Opinion
5:21-CV-00158-FL
07-20-2022
Freeman Wynn, Plaintiff, v. Kilolo Kijakazi, Acting Commissioner of Social Security, Defendant.
MEMORANDUM & RECOMMENDATION
Robert T. Numbers, II United States Magistrate Judge.
Plaintiff Freeman Wynn challenges Administrative Law Judge (ALJ) Susan Preston's denial of his application for social security income. Wynn claims that ALJ Preston erred in considering the disability decision from the Department of Veterans Affairs (VA). Wynn also challenges the constitutionality of the Social Security Administration's structure and the validity of ALJ Adams's appointment. Both Wynn and Defendant Kilolo Kijakazi, Acting Commissioner of Social Security, have moved for judgment on the pleadings in their favor. D.E. 18, 22.
After reviewing the parties' arguments, the undersigned has determined that ALJ Preston reached the appropriate determination. Revised Regulations did not require ALJ Preston to analyze Wynn's VA disability rating. And Wynn has not stated a viable constitutional challenge to the Administration's organization or shown that ALJ Adams lacked the authority to make a disability finding. The undersigned thus recommends that the court deny Wynn's motion, grant Kijakazi's motion, and affirm the Commissioner's determination.
The court has referred this matter to the undersigned for entry of a Memorandum and Recommendation. 28 U.S.C. § 636(b).
I. Background
In August 2018, Wynn applied for disability benefits alleging a disability that began in January 2014. After the Social Security Administration denied his claim at the initial level and upon reconsideration, Wynn appeared for a hearing before ALJ Preston to determine whether he was entitled to benefits. ALJ Preston determined Wynn had no right to benefits because she was not disabled. Tr. at 11-25.
ALJ Preston found that Wynn's degenerative disc disease of the cervical and lumbar spines, cervical and lumbar radiculopathy, bilateral pes planus, bilateral plantar fasciitis, post-traumatic stress disorder (PTSD), and depression were severe impairments. Tr. at 13. ALJ Preston also found that Wynn's impairments, either alone or in combination, did not meet or equal a Listing impairment. Tr. at 14.
ALJ Preston then determined that Wynn had the RFC to perform light work with other limitations. Tr. at 16. He can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. Id. And Wynn can occasionally reach overhead bilaterally.
Wynn can perform simple and routine tasks and maintain attention, concentration, and persistence to perform such tasks at a non-production rate pace, meaning no assembly line type or quota-based work. Id. He can have occasional interactions with coworkers and supervisors but only incidental contact with the public. Id. And Wynn can adapt to infrequent changes in work routine. Id. Because of his severe impairments and side effects of medications, Wynn will be off-task 10% of the workday. Id.
ALJ Preston concluded that Wynn could not perform his past relevant work as a driver/truck driver, infantry unit leader, or transportation superintendent. Tr. at 23. But considering his age, education, work experience, and RFC, ALJ Preston found that other jobs existed in significant numbers in the national economy that Wynn could perform. Tr. at 23-24. These jobs include inspector and hand packager, assembler, and inspector. Id. Thus, ALJ Preston found that Wynn was not disabled. Tr. at 25.
After unsuccessfully seeking review by the Appeals Council, Wynn commenced this action in April 2021. D.E. 5.
II. Analysis
A. Standard for Review of the Acting Commissioner's Final Decision
When a social security claimant appeals a final decision of the Commissioner, the district court's review is limited to determining whether, based on the entire administrative record, there is substantial evidence to support the Commissioner's findings. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is defined as “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984) (quoting Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966)). The court must affirm the Commissioner's decision if it is supported by substantial evidence. Smith v. Chater, 99 F.3d 635, 638 (4th Cir. 1996).
B. Standard for Evaluating Disability
In making a disability determination, the ALJ engages in a five-step evaluation process. 20 C.F.R. § 404.1520; see Johnson v. Barnhart, 434 F.3d 650 (4th Cir. 2005). The ALJ must consider the factors in order. At step one, if the claimant is engaged in substantial gainful activity, the claim is denied. At step two, the claim is denied if the claimant does not have a severe impairment or combination of impairments significantly limiting him or her from performing basic work activities. At step three, the claimant's impairment is compared to those in the Listing of Impairments. See 20 C.F.R. Part 404, Subpart P, App. 1. If the impairment is listed in the Listing of Impairments or if it equals a listed impairment, disability is presumed. But if the claimant's impairment does not meet or equal a listed impairment, the ALJ assesses the claimant's RFC to determine, at step four, whether he can perform his past work despite his impairments. If the claimant cannot perform past relevant work, the analysis moves on to step five: establishing whether the claimant, based on his age, work experience, and RFC can perform other substantial gainful work. The burden of proof is on the claimant for the first four steps of this inquiry, but shifts to the Commissioner at the fifth step. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995).
