Opinion
7:20-CV-237-D
07-19-2022
KEVIN LYONS REILLY, Plaintiff/ Claimant, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
Robert B. Jones,Jr. United States Magistrate Judge
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-11, -17] pursuant to Fed.R.Civ.P. 12(c). Claimant Kevin Lyons Reilly (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). Plaintiff filed a response to Defendant's motion, [DE-19-1], and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on November 9, 2017, alleging disability beginning January 9, 2017. (R. 15, 237-38). The claim was denied initially and upon reconsideration. (R. 15, 69-93). A telephonic hearing before an Administrative Law Judge (“ALJ”) was held on April 23, 2020, at which Claimant, represented by counsel, and a vocational expert (“VE”) appeared and testified. (R. 30-57). On May 18, 2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-29). On October 13, 2020, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-fmal administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the AL J is to evaluate a claim:
The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform .. . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). Theburden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ's decision was not supported by the VE's findings at step five, and the final decision of the Commissioner was constitutionally defective. Pl.'s Mem. [DE-12] at 5-10.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment during the period from the alleged onset date through the date last insured. (R. 17). Next, the ALJ determined Claimant had the severe impairments of anxiety and depression, and the non-severe impairments of hypertension, history of gout, diverticulosis, benign positional vertigo, and mild obesity. (R. 17-18). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18-19). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 18-19).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform a full range of work at all exertional levels with the following limitations:
He could understand, remember, and follow simple instructions; maintain concentration, persistence, and pace for and adapt to and manage simple, routine tasks that do not require work with the general public. The claimant could work in proximity to but not in coordination with coworkers and could respond appropriately to supervisors if there is no more than occasional interaction. Additionally, the claimant could work in a low-stress job, defined as having no fixed production quotas with only occasional changes in the work setting.(R. 19-24). In making this assessment, the ALJ found Claimant's statements about his limitations were not entirely consistent with the medical and other evidence. (R. 20).
At step four, the ALJ concluded Claimant could not perform the requirements of his past relevant work. (R. 24). However, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 24- 25).
V. DISCUSSION
A. The AL J's Step Five Determination
Claimant contends the ALJ's decision is not supported by the VE's testimony at step five. The ALJ found Claimant capable of work at all exertional levels with only non-exertional limitations, but the jobs identified by the VE at step five were only at the light and sedentary level. An individual of Claimant's age who is limited to unskilled work is disabled as a matter of law if he can only perform light or sedentary work. Thus, citing Distasio v. Shalala, 47 F.3d 348 (9th Cir. 1995), Claimant reasons that at step five the VE provided no evidence of jobs Claimant could perform that would support the ALJ's RFC determination, and Claimant must be found disabled if limited to unskilled light or sedentary work. Pl.'s Mem. [DE-12] at 5-7; Pl.'s Reply [DE-19-1] at 1-3. Defendant argues that the VE's testimony did not undermine the ALJ's conclusion that Claimant could perform work at all exertional levels with only non-exertional limitations and there is no error at step five. Def.'s Mem. [DE-18] at 20-23.
At step five of the sequential evaluation process, the burden is on the Commissioner to show that the claimant possesses the RFC to adjust to the demands of other work. 20 C.F.R. § 404.1520. “If the claimant has no nonexertional impairments that prevent her from performing the full range of work at a given exertional level, the Commissioner may rely solely on the Grids to satisfy his burden of proof.” Aistrop v. Barnhart, 36 Fed.Appx. 145,146 (4th Cir. 2002). However, if the claimant does have nonexertional limitations, then the Grids serve “only as a guide,” and the ALJ “must prove through expert vocational testimony that jobs exist in the national economy which the claimant can perform.” Id. at 147; see also 20 C.F.R. § 404.1569a(d) (directing that when a claimant has a combination of exertional and nonexertional limitations, “we will not directly apply the rules in appendix 2 unless there is a rule that directs a conclusion that you are disabled based upon your strength limitations; otherwise the rules provide a framework to guide our decision”).
The ALJ in this case found that Claimant was able to perform work at all exertional levels with non-exertional limitations; thus, in conformity with the regulations, the ALJ utilized the grids only as a framework and consulted a VE at step five to determine whether there were significant employment opportunities Claimant could perform in the national economy. (R. 24-25); 20 C.ER. § 404.1569a(d). The ALJ obtained testimony from the VE that based on the Claimant's age, education, work experience, and RFC the jobs of shipping and receiving weigher, routing clerk, and document preparer could be performed. (R. 53-54). The fact that these jobs are at the light and sedentary exertional levels does not undermine or fail to support the AL J's RFC finding that Claimant could perform work at all exertional levels. See Bryant v. Comm 'r, Soc. Sec. Admin., No. 5:19-CV-00121-HNJ, 2020 WL 4691363, at *5 (N.D. Ala. May 20, 2020) (“Because the ALJ may satisfy this step five burden by articulating only one occupation existing in significant numbers in the national economy which the claimant can perform, an ALJ need not articulate occupations at every exertional level reflected in the claimant's RFC.”), report and recommendation adopted, 2020 WL 4437479 (N.D. Ala. June 19, 2020); Kelly B. v. Saul, No. C19-5430-MAT, 2020 WL 128559, at *2 (W.D. Wash. Jan. 10, 2020) (rejecting argument that the ALJ failed to carry the burden at step five by identifying only light jobs, where the ALJ found the claimant capable of work at all exertional levels).
