In the Matter of the Denial of the Application of Kathleen Smith for MSRS General Employees Retirement Plan Total and ...

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A25-0259

In the Matter of the Denial of the Application of Kathleen Smith
for MSRS General Employees Retirement Plan Total
and Permanent Disability Benefits.

Filed January 26, 2026
Affirmed
Bond, Judge

Minnesota State Retirement System
File No. 5161365308

Denise Y. Tataryn, Nolan, Thompson, Leighton & Tataryn, PLC, Hopkins, Minnesota
(for relator Kathleen Smith)

Keith Ellison, Attorney General, Frank Langan, Assistant Attorney General, St. Paul,
Minnesota (for respondent Minnesota State Retirement System)

Considered and decided by Connolly, Presiding Judge; Larson, Judge; and Bond,

Judge.

NONPRECEDENTIAL OPINION

BOND, Judge

Relator Kathleen Smith appeals the decision of the board of directors (the board) of

respondent Minnesota State Retirement System (MSRS) denying Smith’s application for

total and permanent disability benefits. Smith argues that the board’s decision is not

supported by substantial evidence and the board breached its fiduciary duty. We affirm.
 FACTS

In February 2019, Smith was involved in a car accident. As a result of the accident,

Smith’s doctor diagnosed her with post-concussion syndrome. The Minnesota Department

of Natural Resources (DNR), where Smith had worked as an acquisition and development

grant manager since 2005, placed Smith on an unpaid leave of absence because her injuries

prevented her from performing her job duties. In October 2019, Smith applied for total

and permanent disability retirement benefits from MSRS. 1 MSRS denied Smith’s

application.

In March 2022, Smith reapplied for total and permanent disability benefits. As part

of her application, Smith submitted physician statements from a certified nurse practitioner,

a psychiatrist, and her primary care doctor. All three providers checked the box on the

1
The procedure for applying for total and permanent disability benefits is set forth in Minn.
Stat. §§ 352.01, .03, .113, 356.96 (2024). An employee making a claim for total and
permanent disability benefits must file an application form and supporting documents,
including two medical statements and a written certification by the employing entity stating
that “there is no available work that the employee can perform with the disabling condition
and that all reasonable accommodations have been considered.” Minn. Stat. § 352.113,
subds. 2(a), (b), 4(d). If MSRS denies the application, the applicant may appeal to MSRS’s
executive director. Minn. Stat. § 356.96, subd. 2. If the executive director affirms MSRS’s
denial of the application, the applicant may petition for review by the board. Id., subd. 5.
Before the board hears the applicant’s appeal, the executive director “may direct the
[applicant] to participate in a fact-finding conference” before an administrative-law judge
(ALJ), who then issues a report and recommendation to the board. Id., subd. 7(b). The
board will hold a hearing with the applicant and an MSRS representative and determine
“on the record as submitted and on the proceedings of the hearing” whether to uphold or
reverse the executive director’s decision to deny the application. Id., subd. 10(a). If the
board denies the application for total and permanent disability benefits, the applicant may
appeal to this court via writ of certiorari. Id., subd. 13; Minn. Stat. § 606.01 (2024); Minn.
R. Civ. App. P. 115.

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application form stating that Smith was totally and permanently disabled, but, in other

respects, their opinions differed.

Certified nurse practitioner (CNP) Gwendolyn Kosevich noted on the physician

statement that “we are not experts in determining disability” and “disability assessment

[was] pending.” CNP Kosevich opined that Smith would “only likely be able to perform

simple tasks in a quiet environment” because she “has trouble with focus.” On the

psychiatric facilities chart, CNP Kosevich stated Smith had “marked” levels of impairment

in two of the eight psychiatric categories, “moderate” impairment in two categories, and

“slight” impairment in one category. CNP Kosevich did not rank the remaining three

categories.

Psychiatrist Dr. Chhabi Lall Timsina Sharma listed “adjustment disorder with

anxiety [and] depressed mood” and “MVA [motor vehicle accident] with concussion

symptoms” as Smith’s “primary disabling condition.” Dr. Sharma stated that Smith had

“ongoing cognitive impairment.” At the top of the psychiatric capabilities chart,

Dr. Sharma wrote, “defer to PMR.” 2 Dr. Sharma stated Smith had “marked” levels of

impairment in seven of the eight psychiatric categories and “moderate” impairment in the

remaining category.

Smith’s primary care physician, Dr. Sarah Mazig, listed “mild TBI/post-concussion

syndrome, MVA” as Smith’s “primary disabling condition.” Dr. Mazig opined that Smith

would “only likely be able to perform simple tasks in a quiet environment” due to her “mild

2
It appears from the record that PMR stands for Physical Medicine and Rehabilitation.
CNP Kosevich is a PM&R specialist.