C. Medical Background
Wynn has a history of mental health issues. In March 2014, he reported insomnia and anxiety at an appointment with the Veterans Affairs Medical Center (VAMC) in Fayetteville. Tr. at 1105. Providers referred Wynn to the emergency department for a mental health assessment for increased flashbacks and sleep disturbance. Id.
Wynn stated that he had anger problems, paranoia, and preferred being alone. Id. A mental status examination showed a calm but worried mood and slight irritability. Id.
The next month, Wynn returned to VAMC for an evaluation of his sleep disturbance and depressed mood. Tr. at 758. He also struggled with being guarded, sudden noises, and being unable to relax. Id. Wynn had experienced these issues since retiring from the military. Id. Provides diagnosed him with major depressive disorder and PTSD. Tr. at 760-62. They prescribed medications and directed him to continue therapy. Id.
Wynn attended therapy for PTSD two months later. Tr. at 1044. Although medication at first helped, his symptoms worsened, with more intense nightmares. Id. Wynn continued to have poor sleep, hypervigilance, and trouble with loud noises. Id. A mental status examination noted he euthymic mood and constricted affect. Id. He was prescribed additional medications for insomnia. Id.
Three months later, Dr. Chad Coder performed a compensation and pension (C&P) examination. Tr. at 1035. Wynn had experienced several mortar and rocket attacks in combat. Id. As a result, he had recurrent, intrusive, and distressing memories and psychological distress. Tr. at 1036. Wynn also had feelings of detachment, a persistent negative emotional state, irritability, hypervigilance, an exaggerated startle response, and problems with sleep and concentration. Tr. at 1036-37.
Wynn related his panic attacks, anxiety, memory loss, and disturbed mood. Id. A mental status examination noted a dysphoric mood, restricted affect, and trouble with attention tasks. Tr. at 1038. Dr. Coder found that Wynn had occupational and social impairment with a decrease in work efficiency. Tr. at 1032.
In July 2015, Wynn had no new issues related to his PTSD and found his medication helped his symptoms. Tr. at 965. But his status fluctuated and he was not doing well when he returned to VMAC five months later. Tr. at 959. Wynn continued to have trouble sleeping, with five to seven nightmares a week. Id. His symptoms also included irritability, a sad mood, and social isolation. Id. Providers adjusted his medications. Tr. at 961.
In February 2016, Wynn said he was doing “fair.” Tr. at 921. He had no change in his nightmares or sleep disturbance, despite a medication increase. Id. Wynn reported irritability, frequent road rage, and social isolation. Id. A mental status examination revealed an irritable mood and restricted affect. Tr. at 923. Provides again adjusted his medications. Id.
One month later, Wynn was doing fair, with nightmares decreased to two times a week and sleeping about five hours a night. Tr. at 912. A mental status examination showed he was irritable but cooperative. Tr. at 913-14.
In September 2016, Wynn again reported PTSD and insomnia at a follow-up visit to VAMC. Tr. at 890-92. His nightmares had increased, he slept about five hours a night, and kept to himself. Id. A mental status examination found an irritable mood, restricted affect and nonlability. Id.
Wynn reported little change in his symptoms three months later. Tr. at 861-63. He slept three to four hours a night and his nightmares, irritability, and anger had increased. Id. Providers noted an irritable mood and constricted affect. Id. They again adjusted his medications. Id.
In May 2017, Wynn continued to report irritability, anger, and social isolation. Tr. at 1376. He had good judgment and insight but an irritable mood and constricted affect. Tr. at 1378. Later records reflect that Wynn continued to have depression, anxiety, insomnia, easy frustration, anhedonia, poor motivation and concentration, and social isolation. Tr. at 1164.
