Brooks v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

NANCY M. BROOKS, CASE NO. 4:24-cv-0048

Plaintiff, DISTRICT JUDGE

DONALD C. NUGENT

vs.

COMMISSIONER OF SOCIAL MAGISTRATE JUDGE

SECURITY, JAMES E. GRIMES JR.

Defendant.

REPORT AND

RECOMMENDATION

Plaintiff Nancy M. Brooks filed a complaint against the Commissioner

of Social Security seeking judicial review of the Commissioner’s decision

denying disability insurance benefits and supplemental security income. This

Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). The Court

referred this matter to a magistrate Judge under Local Rule 72.2(b)(1) for the

preparation of a Report and Recommendation. Following review, and for the

reasons stated below, I recommend that the District Court affirm the

Commissioner’s decision.

Procedural Background

In July 2021, Brooks filed an application for supplemental social

security income, alleging a disability onset date in August 2020.1 Tr. 80. She

also filed an application for disability insurance benefits in July 2021 alleging

the same onset date. Tr. 74. In pertinent part, Brooks alleged that she was

disabled and limited in her ability to work due to a traumatic brain injury,

memory loss, poor comprehension, and panic attacks. Tr. 74, 80. The

Commissioner denied Brooks’s application initially and upon reconsideration.

E.g., Tr. 73, 85.

In May 2022, Brooks requested a hearing. Tr. 136. Administrative Law

Judge (“ALJ”) Reuben Sheperd held a telephonic hearing in October 2022. Tr.

36. Brooks appeared, testified, and was represented by counsel at the hearing.

Id. Qualified vocational expert Lynn Smith also testified. Tr. 29. In November

2022, the ALJ issued a written decision, which found that Brooks was not

entitled to benefits. Tr. 15.

In December 2022, Brooks appealed the ALJ’s decision to the Appeals

Counsel. Tr. 248–49. In November 2023, the Appeals Counsel denied Brooks’s

appeal, Tr. 1, making the ALJ’s November 2022 decision the final decision of

the Commissioner. Tr. 15–35; see 20 C.F.R. § 404.981.

1 “Once a finding of disability is made, the [agency] must determine the

onset date of the disability.” McClanahan v. Comm’r of Soc. Sec., 193 F. App’x

422, 425 (6th Cir. 2006).

Brooks timely filed this action in January 2024. Doc. 1. In it, she

asserted one issue for review: “The ALJ violated 20 C.F.R. § 404.1520c during

the evaluation of the state agency psychologist’s opinions.” Doc. 7, at 2.

Evidence2

1. Personal and vocational evidence

Brooks was born in April 1981, making her approximately 39 years of

age on her onset date. Tr. 43. Brooks graduated from high school and earned

138 credit hours online through Colorado Technical University. Tr. 45–46.

2. Medical Evidence

Both before and after Brooks’s alleged onset date, she underwent opioid

dependence maintenance treatments at Meridian Healthcare, which included

monitoring her prescribed Suboxone treatment. See Tr. 343–407 (after onset

date), 408–437 (before onset date). At her September 2020 opioid dependence

maintenance appointment, Brooks reported using opiates since her last visit.

Tr. 396. Also, at her September and October 2020 appointments, Brooks

reported memory loss after a car accident and stated that she was seeing a

neurologist and developing memory aids. Tr. 391–92, 396, 402.

2 The recitation of medical evidence and testimony is not intended to be

exhaustive and is generally limited to the evidence that was cited in the

parties’ briefs.

In January and March 2020, before Brooks’s alleged onset date, Heather

Dawson, APRN CNP,3 conducted psychotherapy sessions at Meridian

Healthcare. Tr 420, 432. Over the course of these two appointments, Nurse

Dawson assessed that Brooks experienced: opioid use disorder, severe;

cannabis use disorder, moderate; post-traumatic stress disorder, chronic; panic

disorder; generalized anxiety disorder; and major depressive disorder,

recurrent, moderate. Tr 422. Brooks continued to receive opioid dependence

maintenance at Meridian through July 2022. See Tr. 494.

