Brandy R. v. Kijakazi

Background

Brandy R. sought judicial review under 42 U.S.C. § 405(g) of the Commissioner of Social Security’s final decision denying her applications for disability insurance benefits and supplemental security income. She alleged disability based on numerous physical and mental conditions, including migraines, non-epileptic spells, hand problems, bipolar disorder, depression, anxiety, post-traumatic stress disorder, and borderline personality disorder.

An administrative law judge held a hearing and later found that Brandy R. was not disabled. The administrative law judge determined that she could not perform her past relevant work but retained the capacity for a limited range of light work. Based on vocational-expert testimony, the administrative law judge found that she could perform jobs such as office clerk, mail clerk, and photocopy machine operator. The Appeals Council denied review, making the administrative law judge’s decision the Commissioner’s final decision.

Brandy R. and the Commissioner each moved for summary judgment. Brandy R. raised three arguments: the administrative law judge improperly evaluated evidence concerning her personal care attendant; failed to adequately address the frequency of her migraines and non-epileptic spells; and improperly evaluated the opinions of her therapist, Mark Sherman, LICSW.

Personal-Care-Attendant Evidence

The court rejected Brandy R.’s argument concerning the personal care attendant. Brandy R.’s counsel did not timely submit the actual personal-care-attendant records and did not provide the good-cause showing requested by the administrative law judge. Brandy R. did not argue that the administrative law judge erred by refusing to admit those late records. Instead, she argued that the administrative law judge failed to consider other evidence about the services.

The court found that the administrative law judge acknowledged Brandy R.’s testimony that the personal care attendant worked in her home for about 38 hours per week and performed tasks such as dishes, meal preparation, sweeping, mopping, and cleaning. The administrative law judge also considered related treatment records and other evidence about Brandy R.’s functioning. Although some records referred to assistance with activities such as bathing, dressing, hygiene, walking, transportation, housework, and shopping, the court noted that it was unclear where that information came from and that much of the remaining evidence was cumulative. The court concluded that the administrative law judge properly considered the evidence in the record about the personal care attendant.

Migraines and Non-Epileptic Spells

The court also rejected Brandy R.’s argument that the administrative law judge failed to address the frequency of her migraines and non-epileptic spells. The court said that the argument largely asked it to reweigh the evidence, which is not the court’s role on review. Instead, the court had to determine whether substantial evidence—evidence sufficient for a reasonable person to support the conclusion—supported the Commissioner’s decision.

The administrative law judge discussed the migraines and spells and cited evidence supporting the findings. The record included reports of no headaches or spells during some routine appointments, a doctor’s observation that migraines improved after a higher dosage of gabapentin, and Brandy R.’s report at a September 2019 neurology consultation that her last two spells had occurred many months apart. The court concluded that substantial evidence supported the administrative law judge’s findings about the frequency of the migraines and spells.

The court also rejected Brandy R.’s brief argument that the administrative law judge violated Social Security Ruling 19-4p. The court found the argument conclusory and alternatively determined that the administrative law judge had considered the limiting effects of the migraines when assessing residual functional capacity. The court further noted that Brandy R. had not identified evidence showing that the migraines or spells would cause frequent work absences.

Therapist’s Opinions

Mark Sherman completed mental-health residual-functional-capacity questionnaires in 2018 and 2019. He opined that Brandy R. had marked limitations in three of four areas of mental functioning and would miss work more than four days per month. The administrative law judge found Sherman’s opinions unpersuasive because the severe limitations were not consistent with or supported by the record, Sherman was not considered a medically acceptable source under the terminology used by the administrative law judge, and the opinions of state-agency psychological consultant Ray M. Conroe, Ph.D., were more persuasive.

The court focused on supportability and consistency, the two most important factors under the applicable regulations. The administrative law judge considered mental-status findings showing some anxiety, sadness, restlessness, agitation, and disorganized thoughts, but also findings of mild to moderate limitations, appropriate grooming and hygiene, cooperative behavior, normal speech, good comprehension, normal and linear thoughts, and fair to adequate judgment and insight. The court held that substantial evidence supported the administrative law judge’s assessment, even though Brandy R. identified other evidence that could support Sherman’s opinion.

The court did not separately decide the administrative law judge’s findings about Sherman’s status or the greater persuasiveness of Dr. Conroe’s opinions because Brandy R. did not challenge those findings. The court noted that the term “medically acceptable source” is no longer used in the same way for evaluating opinion evidence, but found any error harmless because the administrative law judge properly relied on supportability and consistency.

Disposition

Judge John F. Docherty denied Brandy R.’s motion for summary judgment, granted the Commissioner’s motion for summary judgment, and affirmed the Commissioner of Social Security’s decision. The court ordered that judgment be entered accordingly.