The Sixth Circuit Court of Appeals addressed this issue, rejecting as legally flawed the same argument Claimant makes here:
The RFC is based on the claimant's particular disabilities, an inquiry wholly independent from what jobs are available in the regional and national economy. See 20 C.F.R. § 404.1545(a) (listing factors that determine an RFC). The VE does not testify as to what the claimant is physically capable of doing, but rather as to what jobs are available, given the claimant's physical capabilities. Thus, in a step-five analysis, the VE's testimony depends upon the RFC and not the other way around. Walters v. Comm'r, 127 F.3d 525, 529 (6th Cir. 1997) (“Even if claimant's impairment does prevent him from doing his past relevant work, if other work exists in the national economy that accommodates his residual functional capacity and vocational factors (age, education, skills, etc.), he is not disabled.”) (emphasis supplied).
Significantly, every court to have considered the precise argument that Anderson makes here has rejected its underlying understanding of the law. See, e.g, Ayala v. Astrue, 2010 WL 2757492 (C.D. Cal. July 16,2010); Leev. Barnhart, 63 Fed.Appx. 291 (9th Cir. 2003); Johnson v. Barnhart, 2005 WL 3271953 (W.D. Wise. Nov. 29, 2005).Anderson v. Comm 'r of Soc. Sec., 406 Fed.Appx. 32, 36 (6th Cir. Dec. 22, 2010); see also Day v. Comm'r of Soc. Sec., No. 6:16-CV-191-ORL-22GJK, 2017 WL 1396476, at *4 (M.D. Fla. Apr. 19, 2017) (characterizing the same argument as “an incorrect and backwards approach to the disability determination”).
The Distasio case, cited by Claimant, does not counsel a different result. In Distasio, the ALJ found that Distasio was capable of light work with limitations but the vocational expert testified that Distasio could only perform what she believed were sedentary jobs, and the VE's testimony was accepted without qualification. 47 F.3d at 349. Due to Distasio's age, education, and work experience, using the grids as a framework, an RFC of sedentary would have resulted in a finding of disabled. Id. The court found that the ALJ erred in concluding Distasio was not disabled, reasoning as follows:
The testimony of the vocational expert belied the ALJ's finding that the combination of Distasio's exertional and non-exertional limitations did not limit him to sedentary work. The vocational expert's testimony established that, at best, Distasio could perform jobs that fall within the sedentary category. The Secretary has thus produced no evidence that Distasio is capable of any job other than
sedentary work.Id. at 350.
Here, the VE did not testify that Claimant was limited to light or sedentary exertional work but rather provided examples of jobs, within the light and sedentary exertional levels, that an individual with no exertional and some non-exertional limitations could perform. See Kelly B., 2020 WL 128559, at *2 (distinguishing Distasio where the VE did not find the claimant was limited to work at a specific exertion level or restrict her testimony to the three example jobs provided); Thomas P. v. Berryhill, No. CV 17-337 WES, 2018 WL 4629249, at * 1, 5 (D.R.I. Sept. 27, 2018) (rejecting the claimant's argument that “a case from the Ninth Circuit Court of Appeals, [Distasio] . . ., has a better view of the relationship between vocational-expert testimony and a claimant's residual functional capacity than that enunciated in a case from the Sixth Circuit, Anderson ..., which was recently followed by a court in the First Circuit, Foxworth v. Colvin, 249 F.Supp.3d 585, 589-90 (D. Mass. 2017)” and noting that “Distasio has been soundly rejected by every court outside the Ninth Circuit that has considered the issue.”).
Claimant does not challenge the ALJ's RFC determination, and the ALJ's decision is legally sound and supported by the VE's testimony. Accordingly, the ALJ did not err at step five in failing to find Claimant disabled under the grids, and it is recommended that Claimant's argument be rejected.
B. The Constitutional Argument
Claimant contends that the structure of the SSA is unconstitutional and violates the separation of powers because the agency is led by a single head who serves a longer term than the president and can only be removed from the position for cause; thus, Claimant reasons that Commissioner Saul's delegation of authority to the ALJs and Appeals Council and his promulgation of regulations were likewise defective, depriving Claimant of a valid administrative adjudicatory process. Pl.' s Mem. [DE-12] at 7-10 (citing Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183 (2020)); Pl.' s Reply [DE-19-1] at 3-23. Defendant concedes that the removal restriction violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause but contends that Claimant is entitled to no relief because, among other things, he cannot show the restriction actually caused him harm. Def.' s Mem. [DE-18] at 6-20 (citing Collins v. Yellin, 141 S.Ct. 1761 (2021)). Applying Seila Law and Collins, the court finds Plaintiff's constitutional argument lacks merit.