In January 2019, Dr. Ernest Akpaka performed a consultative examination. Tr. at 116971. Wynn was polite and cooperative but had a constricted affect and a depressed and anxious mood. Tr. at 1169. Dr. Akpaka noted that Wynn was constantly on alert and became paranoid and nervous around others. Id. He isolated himself and had feelings of sadness and hopelessness, problems concentrating, trouble sleeping, flashbacks, nightmares, and frequent anger outbursts. Id.
Wynn had affair memory and could not perform serial sevens. Tr. at 117. Dr. Akpaka assessed moderate major depressive disorder and moderate PTSD. Id. Wynn could retain and follow instructions to sustain attention to perform simple, repetitive tasks and routine. Tr. at 1171. But his significant mood symptoms would likely impede his ability to relate to others. Id. And his conditions could cause decreased frustration tolerance, limit his capacity to tolerate the stress of daily work, and interfere with his ability to perform tasks requiring sustained concentration and persistence.
Wynn testified that he flusters easily and destroys things. Tr. at 17. He stopped receiving mental health treatment after feeling frustrated and not understood. Id. Providers prescribed medication for his nightmares. Id.
Wynn also reported trouble concentrating, completing tasks, and getting along with others. Id. And he has gout flares that impact his ability to use his upper extremities and back pain that limits his ability to sit, stand, walk. Id.
D. Veterans Administration Disability Rating
Wynn claims that ALJ Preston erred in failing to give more weight to a disability finding by the VA. The Acting Commissioner asserts that this finding is due no presumptive weight under the revised Regulations. The undersigned finds the Acting Commissioner's argument persuasive.
1. Applicable Standards Prior to 2017
As provided by 20 C.F.R. § 404.1504 and further explained in Social Security Ruling (SSR) 06-03p, “a determination made by another agency that [the claimant is] disabled or blind is not binding on” the Social Security Administration. 20 C.F.R. § 404.1504. Rather, “the ultimate responsibility for determining whether an individual is disabled under Social Security law rests with the Commissioner.” SSR 06-03p.
The Fourth Circuit addressed the value of disability findings by other agencies. Bird v. Comm'r of Soc. Sec. Admin., 699 F.3d 337 (4th Cir. 2012). It noted that while not binding on the SSA, “another agency's disability determination ‘cannot be ignored and must be considered.'” Bird, 699 F.3d at 343. The Fourth Circuit observed that often times the disability assessments of other agencies, such as the VA, serve the same governmental purpose of providing benefits to persons unable to work, evaluate a claimant's ability to perform full-time work, analyze a claimant's functional limitations, and require extensive medical documentation to support the claims. Bird, 699 F.3d at 343. The Fourth Circuit therefore concluded that “in making a disability determination, the SSA must give substantial weight to a VA disability rating[.]” Id. Assigning less weight to another governmental agency's disability determination may be warranted “when the record before the ALJ clearly demonstrates that such a deviation is appropriate.” Id.
In Woods v. Berryhill, the Fourth Circuit ruled that to show that it is “appropriate” under Bird to give less than substantial weight to the disability ratings of an agency other than the SSA, an ALJ must give “persuasive, specific, valid reasons for doing so that are supported by the record.” 888 F.3d 686, 692 (4th Cir. 2018) (internal quotation marks omitted) (extending Bird's holding to state agency disability determinations). An ALJ's failure to adequately explain his attribution of less than substantial weight to VA disability ratings precludes meaningful review and warrants remand of the case for further administrative proceedings. See Woods, 888 F.3d at 692-93 (citing Radfordv. Colvin, 734 F.3d 288, 295 (4th Cir. 2013)).
2. 2017 Revised Regulations
In 2017, SSA revised the Regulations by rescinding SSR 06-03p, a policy directive which had concluded that “evidence of a disability decision by another governmental or nongovernmental agency cannot be ignored and must be considered.” The new rules try to assure the claimant that SSA will still “consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision....” 20 C.F.R. §§ 404.1504, 416.904.
3. Application
In December 2014, the VA rated Wynn 100% disabled, which included a 70% disability rating for PTSD. Tr. at. 378. The VA considered his disability permanent and total (P&T). Tr. at 379. The decision listed Wynn's impairments and symptoms on which it was based. Id. Related to his PTSD, these included depressed mood, motivation disturbance, impaired judgment, mild memory loss, chronic sleep impairment, panic attacks, difficulty with understanding and adapting, and trouble maintaining relationships. Tr. at 380. And these findings are reflected in over 170 pages of records from the VA. Tr. at 444-614.
