Opinion
Civil Action 3:21-cv-01873
03-02-2023
MARTHA RUSSELL, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.
(SAPORITO, M.J.)
REPORT AND RECOMMENDATION
(MARIANI, J.)
The plaintiff, Martha Russell, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security determining that she was no longer disabled on or after March 31, 2015. As a consequence, she is no longer eligible to receive disability insurance benefits under Title II of the Social Security Act (the “Act”).
This matter has been referred to the undersigned United States magistrate judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we recommend that the final decision of the Commissioner be affirmed.
I. Background
In a determination dated September 25, 2003, Russell was found disabled beginning on December 31, 1999. Following a periodic review of her continued entitlement to benefits, a state agency determined in March 2015 that Russell was no longer disabled effective March 31, 2015.
The plaintiff requested an administrative hearing, which was held before an administrative law judge, Scott M. Staller, on July 2, 2018. That first hearing resulted in an unfavorable decision, finding that Russell's disability ended on March 31, 2015. The plaintiff sought further administrative review of her claims by the Appeals Council, but that request was denied on September 3, 2019. The plaintiff then filed a complaint for judicial review in this court. See Russell v. Saul, Case No. 3:20-cv-00107 (M.D. Pa. filed Jan. 21, 2020), Doc. 1. The case was subsequently remanded to the agency on the Commissioner's own uncontested motion for a sentence-four remand. See id., Doc. 21, Doc. 22.
Following remand to the agency, a telephonic hearing was held in two parts on March 24 and June 24, 2021, before a different administrative law judge, Sharon Zanotto (the “ALJ”). In addition to the plaintiff herself, the ALJ received testimony from two impartial medical experts, James Todd, MD, and George S. Bell, MD, and an impartial vocational expert, Brian Bierley. The plaintiff was represented by counsel at both parts of this hearing.
On August 12, 2021, the ALJ issued an unfavorable decision, once again finding that Russell's disability ended on March 31, 2015. The ALJ followed a prescribed eight-step evaluation process in determining whether Russell remained disabled under the Act. See generally 20 C.F.R. § 404.1594(f) (describing this eight-step inquiry); Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 307-08 (3d Cir. 2012) (same); Walters v. Saul, 452 F.Supp.3d 164, 167-69 (M.D. Pa. 2020) (same).
At step one, the ALJ found that Russell had not engaged in substantial gainful activity through the date of decision.
At step two, the ALJ noted that, at the time of her most recent favorable decision on September 25, 2003-known as the “comparison point decision” or “CPD”-Russell had been found disabled based on medically determinable impairments of mixed personality disorder and substance addiction disorder, which resulted in a residual functional capacity (“RFC”) that precluded her from meeting the basic mental demands of unskilled work on a sustained basis. The ALJ found that Russell's current medically determinable impairments included: residual effects of a right ankle fracture; hepatitis C; attention deficit hyperactivity disorder; lumbago or degenerative disc disease of the lumbar spine; mood disorder; anxiety; and a finger fracture. The ALJ concluded that, as of March 31, 2015, Russell did not have an impairment or combination of impairments that meets or medically equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
At step three, the ALJ found that, by March 31, 2015, there had been a decrease in the medical severity of Russell's impairments at the time of her CPD. The ALJ noted that more recent medical records indicated normal mental status examination findings with only mildly impaired memory skills, and that Russell had reported being in remission from drug and alcohol use.
At step four, the ALJ found that Russell's medical improvement was related to her ability to work because it had resulted in a less restrictive RFC than at the time of the CPD.
At step six,the ALJ found that Russell continued to have a severe impairment or combination of impairments. The ALJ found that Russell currently had the following severe impairments: residual effects of a right ankle fracture; hepatitis C; and attention deficit hyperactivity disorder. The ALJ found that the remainder of Russell's current medically determinable impairments were non-severe.
