Opinion
21 Civ. 10658 (VB)(JCM)
12-16-2022
CHADSITY JADE HERNANDEZ,[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
JUDITH C. MCCARTHY UNITED STATES MAGISTRATE JUDGE
To the Honorable Vincent L. Briccetti, United States District Judge:
Plaintiff Chadsity Jade Hernandez (“Plaintiff”) commenced this action on December 13, 2021 pursuant to 42 U.S.C. § 405(g), challenging the decision of the Commissioner of Social Security (the “Commissioner”), which denied Plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (Dkt No. 1). Presently before the Court are: (1) Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, (Dkt. No. 16), accompanied by a memorandum of law, (Dkt. No. 17) (“Pl. Br.”); (2) the Commissioner's cross-motion for judgment on the pleadings, (Dkt. No. 18), accompanied by a memorandum of law, (Dkt. No. 19) (“Comm'r Br.”); and (3) Plaintiff's reply in support of Plaintiff's motion for judgment on the pleadings, (Dkt. No. 20) (“Pl. Reply”). For the reasons set forth below, I respectfully recommend that Plaintiff's motion for judgment on the pleadings be denied and the Commissioner's cross-motion be granted.
I. BACKGROUND
Plaintiff was born on April 7, 1981. (R.200). Plaintiff applied for DIB and SSI on July 9, 2019, alleging a disability onset date of February 23, 2019 in both applications. (R. 103, 200, 204). The Social Security Administration (“SSA”) initially denied Plaintiff's application on September 30, 2019, (R. 123-32), and again after reconsideration on November 18, 2019, (R. 135-46). Plaintiff requested a hearing on December 5, 2019. (R. 147-48). Administrative Law Judge Elias Feuer (“ALJ” or “ALJ Feuer”) conducted a telephone hearing on April 30, 2020. (R. 4-44). ALJ Feuer issued a decision on April 14, 2021 denying Plaintiff's claim. (R. 100-17). Plaintiff requested review by the Appeals Council, which denied the request on October 13, 2021, (R. 118-22), making the ALJ's decision ripe for review.
Refers to the certified administrative record of proceedings relating to Plaintiff's application for social security benefits, filed in this action on April 11, 2022. (Dkt. No. 15). All page number citations to the certified administrative record refer to the page number assigned by the SSA.
A. Medical Evidence Relating to Plaintiff's Physical Impairments
Plaintiff's two arguments center on (1) the ALJ's alleged failure to resolve inconsistencies between the vocational expert's testimony and the Dictionary of Occupational Titles (“DOT”), and (2) the legal authority of the ALJ and Appeals Council to adjudicate her claims. (Pl. Br. at 3-10). Plaintiff does not otherwise substantively challenge the ALJ's decision or the evidence upon which he relied. Accordingly, the Court's summary of the medical evidence and opinions focuses on the evidence relevant to the issues presented.
1. Medical Evidence Before the Disability Onset Date i. Rafael Mastov, P.T., D.P.T.
Plaintiff attended two physical therapy appointments for back pain on February 8 and 20, 2019. (R. 312-15). At the February 8th appointment, Plaintiff presented with pain in her spine that radiated down to her lower extremities. (R. 312). She reported difficulty completing household chores, including carrying a laundry basket and doing yard maintenance. (Id.). The physical therapist noted that Plaintiff had “[l]imited motion at the lumbar spine.. .which limits function,” that she had “deficits in muscular stren[g]th” in the pelvic and trunk region, and that she had “difficulty with reaching/overhead activities.” (R. 313). At her second visit on February 20, 2019, the physical therapist noted that she was “continuing to progress under the current care plan.” (R. 315).
2. Medical Evidence After the Disability Onset Date
i. Dr. Mahbubul Islam, M.D.
On March 11, 2019, Plaintiff visited Dr. Mahbubul Islam complaining of lower back, neck and shoulder pain. (R. 321). Dr. Islam noted that Plaintiff's neck was non-tender and that she had no swelling of the cervical lymph nodes. (R. 322). Dr. Islam prescribed Plaintiff pain medication for her lower back and neck pain. (Id.).
ii. Emergency Room Visits
On June 22, 2019, Plaintiff visited the emergency room at Mount Sinai Beth Israel Medical Center. (R. 353-54, 373-74). A CT scan was taken of her cervical spine that revealed “multilevel spondylosis including multilevel mild disc bulging throughout the upper cervical spine.” (R. 353-54). She was also treated for strained muscles and ligaments in her neck. (R. 374).
On June 25, 2019, Plaintiff visited the emergency room at Jacobi Medical Center complaining of “[r]ight shoulder pain radiating down [her] right arm” since June 21, 2019. (R. 359, 361). Plaintiff stated that she had been “experiencing right sided neck pain that radiates down her right arm with occasional numbness for the past three months,” and requested an MRI of her cervical spine. (R. 362-63). The attending physician noted that she had “[m]ild midline tenderness at ¶ 4 with right paraspinal tenderness” and “[r]eproducible tenderness to [right] trapezium.” (R. 363). Plaintiff was referred to a physical medicine and rehabilitation doctor at Jacobi Medical Center and to Montefiore Medical Center for pain management. (Id.).
iii. Alexandra Mirzayeva, P.A.
Plaintiff visited physician assistant Alexandra Mirzayeva (“PA Mirzayeva”) six times for neck pain from June 27, 2019 through September 24, 2019. (R. 408-19, 429-43). During these visits, Plaintiff reported an increase in the intensity of her neck pain due to performing physical activities, including lifting and grasping objects and prolonged sitting. (R. 408, 411, 414, 417, 429, 432, 435, 438). Plaintiff also stated that she had difficulties in performing daily tasks, including bathing, grooming and dressing. (R. 408, 411, 414, 417, 429, 432, 435, 438). PA Mirzayeva noted a positive decrease in Plaintiff's range of motion in her cervical spine and muscle spasms, taut muscle bands, and tenderness in the cervical spine. (R. 409, 412, 415, 418, 430, 433, 436, 439). The severity of these findings ranged from severe, (R. 418, 439), to moderate, (R. 408, 412, 415, 430, 433, 436). PA Mirzayeva's assessment included findings of cervical arthritis, cervical disc disorder, cervical disc disease, and cervical cord compression with myelopathy. (R. 409, 412, 415, 430, 433, 436). PA Mirzayeva also noted at Plaintiff's initial visits that she had sprained her joints or ligaments in her neck. (R. 418, 439). On August 13, 2019, she referred Plaintiff to a neurosurgeon for further evaluation of her cervical spine. (R. 412, 436).
On September 24, 2019, Plaintiff reported some improvement in her symptoms after medication, however, her pain worsened after she attempted to “carr[y] heavy bags.” (R. 429).
iv. Dr. Farshad D. Hannanian, M.D.