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impairment with processing speed, attention and executive functioning.” On the

psychiatric capabilities chart, Dr. Mazig stated that Smith had “slight,” “mild,” or “subtle”

levels of impairment in most psychiatric categories, no impairment in one category, and

“moderate” levels of impairment in the remaining categories. Dr. Mazig did not find that

Smith had “marked” levels of impairment in any category.

Following the submission of Smith’s application, MSRS ordered an independent

medical examination (IME) by Dr. Orrin Mann. Dr. Mann conducted a physical

examination of Smith and his report stated his opinion focused solely on Smith’s “physical

functionality.” However, much of Dr. Mann’s report discussed Smith’s cognitive abilities.

Dr. Mann wrote that Smith’s “cognitive abilities were dramatically worse than I would

have expected for someone with her educational background . . . [and] professional

experience” and he opined that Smith was not exaggerating her symptoms. Dr. Mann

stated that Smith had “subtle to mild cognitive deficits,” but that he would “defer to the

appropriate experts with respect to specific mental accommodations, restrictions, and

limitations that such deficits would require.” Dr. Mann concluded that, based on his

physical examination of Smith and his review of Smith’s medical records, Smith was not

physically totally and permanently disabled and would be “able to perform any form of

employment on a full-time basis . . . , provided that accommodations can be made for

cognitive deficits.”

MSRS also ordered an independent psychiatric examination (IPE) by Dr. Joseph

Burgarino. Dr. Burgarino determined that Smith had normal “[a]ttention and concentration

functions” and “[i]mmediate recall, short-term, intermediate, and long-term memory

4
functions.” Dr. Burgarino found Smith’s thought processes to be “cogent and goal

directed.” Dr. Burgarino concluded that Smith had not presented any “objective medical

evidence” that she suffered from “any neuropsychiatric/psychiatric nor neurologic disorder

that would result in any disability and certainly none that would meet the test of producing

total and permanent disability.”

Following the IME and IPE, MSRS’s medical advisor, Managed Medical Review

Organization (MMRO), recommended that MSRS deny Smith’s application. MSRS staff

adopted the recommendation and MSRS’s executive director affirmed. In denying Smith’s

application, the executive director clarified that “the standard for a disability benefit is not

whether Ms. Smith is able to work in her former occupation for the [DNR], but whether

she is able to engage in any substantial gainful activity.” The executive director concluded

that Smith failed to demonstrate that she is unable to engage in any substantial gainful

activity because two of Smith’s own providers stated in their physician statements that

Smith could perform simple tasks in quiet environments.

Smith submitted a petition for review to the board and the board ordered a fact-

finding conference before an ALJ. The ALJ issued findings of fact, conclusions of law,

and a recommendation that the executive director’s decision be affirmed because Smith

failed to establish her eligibility for total and permanent disability benefits. The ALJ’s

decision was based on three main determinations: (1) Smith failed to provide detailed

reports from medical providers “objectively demonstrating her disabling condition

prevented her from substantial gainful activity”; (2) Smith “failed to provide a report from

her employer—the DNR—indicating that there is no available work that [Smith] can

5
perform with her disabling condition and that all reasonable accommodations have been

considered”; 3 and (3) the medical providers had different medical opinions about the

severity of Smith’s symptoms and did not consider Smith’s vocational ability.

Given the lack of vocational data in the record, the ALJ recommended that the

executive director order a vocational assessment before the board made its final

determination. The executive director agreed, and a rehabilitation counselor at MMRO

subsequently conducted a vocational assessment of Smith. The rehabilitation counselor

relied solely on the IME and IPE results in determining suitable jobs for Smith, and did not

consider Smith’s alleged cognitive impairments in finding potential employment

opportunities because Dr. Mann and Dr. Burgarino had concluded that Smith’s medical

records and physician statements did not support any restrictions beyond light or sedentary

work. The rehabilitation counselor found three available employment positions

commensurate with Smith’s “current qualifications and transferable skills” within a 50-

mile radius of Smith’s residence. The rehabilitation counselor opined that Smith could

perform these roles because they were all sedentary desk positions that “[fell] within

[Smith’s] capabilities” including her “education, training, experience, and skills.” The

vocational assessment ultimately determined that a denial of total and permanent disability

benefits was vocationally supported.

3
Smith’s application contained an employer-certification form from her prior application.
The ALJ focused on the absence of required information in the employer certification,
including the lack of availability of work and reasonable accommodations. As Smith
recognizes, however, the board explicitly stated it was not rejecting Smith’s disability-
benefits application on this basis. Accordingly, we do not consider the effect of any defect
in Smith’s employer-certification form.

6
 Following a hearing, the board adopted the ALJ’s findings of fact and rejected

Smith’s application on a vote of 5-3.

This certiorari appeal follows.

DECISION

“We review a decision of the MSRS [b]oard as we would any administrative agency

decision.” In re Ret. Benefits of Yetka, 554 N.W.2d 85, 88 (Minn. App. 1996).

On certiorari appeal from a quasi-judicial agency decision not
subject to the Administrative Procedure Act, we examine the
record to review questions affecting the jurisdiction of the
agency, the regularity of its proceedings, and, as to the merits
of the controversy, whether the order or determination in a
particular case was arbitrary, oppressive, unreasonable,
fraudulent, under an erroneous theory of law, or without any
evidence to support it.

Anderson v. Comm’r of Health, 811 N.W.2d 162, 165 (Minn. App. 2012) (quotation

omitted), rev. denied (Minn. Apr. 17, 2012). Under this standard, an agency must support

its quasi-judicial decision with “substantial evidence.” See Am. Fed’n of State, Cnty. &

Mun. Emps., Council No. 14 v. County of Ramsey, 513 N.W.2d 257, 259 (Minn. App. 1994)

(quotation omitted); see also Anderson, 811 N.W.2d at 165 (allowing appellate review for

whether an agency decision is “without any evidence to support it” (quotation omitted)).

Substantial evidence means “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion”; “more than a scintilla of evidence”; “more than ‘some

evidence’”; “more than ‘any evidence’”; and “evidence considered in its entirety.”

Am. Fed’n, 513 N.W.2d at 259 (quoting Rsrv. Mining Co. v. Herbst, 256 N.W.2d 808, 825

(Minn. 1977)). The burden is on the applicant to establish that the board’s decision is

7
unsupported by substantial evidence in the record. Staeheli v. City of St. Paul, 732 N.W.2d

298, 310 (Minn. App. 2007). Upon review, “we will not retry facts or make credibility

determinations” and will affirm the agency’s decision so long as the agency provided a

“legal and substantial basis for the action taken.” Id. at 303 (quotation omitted).

I. The board’s decision denying Smith’s application for total and permanent
disability benefits is supported by substantial evidence.

Smith argues that the board’s decision that she failed to prove by a preponderance

of the evidence that she is totally and permanently disabled is not supported by substantial

evidence. “Total and permanent disability” is defined as “the inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment that has existed or is expected to continue for a period of at least one year.”

Minn. Stat. § 352.01, subd. 17. “Substantial gainful activity” is not defined by the statute,

although MMRO has adopted criteria to help determine an applicant’s ability to engage in

substantial gainful activity, including: (1) medical-expert and vocational-specialist

opinions on work ability; (2) whether the applicant is performing or able to perform pre-

disability employment or other employment; (3) the applicant’s current qualifications and

transferable skills; (4) available jobs consistent with the applicant’s qualifications and skills

within a certain location; (5) the applicant’s post-disability earning potential relative to

education level, transferrable skills, and employability; and (6) whether the applicant can

work at least 20 hours a week. The criteria also state that “Social Security Disability

8
Insurance (SSDI) determinations regarding substantial gainful activity are not

determinative because they give significant weight to pre-disability earnings.” 4

Here, the board reviewed the entire record—including Smith’s medical records, the

IME, the IPE, MMRO’s recommendation, and the physician statements from CNP

Kosevich, Dr. Mazig, and Dr. Sharma—and concluded that Smith failed to prove by a

preponderance of the evidence that she is totally and permanently disabled. The board’s

determination that Smith is not totally and permanently disabled because she had not

proven that she was unable to engage in any substantial gainful activity for at least one year

relied, in part, on the following evidence. Two of the health-care professionals who

submitted physician statements in support of Smith’s application, CNP Kosevich and

Dr. Mazig, stated that Smith could “perform simple tasks in a quiet environment.” All

three health-care professionals who submitted physician statements on Smith’s behalf

expressed “considerable disagreement” on Smith’s cognitive abilities on the psychiatric-

capabilities chart. Additionally, CNP Kosevich noted on the physician statement that “we

are not experts in determining disability”; Dr. Mann opined that Smith would be “able to

perform any form of employment on a full-time basis . . . , provided that accommodations

can be made for cognitive deficits”; and Dr. Burgarino concluded that there was “no

objective medical evidence to support” a conclusion that Smith had a cognitive disability.

Finally, the vocational report determined that there were available employment positions

4
Smith applied for, and was granted, SSDI benefits after an ALJ concluded that Smith’s
impairments significantly limited her ability to perform basic work activities. The board
considered this evidence during its hearing.