ALJ Adams noted the VA disability decision. Tr. at 22. She remarked that the VA uses different criteria to determine service-connected disability. Id. While evidence used by the VA is incorporated in the SSA record for disability, a VA disability decision does not bind the Commissioner. Id. But ALJ Adams considered the evidence and found it somewhat persuasive. Id.
Prior Fourth Circuit case law holding that an ALJ must explain the weight given to a decision given by other agencies relied on the then-applicable directives in § 404.1504 and SSR 06-03p. See Bird, 699 F.3d at 343; Woods, 888 F.3d at 691-693. Woods expressly noted that the prior version of § 404.1504 only governed claims filed before the Regulation revision. 888 F.3d at 691 n.1. For claims filed after March 2017, an ALJ will consider the existence of disability decisions by other governmental or nongovernmental entities, and the evidence underlying those decisions. Id. (quoting 82 Fed.Reg. at 5,848). But the ALJ is no longer required “to provide written analysis about how they consider the decisions from other governmental agencies.” Id.
So the plain language of § 404.1504, coupled with Woods's recognition in the changed requirements of the revised Regulation, ALJ Adams did not have to provide more explanation of her consideration of Wynn's VA disability determination. See Pizarro v. Kijakazi, No. 5:21-CV-00046-FL, 2022 WL 966823, at *4 (E.D. N.C. Mar. 30, 2022); Rogers v. Comm'r of Soc. Sec., No. 3:20-CV-00206-RJC-DSC, 2022 WL 135310, at *3-4 (W.D. N.C. Jan. 13, 2022).
In sum, ALJ Adams complied with the requirements of § 404.1504 when considering the VA disability finding in making her disability determination. The undersigned thus recommends that the court deny Wynn's motion on this issue.
E. Social Security Administration's Structure
Wynn contends that the statutory limitations on the President's ability to remove the Commissioner of Social Security violates the Constitution. He maintains that this unconstitutional removal restriction deprives the Commissioner of the authority to promulgate regulations, make a final decision about whether she is entitled to benefits, or delegate decision-making authority to ALJs and the Appeals Counsel. Wynn asks the court to remand the case to for a hearing before another ALJ.
The Acting Commissioner agrees that the limitation on the President's removal power is unconstitutional. But, even so, she says that Wynn is not entitled to relief. She provides several reasons why this is so, including that Wynn has shown no harm stemming from the Legislative Branch's encroachment on the Executive Branch's authority.
This dispute centers on the statutory language governing when the President may dismiss the Commissioner of Social Security. The relevant statute provides that instead of serving at the pleasure of the President, the chief executive may only relieve the Commissioner of his duties after making “a finding . . . of neglect of duty or malfeasance in office.” 42 U.S.C. § 902(a)(3).
Wynn says this limitation is unconstitutional under the Supreme Court's decision in Seila Law v. CFPB, 140 S.Ct. 2183 (2020). In Seila Law, the Court held that the Constitution does not allow Congress to limit the President's removal authority “when it comes to principal officers who, acting alone, wield significant executive power.” Id. at 2211. And, as noted above, the Acting Commissioner agrees with Wynn on this point.
Seila Law, however, is not the only decision relevant to this question. The court must also consider how the Supreme Court's decision in Collins v. Yellen, 141 S.Ct. 1761 (2021), applies here. Collins involved the Federal Housing Finance Agency. The FHFA was “an independent agency” responsible for regulating Fannie Mae and Freddie Mac, “two of the Nation's leading sources of mortgage financing.” Id. at 1770. The companies suffered significant losses” during the 2008 housing crisis “and many feared that their troubling financial condition would imperil the national economy.” Id. The agency was led by “a single Director, whom the President could remove only for cause.” Id. (quotation omitted).
In addition to regulating the companies, FHFA could “if necessary, step[] in as their conservator or receiver.” Id. And “[s]hortly after the FHFA came into existence, it placed Fannie Mae and Freddie Mac into conservatorship and negotiated agreements for the companies with the Department of Treasury.” Id. One of those agreements “which the parties refer to as the ‘third amendment' or ‘net worth sweep,' caused the companies to transfer enormous amounts of wealth to [the] Treasury [Department].” Id.