Plaintiff saw Dr. Farshad D. Hannanian on July 9, 2019 for a neurological consult. (R. 380-93). Dr. Hannanian indicated that Plaintiff had spasms, muscle tenderness, and decreased range of motion in the right cervical and lumbar spines. (R. 384). Plaintiff was diagnosed with cervical derangement, lumbar derangement, headaches and vestibular dysfunction. (R. 385). Dr. Hannanian recommended that Plaintiff get an MRI of the cervical and lumbar spines “for structural abnormalities such as disc herniation.” (Id.). In an Electrodiagnostic Report, dated July 30, 2019, Dr. Hannanian noted that Plaintiff's left and right radial motor nerves showed reduced amplitude. (R. 388). In a Medical Statement of Ability To Do Work-Related Activities (Physical), dated March 18, 2021, Dr. Hannanian indicated that Plaintiff's “cervical spine shows disc bulges and herniation,” and that she suffers from shoulder and upper back pain. (R. 467). He opined that she can never reach with the right hand due to mild to moderate right hand weakness. (R. 468). He also found that she can never climb stairs, ramps, ladders or scaffolds, and cannot balance, stoop, kneel, crouch or crawl. (R. 469).
v. State Agency Medical Consultant - Michael Healy, M.D.
On August 23, 2019, Dr. Michael Healy, a state agency medical consultant, conducted a physical examination of Plaintiff. (R. 400-03). Plaintiff's primary complaint was neck pain, which at times radiated down her right side through her right arm. (R. 400). Dr. Healy observed decreased flexion and extension in the cervical spine. (R. 402). Plaintiff also had decreased range of motion with forward elevation and abduction of her right shoulder. (Id.). Dr. Healy noted Plaintiff had 4/5 strength with the right upper extremity, but normal strength with the other three extremities. (Id.). Plaintiff's hand and finger dexterity were intact and she had 5/5 grip strength bilaterally. (Id.). In light of these findings, Dr. Healy concluded that Plaintiff had “cervical spinal intervertebral disc disruption with radiating pain to the right upper extremity,” and “moderate limitations to reaching, grasping, and holding objects with the right upper extremity.” (R. 403).
vi. Dr. Ramesh Babu, M.D.
Plaintiff had a neurosurgery consultation with Dr. Ramesh Babu on March 11, 2020. (R. 462-63). Plaintiff presented with radiating neck pain and associated numbness and weakness. (R. 462). Plaintiff reported that her neurologist prescribed medications, but the “medica[tions] [were] no longer very useful,” and “[p]hysical therapy made it worse.” (Id.). Dr. Babu offered to perform spinal surgery on Plaintiff and explained the “benefits and alternatives including the option of not having the procedure done.” (Id.). At that time, Plaintiff stated that she “wishe[d] to proceed with [the] surgery.” (Id.).
vii. Magnetic Resonance Imaging (“MRI”)
On August 2, 2019, Dr. Kornelia Teslic took an MRI of Plaintiff's cervical spine. (R. 406-07). The MRI showed an annular disc bulge at ¶ 4-5, left paracentral disc herniation with cord impingement at ¶ 5-6, and right paracentral disc herniation with extrusion of the herniated nucleus pulposis into right lateral recess, right-sided cord compression at ¶ 6-7 and compression and posterior displacement of the right C7 nerve root. (R. 407).
On April 9, 2021, Dr. Daniel Schlusselberg conducted an MRI of Plaintiff's lumbar spine. (R. 45). The MRI revealed left lateral disc bulges at ¶ 2-2 and L3-4, with left-sided neural foraminal narrowing in the latter; a central disc bulge at ¶ 4-5 with bilateral neural foraminal narrowing and lateral recess stenosis; and a central disc bulge at ¶ 5-S1 with bilateral neural foraminal narrowing and lateral recess stenosis and left-sided facet hypertrophy. (Id.).
B. Medical Evidence Relating to Plaintiff's Psychological Impairments
1. Medical Evidence Before the Disability Onset Date
i. Dr. Mahbubul Islam, M.D.
On January 4, 2019, Plaintiff consulted Dr. Islam regarding feeling depressed “[n]early every day,” and having suicidal thoughts. (R. 336). Dr. Islam referred Plaintiff to a licensed social worker for treatment. (R. 340).
ii. Dr. Joan Roig Llesuy, M.D.
Plaintiff underwent a comprehensive psychiatric assessment by Dr. Joan Roig Llesuy on February 21, 2019. (R. 323). She reported feeling depressed since losing her concierge job. (Id.). Dr. Llesuy noted that her appearance, attitude, speech and mannerisms were appropriate, and that her thoughts were coherent. (R. 325). Dr. Llesuy described Plaintiff's mood as “sad.” (Id.). She prescribed medication to treat Plaintiff's major depressive disorder. (Id.).
2. Medical Evidence After the Disability Onset Date
i. Dr. Joan Roig Llesuy, M.D.
Plaintiff consulted Dr. Llesuy regarding feelings of depression and anxiety again on May 30, 2019. (R. 317). Plaintiff reported feeling “devastated from her loss,” and stated that she wanted therapy and to “restart medications.” (Id.). Dr. Llesuy noted that Plaintiff's appearance and mannerisms were appropriate, that her thought form was coherent and non-delusional, and that her presenting mood was “sad.” (R. 318). Plaintiff was treated with medication for major depressive disorder. (Id.).
ii. State Agency Consultant - Dr. Elizabeth Kronk, Psy.D.
On August 23, 2019, Dr. Elizabeth Kronk, a state agency consultant, conducted a psychiatric examination of Plaintiff (R. 394-98). Plaintiff reported to Dr. Kronk that she was being treated once monthly for depression with psychotherapy and psychiatry. (R. 394). Dr. Kronk noted that Plaintiff appeared well groomed, her thought process was coherent and goal oriented, her mood was neutral, and she appeared to have satisfactory attention, concentration and cognitive functioning. (R. 395-96). She opined:
There is no evidence of limitation in the claimant's ability to understand, remember, and apply simple as well as complex directions and instructions, use reason and judgment to make work-related decisions, sustain concentration and perform a task at a consistent pace, maintain personal hygiene and appropriate attire, or in her awareness of normal hazards and taking appropriate precautions. The claimant is mildly limited in her ability to interact adequately with supervisors, co-workers, and the public, sustain an ordinary routine and regular attendance at work, and regulate emotions, control behavior, and maintain well-being. These difficulties are due to psychiatric symptoms.(R. 397).
Dr. Kronk concluded that Plaintiff's psychiatric problems did not “appear to be significant enough to interfere with the claimant's ability to function on a daily basis.” (Id.).
C. Nonmedical Evidence
1. Plaintiff's Function Report
On July 23, 2019, Plaintiff completed a function report. (R. 236-43). Plaintiff said that she lived in an apartment with her two daughters. (R. 236-37). She reported that she cared for her daughters, but was no longer able to wash or brush her own hair or her daughter's hair due to her injury, and that generally everything is “slower” due to her arm pain. (R. 237). She stated that she requires assistance lifting or moving heavier objects, doing laundry and some cleaning tasks, and getting dressed. (R. 237-39). Plaintiff said that she is unable to drive because her “right arm doesn't allow [her] to steer safely.” (R. 239). Since her injury, Plaintiff has not been able to work or pay most of her bills. (R. 240).
Plaintiff noted on the function report that she is unable to lift more than ten pounds, is unable to stand or sit for longer than 45 minutes, cannot walk for longer than 30 minutes, cannot climb more than two flights of stairs, has difficulty kneeling, can squat “very slowly,” can reach only with the left arm, and has more use of her left hand. (R. 241). Plaintiff indicated that she is right-handed. (R. 242).