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Smith could perform within “her current level of restrictions.” We conclude that

substantial evidence in the record supports the board’s determination to deny Smith’s

application for total and permanent disability benefits. See Minn. Stat. § 356.96,

subd. 10(a).

Smith contends that she provided evidence to support her claim that she is totally

and permanently disabled. We recognize that the three health-care professionals who

submitted physician statements on Smith’s behalf opined that she is totally and

permanently disabled. We also acknowledge Smith’s arguments that the IME, IPE, and

vocational assessment contained certain errors. For example, Dr. Mann commented

extensively on his observations of Smith’s cognitive impairments yet based his conclusion

that Smith was not totally and permanently disabled solely on Smith’s physical capabilities.

Dr. Burgarino stated there was no “medical evidence in the medical records as provided

and described that Ms. Smith ever underwent comprehensive neuropsychological testing,”

despite Smith’s medical records containing a 2021 neuropsychological evaluation. And

the vocational assessment considered Smith’s physical limitations but not her cognitive

limitations in assessing potential employment. The board acknowledged these errors but

nonetheless concluded that Smith had failed to meet her burden of proof. Significantly,

the board determined that, even if it did not consider the IME and IPE results, Smith still

failed to prove that she is unable to engage in substantial gainful activity because her own

providers stated that she is capable of performing “light or sedentary work” and “simple

tasks in a quiet environment.”

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 Ultimately, the question on appeal is not whether Smith presented evidence that she

is totally and permanently disabled. Rather, the question is whether there is “such relevant

evidence as a reasonable mind might accept as adequate to support [the] conclusion” that

Smith did not meet her burden of proof. See Am. Fed’n, 513 N.W.2d at 259 (quotation

omitted). Here, the board reviewed the entire record, recognized that Smith suffered

injuries because of her car accident that impacted her ability to perform the duties required

by her previous position with the DNR, and addressed Smith’s claim that the IME and IPE

contained errors. The board determined that Smith’s own health-care providers disagreed

about the severity of her cognitive impairments, and the IME, IPE, and vocational

assessments concluded that Smith was not permanently and totally disabled. When

reviewed as a whole, the record contains substantial evidence supporting the board’s

decision to deny Smith’s application for total and permanent disability benefits because

Smith failed to prove by a preponderance of the evidence that she is unable “to engage in

any substantial gainful activity by reason of any medically determinable physical or mental

impairment that has existed or is expected to continue for a period of at least one year.”

Minn. Stat. § 352.01, subd. 17.

II. Smith’s breach-of-fiduciary allegations do not establish a basis to reverse the
board’s decision.

Smith argues that the board breached its fiduciary duties by failing to address the

deficiencies in the IME and IPE reports and by “fail[ing] to provide any oversight over

what the vocational consultant should address.” The board contends that Smith failed to

11
preserve this issue for appeal. Assuming without deciding that Smith’s fiduciary-duty

argument is properly before us, Smith’s argument is unavailing.

Members of the board, along with MSRS’s executive director, are fiduciaries.

Minn. Stat. §§ 356A.02, subd. 1(1)-(2), .04 (2024). The board must “provide authorized

benefits to plan participants” and do so “faithfully, without prejudice, and in a manner

consistent with law.” Minn. Stat. § 356A.05(a)(1), (b) (2024). Smith points to no authority

supporting her claim that the board had a duty to “take corrective action” when notified

about the errors in Dr. Mann’s and Dr. Burgarino’s reports. In fact, in its decision denying

Smith’s application, the board acknowledged the reports’ errors and stated that, even

without the evidence from the IME and IPE reports, it would have denied Smith’s

application.

Similarly, Smith identifies no authority permitting the board to oversee the

vocational assessment, which must be independently “conducted by a qualified

rehabilitation counselor under contract with the covered pension plan.” Minn. Stat.

§ 356.96, subd. 7(c); see also Minn. Stat. § 352.113, subd. 4a. While the board had

discretion to resubmit Smith’s application back to MMRO for reconsideration with

instructions that “further medical examinations be obtained,” Minn. Stat. § 356.96,

subd. 11, the board discussed this option and concluded such a step was unnecessary

because there was no “new medical evidence for [MMRO] to consider.” On this record,

Smith’s claim that the board breached its fiduciary duty fails to establish a basis for this

court to reverse the board’s decision. See Anderson, 811 N.W.2d at 165 (providing that,

on review of an agency decision, appellate courts “examine the record to review questions

12
affecting the jurisdiction of the agency, the regularity of its proceedings, and, as to the

merits of the controversy, whether the order or determination in a particular case was

arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or

without any evidence to support it” (quotation omitted)).

Affirmed.

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