The third amendment “resulted in a slew of lawsuits[.]” Id. Among them was a suit by “[a] group of Fannie Mae's and Freddie Mac's shareholders [who] challenged the third amendment on statutory and constitutional grounds.” Id. Their constitutional challenge “argued that the FHFA's structure violates the separation of powers because the Agency is led by a single Director who may be removed by the President only for cause.” Id. (quotation omitted). The shareholders “sought declaratory and injunctive relief, including an order requiring Treasury either to return the variable dividend payments or to re-characterize those payments as a pay down on Treasury's investment.” Id. The Supreme Court agreed that the FHFA's structure violated the Constitution, noting that its “decision last Term in Seila Law is all but dispositive.” Id. at 1783.
The court then turned to the remedy for the FHFA's unconstitutional structure. The shareholders took the position “that the third amendment must be completely undone.” Id. at 1787. They argued that due to the constitutional defect, “the third amendment was adopted and implemented by officers who lacked constitutional authority and that their actions were therefore void ab initio.” Id.
The Supreme Court rejected this argument. It noted 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.” Id. (emphasis in original). Since the officers were properly appointed to their positions, “there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void.” Id.
But the Court did not close off all potential sources of relief for the shareholders. It noted that “the possibility that the unconstitutional restriction on the President's power to remove a Director of the FHFA could have” harmed the shareholders “cannot be ruled out.” Id. at 1788. The Court noted that they may be able to show harm if the President had tried to remove the Director but was thwarted by a court that found there was no cause for his removal. Id. The parties could also show they were harmed by the removal provision if “the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way.” Id. The Supreme Court remanded the case to allow the lower courts to determine if the shareholders had indeed suffered such harm. Id.
In an attempt to satisfy Collins's requirements, Wynn's reply brief sets out several different alleged harms. But these arguments all rely on the same central premise. According to Wynn, the unconstitutional removal restriction deprived the Commissioner of the power to take any official acts, including making benefits determinations. So, Wynn argues, since he lacked the power to make a benefits determination himself, he had no decision-making authority to delegate to the ALJ or Appeal Counsel.
The Supreme Court explicitly rejected this type of argument in Collins. It explained that “the unlawfulness of the removal provision does not strip the [officer] of the power to undertake the other responsibilities of his office[.]” Collins, 141 S.Ct. at 1788 n.23. This is so because of the distinction between a challenge based on an officer's appointment and a challenge based on the President's ability to remove an officer from their position. An improperly appointed officer's acts are void ab initio because they “involve[] a Government actor's exercise of power that the actor did not lawfully possess.” Id. at 1788. But so long as “there was no constitutional defect in the statutorily prescribed method of appointment to office . . . there is no reason to regard any of the actions taken by the [actor] . . . as void.” Id. at 1787.
Wynn points the court to cases that she believes support his argument. But those cases (or at least the portions Wynn cites to) dealt with the traceability element of the test for Article III standing. See Sylvia A. v. Kijakazi, No. 5:21-CV-076, 2021 WL 4692293, at *4 (N.D. Tex. Sept. 13, 2021); Albert v. Kijakazi, No. 1:21-CV-0004, 2021 WL 3424268, at *5 (D. Alaska Aug. 5, 2021); Tafoya v. Kijakazi, No. 21-CV-00871, 2021 WL 326065, at *5 (D. Colo. July 29, 2021). To satisfy the traceability requirement, a plaintiff must show that their injury “is fairly traceable to the defendant's conduct[.]” Collins, 141 S.Ct. at 1179. But when considering standing the court is not focusing on whether the alleged injury can be traced to the allegedly unconstitutional removal restriction. See Collins, 141 S.Ct. at 1779. Instead, it looks to “whether the plaintiffs' injury can be traced to allegedly unlawful conduct of the defendant, not to the provision of law that is challenged.” Id. (quotations omitted). So cases dealing with traceability are not persuasive on the question of whether Wynn suffered a compensable harm from the unconstitutional removal restriction.
Wynn also argues that the fact that President Biden fired the Commissioner (who was appointed by a prior President) in 2021 shows that he has been harmed by the unconstitutional removal restriction. According to Wynn, the fact that the President fired the Commissioner several months into his term shows that he “wished to terminate” the Commissioner since the inauguration. D.E. 19 at 23. And, according to Wynn, the fact that the President did not do so until after Collins shows that the President “would have fired” the Commissioner “immediately upon taking office had he believed it was legal.” Id. at 24.
