal decisions
that require the Commissioner to present evidence of jobs in the national and
regional economy. 	Docket No. 16 p. 9; Benthin v. Saul, 1:20-CV-01014-CBK,
2021 WL 2982719, at *7 (D.S.D. July 15, 2021).; Flatequal v. Saul, 4:19-CV-
04045-VLD, 2019 US Dist WL 4857584, at *26-27 (D.S.D. Oct 2, 2019). 	The
Commissioner asks this court to apply Eighth Circuit interpretation in which
“nationwide” job numbers exceeding 10,000 in number are sufficient for the
Commissioner to meet its burden. 	Weiler v. Apfel, 179 F.3d 1107, 1111 (8th
Cir. 1999); Johnson v. Chater, 108 F.3d 178, 180 (8th Cir. 1997). 	Relying on
portions of case law that support their respective propositions, both parties
neglect to consider the full statutory import of Step Five and the facts specific
to this case.
a. 	Applicable Law
Section 423(d) of Title 42 provides in pertinent part as follows:
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy,
regardless of whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for him, or whether he
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would be hired if he applied for work. 	For purposes of the preceding
sentence (with respect to any individual), “work which exists in the
national economy” means work which exists in significant
numbers either in the region where such individual lives or in
several regions of the country.
See 42 U.S.C. § 423(d)(2)(A) (emphasis added).
To adopt the Commissioner's position—a position repeatedly asserted
before this court in a number of Social Security appeals—would be to disregard
a portion of the statutory language. 	The statute states clearly “ ‘work which
exists in the national economy’ means work which exists in significant
numbers either in the region where such individual lives or in several regions
of the country.” 	42 U.S.C. § 423(d)(2)(A). 	“National economy” does not mean
“nationally.” 	Instead, at Step Five, the ALJ must find that jobs the claimant
can do exist in substantial numbers in the claimant's own “region” (something
less than the whole nation), or in “several other regions” (several parts that,
together, consist of something less than the whole nation). 	20 C.F.R.
§ 404.1566.
b. 	The ALJ Decision
Vocational Expert (“VE”), Polly Peterson testified at the ALJ hearing.
AR69. 	At the hearing, the ALJ’s first hypothetical proposed to the VE was
based on Mr. B.’s pre-November 2018 full-range light work RFC. 	AR71. 	The
VE provided national numbers for the following positions: Photocopy machine
operator (92,913), order caller (13,006), and cafeteria attendant (29,428). 	Id.
The ALJ’s second hypothetical was based on Mr. B.’s post-November
2018 reduced-range light work RFC with handling limitations. 	Id. 	The ALJ
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limited the standing and walking time period to four hours of an eight-hour
workday for light work. 	Id. 	The VE mistakenly believed that standing limited
to four hours was for sedentary jobs.19 AR72. 	However, the VE provided
several jobs based on the ALJ’s criteria which she interpreted as requiring a
“sit/stand” option. 	Id. 	The VE explained that “sit/stand” options would allow
an individual to sit and stand at will and that a stool would be provided. 	AR74.
The number of light work jobs for the second hypothetical with the added
“sit/stand” option were cut in half based on the VE’s experience.20 Id. 	Small
parts assembler (nationally, 159,622), parking lot attendant (nationally,
16,788) and photocopy machine operator (nationally, 46,456). 	Id.
The ALJ’s third hypothetical maintained the same post-November 2018
RFC but added that the individual would need an option to alternate sitting for
five minutes after every sixty minutes of standing or walking. 	AR74-75. 	The
VE stated there was no change in the type or number of jobs offered for the
additional hypothetical limitation. 	AR75. 	Finally, the ALJ proposed a
hypothetical more restrictive than both light work RFCs. 	The hypothetical was
for sedentary work based on standing/walking for two hours out of an eight-
hour workday. 	Id. 	The VE provided national numbers for the following
19 Sedentary jobs have a stand/walk of two hours per eight-hour
workday. Light jobs require “a good deal” of walking or standing. Full
range light work is stand/walk six hours per eight-hour workday, but
reduced range could be stand/walk four hours per eight-hour workday.
SSR 83-10, 1983 WL 31251 *5 (8/20/80).
20 The VE stated, “the issue of sit/stand option is not in the DOT, and so
my answer is based on my education and work experience.” 	AR76.