2. Plaintiff's Testimony
Plaintiff was unrepresented at the April 30, 2020 hearing. (R. 10). Plaintiff testified that she previously worked at a milk company taking wholesale distribution orders and occasionally responded to customer complaints. (R. 18-20). She resigned from that position when the office moved to a new location that she could not commute to because she did not have a car. (R. 21). Plaintiff then worked for the United States Postal Service for approximately three months before resigning due to long hours that interfered with her ability to care for her children. (Id.). During that same period, she worked part-time as a home health aide for about a month. (Id.). Plaintiff was then employed as a concierge in a residential apartment building for two years. (R. 21-22). Her responsibilities included accepting packages, monitoring building security and tending to residents' guests. (R. 22). She was fired from that position when she complained about pain in her back from sitting throughout her eight-hour shift without breaks. (Id.). After leaving the concierge position, she collected unemployment benefits while looking for another position as a concierge. (R. 23). Ultimately, she stopped looking for jobs in February 2019 because of her back pain. (Id.).
Plaintiff stated that she had attempted to contact the Human Resources Administration to obtain representation at the hearing, but had not heard back. (R. 9). The ALJ informed Plaintiff of her right to have a paid legal representative or legal services appear on her behalf. (R. 10). After being apprised of this right, Plaintiff stated that she wanted to proceed with the hearing and represent herself. (Id.).
Around February 2019, Plaintiff “heard a pop” in her back and sought medical attention for it. (R. 23-24). Plaintiff went to physical therapy twice a week, but stopped going because it made her pain worse. (R. 24). Plaintiff testified that she visited the emergency rooms at Beth Israel Medical Center and Jacobi Hospital during the summer of 2019 due to the pain in her back and right shoulder. (R. 25-26). Plaintiff aggravated her injury carrying “heavy bags” in September 2019 and again sought treatment for neck pain radiating to her arms. (R. 32-34). Plaintiff testified that she had been carrying grocery bags at her side that each weighed about five pounds. (R. 34).
On March 11, 2020, Plaintiff saw a neurosurgeon, Dr. Babu, who recommended that she get surgery. (R. 29-30). However, her neurologist, Dr. Fauchard, stated the surgery had a “5050” chance of helping her and she was “scar[ed]” of the proposed procedure, so she declined to go through with it. (R. 30).
Plaintiff testified that she could not perform her previous jobs due to her injuries. (R. 28). She said that her pain was getting progressively worse, her “injuries [were] irreversible,” and she had “nerve damage on [her] right side.” (Id.). Plaintiff stated she could not sit for long periods of time or raise her right arm “all the way up.” (R. 29). She explained that her daughters helped her with basic tasks, including brushing her hair, getting dressed, cooking and grocery shopping. (R. 29, 34-35). She also said that she was on a regimen of pain medication in order to ease her symptoms. (R. 32).
3. Vocational Expert Testimony
Vocational Expert (“VE”) Melissa Fass-Karlin (“VE Fass-Karlin”) testified that Plaintiff's most recent employment as a concierge, home health aide and mail carrier would all be performed at a medium exertional level. (R. 15). Her job as a customer service/customer complaint clerk (composite job) is generally performed at a sedentary exertional level. (R. 19).
The ALJ posed a hypothetical to VE Fass-Karlin, asking her to assume an individual with Plaintiff's education, training and experience who can perform the full range of light work, as defined in the Dictionary of Occupational Titles (“DOT”), except that she can only occasionally reach, push and pull with the dominant right arm, and can never lift above shoulder level with the right arm. (R. 36). The individual was also limited to occasional stooping, kneeling, crouching, crawling and climbing of ramps and stairs, and cannot rotate the neck more than 65 degrees in either direction. (Id.). VE Fass-Karlin testified that such an individual would not be able to do any of Plaintiff's past work. (R. 37). However, VE Fass-Karlin testified that an individual with those limitations would be able to perform the following jobs at a light exertional level: furniture rental consultant, counter clerk and bakery worker. (R. 37-38).
VE Fass-Karlin confirmed that her testimony was consistent with the DOT. (R. 42).
D. The ALJ's Decision
ALJ Feuer first determined that Plaintiff met the insured status requirements of the Social Security Act (“Act”) through December 31, 2021. (R. 106). Thereafter, ALJ Feuer applied the five-step procedure established by the Commissioner for evaluating disability claims. See 20 C.F.R. §§ 404.1520(a) and 416.920(a). (R. 106-13). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 23, 2019, the alleged disability onset date. (R. 106). At step two, the ALJ found that Plaintiff had the severe impairment of cervical spondylosis. (Id.). The ALJ determined that Plaintiff's lower back pain and mental depressive disorder were non-severe impairments. (R. 106-07). At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, 416.926). (R. 108).
The ALJ determined that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that “she is limited to occasional reaching, pushing, or pulling with the dominant right arm, no lifting above shoulder level with the right arm, and no more than occasional stooping, kneeling, crouching, crawling or climbing ramps and stairs.” (Id.). Plaintiff is also limited to rotating her neck no more than 65 degrees in either direction. (Id.). The ALJ considered all of Plaintiff's symptoms and their consistency with the objective medical evidence and other evidence in arriving at the RFC. (Id.). Ultimately, the ALJ concluded that Plaintiff's “medically determinable impairments could reasonably be expected to cause the alleged symptoms,” but Plaintiff's “statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence in the record.” (R. 109). The ALJ found the opinion of Dr. Healy “persuasive.” (R. 110). The ALJ found the opinion of Dr. Hannanian “unpersuasive” as it was unsupported by the examination findings, drew internally inconsistent conclusions, and was inconsistent with the record as whole (R. 110-11).
The ALJ stated that the signature was illegible on this opinion and therefore did not refer to Dr. Hannanian by name in his decision. However, as noted in the Commissioner's brief, based on the initial consult date of July 10, 2019, it appears that the March 18, 2021 opinion was authored by Dr. Hannanian. (Comm'r Br. at n.3; R. 383, 471).
At step four, the ALJ found that Plaintiff was unable to perform her past relevant work as a home health aide, doorkeeper, mail carrier and customer order clerk/customer complaint clerk (composite job) since these jobs are precluded by Plaintiff's RFC. (R. 111). At step five, after considering Plaintiff's RFC, the testimony of VE Fass-Karlin, and Plaintiff's age, education and work experience, the ALJ concluded that she was not disabled under the Act because she could make a successful adjustment to perform other work that exists in significant numbers in the national economy. (R. 112).
II. DISCUSSION
Plaintiff argues that the ALJ's decision should be reversed and remanded for further administrative proceedings because: (1) the ALJ failed to reconcile an apparent conflict between the vocational expert's testimony with the DOT, (Pl. Br. at 3-8); and (2) the ALJ and Appeals Council were improperly appointed and thus had no legal authority to adjudicate Plaintiff's case, (Pl. Br. at 9-10). The Commissioner argues that the ALJ's decision should be affirmed because it is supported by substantial evidence, Plaintiff has failed to demonstrate an apparent conflict between the VE's testimony and the DOT, and Acting Commissioner Berryhill lawfully ratified the appointments of the ALJ and Appeals Council. (Comm'r Br. at 5-23). The Commissioner further argues that, even assuming the appointments were defective, that defect does not automatically entitle Plaintiff to a remand for a new hearing. (Id. at 23-25).
A. Legal Standards
A claimant is disabled if he or she “is unable ‘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.'” Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)). The SSA has enacted a five-step sequential analysis to determine if a claimant is eligible for benefits based on a disability:
(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014)(citing Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008); 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v)). The claimant has the general burden of proving that he or she is statutorily disabled “and bears the burden of proving his or her case at steps one through four.” Cichocki, 729 F.3d at 176 (quoting Burgess, 537 F.3d at 128). At step five, the burden then shifts “to the Commissioner to show there is other work that [the claimant] can perform.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 445 (2d Cir. 2012).
When reviewing an appeal from a denial of SSI or disability benefits, the Court's review is “limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 42 U.S.C. § 405(g). Substantial evidence means “relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (quoting Consolidated Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938)). Put another way, a conclusion must be buttressed by “more than a mere scintilla” of record evidence. Id. (quoting Consolidated Edison, 305 U.S. at 229). The substantial evidence standard is “very deferential” to the ALJ. Brault, 683 F.3d at 448. The Court does not substitute its judgment for the agency's “or ‘determine de novo whether [the claimant] is disabled.'” Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (alteration in original) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)).
However, where the proper legal standards have not been applied and “might have affected the disposition of the case, [the] court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)). Therefore, “[f]ailure to apply the correct legal standards is grounds for reversal.” Id.
B. The ALJ's Duty to Develop the Record
Initially, the Court must be satisfied that the record is fully developed before determining whether the Commissioner's decision is supported by substantial evidence. See Smoker v. Saul, 19-CV-1539(AT)(JLC), 2020 WL 2212404, at *9 (S.D.N.Y. May 7, 2020) (“Whether the ALJ has satisfied this duty to develop the record is a threshold question.”). “[I]n light of the ‘essentially non-adversarial nature of a benefits proceeding[,]'” “[a]n ALJ, unlike a judge at trial, has an affirmative duty to develop the record.” Vega v. Astrue, No. 08-CV-1525(LAP)(GWG), 2010 WL 2365851, at *2 (S.D.N.Y. June 10, 2010) (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). “Where there are gaps in the administrative record, remand to the Commissioner for further development of the evidence” is appropriate. Sobolewski v. Apfel, 985 F.Supp. 300, 314 (E.D.N.Y. 1997). “[W]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a ‘complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim.” Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (citing Perez v. Chater, 77 F.3d 41, 48 (2d. Cir. 1996)); see also Pellam v. Astrue, 508 Fed.Appx. 87, 90 (2d Cir. 2013) (summary order).
Here, the Court finds that there are no obvious gaps in the record. The record consists of voluminous medical records (R. 45; 352-79; 406-07; 454-72); treatment records, (R. 317-51; 380-93; 408-19; 426-43; 461-63); outpatient physical therapy records, (R. 308-16); Plaintiff's function report, (R. 236-43); medical opinions from multiple consultative examiners and state agency consultants, (R. 46-69; 394-405); and Plaintiff's testimony, (R. 7-36). Plaintiff does not argue that the ALJ failed to comply with his duty to develop the record, nor does she identify any obvious gaps. Accordingly, the Court concludes and respectfully recommends finding that the ALJ fulfilled his duty to develop the record. See Eusepi v. Colvin, 595 Fed.Appx. 7, 9 (2d Cir. 2014) (summary order) (ALJ fulfilled duty to develop record where Plaintiff “d[id] not contend that the ALJ lacked her complete medical history, and the administrative record was ‘adequate for [the ALJ] to make a determination as to disability'”) (quoting Perez, 77 F.3d at 48).
C. The Vocational Expert's Testimony
Plaintiff's only substantive challenge to the ALJ's decision centers on the ALJ's assessment at step five that there was other work in the national economy that exists in significant numbers that a person with Plaintiff's background, characteristics and RFC can do. At step five, the Commissioner has the burden of “show[ing] that there is work in the national economy that the claimant can do” in light of the claimant's RFC. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam). In fulfilling this burden, “[a]n ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as the facts of the hypothetical are based on substantial evidence ... and accurately reflect the limitations and capabilities of the claimant involved.” Calabrese v. Astrue, 358 Fed.Appx. 274, 276 (2d Cir. 2009) (summary order) (citations omitted).
SSA Policy Interpretation Ruling 00-4p (“Ruling”) “governs the Commissioner's assessment of whether any particular job can accommodate a given claimant's physical limitations.” Lockwood v. Comm 'r of Soc. Sec. Admin., 914 F.3d 87, 91 (2d Cir. 2019). This Ruling states that “[occupational evidence provided by a [VE],. .generally should be consistent with” the DOT. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). If there is an “apparent unresolved conflict” between the VE's testimony and the DOT, the ALJ is tasked with an “affirmative responsibility” to “elicit a reasonable explanation for the conflict before relying on the VE.” Id. at *2, *4. Put simply, this Ruling “mandates” that the ALJ “inquire[s] into all those areas” where the VE's testimony “conflicts] with the [DOT].” Lockwood, 914 F.3d at 92 (quoting Pearson v. Colvin, 810 F.3d 204, 209 (4th Cir. 2015)).
Here, the parties disagree on whether an apparent conflict is present triggering the ALJ's duty to elicit a reasonable explanation from the VE before relying on her opinion. Specifically, Plaintiff argues that “all three occupations are actually precluded by the restrictions identified by the ALJ” because the “hypothetical question to the VE precluded overhead reaching.” (Pl. Br. at 4). The Commissioner maintains that there is no conflict because “the hypothetical did not preclude overhead reaching entirely, but instead limited Plaintiff to occasional reaching with the right arm, and precluded lifting above shoulder level with the right arm only.” (Comm'r Br. at 8). For the reasons set forth below, the Court agrees with the Commissioner that the ALJ was entitled to rely on the VE's opinion because it did not conflict with the DOT.
As an initial matter, Plaintiff improperly conflates the hypothetical as to “reaching” and “lifting” throughout her briefing. (See Pl. Br. at 4, asserting that the ALJ's hypothetical to the VE “precluded overhead reaching”). Evaluation of an individual's RFC involves assessing both their exertional and nonexertional capacities. SSR 96-8p, 1996 WL 374184, at *5-6 (July 2, 1996); see also 20 C.F.R. §§ 416.945, 416.969a. “Lifting” falls within the purview of an individual's exertional capacity-meaning their “limitations and restrictions of physical strength.” SSR 968p, 1996 WL 374184, at *5. The DOT defines “lifting” as “[r]aising or lowering an object from one level to another.” See U.S. DEP'T OF LABOR, Dictionary of Occupational Titles, App'x C -Components of the Definition Trailer, 1991 WL 688702 (4th Ed. 1991). “Reaching” is considered a “manipulative” activity that falls within an individual's nonexertional capacity, which “considers all work-related limitations and restrictions that do not depend on an individual's physical strength.” SSR 96-8p, 1996 WL 374184, at *6; see also SOC. SEC. ADMIN., Vocational Expert Handbook (June 2020),at 17 (“VE Handbook”). The SSA has defined “reaching” to mean “extending the hands and arms in any direction.” SSR 85-15, 1985 WL 56857, at *7 (Jan. 1, 1985). It follows, then, that “lifting” and “reaching” measure an individual's capacity for two distinct activities. See Fouse v. Kilolo Kijakazi, Acting Comm'r of Soc. Sec., No. 22-CV-0053 (TER), 2022 WL 15256973, at *5 (D.S.C. Oct. 27, 2022) (stating that lifting and reaching “are clearly distinguished under the DOT,” and collecting cases).
See https://www.ssa.gov/appeals/publicexperts/VocationalExperts(VE)Handbook-508.pdf (last visited Dec. 16, 2022).