Prior to step seven of the eight-step evaluation process, the ALJ assessed Russell's current RFC. See generally Myers v. Berryhill, 373 F.Supp.3d 528, 534 n.4 (M.D. Pa. 2019) (defining RFC). After evaluating the relevant evidence of record, the ALJ found that, as of March 31, 2015, Russell had the RFC to perform medium work as defined in 20 C.F.R. § 404.1567(c),with the following limitations:
The Social Security regulations define “medium work” as a job that “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighting up to 25 pounds.” 20 C.F.R. § 404.1567(c).
[S]he can understand, remember, carry out tasks involving simple instructions and make judgments on simple decisions, can tolerate occasional work setting, process, and tool changes, requires no more than occasional supervision, cannot perform work that
requires adherence to precise limits, tolerances, standards, directing, controlling, planning activities of others[,] and influencing people's opinions, attitudes and judgments or fast-paced production rate work. She would be off-task 10% of the workday and absent 1 day per month.
(Tr. 902.)
In making these factual findings regarding Russell's RFC, the ALJ considered her symptoms and the extent to which they could reasonably be accepted as consistent with the objective medical evidence and other evidence of record. See generally 20 C.F.R. § 404.1529; Soc. Sec. Ruling 16-3p, 2017 WL 5180304 (revised Oct. 25, 2017). The ALJ also considered and articulated how persuasive she found the medical opinions and prior administrative medical findings of record. See generally 20 C.F.R. § 404.1520c.
At step seven, the ALJ concluded that Russell had no past relevant work.
At step eight, the ALJ concluded that, since March 31, 2015, Russell was capable of performing other work that exists in significant numbers in the national economy. Based on her age, education, work experience, and RFC, and based on testimony by a vocational expert, the ALJ concluded that Russell was capable of performing the requirements of representative occupations such as machine feeder (DOT # 699.686-010), factory worker (DOT # 529.686-034), or industrial cleaner (DOT # 389.683-010). Based on this finding, the ALJ concluded that Russell was no longer disabled for Social Security purposes effective March 31, 2015.
The plaintiff did not seek further administrative review of her claims by the Appeals Council, making the ALJ's August 2021 decision the final decision of the Commissioner subject to judicial review by this court.
Russell timely filed her complaint in this court on November 3, 2021. The Commissioner has filed an answer to the complaint, together with a certified copy of the administrative record. Both parties have filed their briefs, and this matter is now ripe for decision.
II. Discussion
Under the Social Security Act, the question before this court is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See generally 42 U.S.C. § 405(g) (sentence five); Myers, 373 F.Supp.3d at 533 (describing standard of judicial review for social security disability insurance benefits administrative decisions).
Russell asserts on appeal that the ALJ's decision is not supported by substantial evidence because: (1) Russell was deprived of a constitutionally valid administrative adjudicatory process because statutory removal protections afforded to the Commissioner violate the separation of powers; and (2) the ALJ failed to properly consider Russell's subjective allegations regarding her symptoms.
A. Constitutional Separation of Powers Issue
Citing a recent decision by the Supreme Court of the United States, Seila Law LLC v. Consumer Financial Protection Bureau, 140 S.Ct. 2183 (2020), the plaintiff contends that she was deprived of a constitutionally valid administrative adjudicatory process because statutory removal protections afforded to the Commissioner of Social Security violated the separation of powers.
In Seila Law, the Supreme Court of the United States held that statutory removal protections afforded to the director of the Consumer Financial Protection Board (“CFPB”), which provided that the CFPB director, who serves for a fixed term of five years, 12 U.S.C. § 5491(c)(1), could be removed only for “inefficiency, neglect of duty, or malfeasance in office,” id. § 5491(c)(3), violated the separation of powers by insulating the director from removal by the President. Seila Law, 140 S.Ct. at 2197. One year later, the Supreme Court applied Seila Law in considering a similar challenge concerning statutory removal protections afforded to the director of the Federal Housing Finance Agency (“FHFA”), which provided that the FHFA director, who serves for a fixed term of five years, 12 U.S.C. § 4512(b)(2), could only be removed “for cause,” id., and held that this provision violated the separation of powers as well. Collins v. Yellen, 141 S.Ct. 1761, 1783-84 (2021) (“A straightforward application of our reasoning in Seila Law dictates the result here.”).