In Seila Law, the Court held that Congress may not limit the President's removal authority “when it comes to principal officers who, acting alone, wield significant executive power.” 140 S.Ct. at 2211. In Collins, the Court applied Seila Law to hold that the Federal Housing Finance Agency's structure violated the Constitution. 141 S.Ct. at 1783. However, in addressing the appropriate remedy, the Court distinguished a constitutionally defective appointment from a removal, explaining that
[a]lthough the statute unconstitutionally limited the President's authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void.Id. at 1787. The Court did not foreclose that a showing of harm could be made and provided as examples a President attempting to remove a director but being blocked from doing so by a court for failure to show cause, or a President-making a public statement expressing displeasure with actions taken by a director and asserting he would remove the director absent the removal restriction. Id. at 1788-89.
Here, Defendant first argues that the ALJ who denied the claim in this case was not appointed by a Commissioner subject to the removal restriction but rather had her appointment ratified by Acting Commissioner Berryhill, who was not subject to the removal restriction, such that as a factual matter there is no separation of powers violation and Claimant cannot show the requisite nexus between the alleged harm and the removal restriction. Def.'s Mem. [DE-18] at 6, 8-10. Claimant notes that “[i]t is uncontested that the ALJ and the Appeals Council judges adjudicated and decided this disability application pursuant to a delegation of authority from former Commissioner of SSA Andrew Saul,” Pl.'s Reply [DE-19-1] at 4 n.l, and later argues that it is irrelevant whether the ALJ was appointed by an Acting Commissioner because the entire delegation of authority from Commissioner Saul was unconstitutionally sound, Id. at 11-13.
The ALJ's and Appeals Council's decisions were issued after the appointment of Andrew Saul, who was subject to the removal provision. However, this does not entitle Claimant to remand because constitutional defects in appointment and removal are distinct. As the Supreme Court explained in Collins, if the appointment of the agency head is valid “there is no reason to regard any of the actions taken by the [agency] as void.” 141 S.Ct. at 1787; see Kaufmann v. Kijakazi, 32 F.4th 843, 849 (9th Cir. 2022) (finding that because “the ALJ, the members of the Appeals Council, Acting Commissioner Berryhill, and Commissioner Saul all served, at all relevant times, under valid appointments,” under Collins the agency's actions were not void). Furthermore, Claimant's argument that an unconstitutional delegation of authority from Commissioner Saul to the ALJ and Appeals Council demonstrates harm lacks merit under Collins. Claimant theorizes a general harm rather than one “particularized to Claimant,” Kaufmann, 32 F.4th at 850, and courts have found such generalized harms to be insufficient under Collins. See Dixon v. Kijakazi, No. 4:21-CV-00033-M, 2022 WL 1096424, at *9 (E.D. N.C. Feb. 1,2022) (finding insufficient showing of harm under Collins based on Claimant's argument that the removal provision deprived the Commissioner of the power to take official acts and thus he had no decision making authority to delegate), report and recommendation adopted, 2022 WL 1096844 (E.D. N.C. Apr. 12, 2022); Stephens v. Comm'r of Soc. Sec., 1:20-CV-00320-WCM, 2022 WL 628540 at *4-6 (W.D. N.C. Mai; 3, 2022) (citing Helms v. Comm'r of Sec. Sec., No. 3:20-CV-589-MOC, 2021 WL 5710096 (W.D. N.C. Dec. 1, 2021)); Stubbs v. Kijakazi, No. 6:20-3606-MGL-KFM, 2022 WL 557479, at *3-4 (D.S.C. Feb. 24, 2022) (“Courts in the Fourth Circuit are in one accord that the allegedly unconstitutional nature of § 902(a)(3), standing alone, is an insufficient basis to require remand.”) (citing Pepper v. Kijakazi, No. 6:20-CV-4159-CMC, 2022 WL 391577 (D.S.C. Feb. 9, 2022); Helms, 2021 WL 5710096; Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397 (W.D. N.C. Oct. 27, 2021)); Hutchens v. Comm'r of Soc. Sec., No. 1:20-CV-1124, 2021 WL 5834409, at *13 (M.D. N.C. Dec. 9, 2021) (citing Lisa Y. v. Comm'r of Soc. Sec., 570 F.Supp.3d 993 (W.D. Wash. 2021)). Accordingly, because Claimant has failed to demonstrate a sufficient harm from the alleged unconstitutional removal provision, it is recommended that this argument be rejected.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-11] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-17] be ALLOWED, and the final decision of the Commissioner be AFFIRMED.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 2, 2022 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).