Justin E. v. Bisignano

Background

Justin E. sought judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision denying his application for Supplemental Security Income. The application concerned the period beginning with the application date and ending with the administrative law judge’s decision. The report states that Justin E. suffered a significant traumatic brain injury after a fall and also had diagnoses including bipolar disorder, schizoaffective disorder, depressive disorder, and anxiety disorder.

The administrative law judge found that Justin E. had several severe impairments but did not have an impairment or combination of impairments meeting or medically equaling a listed impairment. The judge assessed a residual functional capacity—the most a person can still do despite limitations—for less than the full range of light work, with restrictions including only occasional climbing of ramps and stairs, no climbing of ladders, ropes, or scaffolds, safety restrictions, and simple, routine, repetitive work without assembly-line or similar unvarying fast-pace work. The administrative law judge found that Justin E. could not perform his past relevant work but could perform work as a cleaner, merchandise marker, or inspector.

The Appeals Council denied review, making the administrative law judge’s decision the Commissioner’s final decision for purposes of judicial review.

The Evidence and the Parties’ Arguments

Justin E. relied in part on a February 2023 Repeatable Battery for the Assessment of Neuropsychological Status test. The test placed him in the second percentile of similarly aged adults and showed serious problems in several memory, language, attention, and visuospatial areas.

He also underwent January 2023 Wechsler Adult Intelligence Scale-Fourth Edition and Wechsler Memory Scale-Fourth Edition testing. Those tests produced mostly low-average to average scores, including a full-scale IQ score of 86. The examiner concluded that Justin E. could understand, remember, and follow directions; was moderately able to sustain attention, concentration, persistence, and pace; could respond appropriately to others; and was moderately able to tolerate mental stressors in an entry-level workplace.

At the administrative hearing, medical expert Dr. Tonya Porchia described the first test as a brief measure that a psychologist or neuropsychologist would not rely on for accurate overall functioning results. She considered the Wechsler tests more thorough and accurate. Dr. Porchia testified that the existing evidence did not show a condition meeting or equaling a listed impairment, but also said that a full battery of additional neuropsychological testing might be helpful. She assessed mostly mild limitations in the relevant areas of mental functioning and recommended a slow-paced work setting.

Justin E. argued that the administrative law judge improperly acted as a medical expert instead of developing the record and should have ordered additional testing. The Commissioner argued that the record was sufficient and that additional testing was not necessary.

Analysis

The report applied the substantial-evidence standard, which asks whether the record contains enough evidence that a reasonable person could support the Commissioner’s decision, and also considered whether the administrative law judge made a legal error.

The report concluded that the administrative law judge adequately addressed the conflicting test results. The administrative law judge credited Dr. Porchia’s view that the Wechsler tests were more thorough and accurate than the first test. The administrative law judge also considered Justin E.’s progress in speech therapy, the absence of a documented referral for additional neuropsychological testing, and his failure to continue speech therapy after the first test despite a recommendation for further assessment.

The report emphasized that Dr. Porchia gave concrete opinions based on the existing record. She testified that Justin E. did not meet or equal a listing and described his limitations in the relevant mental-function areas, even though she said additional testing might be helpful. The report concluded that those comments did not establish that the evidence was insufficient for the administrative law judge to decide the claim.

The report also rejected arguments that the administrative law judge should have reached a different result because some reviewers did not have or did not discuss the first test when giving their opinions. It stated that the timing of the testing and reviews, by itself, was not a basis for reversal and that Justin E. had not shown that the result would have changed.

Recommended Disposition

The report recommends that the relief requested in Justin E.’s brief be DENIED, that the relief requested in the Commissioner’s brief be GRANTED, and that judgment be entered accordingly. The report is not itself an order or judgment of the District Court and states that it is not directly appealable to the United States Court of Appeals for the Eighth Circuit. It also states that a party may file specific written objections within 14 days after being served with the report and recommendation.