For the first time on reply, Plaintiff suggests that the ALJ's hypothetical limitation on lifting above shoulder level should be read as an overhead reaching limitation because “[o]verhead reaching would necessarily require lifting the right arm above shoulder level.” (Pl. Reply at 3). The single case cited by Plaintiff, Selian, 708 F.3d 409, does not address this issue. The page cited by Plaintiff is limited to an analysis of whether the nonexertional reaching limitation at issue had more than a negligible impact on the claimant's ability to do work. Selian, 708 F.3d at 42122. As discussed herein, reaching and lifting have different meanings under the DOT-with lifting referring to the strength required to raise or lower “an object.”
ALJ Feuer included separate limitations for reaching and lifting in his hypothetical. The ALJ asked the VE to assume “[o]nly occasional reaching, pushing, and pulling with the dominant right arm,” and “[n]o lifting above shoulder level with the right arm.” (R. 36) (emphasis added). Plaintiff does not claim that this hypothetical did not appropriately capture her physical limitations. Indeed, while not in dispute here, the Court notes that the differing limitations are consistent with the persuasive medical opinion evidence cited by the ALJ indicating that Plaintiff has “decreased (4/5) strength in her right upper extremity,” and has “moderate limitations [with] reaching.” (R. 110, 402-03).
In response to the hypothetical, the VE identified three occupations that exist in significant numbers in the national economy that an individual with those limitations could do: furniture rental consultant, counter clerk and bakery worker. (R. 37-38). With respect to lifting, each of the three positions is considered “Light Work” and thus requires “[e]xerting up to 20 pounds of force occasionally.. .and/or up to 10 pounds of force frequently.” Furniture Rental Consultant, DOT Job Code No. 295.357-018, 1991 WL 672589; Counter Clerk, DOT Job Code No. 249.366-010, 1991 WL 672323; Bakery Worker, Conveyor Line, DOT Job Code No. 524.687-022, 1991 WL 674401. The only time that lifting is mentioned in the DOT descriptions of the three positions is to note that the “weight lifted may be only a negligible amount.” Id. None of the DOT descriptions for these positions mention lifting above shoulder level. Id. Accordingly, the testimony of the VE was consistent with the DOT and “there is no conflict between the VE's testimony and the D.O.T. that would render reliance on the VE's opinion improper.” Negron v. Saul, 19-CV-7547 (KMK)(JCM), 2021 WL 465768, at *25 (S.D.N.Y. Feb. 8, 2021), report and recommendation adopted, 2021 WL 1254426 (S.D.N.Y. Apr. 5, 2021) (no apparent conflict where DOT was “silent as to the requisite amount” of walking and the ALJ was thus “entitled to rely on the VE's opinion”); see also Tanesha L. v. Comm'r of Soc. Sec., 21-CV-7109 (GRJ), 2022 WL 4779761, at *3 (S.D.N.Y. Oct. 3, 2022) (finding “no actual conflict between the vocational expert's testimony and the DOT because the DOT is silent on the subject”); Antonio P. v. Comm'r of Soc. Sec. Admin., No. 21-CV-62 (SALM), 2021 WL 5768545, at *8 (D. Conn. Dec. 6, 2021) (“No true conflict with the DOT is alleged, and because the DOT is silent, none can be found.”).
Regarding reaching, the DOT entries for each of the three positions states that reaching would be required “[o]ccasionally - [e]xists up to 1/3 of the time.” Furniture Rental Consultant, DOT Job Code No. 295.357-018, 1991 WL 672589; Counter Clerk, DOT Job Code No. 249.366-010, 1991 WL 672323; Bakery Worker, Conveyor Line, DOT Job Code No. 524.687-022, 1991 WL 674401. Since the hypothetical asked the VE to assume occasional reaching, the VE's testimony is consistent with the DOT. See Roeda S. v. Comm'r of Soc. Sec., 20-CV-906 (GLS/ATB), 2022 WL 229086, at *16 (N.D.N.Y. Jan. 5, 2022), report and recommendation adopted sub nom., Roeda S. v. Kijakazi, 2022 WL 226766 (N.D.N.Y. Jan. 26, 2022) (distinguishing Lockwood and finding no conflict where “the ALJ found that plaintiff could occasionally reach overhead,” and “all the jobs listed by the VE during his testimony require only ‘occasional' reaching”).
Plaintiff argues that the Second Circuit's decision in Lockwood requires remand here. In Lockwood, the claimant could not perform “any overhead reaching” with either arm, but the VE identified three jobs in the DOT that required “occasional or frequent reaching.” Lockwood, 914 F.3d at 89, 92 (emphasis added). The Court noted that the SSA Program Policy Statement “defines ‘reaching' as ‘extending the hands and arms in any direction.'” Id. at 92. Thus, the Court found that there was “a potential inconsistency with” the VE's testimony “that a claimant with a restriction on [all] overhead reaching is capable of performing the three jobs” identified. Id. at 92. Because the ALJ failed to “probe this apparent conflict before relying on [the VE's] testimony,” remand was required. Id.
This case is distinguishable. Here, the ALJ determined that Plaintiff could occasionally reach and did not place any limitations on reaching overhead. (R. 36, 108). The three identified occupations all require only occasional reaching. See Furniture Rental Consultant, DOT Job Code No. 295.357-018, 1991 WL 672589; Counter Clerk, DOT Job Code No. 249.366-010, 1991 WL 672323; Bakery Worker, Conveyor Line, DOT Job Code No. 524.687-022, 1991 WL 674401. Accordingly, there was no apparent conflict that required further questioning by the ALJ. See Roeda S., 2022 WL 229086, at *16 (Lockwood does not control where the ALJ found the claimant could occasionally reach and the DOT called for occasional reaching); Monserrate B. v. Comm'r of Soc. Sec., 20-CV-700 (DB), 2021 WL 2587249, at *5 (W.D.N.Y. June 24, 2021)(declining to apply Lockwood to situation where claimant was limited to “light work” but no overhead reaching limitations imposed).
Moreover, while not dispositive of this issue, the Court notes that the ALJ “determined that the vocational expert's testimony is consistent with the information contained in the [DOT],” and that the VE testified that her testimony was consistent with the DOT. (R. 42, 112). Accordingly, there was no apparent conflict that required the ALJ to elicit a reasonable explanation from the VE.Therefore, I respectfully recommend finding that the ALJ's reliance on the VE's opinion was proper and the step five determination was supported by substantial evidence.
Because the Court finds that there was no conflict between the VE's opinion and the DOT regarding reaching, the Court need not reach the issue as to whether the reaching limitation must be bilateral in order to trigger remand under Lockwood or other relevant precedent. (See Comm'r Br. at 10-11).
D. Plaintiff's Case Was Heard By A Validly Appointed ALJ and Appeals Council
Plaintiff next argues that ALJ Feuer lacked the ability to adjudicate Plaintiff's SSA claim because Acting Commissioner Nancy Berryhill (“Berryhill”) lacked authority to ratify the appointments of the ALJs and Appeals Council under the Federal Vacancies Reform Act (the “FVRA”), 5 U.S.C. § 3345, et seq. (Pl. Br. at 9-10). The Commissioner counters that Berryhill was acting under valid statutory authority when she appointed the ALJ and Appeals Council and, in any event, any error in the appointment process would not entitle Plaintiff to a remand for a new hearing. (Comm'r Br. at 13-25). I respectfully recommend finding that Berryhill was properly acting pursuant to the “spring-back” provision of the FVRA and, thus, the ratifications were in accordance with the law.
1. Relevant Background
Donald Trump became President of the United States on January 20, 2017. At that time, Berryhill was serving as Deputy Commissioner for Operations for the SSA. Berryhill became Acting Commissioner of the SSA on January 21, 2017, when the positions of Commissioner and Deputy Commissioner of the SSA became vacant. Mem. Providing an Order of Succession Within the Soc. Sec. Admin., 81 Fed.Reg. 96337, 2016 WL 7487744 (Dec. 23, 2016) (providing that the Deputy Commissioner for Operations is next in line to serve as Acting Commissioner should the Commissioner and Deputy Commissioner positions become vacant). On March 6, 2018, General Counsel for the Government Accounting Officer (“GAO”) sent a letter advising the SSA and President Trump that Berryhill's term as Acting Commissioner pursuant to the FVRA ended on November 17, 2017. See Violation of the Time Limit Imposed by the Federal Vacancies Reform Act of 1998-Commissioner, Social Security Administration, B-329853 (March 6, 2018).Berryhill stepped down as Acting Commissioner and re-assumed her title as Deputy Commissioner for Operations. See Extension of Expiration Dates for Two Body System Listings, 83 Fed.Reg. 13862 (April 2, 2018) (signing Final Rule as “Nancy Berryhill, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security”).
https://www.gao.gov/assets/700/690502.pdf (last visited Dec. 16, 2022).
On April 17, 2018, President Trump nominated Andrew Saul (“Saul”) to be Commissioner of the SSA. See PN1849 - Nomination of Andrew M. Saul for Social Security Administration, 115th Cong. (2017-2018). That same day, Berryhill resumed her service as Acting Commissioner upon submission of the nomination. On July 16, 2018, Berryhill ratified the appointments of ALJs, including ALJ Feuer, and the Appeals Council.
https://www.congress.gov/nomination/ 115th-congress/1849?r=9 (last visited Dec. 16, 2022).
2. The FVRA, 5 U.S.C. § 3345, et seq .
Article II, Section 2 of the Constitution provides, inter alia, that the President “shall nominate.. .with the Advice and Consent of the Senate.. .all other Officers of the United States.” U.S. CONST. art. II § 2, cl. 2. Congress enacted the FVRA to create a “process to govern the performance of duties of offices in the Executive Branch that are filled through presidential appointment by and with the consent of the Senate when a Senate confirmed official has died, resigned, or is otherwise unable to perform the functions and duties of the office.” S. REP. NO. 105-250, at 1 (1998); 5 U.S.C. §§ 3345, 3346. As pertinent here, Section 3345 of the FVRA sets forth who may temporarily perform the functions of the vacant office. See 5 U.S.C. § 3345. Section 3346 governs how long an official can act in that capacity. Id. § 3346. Section 3346 states:
(a) Except in the case of a vacancy caused by sickness, the person serving as an acting officer as described under section 3345 may serve in the office-
(1) for no longer than 210 days beginning on the date the vacancy occurs; or
(2) subject to subsection (b),once a first or second nomination for the office is submitted to the Senate, from the date of such nomination for the period that the nomination is pending in the Senate.Id. (emphasis added). If a vacancy occurs during the first 60 days after a Presidential inauguration, the 210-day period runs from either 90 days after inauguration or 90 days after the vacancy-whichever occurs later. Id. § 3349a(b). If an officer or employee is not performing the functions and duties in comportment with the FVRA, the “office shall remain vacant” and “only the head of [the] Executive agency may perform any function or duty of such office.” Id. § 3348.
Subsection (b) provides permissible time periods during which an Acting Commissioner “may continue to serve” when a first or second nomination is withdrawn, rejected, or returned. See 5 U.S.C. § 3346(b)(1)-(2).
Plaintiff does not contest that Berryhill properly served under Section 3346(a)(1) (“subsection (a)(1)”) from January 21, 2017 through November 16, 2017.The crux of the parties' dispute is whether Section 3346(a)(2) (“subsection (a)(2)”) permitted Berryhill to resume the role of Acting Commissioner when President Trump submitted Saul's nomination to the Senate for advice and consent.In other words, the parties dispute whether subsection (a)(2) functions as: (1) a separate permissible term of service that may be undertaken even if an officer has previously served as an acting officer pursuant to subsection (a)(1), thus functioning as a “spring-back” into service provision; or (2) a tolling of the time period during which a presently acting official may continue to act only if the nomination is submitted during the initial 210-day period provided for in subsection (a)(1).
Because the vacancy occurred within the first 60 days after the Presidential inauguration, Berryhill was Acting Commissioner for 300 days beginning on January 21, 2017. See 5 U.S.C. § 3349a(b).
Plaintiff repeatedly challenges the Commissioner (and, seemingly, the Court) to determine who the Acting Commissioner of the SSA was during the period from November 16, 2017 through April 17, 2018. (Pl. Br. at 10; Pl. Reply at 5). Because the relevant appointment occurred on July 16, 2018, prior to the decision here, “the question of whether any prior service was authorized or undertaken during this interim timeframe is not relevant here.” Lance M. v. Kijakazi, No. 21-CV-628, 2022 WL 3009122, at *11 n.8 (E.D. Va. July 13, 2022), report and recommendation adopted, 2022 WL 3007588 (E.D. Va. July 28, 2022).
3. The Plain Text Indicates Acting Commissioner Berryhill Was Acting Validly
Because Plaintiff presents an issue of statutory interpretation, the Court begins “where all such inquiries must begin: with the language of the statute itself.” Caraco Pharm. Lab'ys, Ltd. v. Novo Nordisk A/S, 566 U.S. 399, 412 (2012) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241 (1989)); see also United States ex rel. Wood v. Allergan, Inc., 899 F.3d 163, 171 (2d Cir. 2018) (“When answering questions of statutory interpretation, we begin with the language of the statute.”). The Court must determine the “plain meaning” of the statute by “looking to the statutory scheme as a whole and placing the particular provision within the context of that statute.” Saks v. Franklin Covey Co., 316 F.3d 337, 345 (2d Cir. 2003).
Here, the Court finds that the plain text and structure of the FVRA allowed Berryhill to resume her service as Acting Commissioner on April 17, 2018-the day that Saul was nominated. To begin, Section 3346 delineates the”[t]ime limitation” of service for “the person serving as an acting officer” pursuant to Section 3345. 5 U.S.C. § 3346(a). Subsection (a) of Section 3346 then goes on to list the time limitation for two periods of service. Those periods of service are listed disjunctively-separated by “or”- “indicating that they have separate meanings.” Loughrin v. United States, 573 U.S. 351, 359 (2014) (finding that two clauses separated by “or” that have “separate numbers, line breaks before, between, and after them, and equivalent indentation-thus placing the clauses visually on an equal footing” is an “indicat[ion] that they have separate meanings”); U.S. Customs Serv., Region II v. Fed. Lab. Rels. Auth., 739 F.2d 829, 832 (2d Cir. 1984) (“When ‘or' is inserted between two clauses, the clauses are treated disjunctively rather than conjunctively.”); see also 1A Singer, Sutherland Statutes and Statutory Construction § 21:14 (7th ed.) (“Generally, courts presume that ‘or' is used in a statute disjunctively unless there is clear legislative intent to the contrary.”).
Moreover, distinct factual predicates give rise to each of the periods of service and the allowable periods of service differ. Service under subsection (a)(1) “begin[s] on the date the vacancy occurs,” while service under (a)(2) starts on the date of a nomination. 5 U.S.C. § 3346(a). Service under (a)(1) is capped at 210 days, while service under (a)(2) continues while a nomination is pending in the Senate and is expressly subject to the provisions of Section 3346(b). Id. §§ 3346(a), (b). Put simply, the Court finds that, in reading the plain text, there is no indication that Congress intended for (a)(1) to modify (a)(2). Rather, the Court finds that the plain text suggests two separate (though not mutually exclusive) periods of service. See Lance M, 2022 WL 3009122, at *12; Bauer v. Kijakazi, No. 21-CV-2008 (KEM), 2022 WL 2918917, at *7 (N.D. Iowa July 25, 2022) (“Congress did not qualify the use of ‘or' with ‘either,' which tends to indicate that the alternatives are mutually exclusive.”); Williams v. Kijakazi, No. 21-CV-141 (GCM), 2022 WL 2163008, at *3 (W.D. N.C. June 15, 2022) (“By using the disjunctive ‘or,' the FVRA provides for acting service during either or both of two periods[.]”); Bernadette H. v. Comm'r of Soc. Sec., 21-CV-20586 (NLH), 2022 WL 17080743, *9 (D.N.J. Nov. 18, 2022) (holding subsections (a)(1) and (a)(2) create separate time periods when an officer may serve that are not mutually exclusive).
Plaintiff, relying on two out-of-circuit decisions, urges this Court to read into the statute a requirement that a nomination must be submitted within the initial period of service under subsection (a)(1) in order for that official to continue to serve while the nomination is pending under (a)(2). (Pl. Br. at 9-10) (citing Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. 2022) and Richard J.M. v. Kijakazi, No. 19-CV-827 (KMM), 2022 WL 959914 (D. Minn. March 30, 2022)). The Brian T.D. court found that FVRA does not establish alternative permissive periods of service, but rather “establishes a unified period of permissive service that may be tolled in certain circumstances.” 580 F.Supp. at 627. In doing so, the court found that Section 3346's reference to “the person serving as an acting officer” means that the person must be “presently serving” in that role in order for Section 3346 to apply. Id. at 629. This reasoning is flawed in multiple respects.
Richard J.M. adopts the reasoning of Brian T.D. Compare Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. 2022) with Richard J.M. v. Kijakazi, 2022 WL 959914 (D. Minn. March 30, 2022) The Court will cite only to Brian T.D. in its analysis for ease of reference, though its analysis pertains to both decisions.
First, the Brian T.D. decision misreads the statute. Not only does the court insert the word “presently”-which appears nowhere in the provision at issue-it simply ignores the entirety of the clause, which states that the section applies to “the person serving as an acting officer as described under section 3345.” 5 U.S.C. § 3346 (emphasis added). The purpose of this clause, then, is to make plain that the time limitations imposed apply to those serving under Section 3345, and not some other vacancy statute or provision. See S. REP. NO. 105-250, at 1415 (1998) (“The statutory language refers to ‘[t]he person serving as an acting officer as described in section 3345.' The Committee chose this wording deliberately. That is the only person eligible to be the acting officer, whether during the [210] days or upon the nomination.”); Lance M., 2022 WL 3009122, at *13. Section 3346, in turn, uses the language “may serve” to set forth the permissible time limits that an acting officer may temporarily fulfill her role. The clause is thus meant to indicate who the time limits that follow apply to within a specific statutory framework, not to place the additional temporal limitation that Brian T.D. advances.
Second, the Brian T.D. court's reading leads to an illogical result. If the Court accepts as true that an individual must be presently serving in order for both provisions (a)(1) and (a)(2) to apply, then an acting officer would have to be presently serving “beginning on the date the vacancy occurs” in order to start the initial 210-day period. 5 U.S.C. § 3346(a)(1). As other courts addressing this issue have aptly noted, “[t]his makes no sense.” Bauer, 2022 WL 2918917, at *5; see also Sidney M. v. Kijakazi, No. C21-CV-2034 (LTS), 2022 WL 4482859, at *16 (N.D. Iowa Sept. 26, 2022) (“There cannot be a vacancy and a ‘person serving as an acting officer' at the same time.”). Courts should refrain from reading a statute in a way that leads to illogical results. United States v. Messina, 806 F.3d 55, 70 (2d Cir. 2015) (cautioning that “interpretations of a statute which would produce absurd results are to be avoided if alternative interpretations consistent with the legislative purpose are available”) (quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982)). Thus, this Court declines to adopt such an illogical reading here.
Third, the Brian T.D. court's interpretation effectively imposes an extra-statutory requirement that a nomination must be submitted within the 210-day period under subsection (a)(1) in order for subsection (a)(2) to “extend[] that initial period of service.” Brian T. D., 580 F.Supp.3d at 630 (emphasis in original). But that is not what the statute says. Service under subsection (a)(2) is triggered “once a first or second nomination for the office is submitted to the Senate.” 5 U.S.C. § 3346(a)(2). While “Congress certainly could have chosen to condition such service on the submission of a nomination within 210 days.. .it did not.” Williams, 2022 WL 2163008, at *3. Indeed, Congress expressly chose to make subsection (a)(2) “subject to subsection (b).” 5 U.S.C. § 3346(a)(2). Congress could have chosen to expressly incorporate subsection (a)(1) or its terms, too, but it did not. “[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 29-30 (1997)(quoting Russello v. United States, 464 U.S. 16, 23 (1983)). This Court, therefore, will not read words “into a statute that do not appear on its face.” Id. at 29.
4. Legislative History And Other Executive Branch Interpretive Guidance Confirms that Subsection (a)(2) Operates As A Spring-Back Provision
Where the plain language of the statute is unambiguous, the Court need not look to the legislative history. Nwozuzu v. Holder, 726 F.3d 323, 327 (2d Cir. 2013). However, the Court finds that the legislative history and subsequent Executive Branch interpretive guidance further underscore the propriety of its conclusion that the FVRA authorized Berryhill to resume service under subsection (a)(2) after her initial period of service under provision (a)(1).
First, the Senate Committee report (“Report”) is consistent with the “spring-back” interpretation that the Commissioner advances here. The Report indicates that Section 3346 was added in order to “limit[] the length of the acting officer's service” under subsection (a)(1) to 150 days,accounting for the increased time it took to complete background checks since the prior iteration of the Vacancies Act was passed in 1988. S. REP. NO. 105-250, at 13 (1998). The Report then states that, under subsection (a)(2), “[t]he acting officer may serve even if the nomination is submitted after the 150 days has passed, although.. .the acting officer may not serve between the 151st day and the day the nomination is submitted.” Id. at 14. Congress noted that this 150-day limitation would serve the goal of “encourag[ing] that a [Presidential] nomination be forwarded to the Senate after more than sufficient time for doing so has elapsed.” Id. at 19. Moreover, “[a]ny inconvenience to the executive branch can be eliminated instantly by the President's unilateral decision to make a nomination, for once such a nomination is made, the acting officer can resume service, including the non-delegable duties of the office.” Id. (emphasis added). The Senate Report thus tracks precisely what the plain language of the statute indicates-an acting official may “resume” service under subsection (a)(2) once a nomination is submitted for advice and consent. Such a reading is consistent with the stated goal of the statute, as it encourages the President to submit nominations to allow for individuals like Berryhill to resume service while a nomination is pending. See Lance M., 2022 WL 3009122, at *14 (“T]he need to incentivize swift nomination in no way conflicts with-and indeed is consistent with-a spring-back provision.”).
That time period has since been extended to 210 days. See 5 U.S.C. § 3446(a)(1).
Second, the Office of Legal Counsel (“OLC”)-which is tasked with providing “legal advice to the President and all executive branch agencies”published a written opinion in 1999 to “provide[] guidance on the application of the [FVRA] to vacancies in Senate-confirmed offices within the executive branch.” Guidance on Application of Federal Vacancies Reform Act of 1998, 23 Op. Off. Legal Counsel 60, 1999 WL 1262050 (March 22, 1999). That opinion interprets subsection (a)(1) to allow for “an initial 210-day period” during which “an acting officer may serve” prior to the President's submission of a nomination. Id. at *7 (emphasis added). When asked how the “time limit [is] affected if a nomination is submitted after the 210-day period has expired,” the OLC wrote:
See https://www.justice.gov/olc (last visited Dec. 16, 2022).
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. If the 210-day limitation period expires before the President has submitted a nomination, the restrictions in § 3348 of the Act, which bar anyone from serving in an acting capacity, become operative. (See Questions 39-49 for a discussion of these restrictions.) If thereafter the President submits a nomination, an acting officer is again able to perform the functions and duties of the office as of the date the nomination is submitted. (5 U.S.C. § 3346(a)(2)).Id. at *8 (emphasis added). This opinion confirms that the FVRA authorizes separate, non-mutually-exclusive periods of service-one when the vacancy occurs and another when the nomination is submitted.
Third, the U.S. Government Accountability Office (“GAO”), which is tasked with monitoring compliance with the FVRA, has also characterized subsection (a)(2) as a “springback provision.” Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998, B-326480 (March 30, 2015). For example, in March 2015, the GAO reported to the President that the Deputy Inspector General had violated the FVRA by continuing to use the “Acting Inspector General” title beyond the 210-day limit imposed by subsection (a)(1). Id. at 12. However, the GAO noted that the Deputy Inspector General had since taken action to ensure that the Acting Inspector General Title was not used and was thus “currently in compliance.” Id. at 2. The GAO then stated that “[i]n the event a nomination is submitted to the Senate, the spring-back provision of the Vacancy Reform Act would allow [his] service as acting Inspector General for the period that such nomination is pending.” Id. at n.5 (emphasis added) (citing 5 U.S.C. § 3346(a)(2)). This situation not only confirms that the Court's interpretation of the statute's plain language is correct, but also mirrors the situation at hand and bolsters the conclusion that Berryhill could resume her service when Saul was nominated.
See https://www.gao.gov/assets/b-326480.pdf (last visited Dec. 16, 2022).
5. This Court's Decision is Consistent With the Vast Weight of Authority
Finally, the Court notes that the vast majority of courts to address this issue have declined to adopt Brian T.D.'s reasoning and have instead held that the plain text of the FVRA indicates that Section 3346(a)(2) operates as a “spring-back” provision that allowed Berryhill to resume service upon Saul's nomination in April 2018. See, e.g., Bernadette H., 2022 WL 17080743, at *9; LanceM., 2022 WL 3009122, at *14; Bauer, 2022 WL 2918917, at *5; Sidney M., 2022 WL 4482859, at *16; Thomas S. v. Comm 'r of Soc. Sec., No. C21-CV-05213 (MAT), 2022 WL 268844, at *3 n.2 (W.D. Wash. Jan. 28, 2022); Reuter v. Saul, No. 19-CV-2053 (LLR), 2020 WL 7222109, at *15 n.11 (N.D. Iowa May 29, 2020), report and recommendation adopted, 2020 WL 6161405, at *6 (N.D. Iowa Oct. 21, 2020); Bril v. Kijakazi, No. 22-CV-00002 (KDB), 2022 WL 3702916, at *4 (W.D. N.C. Aug. 26, 2022); Jamie K. v. Kijakazi, 21-CV-373, 2022 WL 3577013, at *14-*15 (D. Neb. Aug. 19, 2022); Wynn v. Kijakazi, No. 21-CV-00158 (FL), 2022 WL 10862338, at *9 (E.D. N.C. July 20, 2022), report and recommendation adopted, 2022 WL 4534960 (E.D. N.C. Sept. 28, 2022). While this out-of-circuit authority is not binding on this Court, these decisions are consistent with the plain text and statutory history of the FVRA, and therefore offer greater persuasive value than the two out-of-circuit decisions upon which Plaintiff relies.
In sum, the FVRA's plain text, legislative history and subsequent interpretations by executive agencies all confirm that subsection (a)(2) operates as a “spring-back” provision that allows for a separate acting term of service upon the President's submission of a nomination. The Court finds Plaintiff's arguments to the contrary unsupported by the plain text of the statute and the authority upon which she relies unpersuasive. Accordingly, I respectfully recommend finding that Berryhill was acting pursuant to lawful authority when she ratified the appointments of the ALJs and Appeals Council and, thus, Plaintiff's claims were properly adjudicated.
Since the Court finds that Berryhill was validly serving as Acting Commissioner of the SSA when she ratified the appointments, it does not reach the issue of whether Plaintiff would be entitled to a remand if Berryhill's service was unlawful. (Comm'r Br. at 23-24; Pl. Reply at 7-8). See Ryder v. U.S., 515 U.S. 177, 182-83 (1995) (party bringing Appointments Clause challenge is entitled to “appropriate” relief “if a violation indeed occurred”) (emphasis added). The Court notes, however, that Plaintiff stretches the holding of the Supreme Court's decision in Carr beyond its proper bounds on this point. Carr v. Saul, 141 S.Ct. 1352 (2021). The Carr Court did not address the issue of whether the SSA ALJs were “Officers,” subject to the provisions of the Appointments clause, rather than inferior employees, because that issue was mooted by Berryhill's ratification of the appointments. See Carr, 141 S.Ct. at 1357 (noting that “the SSA's Acting Commissioner pre-emptively addressed any [ALJ] Appointments Clause questions” by ratifying the appointments) (internal citation omitted). The Carr court thus did not hold that “a separation of powers violation” had occurred, (see Pl. Reply at 8), but rather addressed the threshold issue of whether a claimant needed to exhaust the issue of the legality of the ALJ appointments at the administrative level in order to raise it in federal court. Id. at 1358-62. Carr is thus neither on point nor dispositive of this issue.
III. CONCLUSION
For the foregoing reasons, I conclude and respectfully recommend that Plaintiff's motion for judgment on the pleadings be denied and the Commissioner's cross-motion be granted.
IV. NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b)(2) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from receipt of this Report and Recommendation to serve and file written objections. See Fed.R.Civ.P. 6(a) and (d) (rules for computing time). A party may respond to another party's objections within fourteen (14) days after being served with a copy. See Fed.R.Civ.P. 72(b)(2). Objections and responses to objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Vincent L. Briccetti at the United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at said Courthouse.
Requests for extensions of time to file objections must be made to the Honorable Vincent L. Briccetti and not to the undersigned. Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude later appellate review of any order of judgment that will be rendered. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(b), 6(d), 72(b); Caidor v. Onondaga Cty., 517 F.3d 601, 604 (2d Cir. 2008).