3. Consultative Examinations

In March 2022, J. Joseph Konieczny, Ph.D., performed a psychological

consultative examination of Brooks. Tr. 472–478. Dr. Konieczny noted that

Brooks was quite anxious, occasionally slow to respond or vague, and tearful

throughout the evaluation, occasionally sobbing uncontrollably. Tr. 472. He

also wrote that Brooks alleged disability due to a traumatic brain injury,

anxiety, and being in addiction recovery. Id. Dr. Konieczny further detailed

that Brooks’s reported psychological symptoms included depression since age

25, with daily episodes of crying and anxiety with panic attacks for the past 10

3 The acronym “APRN” stands for Advance Practice Registered Nurse,

which is a title that includes the professional designation of “CNP,” which

stands for Certified Nurse Practitioner. A Nurse Practitioner has completed

advanced training to diagnose and prescribe medication and must have

completed a graduate degree program and become board certified. See

CLEVELAND CLINIC, Health Library: Articles: Nurse Practitioner,

https://my.clevelandclinic.org/health/articles/24651-nurse-

practitioner [https://perma.cc/FZ8J-RETS].

years. Tr. 473. Brooks, however, denied any recent thoughts of suicide. Id. Dr.

Konieczny additionally remarked that Brooks reported that, due to childhood

sexual abuse and domestic violence, she had PTSD symptoms, which included

intrusive thoughts, nightmares, flashbacks, response to trigger stimuli,

avoidant activities, and hypervigilance. Id. Brooks also described a history of

addiction to pain medications. Id. But she reported that she had been sober for

three years as of the time of Dr. Konieczny’s evaluation. Id. Dr. Konieczny

wrote that Brooks experienced a traumatic brain injury from a car accident in

August 2020, which resulted in memory issues and chronic headaches. Tr. 474.

Dr. Konieczny recorded that Brooks reported daily activities including

spending her mornings and afternoons looking for a place to move, taking a

walk, interacting with her husband, and trying to relax. Tr. 475. He also

included that Brooks stated that she participated in some household chores,

but her husband cooked, shopped, and managed the family finances. Id.

Additionally, he noted that Brooks was minimally involved in outside social

activities and that due to a suspended license, she did not currently drive. Id.

Dr. Konieczny opined that it appeared Brooks required some degree of

supervision and monitoring in the management of her daily activities and in

handling her financial affairs. Id.

On examination, Dr. Konieczny indicated that Brooks was adequately

groomed and that her level of motivation to participate in the evaluation was

also adequate. Id. He further documented that she was frequently overly

elaborative, insisted on providing information not requested, and showed

indications of undue impulsivity. Tr. 475. He described that Brooks had very

poor eye contact throughout the evaluation and that her ability to concentrate

and attend to tasks showed indications of impairment. Id. Dr. Konieczny had

Brooks perform a serial three subtraction test, which she did without error. Id.

She also recalled three of three objects after a period of five minutes and

showed no deficits in her ability to perform logical abstract reasoning. Id.

Brooks’s ability to recall four digits was in the average to high average range.

Id. Dr. Konieczny noted that Brooks’s insight seemed fair and that she had

some deficits in her overall level of judgment. Id.

Dr. Konieczny administered4 the Wechsler Adult Intelligence Scale-IV

test, which revealed a full-scale IQ score of 80, which placed Brooks in the low

average to borderline range of functioning. Id. He also administered the

Wechsler Memory Scale IV test, which revealed particular deficits in auditory

memory, visual memory, immediate memory, and delayed memory. Tr. 476.

Overall, Dr. Konieczny stated that Brooks appeared to have a decline in IQ and

memory as a result of the traumatic brain injury she reported sustaining in

August 2020. Tr. 475–476. He acknowledged, however, that he had no access

to “psychometric data regarding pre-morbid levels of functioning.” Tr. 475–476.

4 It appears that although Dr. Konieczny signed off on the evaluation,

someone else in his office completed the administration of at least this portion

of the examination. See Tr. 21, 472.

Dr. Konieczny ultimately diagnosed Brooks with major depressive

disorder recurrent, severe, with anxious distress; panic disorder; PTSD; and

major neurocognitive disorder due to traumatic brain injury, without

behavioral impairment, mild. Tr. 477. Dr. Konieczny indicated that, while

Brooks was sincere in her presentation, she was occasionally vague, quite

distressed, and overly elaborative. Id. Nonetheless, he concluded “it is likely

that the above is a reliable reflection of her current situation.” Id.

Later in March 2022, physical consultative examiner Bradford Jones,

D.O., evaluated Brooks’s physical conditions. Tr. 482. Dr. Jones noted that

Brooks reported that she sustained a brain injury in an August 2020 car

accident, which she reported caused difficulty with retaining information and

explaining things. Id. He further documented that Brooks stated that her brain

injury affected her ability to work because of difficulty remembering

instructions. Id. Dr. Jones reported that Brooks’s described her typical

activities of daily living to include: doing housework, walking, shopping, and

caring for pets. Tr. 483. He noted that Brooks was alert, with good eye contact

and fluent speech, and that she had an appropriate mood, clear thought

processes, normal memory, and good concentration. Id.

4. State Agency Consultants

At the initial level, the state agency consultants, Courtney Zeune, PsyD,

and Mehr Siddiqui, M.D., found that there was insufficient evidence to

evaluate Ms. Brooks’ severe mental health disorder. Tr 75–76, 81–82.

On reconsideration, state agency consultant Robert Baker, Ph.D.,

reviewed the record and found that Ms. Brooks mental residual functional

capacity5 (“RFC”) was limited to understanding, remembering, and completing

tasks with one- to three-step instructions. Tr 91–92. Dr. Baker also found

Brooks capable of working in a non-public, small-group work setting with

supportive supervisors, involving occasional, superficial interaction with

others and occasional flexibility with breaks when experiencing increased

symptoms. Tr 92. Dr. Baker further found that Brooks was able to work in a

setting without major or frequent changes to work routine, and that she would

need advance notice of major changes, which should be gradually implemented

allowing her time to adjust to them. Id.

4. Function Report

In a September 2021 Function Report, Brooks alleged memory loss,

difficulty focusing or completing tasks, and scattered thoughts since a car

accident the previous summer. Tr. 288–289, 293. She stated that her daily

activities included making calls, trying to find housing or assistance, caring for

her children, cleaning her house, online shopping, watching television, and

caring for her husband. Tr. 289, 291. But she described some difficulty

completing or remembering to complete certain personal and household tasks

5 An RFC is an “assessment of” a claimant’s ability to work, taking his or

her “limitations … into account.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235,

239 (6th Circ. 2002). Essentially, it is the Social Security Administration’s

“description of what the claimant ‘can and cannot do.’” Webb v. Comm’r of Soc.

Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).

without reminders. Tr. 289–290, 292. Brooks indicated that she was always at

home and had no social life anymore. Tr. 292. She stated that she got along

well with authority figures except for landlords, and denied ever being fired or

laid off from a job because of problems getting along with other people. Tr. 293.

Brooks alleged that she did not handle well stress or changes in routine. Tr.

294.

5. Hearing testimony

At the October 2022 administrative hearing, Brooks, who was

represented by counsel, testified that she lived with her husband, who received

permanent disability, and two dogs. Tr. 44–45. Brooks stated that she was

working for a temp agency, mostly doing catering work, and noted that, if she

was lucky, she could pick up 20 hours of work per week. Tr. 44–45.

Brooks described that she was involved in a car accident in August 2020,

which caused problems with her memory, but that her memory had slowly

returned over the last couple of years. Tr. 56. Still, Brooks testified, she

struggled with her short-term memory and relied very heavily on writing notes

and using the reminder feature on her phone. Tr. 56–57.

Brooks testified that her anxiety had become hard to manage and that

she did not do well around strangers. Tr. 59. Brooks described that her PTSD

caused difficulty with sleeping, caused her to avoid people, and made her

nervous about her surroundings. Tr. 61–62. Brooks also described mood swings

and depression symptoms. Tr. 58–59. She stated that she experienced

increased difficulties with focus and concentration following her accident. Tr.

58. Brooks stated that she worked with a counselor very closely to create coping

mechanisms. Tr. 60. She testified that she had been on and off of several

different medications over the past couple of years, but she was not then taking

any medication because her doctors had difficulty finding a medication that did

not interact with her other medications. Tr. 60. When asked what medications

she took as of the time of the hearing, Brooks testified that she continued to

take Suboxone to manage her opioid addiction, but she wanted to ween off of it

as she had been sober for over four. Tr. 61.

Brooks testified that she was able to perform basic household chores,

but that seven months before her testimony she was in a deep depression. Tr.

62. Brooks stated that she could run errands for short periods, but she had to

push herself or find someone to go with her on longer trips. Tr. 62–63. She

indicated that she stayed at home and did not regularly see people. Tr. 63.

Brooks reported daily activities of reading, drawing, walking her dog, running,

cleaning, organizing, and tidying up, but due to her mental health she

sometimes had difficulty doing these things. Tr. 63, 65–66.

ALJ Decision

The ALJ made the following findings of fact and conclusions of law:

1. The claimant meets the insured status

requirements of the Social Security Act (the “Act”)

through September 30, 2021.

2. The claimant has not engaged in substantial

gainful activity since August 30, 2020, the alleged

onset date (20 CFR 404.1571 et seq., and 416.971 et

seq.).

3. The claimant has the following severe

impairments: Chron’s disease, major depressive

disorder, panic disorder, generalized anxiety

disorder, post-traumatic stress disorder,

neurocognitive disorder, and opioid use disorder. (20

CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or

combination of impairments that meets or medically

equals the severity of one of the listed impairments

in 20 CFR Par 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d),

416.925 and 416.926).

5. After careful consideration of the entire record, I

find that the claimant has the residual functional

capacity to perform light work as defined in 20 CFR

404.1567(b) and 416.967(b) except that the claimant

may occasionally climb ramps, stairs, ladders, ropes,

or scaffolds; the claimant is limited to the

performance of simple, routine tasks and to the

making of no more than simple, work-related

decisions, conducted in a work setting that requires

no more than occasional contact with supervisors,

co-workers, and the public, which setting is routine,

in that it contemplates few changes.

6. The claimant is unable to perform any past

relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on April 27, 1981 and was

39 years old, which is defined as a younger

individual age 18–49, on the alleged disability onset

date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education

(20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the

determination of disability because using the

Medical-Vocational Rules as a framework supports

a finding that the claimant is “not disabled,”

whether or not the claimant has transferable job

skills (See SSR 82-41 and 20 CFR Par 404, Subpart

P, Appendix 2).

10. Considering the claimant’s age, education, work

experience, and residual functional capacity, there

are jobs that exist in significant numbers in the

national economy that the claimant can perform (20

CFR 404.1569, 404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as

defined in the Social Security Act, from August 30,

2020, through the date of this decision (20 CFR

404.1520(g) and 416.920(g)).

Tr. 20–29.

Standard for Disability

Eligibility for social security benefit payments depends on the existence

of a disability. 42 U.S.C. §§ 423(a), 1382(a). “Disability” is defined as the

“inability to engage in 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 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C.

§ 1382c(a)(3)(A).

An ALJ is required to follow a five-step sequential analysis to make a

disability determination:

1. Is the claimant engaged in substantial gainful

activity? If so, the claimant is not disabled.

2. Does the claimant have a medically

determinable impairment, or a combination of

impairments, that is “severe”? If not, the claimant is

not disabled.

3. Does the claimant’s impairment meet or equal

one of the listed impairments and meet the duration

requirement? If so, the claimant is disabled. If not,

the ALJ proceeds to the next step.

4. What is the claimant’s residual functional

capacity and can the claimant perform past relevant

work? If so, the claimant is not disabled. If not, the

ALJ proceeds to the next step.

5. Can the claimant do any other work

considering the claimant’s residual functional

capacity, age, education, and work experience? If so,

the claimant is not disabled. If not, the claimant is

disabled.

20 C.F.R. §§ 404.1520, 416.920; see Jordan v. Comm’r of Soc. Sec., 548 F.3d

417, 422 (6th Cir. 2008). Under this sequential analysis, the claimant has the

burden of proof at steps one through four. Jordan, 548 F.3d at 423. The burden

shifts to the Commissioner at step five “to prove the availability of jobs in the

national economy that the claimant is capable of performing.” Id. “The

claimant, however, retains the burden of proving h[is] lack of residual

functional capacity.” Id. If a claimant satisfies each element of the analysis and

meets the duration requirements, the claimant is determined to be disabled.

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).

Standard of Review

A reviewing court must affirm the Commissioner’s conclusions unless it

determines “that the ALJ has failed to apply the correct legal standards or has

made findings of fact unsupported by substantial evidence in the record.”

Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence’ is a ‘term of art’” under which

“a court … asks whether” the “existing administrative record … contains

‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek

v. Berryhill, 587 U.S. 97, 102 (2019) (citations omitted). The substantial

evidence standard “is not high.” Id. at 103. Substantial evidence “is ‘more than

a mere scintilla’” but it “means only[] ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Id. (citations

omitted). The Commissioner’s “findings … as to any fact if supported by

substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 587 U.S. at

99.

A court may “not try the case de novo, resolve conflicts in evidence, or

decide questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir.

2007). Even if substantial evidence or a preponderance of the evidence

supports a claimant’s position, a reviewing court cannot overturn the

Commissioner’s decision “so long as substantial evidence also supports the

conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

477 (6th Cir. 2003). This is so because there is a “zone of choice within which”

the Commissioner can act, without fear of judicial “interference.” Lindsley v.

Comm’r of Soc. Sec., 560 F.3d 601, 605 (6th Cir. 2009) (quoting Felisky v.

Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994)).

Analysis

Brooks presents one issue on appeal to this Court.6 Doc. 7, at 2. She

presents multiple arguments in support of this sole issue, however. See id., at

7–12. All arguments are refuted by the Commissioner, Doc. 9, at 11–17., and

none provide a sufficient basis for remand.

Brooks raises one issue for this Court’s consideration: “by failing to

properly address the mandatory factors of supportability and consistency,” the

ALJ violated 20 C.F.R. § 404.1520c during his evaluation of the state agency

psychologist, Dr. Baker’s, opinion on reconsideration. See Doc. 7, at 7 (“[t]he

ALJ violated 20 C.F.R. § 404.1520c by failing to properly address the

mandatory factors of supportability and consistency.”).

The Commissioner is required to evaluate the persuasiveness of all

medical opinions using the following factors: supportability; consistency;

treatment relationship, including the length, frequency, purpose, and extent;

specialization; and other factors. 20 C.F.R. §§ 404.1520c(a), (c)(1)–(5),

416.920c(a), (c)(1)–(5). Supportability and consistency are the most important

factors. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). Supportability means that

“[t]he more relevant the objective medical evidence and supporting

explanations presented by a medical source are to support his or her medical

6 Brooks and her counsel should note that this Court’s Local Rule 10.2

directs that “[a]fter the filing of the complaint, all documents filed with the

Clerk shall have the name of the District Judge and/or Magistrate Judge to

whom the case has been assigned typed or printed immediately under the

Court's docket number.” Brooks’s brief does not comply with this requirement.

opinion[] … the more persuasive the medical opinions … will be.” 20 C.F.R.§§

404.1520c(c)(1), 416.920c(c)(1). Consistency means “[t]he more consistent a

medical opinion[] … is with the evidence from other medical sources and

nonmedical sources in the claim, the more persuasive the medical opinion[] …

will be.” 20 C.F.R. §§ 404.1520c(c)(2), 416.920c(c)(2). The Commissioner must

explain the supportability and consistency factors when discussing a medical

opinion. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). “[A]n ALJ need not,”

however, “specifically use the terms ‘supportability’ or ‘consistency’ in his

analysis.” Cormany v. Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D.

Ohio Sept. 9, 2022) (citing cases). The Commissioner is not required to discuss

the remaining factors. Id. “A reviewing court evaluates whether the ALJ

properly considered the factors as set forth in the regulations to determine the

persuasiveness of a medical opinion.” Toennies v. Comm’r of Soc. Sec., 2020 WL

2841379, at *14 (N.D. Ohio June 1, 2020) (internal quotation marks and

citation omitted).

As an initial matter, Brooks essentially admits that the ALJ considered

the required factors of supportability and consistency. See Doc. 7, at 12

(concluding by asking only that the Court find the ALJ’s decision was not

supported by substantial evidence).

As to supportability, Brooks asserts that, because the ALJ recognized

that “Dr. Baker cited liberally to the record in support of his opinions,” “the

ALJ admitted that with respect to the supportability factor, Dr. Baker had

properly supported his opinions by connecting those opinions to the evidence

in the record.” Doc. 7, at 9. Brooks makes this point to the detriment of her own

argument. She is correct––the ALJ did consider the supportability of Dr.

Baker’s findings. Doc. 6, at 26–27. The ALJ was not, however, required to find

that those records ultimately supported Dr. Baker’s findings. To the contrary,

it was the ALJ’s duty to analyze whether the evidence cited by Dr. Baker

supported his findings, not to simply wholesale adopt Dr. Baker’s findings into

the ALJ’s ultimate RFC determination.7 See 20 C.F.R. § 404.1520c(a)

(explaining how the ALJ will consider and weigh medical opinions and prior

administrative medical findings); see also Rottmann v. Comm’r of Soc. Sec., 817

F. App’x 192, 196 (6th Cir. 2020) (“[T]his court does not weigh evidence, assess

credibility, or resolve conflicts in testimony–that’s the ALJ’s job.”) (quoting

Dyson v. Comm’r of Soc. Sec., 786 F. App’x 586, 588 (6th. Cir. 2019)). The ALJ

ultimately considered the records cited by Dr. Baker and found that Dr.

Baker’s opinion was broadly supported by the evidence that he considered in

rendering his findings. Doc. 6, at 27. So Brooks’s complaint is not that the ALJ

failed to consider the supportability factor, but rather that she disagrees with

the ALJ’s decision. Brooks’s argument that the ALJ failed to consider the

supportability factor is thus belied by the ALJ’s decision.

7 Brooks does not raise any specific argument asserting that the

limitations in the ultimate RFC determination were inappropriate.

As to the consistency factor, the ALJ considered whether a given medical

opinion, here Dr. Baker’s, was consistent with Brooks’s broader record of

treatment. Doc. 6, at 26–27 (comparing Dr. Baker’s assessment with other

evidence of record). Brooks’s own argument again undercuts her assertion that

the ALJ failed to consider consistency. See Doc. 7, at 10 (arguing that “the ALJ

stated that Dr. Baker’s opinions were inconsistent with [Brooks’ record of

substance abuse management]”.). The ALJ looked to “other treatment records”

and “elsewhere in the record,” to compare whether Dr. Baker’s mental RFC

findings were supported by the record as a whole. Id at 27. This is exactly

what the ALJ is required to do.

The fact that Brooks disagrees with the ALJ’s analysis and conclusions

related to supportability and consistency does not mean the ALJ failed to

comply with the applicable regulation. To the contrary, the ALJ articulated a

detailed evaluation of both the supportability and consistency factors as

required by 20 C.F.R. § 404.1520c. See Doc. 6, at 26–27. Additionally, Brooks

has not provided any citation to controlling or persuasive sources to support

an argument that the ALJ’s discussion of supportability and consistency was

somehow insufficient. Brooks sole captioned argument is thus meritless and

does not provide any basis for remand.

The remainder of Brooks arguments demonstrate that her actual

argument is that the ALJ’s decision was not supported by substantial evidence.

See Doc. 7, at 10–11; see also Doc. 7, at 12 (asking the Court to “find the decision

of the ALJ was unsupported by substantial evidence”). Because such argument

is not contemplated by Brooks’s sole legal issue raised, the Court need not

consider it. See Doc. 4, at 3 (“Each introductory heading in the Argument or

Analysis section of a brief must correspond to the argument presented under

the heading. Failure to comply with this requirement may result in (a) waiver

of the arguments in the heading and in the text following the heading; (b)

striking of the offending brief; and (c) other appropriate sanctions. Similarly,

bald assertions of error–those unsupported by explanation and argument–will

be deemed waived.”).

Even if the Court were to consider Brooks’s remaining arguments, they

are meritless. Seemingly as an aside, Brooks says that the ALJ erred by

“dismiss[ing] Dr. Konieczny’s examination findings.” Doc. 7, at 10. Brooks

points to Dr. Konieczny’s expertise and asks: “If the ALJ was simply going to

reject [Dr. Konieczny’s evaluation] due to a lack of mental health evidence

anyways, then why would his exam be ordered in the first place.” Doc. 7, at 11.

It is not this Court’s role to speculate about what might support Brooks’s

suggestion of error. The ALJ’s finding that Dr. Konieczny’s report was

unpersuasive was entirely within the realm of the ALJ’s duties. See e.g., 20

C.F.R. § 404.1520c(a) (explaining how the ALJ will consider and weigh medical

opinions and prior administrative medical findings) (emphasis added). Brooks

is essentially asserting that the ALJ was obligated to give certain weight to Dr.

Konieczny’s opinion simply because he was a state consultative examiner. This

is not so. The ALJ evaluated the persuasive value of Dr. Konieczny’s report,

just as he was obligated to do with all medical opinion evidence and found it

only partially persuasive. Tr. 27. And, as the ALJ also noted, Dr. Konieczny’s

consultative report is the only “full-scale mental status examination” and some

of the actual testing was not conducted by Dr. Konieczny. Tr. 21. Brooks

provided nothing to show that the ALJ erred in his evaluation of Dr.

Konieczny’s report.

Brooks includes several additional assertions in her brief’s final

paragraph:

Dr. Baker was the only mental health source of

record to provide specific mental health opinions. Dr.

Baker based his opinion primarily on the detailed

report completed by Dr. Konieczny. The ALJ omitted

Dr. Baker’s more disabling opinions simply because

Dr. Baker allegedly overstated Ms. Brooks’ abilities

to a minimal degree. Yet, the ALJ never once

attempted to connect the dots. The ALJ did not

attempt to explain how the record contradicted the

omitted limitations.

Doc. 7, at 11. Because this paragraph does not all relate to the sole captioned

argument that the ALJ failed to analyze the supportability and consistency of

Dr. Baker’s opinion, see Doc. 7, at 2, the Court need not consider it. See Doc. 4,

at 3

But even if these arguments were considered, they are meritless. These

arguments appear to be based on Brooks’s belief that ALJ was required to

explain each piece of evidence that supported his decision related to Dr.

Baker’s findings. But the ALJ need not discuss each piece of evidence for his

decision to be supported by substantial evidence. Thacker v. Comm’r of Soc.

Sec., 99 F. App’x 661, 665 (6th Cir. 2004) (“An ALJ need not discuss every piece

of evidence in the record for the ALJ’s decision to stand.”). And Brooks’

argument that the ALJ failed to “connect the dots” is belied by the ALJ’s

decision, which provided several paragraphs of detailed comparison between

the medical record and each of Dr. Baker’s opinion and concluded by

specifically articulating what aspects of that opinion were inconsistent with

other evidence and why. See Tr. 27.

Brooks’ final paragraph also asserts that the ALJ’s evaluation of Dr.

Baker’s opinions was cursory. This argument does not include any record

citation and includes only one case citation. Tr. 7, at 11. Her argument is thus

itself cursory and the Court need not address it further. See McPherson v.

Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997) (“[I]ssues adverted to in a

perfunctory manner, unaccompanied by some effort at developed

argumentation, are deemed waived. It is not sufficient for a party to mention

a possible argument in the most skeletal way, leaving the court to . . . put flesh

on its bones.”) (internal citations omitted). But, even if the Court did address

this argument, it lacks merit. As the Court’s analysis above demonstrates,

there was nothing “cursory” about the ALJ’s decision. The ALJ articulated the

required factors of supportability and consistency and rendered a decision

supported by substantial evidence.

Conclusion

For the reasons explained above, I recommend that the Court affirm the

Commissioner’s decision.

Dated: August 9, 2024

/s/ James E. Grimes Jr.

James E. Grimes Jr.

U.S. Magistrate Judge

OBJECTIONS

Any objections to this Report and Recommendation must be filed with

the Clerk of Court within 14 days after the party objecting has been served

with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure

to file objections within the specified time may forfeit the right to appeal the

District Court’s order. See Berkshire v. Beauvais, 928 F.3d 520, 530–531 (6th

Cir. 2019).