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positions: document preparer (nationally, 19,078), dowel inspector (nationally,
2,423), and addresser (nationally, 2,711). 	AR76. 	The ALJ asked, “[a]nd
regarding your testimony today, you gave several jobs. 	Are these jobs available
across several regions, of the country?” 	The VE responded in the affirmative.
Id. (emphasis added).
In the ALJ’s decision at Step Five, the ALJ determined that based on
Mr. B.’s age, education, work experience, and RFCs, there are jobs in that exist
in the national economy that Mr. B. could perform. 	AR26. 	The ALJ cited to
both the jobs presented under the first, second, and third hypotheticals which
emulated the pre- and post-November 2018 RFCs and limitations. 	The total
number of these six light work jobs was 358,213, “that exists in significant
numbers in the national economy.” 	AR27. 	The ALJ did not cite to the
additional 24,212 sedentary work jobs proposed by the VE in its decision. 	The
ALJ justified the fifty percent reduction in the number of light work jobs
presented with a sit/stand option under “SSR 00-4p.”21 AR27. 	The ALJ,
relying on the VE’s testimony, found that Mr. B. was not disabled. 	AR27.
c. 	The Court’s Conclusion
The court first rejects the Commissioner’s reliance on Johnson v.
Chater that because jobs outnumbered 10,000 nationally, its burden was met.
While true that most jobs presented were nationally available in Johnson,
21 Before relying on VE evidence to support a disability determination or
decision, ALJs must: Identify and obtain a reasonable explanation for
any conflicts between VE evidence and the (DOT) and explain in the
determination or decision how any conflict that has been identified was
resolved. See SSR 00-4p, 2000 WL 1898704 (12/4/00).
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importantly, 200 local jobs were also presented. 	Johnson, 108 F.3d at 180.
The Commissioner also cites to Weiler v. Apfel for a similar proposition. 	In
Weiler, the Eighth Circuit stated that the VE’s testimony—that 32,000
surveillance monitor positions were available “nationwide”—was substantial
evidence that there were significant numbers of jobs in the economy. 	Weiler,
179 F.3d at 1111. 	However, the court in Weiler was addressing whether the
claimant’s RFC was supported by substantial evidence and whether that RFC
with other Step Five criteria was properly considered. 	Id. 	Claimant did not
raise an independent Step Five issue on appeal like the one presented by
Mr. B. 	Further, as stated above, “nationwide” is contrary to the statutory
language under 42 U.S.C. § 423(d)(2)(A) that requires consideration of jobs
regionally.
Secondly, this court rejects Mr. B.’s request to remand based on this
district court’s previous rulings Benthin and Flatequal. 	The facts in the instant
case are distinct from those decisions. 	In Flatequal, the VE did not testify to
numbers of jobs existing in Ms. Flatequal's region or in “several regions,” only
that a certain number of jobs existed “nationally.” 	Flatequal, 2019 WL
4857584, at *27. 	The Benthin case relied on similar arguments presented in
Flatequal. 	In Benthin, the court stated, “the ALJ discussed nothing in the
opinion beyond national numbers and did not even ask the VE about jobs
existing in plaintiff’s region or in several regions of the country.” 	Benthin, 2021
WL 2982719, at *9.
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In the present case, the ALJ did ask the VE if the jobs presented in the
hypotheticals were available in “several regions.” 	AR76.
ALJ Question: “And regarding your testimony today, you gave several
jobs. 	Are these jobs available across several regions, of the country?”
VE Answer: “Yes.”
Id.
The ALJ relied on the VE’s testimony to determine that there were jobs in
the national economy that Mr. B. could perform, which existed in significant
numbers across several regions. 	AR27; 42 U.S.C. § 423(d)(2)(A). 	It is worth
noting that the jobs presented by the VE are not uncommon. 	As the
Commissioner stated in brief, “further inquiry might have been called for had
the VE identified uncommon jobs, such as shrimp boat worker or tobacco
farmer.” 	Docket No. 15 p. 29. 	Jobs such as small parts assembler, photocopy
machine operator, and parking lot attendant, are not limited to specific
industries or remote regions of the United States.
Even if this court analyzes Step Five using the ALJ’s more restrictive
post-November 2018 RFC, this court finds that the ALJ met its burden. 	Three
common reduced light work jobs were presented: 	Small parts assembler
(nationally, 159,622), parking lot attendant (nationally, 16,788) and photocopy
machine operator (nationally, 46,456). 	AR74. 	A sit/stand option was available
for all three jobs. 	Further, although the ALJ did not include sedentary jobs in
their decision, given Mr. B.’s more restrictive RFC, he would have been capable
of working as a document preparer (nationally, 19,078), dowel inspector
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(nationally, 2,423), or addresser (nationally, 2,711). 	AR76; 20 C.F.R.
§ 404.1597(b). 	In total, 247,078 reduced light work and sedentary jobs
nationally were available, confirmed by the VE that these jobs were available in
significant numbers regionally. 	Because the ALJ’s decision followed the
statutory language of 42 U.S.C. § 423(d)(2)(A), and was based on substantial
evidence, this court finds no reversal is warranted at Step Five based on the
assertion that numbers of regional jobs were not identified.
However, as the court has discussed previously in this opinion, the court
is remanding for the ALJ to consider the May 7, 2021, MRI and to re-evaluate
whether additional reaching limitations should be incorporated in the Mr. B.’s
physical RFC as a result of this additional evidence when considered in light of
other evidence in the record. 	Because there is a possibility the ALJ may
formulate a different physical RFC upon remand, the court also instructs the
ALJ in that event to reconsider its step five determination about what jobs are
available to Mr. B. in his region or in the several regions of the country.
E. 	Type of Remand
Mr. B. requests reversal of the Commissioner’s decision with remand for
further development. 	See Docket No. 18, p. 21. 	For the reasons discussed
above, the Commissioner’s denial of benefits is not supported by substantial
evidence in the record as to fully and fairly developing and considering the
evidence. 	It is unclear whether the Appeals Council considered the additional
evidence submitted by Mr. B. 	The May 7, 2021, MRI justifies remand for the
ALJ to reconsider at Steps Two, Four, and Five in light of the new evidence.
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Section 1383(c)(3) of Title 42 of the United States Code provides that final
decisions made by the Commissioner of the Social Security Administration as
to Title XVI benefits shall be subject to judicial review under 42 U.S.C. § 405(g).
“Section 405(g) of Title 42, United States Code, authorizes judicial review of
‘any final decision of the Commissioner . . . made after a hearing.’ ” 	Efinchuk
v. Astrue, 480 F.3d 846, 848 (8th Cir. 2007) (quoting Mason v. Barnhart, 406
F.3d 962, 964 (8th Cir. 2005)). 	It “authorizes only two types of remand orders:
(1) those made pursuant to sentence four, and (2) those made pursuant to
sentence six.” 	Buckner v. Apfel, 213 F.3d 1006, 1010 (8th Cir. 2000) (citing
Melkonyan v. Sullivan, 501 U.S. 89, 98-99 (1991)). 	A sentence four remand
“authorizes a court to enter ‘a judgment affirming, modifying, or reversing the
decision of the Secretary, with or without remanding the cause for a
rehearing.’ ” 	Id. (quoting 42 U.S.C. § 405(g)).
“A sentence four remand is therefore proper whenever the district court
makes a substantive ruling regarding the correctness of a decision of the
Commissioner and remands the case in accordance with such a ruling.” 	Id. 	A
sentence six remand is authorized “in only two limited situations: (1) where the
Commissioner requests a remand before answering the complaint . . . or
(2) where the new and material evidence is adduced that was for good cause
not presented during the administrative proceedings.” 	Id. 	Neither sentence six
situation applies here.
A sentence four remand is applicable in this case. 	Remand with
instructions to award benefits is appropriate “only if the record ‘overwhelmingly
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supports’ such a finding.” 	Id. at 1011 (quoting Thompson v. Sullivan, 957 F.2d
611, 614 (8th Cir. 1992)). 	“[W]hen a claimant appeals from the Commissioner’s
denial of benefits and we find that such a denial was improper, we, out of ‘our
abundant deference to the ALJ,’ remand the case for further administrative
proceedings.” 	Id. (quoting Cox v. Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998)).
In this case, reversal and remand is warranted not because the evidence
is overwhelming, but because the record evidence should be supplemented,
clarified, and/or properly evaluated under the applicable law. 	See also Briscoe
ex rel. Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir. 2005) (“an award of
benefits is appropriate only if all factual issues have been resolved and the
record supports a finding of disability”). 	Therefore, a remand for further
administrative proceedings so the ALJ can address these issues is appropriate.
CONCLUSION
Based on the foregoing law, administrative record, and analysis, it is
hereby:
ORDERED that that plaintiff’s motion to reverse [Docket No. 10] is
granted. Defendant’s motion to affirm [Docket No. 14] is denied.
DATED this 26 day of October, 2022.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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