But Wynn's arguments about the circumstances leading up to the Commissioner's termination are simply speculation. There is nothing in the Complaint or in the administrative record that supports this conclusion.
Nor is there anything else in the Complaint or the administrative record that establishes the harm required by Collins. To begin with, neither of the examples the Court gave of circumstances that would show a compensable harm are present here. There is no indication that the President unsuccessfully tried to remove the Commissioner. And this is also not a situation where the President publicly expressed his displeasure with the Commissioner and his frustration that the removal restriction prevented the Commissioner's firing. To the contrary, the President publicly expressed his dissatisfaction with the Commissioner in the letter removing him from his position.
It does not appear that the Supreme Court intended these two examples to be the only ways a party can show compensable harm from an unconstitutional removal restriction. So the lower courts will, for the time being, need to flesh out what a party must allege or show to satisfy Collins's compensable harm standard. That showing will need to focus on the constitutional concerns underling Seila Law and Collins: ensuring the President's ability to control those who act on his behalf and ensuring the People's ability to hold the President accountable for those actions. See SeilaLaw, 140 S.Ct. at 2202-03.
Without attempting to catalog all the ways these interests can be implicated, it suffices to say that they are not implicated here. Wynn has not alleged that the outcome of this case contravened the President's policy preference, so the President's authority to control those who work for him is not implicated here. And, as far as this case goes, the Acting Commissioner has, like her predecessor, taken the position that Wynn is not entitled to benefits. So if the body politic is dissatisfied with the outcome here, they can elect a President with a different viewpoint on the issues involved.
The Supreme Court has rejected the argument that all actions taken by an officer serving under an unconstitutional removal restriction are void. Instead, it requires a plaintiff to show that the removal restriction resulted in an action that caused them harm. Since Wynn has neither alleged nor shown such a harm here, the court should reject his argument on this point.
F. Appointments Clause
Wynn also challenges the validity of ALJ Adams's appointment under the Appointments Clause. She contends that the term of Agency's previous Acting Director, Nancy Berryhill, expired in November 2017 under the Federal Vacancies Reform Act. 5 U.S.C. § 3346(a)(1). So Berryhill lacked authority to ratify ALJ Adams's appointment in July 2018. See SSR 19-1p.
But any expiration in Berryhill's eligibility to serve as Acting Commissioner no longer applied when the President nominated Andrew Saul as Commissioner in April 2018. At this point, Berryhill once again became eligible to serve as Acting Commissioner under the FVRA's springback provision. See Chuenanan v. Comm'r of Soc. Sec., No. 1:21-CV-86-RJC, 2022 WL 1416421, at *2 n.1 (W.D. N.C. May 4, 2022); Thomas S. v. Comm'r of Soc. Sec., No. C21-05213-MAT, 2022 WL 268844, at *3 (W.D. Wash. Jan. 28, 2022) (citing 5 U.S.C. § 3346(a)(2) (once a first or second nomination for the office is submitted to the Senate, an acting officer may serve from the date of such nomination for the period the nomination is pending in the Senate) and 23 O.L.C. 60, 68 (1999) (“The Vacancies Reform Act incorporates a spring-back provision, which permits the acting officer to begin performing the functions and duties of the vacant office again upon the submission of a nomination, even if the 210-day period expired before that nomination was submitted.”)).
Thus, Berryhill's service as Acting Commissioner when she ratified ALJ appointments in July 2018 did not violate the FVRA. So the court should reject Wynn's argument on this issue as it lacks merit.
III. Conclusion
For these reasons, the undersigned recommends that the court deny Wynn's Motion for Judgment on the Pleadings (D.E. 18), grant Kijakazi's Motion for Judgment on the Pleadings (D.E. 22), and affirm the Commissioner's determination.
The Clerk of Court must serve a copy of this Memorandum and Recommendation (M&R) on each party who has appeared in this action. Any party may file a written objection to the M&R within 14 days from the date the Clerk serves it on them. The objection must specifically note the portion of the M&R that the party objects to and the reasons for their objection. Any other party may respond to the objection within 14 days from the date the objecting party serves it on them. The district judge will review the objection and make their own determination about the matter that is the subject of the objection. If a party does not file a timely written objection, the party will have forfeited their ability to have the M&R (or a later decision based on the M&R) reviewed by the Court of Appeals.