“Applying the holdings in Seila Law and Collins here makes it clear that the provision for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the separation of powers.” Stamm v. Kijakazi, 577 F.Supp.3d 358, 366 (M.D. Pa. 2021). Like the CFPB and the FHFA, the Social Security Administration is an independent agency led by a single individual, the Commissioner, who serves a fixed term of six years and may only be removed by the President for “neglect of duty or malfeasance in office,” 42 U.S.C. § 902(a)(3). See Collins, 141 S.Ct. at 1784; Seila Law, 140 S.Ct. at 2197; Stamm, 577 F.Supp.3d at 366; see also U.S. Dep't of Justice, Off. of Legal Couns., Constitutionality of the Commissioner of Social Security's Tenure Protection, 2021 WL 2981542, at *7 (July 8, 2021).
The plaintiff argues that she was deprived of a valid administrative adjudicatory process because, under 42 U.S.C. § 405(b)(1), only the Commissioner can make findings of fact and issue final decisions as to benefits eligibility. Because the ALJ's delegation of authority came from the Commissioner, the plaintiff argues that it is constitutionally defective. The plaintiff further argues that the ALJ decided the case under regulations promulgated by the Commissioner without constitutional authority to issue those rules.
Although it appears to be clear that the statutory removal protections afforded to the Commissioner of Social Security violate the separation of powers, it does not follow that this unconstitutional removal restriction requires the court to set aside an unfavorable disability benefits determination by an ALJ. For one thing, a constitutionally defective statutory removal provision does not render the Commissioner's appointment invalid, and thus it does not automatically void the ALJ's actions under the Commissioner. Stamm, 577 F.Supp.3d at 366-67. As the Supreme Court explained in Collins:
All the officers who headed the FHFA during the time in question were properly appointed. Although 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 [administrative action at issue] as void.Collins, 141 S.Ct. at 1787. Moreover, the ALJ who denied the plaintiff's disability claim was not appointed by a Senate-confirmed Commissioner who was subject to the removal restriction imposed by § 902(a)(3). Rather, this ALJ was appointed by an Acting Commissioner who was not subject to the same statutory removal restriction. See Collins, 141 S.Ct. at 1781; Stamm, 577 F.Supp.3d at 366-67.
In response to the Supreme Court's decision in Lucia v. Sec. & Exch. Comm'n, 138 S.Ct. 2044 (2018), and in light of an executive order concluding that “at least some-and perhaps all-ALJs are ‘Officers of the United States' and thus subject to the Constitution's Appointments Clause,” Exec. Order No. 13843, 83 Fed.Reg. 32755 (July 10, 2018), the Acting Commissioner of Social Security at that time, Nancy Berryhill, ratified the appointments of all previously appointed ALJs and approved those appointments as her own on July 16, 2018. See Soc. Sec. Ruling 191p, 2019 WL 1324866, at *2; Cirko ex rel. Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020); Charran v. Saul, 509 F.Supp.3d 80, 87 (D.N.J. 2020).
Moreover, pursuant to the Supreme Court's analysis in Collins, “[r]elief is available in removal challenges only where officials subject to the challenged removal restrictions cause the alleged injuries, and where those restrictions themselves caused ‘compensable harm' upon plaintiffs.” Stamm, 577 F.Supp.3d at 368 (citing Collins, 141 S.Ct. at 1789).4 Here, the action challenged by the plaintiff is the ALJ's decision terminating benefits. The plaintiff has alleged no direct action by the Commissioner at the time, Kilo Kijakazi,5and no involvement in the ALJ's decision by the President at the time, Joe Biden. See Collins, 141 S.Ct. at 1802 (Kagan, J., concurring) (“When an agency decision would not capture a President's attention, his removal authority could not make a difference.”); Stamm, 577 F.Supp.3d at 368. The plaintiff cannot show how the President's supposed inability to remove a Senate-confirmed commissioner without cause might have affected any ALJ's disability benefits decision, much less the decision on the plaintiff's specific claim, particularly when the acting commissioner at the time was not subject to that statutory removal restriction. See Stamm, 577 F.Supp.3d at 368; see also supra note 5. As this court has previously explained:
The ALJ's decision was based upon an uncontested factual record and the application of established law, including case law, which generally cannot be changed by the Commissioner. There is no allegation suggesting a direct nexus between the adjudication of [the plaintiff's] disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner. [The plaintiff's] allegations merely express general dissatisfaction with the outcome of the adjudication of his [social security] disability claim.Stamm, 577 F.Supp.3d at 368.
Accordingly, while the removal-limitation clause in § 902(a)(3) violates the separation of powers, it does not independently require the court to reverse an ALJ's decision absent a showing of compensable harm, which has not been made in this case.
B. Subjective Evidence of the Plaintiff's Symptoms
The plaintiff contends that the ALJ's decision is not supported by substantial evidence because the ALJ erred in her evaluation of Russell's symptoms, including statements or testimony by Russell herself. See generally 20 C.F.R. § 404.1502(i) (“Symptoms means your own description of your physical or mental impairment.”). In particular, the plaintiff appears to contend that the ALJ erred in considering Russell's activities of daily living and the improvement of her symptoms with medication.
Standing alone, a claimant's allegation of pain or other symptoms is not enough to establish an impairment or disability. 20 C.F.R. § 404.1529(a); Prokopick v. Comm'r of Soc. Sec., 272 Fed. App'x 196, 199 (3d Cir. 2008) (“Under the regulations, an ALJ may not base a finding of disability solely on a claimant's statements about disabling pain ....”).
“An ALJ is permitted to reject a claimant's subjective testimony as long as he or she provides sufficient reasons for doing so.” Prokopick, 272 Fed. App'x at 199 (citing Schaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999)).
When evaluating a claimant's subjective allegations of pain or other symptoms, an ALJ utilizes a two-step process. Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *2 (revised Oct. 25, 2017). First, the ALJ must determine whether there is a medically determinable impairment that could reasonably be expected to produce the symptoms alleged. Id. at *3; see also 20 C.F.R. § 404.1529(b). A claimant cannot be found to be “disabled based on alleged symptoms alone.” Soc. Sec. Ruling 16-3p, 2017 WL 5180304, at *4.
Once the ALJ has found that a medically determinable impairment has been established, the ALJ must then evaluate the claimant's allegations about the intensity, persistence, or functionally limiting effects of his or her symptoms against the evidence of record. Id. This evaluation requires the ALJ to consider “the entire case record, including the objective medical evidence; an individual's statements about the intensity, persistence, and limiting effects of symptoms; statements and other information provided by medical sources and other persons; and any other relevant evidence in the individual's case record.” Id.
Here, in evaluating the plaintiff's symptoms, the ALJ expressly considered and extensively discussed both the medical and non-medical evidence in the record. (Tr. 903-08.) This included the plaintiff's statements regarding the limiting effects of her symptoms. Based on her consideration of the whole record, the ALJ properly concluded that, while Russell's “medically determinable impairments could have reasonably been expected to produce the alleged symptoms,” her “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the objective medical evidence and other evidence” in the record. (Tr. 903.)
The plaintiff argues that the ALJ erred in considering her activities of daily living when evaluating her symptoms. It is indeed true that “[d]isability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity.” Smith v. Califano, 637 F.2d 968, 971-72 (3d Cir. 1981). But, nevertheless, an ALJ may properly consider a plaintiff's activities of daily living when evaluating her subjective complaints of pain or other symptoms. See Turby v. Barnhart, 54 Fed. App'x 118, 121 n.1 (3d Cir. 2002) (“Although certainly disability does not mean that a claimant must vegetate in a dark room excluded from all forms of human and social activity, it is nonetheless appropriate for the ALJ to consider the number and types of activities in which the claimant engages.”) (citations, brackets, and internal quotation marks omitted); Durden v. Colvin, 191 F.Supp.3d 429, 442 (M.D. Pa. 2016) (“[I]t is permissible for such activities to be used to assess a claimant's [subjective allegations] in light of any true contradiction between his or her alleged severity of symptoms and the claimant's activities.”). Indeed, the applicable regulations mandate such consideration by the ALJ. See 20 C.F.R. § 404.1529(c)(3)(i) (“Factors relevant to your symptoms, . . . which we will consider include . . . [y]our daily activities ”).
The plaintiff also argues that the ALJ erred in referring to improvement in her mental health functioning with medication adjustments. Specifically, the ALJ noted that the record indicated that Adderall had been effective “with helping improve concentration” and that, with this medication, Russell “is better able to start, remain, and complete tasks with less distractibility, less fidgeting, better [ability] to read and retain information, and less racing thoughts.” (Tr. 908.) The ALJ referred to a particular medical encounter in which Russell reported to her provider that she was having difficulty with focus and organization; her Adderall dosage was increased, and the following month she reported improvement in concentration and organization. (Id.) As the Third Circuit has previously recognized, “[i]f a symptom can be reasonably controlled by medication or treatment, it is not disabling.” Gross v. Heckler, 785 F.2d 1163, 1166 (3d Cir. 1986). The agency's regulations expressly permit it to consider such improvement with medication in evaluating a claimant's symptoms. Indeed, the applicable regulations mandate such consideration by the ALJ. See 20 C.F.R. § 404.1529(c)(3)(iv) (“Factors relevant to your symptoms, such as pain, which we will consider include . . . [t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms ....”).
The plaintiff cites three cases in support of the proposition that a medical provider's observation that the plaintiff's condition was “stable” or “controlled” with medication, but these cases are simply inapposite, In Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000), and Williams v. Barnhart, 211 Fed. App'x 101 (3d Cir. 2006), each court found that its ALJ improperly rejected a treating physician's medical opinion on the basis of treatment notes observing that the plaintiff's condition was “stable” or “controlled” with medication. But here, the record indicates improvement with medication, not merely that Russell's condition stabilized or was controlled with medication, and it indicates that the very same specific mental functional area that originally prevented Russell from performing even unskilled work on a sustained basis-an inability to maintain concentration-had been improved with medication. Moreover, the ALJ in this case did not rely exclusively on these notations in medical treatment notes to reject contrary medical opinions, but instead she merely considered this as one of several factors in evaluating the plaintiff's symptoms, as expressly mandated by the agency's regulations.
Although Russell quibbles with the outcome of the ALJ's analysis of the evidence of record, it is clear that the ALJ properly evaluated the claimant's symptoms in accordance with the applicable regulations, and that the ALJ reasonably concluded that, notwithstanding the claimant's subjective complaints of pain and other symptoms, the evidence as a whole did not support physical or mental limitations in excess of those set forth in the ALJ's RFC determination. While this same evidence might have also reasonably supported the adoption of substantially greater limitations, it did not compel such a finding.
Accordingly, we find the ALJ's evaluation of the subjective evidence of the plaintiff's symptoms is supported by substantial evidence and was reached based upon a correct application of the relevant law.
III. Recommendation
Based on the foregoing, we conclude that the Commissioner's finding that Russell was no longer disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. Accordingly, it is recommended that the decision of the Commissioner of Social Security be AFFIRMED.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 2, 2023. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo
determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights.