Opinion
CV-21-00472-TUC-RM (JR)
12-15-2022
Christina Noriega, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
Honorable Jacqueline M. Rateau United States Magistrate Judge
Plaintiff Christina Noriega (“Noriega”) brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision by the Commissioner of the Social Security Administration (“Commissioner”). The matter is ripe for review and was referred to the undersigned for Report and Recommendation. (Doc. 11, 19, 22-23.) Based on the pleadings and the administrative record (“AR”), the Magistrate Judge recommends that the District Court, after its independent review, affirm the decision of the administrative law judge (“ALJ”).
BACKGROUND
Procedural Background
Noriega filed her application for Supplemental Security Income (“SSI”) on December 7, 2018. (AR 13, 273-287.) Her application was denied initially and on reconsideration. (AR 144, 163.) On October 29, 2020, a hearing was held before an ALJ. (AR 31-54.) In a decision dated April 1, 2021, the ALJ issued a not disabled determination. (AR 13-25.) The Appeals Council denied Noriega's request for review of the ALJ's decision thus making the ALJ's decision final for purposes ofjudicial review. (AR 1-6.)
Factual Background
Born in July 1967, Noriega was fifty-one years old on the filing date and considered an individual closely approaching advanced age. (AR 23, 273.) She has a high school education and past work as a landscaping laborer. (AR 37-38, 331.) She alleges disability due to lower back pain, bipolar disorder and foot surgery. (AR 330.)
The ALJ's Decision
At step one, the ALJ determined Noriega had not engaged in substantial gainful activity since December 7, 2018, her application date. (AR 16.) At step two, the ALJ found Noriega has as severe impairments bipolar disorder, affective disorder and “an anxiety related disorder.” (AR 17.) The ALJ determined Noriega's osteoarthritis of her right knee and her left foot surgeries are not severe impairments as they did not last the requisite twelve months or longer. Id.
At step three, the ALJ determined Noriega does not have an impairment or a combination of impairments that meets or medically equals the severity of a listed impairment. (AR 18.) The ALJ subsequently determined:
[T]he claimant has the residual functional capacity to perform a full range of work at all exertional levels, but with the following nonexertional limitations: the claimant can perform simple, routine job tasks with occasional interaction with the public, co-workers, and supervisors.
(AR 20.) The ALJ found that Noriega has no past relevant work. (AR 23.) Finally, after considering Noriega's age, education, work experience, and residual functional capacity (“RFC”), the ALJ found that Noriega could perform the jobs of Machine Packer, Lab Equipment Cleaner, and Hand Packer, all of which are classified as unskilled work performed at a medium exertional level. (AR 23-24.) As a result, the ALJ found Noriega not disabled. (AR 24.)
ISSUES ON REVIEW
Noriega raises four issues on review. (Doc. 19 at 1-2.) First, she argues the ALJ relied upon an earlier non-disability decision issued by a different ALJ “which he knew to be unconstitutional” thereby “depriving [Noriega] of her constitutional rights.” Id. at 4-6. Second, she argues the ALJ misapplied the standard enunciated in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), “because there was an undeniable change in circumstances under the law.” Id. at 6-10. Third, she argues the ALJ failed to consider whether her physical impairments impacted her functioning for any twelve month period. Id. at 11-17. Fourth, she insists the “ALJ and Appeals Council Judges had no legal authority to adjudicate this case because they were not properly appointed.” Id. at 18-19. The Commissioner argues against all of Noriega's points of error. (Doc. 22.) As more fully set forth below, this Court rejects all of Noriega's claims of error.
STANDARD OF REVIEW
A claimant is disabled for the purpose of receiving benefits if she is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. Pt. 404.1505(a). The Commissioner employs a five-step sequential process to evaluate SSI claims. 20 C.F.R. Pt. 404.1520; see also Heckler v. Campbell, 461 U.S. 458, 460-462 (1983). To establish disability the claimant bears the burden of showing: (1) she is not working; (2) she has a severe physical or mental impairment; (3) the impairment meets or equals the requirements of a listed impairment; and (4) her RFC precludes her from performing her past work. 20 C.F.R. Pt 404.1520(a)(4). At step five, the burden shifts to the Commissioner to show that the claimant has the RFC to perform other work that exists in substantial numbers in the national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point in the five-step process, the ALJ does not proceed to the next step. 20 C.F.R. Pt. 404.1520(a)(4).
“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must resolve conflicts in the evidence, and if the evidence can support either outcome, the court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)). The Commissioner's decision, however, “cannot be affirmed simply by isolating a specific quantum of supporting evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence that supports as well as detracts from the Commissioner's conclusion. Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION
The ALJ's Reliance on a 2017 Non-Disability Decision
Noriega previously applied for benefits in August 2015. (AR 85.) An ALJ denied Noriega's 2015 application in a decision dated August 21, 2017 (the “2017 Decision”). (AR 82, 93.) Noriega requested review of the 2017 Decision by the Appeals Council and the Appeals Council found no error. (AR 100-104.) Noriega did not appeal the 2017 Decision to the District Court and the time to appeal the 2017 Decision has passed. See 42 U.S.C. § 405(g) (allowing for appeals of final agency decisions within sixty days after the notice of decision is mailed to a claimant).
The parties agree that there was a defect in the appointment of the ALJ who issued the 2017 Decision in that, prior to the Acting Commissioner's ratification of SSA ALJ appointments on July 16, 2018, SSA ALJs were not appointed to their positions in the manner consistent with the Constitution. (Doc. 19 at 4; Doc. 22 at 6.) The issue is whether, despite the defect in the appointment of the ALJ who issued the 2017 Decision, the ALJ here could rely on the 2017 Decision in issuing the instant non-disability determination.
Noriega claims that the ALJ in the instant case erred by “having considered and substantially relied upon” the 2017 Decision. (Doc. 19 at 4.) She urges that the “entirety” of her claim “was prejudiced by the unconstitutional 2017 [D]ecision because the Agency's state-level medical consultants and adjudicators repeatedly deferred to the 2017 [D]ecision rather than providing a fresh analysis of [her] limitation.” Id. at 5. She claims that it is impossible to extract from the instant decision “anything that was not improperly based, at least in part, on comparing [her] current impairments and limitations against the findings in the 2017 [D]ecision[.]” Id.
The Commissioner argues that Noriega impermissibly collaterally attacks the 2017 Decision. (Doc. 22 at 6.) He urges that under Lucia v. SEC, 138 S.Ct. 2044 (2018), a claimant who timely raises a meritorious Appointments Clause challenge is entitled to receive a hearing before a new ALJ. Id. He contends, however, that Lucia does not support “reaching back into the past to upend a long-final decision that is not properly before the Court.” Id.
As explained below, this Court agrees with the Commissioner. In Lucia v. SEC, the United States Supreme Court held that SEC ALJs were “inferior officers” subject to the Appointments Clause of the Constitution and that a party “who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.” Id. at 2055 (citation omitted). Later, in Carr v. Saul, 141 S.Ct. 1352 (2021), the United States Supreme Court held that SSA claimants are not required to raise an Appointments Clause challenge at the administrative level in order to preserve it for district court review. Id. at 1356.
In Lisa W. v. Kijakazi, No. 2:20-cv-0590, 2021 WL 6101825 (E.D. Va. Sept 28, 2021), adopted by 2021 WL 5412585 (E.D. Va. Nov. 19, 2021), the District Court for the Eastern District of Virginia rejected the argument that Noriega advances here. The claimant in Lisa W. argued, inter alia, that the ALJ erred in issuing a non-disability decision in which the ALJ had considered an earlier issued non-disability decision where there was a defect in the earlier issuing ALJ's appointment. 2021 WL 6101825, at *1. It was undisputed in Lisa W. that the non-disability decision being appealed had incorporated the earlier nondisability decision that had been issued by an ALJ whose appointment was found unconstitutional. Id. at *10. Despite the constitutional defect the later ALJ followed Acquiescence Ruling 00-1(4) and gave “great weight to the prior unfavorable Administrative Law Judge decision” in issuing the later non-disability determination. Id. at *11.
The district court found no error holding “ALJ Dodson's reliance was both explicit and in compliance with established Social Security Administration practice and Fourth Circuit precedent.” Id. The district court pointed out that the plaintiff did not directly appeal the earlier non-disability determination and, as a result, “[a]ll ‘findings of fact' listed in the [prior administrative d]ecision” became final and binding. Id. Lisa W. also rejected the plaintiff's argument that Lucia prohibits an ALJ from relying upon a final administrative decision that was rendered before the Acting Commissioner's ratification of ALJ appointments reasoning:
Lucia does not stretch that far. In Lucia, the plaintiff ‘contested the validity of [the Judge's] appointment before the Commission, and continued pressing that claim in the Court of Appeals and [the Supreme Court].' Lucia, 138 S.
Ct. at 2055. The plaintiff was not collaterally attacking a separate final opinion for which all potential appeals were procedurally defaulted. See id. As the Commissioner raises in his Motion, ‘the limits on the waiver of sovereign immunity Congress set forth in 41 U.S.C. § 405(g) would be judicially amended' if the Court were to permit Plaintiff's contention in this case. . . . Lucia does not provide this Court with any authority to reopen final decisions. . . . Therefore, ALJ Dodson's reliance on the 2017 ALJ Decision does not constitutionally taint the 2020 ALJ Decision.Lisa W., 2021 WL 6101825, at *11. This Court is persuaded by Lisa W.
As mentioned above, in Carr, the U.S. Supreme Court held that a claimant is entitled to bring an Appointments Clause challenge during judicial review of an ALJ's decision despite a claimant's failure to raise such a challenge before the ALJ. Carr, 141 S.Ct. at 1356. Here, however, Noriega undisputedly failed to raise an Appointments Clause challenge to the 2017 Decision. As a result, the 2017 Decision-including all findings of fact contained therein-is final and binding. See 42 U.S.C. § 405(h) (“The findings and decision of the Commissioner of Social Security after a hearing shall be binding upon all individuals who were parties to such hearing.”). Carr has been interpreted as only excusing exhaustion within the same case. See Lisa W., 2021 WL 610825, at *11 (recognizing that “because Carr only excuses exhaustion within the same case . . . [p]laintiff is not excused from failing to appeal the [prior administrative decision]”).
Lucia has been interpreted as rejecting the argument that an ALJ is prohibited from relying upon a final administrative decision that was issued before the Acting Commissioner's ratification of ALJ appointments on July 16, 2019. See Lisa W., 2021 WL 6101825, at *11 (“Lucia does not provide this Court with any authority to reopen final decisions.”). Lisa W. reasoned that to permit a reopening of a prior administrative decision would result in an impermissible judicial amendment to the limits on the waiver of sovereign immunity set by Congress in 41 U.S.C. § 405(g). See Lisa W., 2021 WL 6101825, at *11.
In light of the foregoing, this Court finds that all findings of fact contained in the 2017 Decision were final and binding at the time the ALJ issued the instant decision. The ALJ's reliance on the same was consistent with agency policy. See Acquiescence Ruling 00-1(4). Accordingly, this Court finds that the ALJ did not impermissibly rely upon the 2017 Decision in issuing the non-disability determination at issue.
This Court finds that Noriega is not entitled to relief on her first claim of error.
The ALJ's Chavez Application
In her second claim of error, Noriega argues that the ALJ failed to acknowledge that she advanced in age categories since the 2017 Decision was issued thereby failing to recognize a “changed circumstance” which, according to Noriega, “invalidated] any consideration of the 2017 [D]ecision.” (Doc. 19 at 7.) She also urges that the ALJ failed to acknowledge that her physical impairments “unquestionably increased in severity since the 2017 [D]ecision.” Id. at 8-10. The Commissioner urges that while the ALJ concluded that Noriega failed to overcome the presumption of continuing non-disability under Chavez and Acquiescence Ruling 97-4(9), the ALJ did not deny her claim on that basis. (Doc. 22 at 6.) Rather, the ALJ conducted the five step sequential evaluation and, in doing so, correctly placed Noriega in the appropriate age category and considered her knee and foot conditions in determining her RFC. Id. at 6-7. As explained below, this Court agrees with the Commissioner.
Under Chavez v. Bowen, when there is a prior final decision by an ALJ that a claimant is not disabled, an ALJ adjudicating a subsequent disability claim by the claimant applies a presumption of continuing non-disability. See Gunnels v. Comm'r of Soc. Sec. Admin., No. CV-18-00543-TUC-EJM, 2020 WL 525681, at *11 (D. Ariz. Feb. 3, 2020). “[I]n order to overcome the presumption of continuing non-disability arising from the first [ALJ's] finding of non-disability, [the claimant] must prove ‘changed circumstances' indicating a greater disability.” Gunnels, 2020 WL 525681, at *11 (quoting Chavez, 844 at 693). Even if a claimant overcomes the non-disability presumption, “[t]he first [ALJ's] findings concerning the claimant's [RFC], education, and work experience are entitled to some res judicata consideration in subsequent proceedings.” Gunnels, 2020 WL 525681, at *11 (quoting Chavez, 844 at 694). “Issues are barred from reconsideration unless new and material evidence or a change in circumstances contradict the previous ALJ's findings.” Gunnels, 2020 WL 525681, at *11 (quoting Rowan v. Comm'r of Soc. Sec. Admin., 2019 WL 5541268, *3 (D. Ariz. Oct. 28, 2019)).
Here, the ALJ's decision identifies Noriega as an “individual closely approaching advanced age” on the date the application was filed. (AR 23.) Noriega agrees that this is the proper age category for her instant claim. (Doc. 19 at 8.) Thus, this Court finds that Noriega's contention that the ALJ failed to consider her claim in light of her change in age categories without merit.
This Court also finds that the ALJ properly considered medical evidence generated after the 2017 Decision regarding Noriega's knee and foot conditions in issuing the non- disability determination. For instance, the ALJ noted that the record establishes Noriega's right knee was successfully replaced February 2020. (AR 14; AR 17 citing AR 1107-1247.) After surgery, in a March 20, 2020 encounter, Noriega is recorded as reporting that she is healing well and denying any issues. (AR 1046.) On August 21, 2020, Noriega is recorded as having an unremarkable physical examination and given ibuprofen and tramadol for right knee pain. (AR 1035-36).
The evidence regarding Noriega's knee and foot conditions is more fully set forth below in the Step Two Non-Severity Finding section. See pp. 12-17.
The ALJ also acknowledged Noriega's foot surgery on January 5, 2018. (AR 17, 392.) The ALJ highlighted examination findings on May 11, 2019, showing normal gait and motor strength with no noted abnormalities. (AR 17, citing 878, 882.) Noriega was noted to have “some left ankle deformity, however this does not result in any functional deficits.” (AR 887.) A March 12, 2020, examination revealed normal gait and station and that her knee surgery was “healing well.” (AR 1049.) An August 21, 2020, examination also revealed no functional deficits. (AR 1035.) In light of the foregoing, this Court finds Noriega's contention that the ALJ failed to consider evidence that her knee and foot conditions constituted changed circumstances without merit.
This Court acknowledges that the ALJ did not expressly find changed circumstances in his non-disability decision. On its face it appears that this was error. However, it is not enough that Noriega establish error. “[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (quoting Shinseki v. Sanders, 556 U.S. 396, 409, 129 S.Ct. 1696, 173 L.Ed.2d 532 (2009)). A district court “may not reverse an ALJ's decision on account of an error that is harmless.” Molina, 674 F.3d at 1111 (quoting Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)).
Considering the ALJ's non-disability determination as a whole, this Court finds that Noriega has failed to establish the ALJ's failure to expressly find changed circumstances is harmful. As set forth above, in rendering the instant non-disability determination the ALJ considered Noriega to have advanced age categories since the 2017 Decision and also considered medical evidence related to her knee and foot conditions that was generated after the 2017 Decision. As such, this Court finds that the ALJ at most committed harmless error in his application of Chavez v. Bowen.
This Court finds that Noriega is not entitled to relief on her second claim of error.
The ALJ's Step Two Non-Severity Finding
In her third claim of error, Noriega argues that the ALJ erred in finding at step two that her left foot and right knee impairments were not severe because they did not meet the twelve month durational requirement. (Doc. 19 at 11.) She argues that the ALJ's nonseverity determination is not based on a reading of the record as a whole. Id. at 12-16. She insists that the ALJ's failure to properly assess her physical impairments is harmful error because it resulted in an RFC determination that reflected no physical limitations. Id. at 1617. The Commissioner defends the ALJ's non-severity determination. (Doc. 22.) As explained below, this Court finds that even if the ALJ erred at step two Noriega is not entitled to relief because the ALJ's RFC determination is supported by substantial evidence.
At step two of the sequential evaluation process, the ALJ must determine whether an impairment is “severe.” Heller v. Comm'r of Soc. Sec. Admin., No. CV-17-00243-TUC-DTF, 2018 WL 4377162, at *5 (D. Ariz. Sept. 14, 2018), affdsubnom. Heller v. Saul, 794 Fed.Appx. 644 (9th Cir. 2020) (citing 20 C.F.R. Pt. 404.1520, 416.920). An impairment is not severe if it does not significantly limit a claimant's mental or physical abilities to do basic work activities. Heller, 2018 WL 4377162, at *5 (citing 20 C.F.R. Pt. 404.1520(a)(4)(iii); Soc. Sec. Rul. 96-3p, 1996 WL 374181, at *1). Basic work activities are those “abilities and aptitudes necessary to do most jobs.” Heller, 2018 WL 4377162, at *5 (citing 20 C.F.R. Pt. 404.1521(b); Soc. Sec. Rul. 85-28, 1985 WL 56856, at *3). An impairment is not severe if the evidence establishes only a slight abnormality that has “no more than a minimal effect on an individual's ability to work.” Heller, 2018 WL 4377162, at *5 (citing Soc. Sec. Rul. 85-28, 1985 WL 56856, at *3; Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)).
“The step two analysis is ‘merely a threshold determination meant to screen out weak claims.'” Kim R. S. v. Kijakazi, No. 5:21-CV-00546-JDE, 2022 WL 1405429, at *3 (C.D. Cal. May 4, 2022) (quoting Buck v. Berryhill, 869 F.3d 1040, 1048 (9th Cir. 2017)). “[O]nce the ALJ finds the claimant has at least one severe impairment at step two, the ALJ must consider all the claimant's impairments when formulating the claimant's RFC, including those impairments the ALJ determined to be non-severe.” Kim R.S., 2022 WL 1405429, at *3 (citing Buck, 869 F.3d at 1048-49). “[E]ven if an ALJ erred by finding a particular impairment to be non-severe at step two, the error is harmless so long as the limitations of that impairment are considered when formulating the claimant's RFC.” Kim R.S., 2022 WL 1405429, at *3 (citing Scott H. v. Kijakazi, 2022 WL 392293, at *9 (D. Alaska Feb. 9, 2022)). There mere diagnosis of an impairment is not sufficient to sustain a finding of disability. Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 1985). The ALJ must consider evidence of functional limitations in formulating the RFC. Burch v. Barnhart, 400 F.3d 676, 683-84 (9th Cir. 2005).
Here, at step two the ALJ found Noriega has the severe impairments of bipolar disorder, affective disorder, and “an anxiety related disorder.” (AR 17.) The ALJ continued past step two. (AR 18-24.) Thus, any error the ALJ may have committed at step two cannot form the basis for remand so long as the RFC determination accounts for all of Noriega's impairments. Buck, 869 F.3d at 1049. As explained below, this Court finds that the ALJ's RFC determination accounts for Noriega's physical impairments. Stated another way, this Court finds that the ALJ's RFC determination is supported by substantial evidence.
Noriega alleges disability beginning November 1, 1989. (AR 13.) In her 2015 application, Noriega similarly alleged a disability onset date of November 1, 1989, and she was found not disabled in the 2017 Decision (issued on August 21, 2017). (AR 85-93.) Thus, Noriega's disability for the time period of November 1, 1989 through August 21, 2017 has already been adjudicated and, as set forth above, the ALJ's findings with respect to this time period are given preclusive effect. See pp. 5-9, supra. Accordingly, this Court determines the relevant disability period to be Noriega's most recent application date of December 7, 2018 through the decision date of April 1, 2021. (AR 13, 25.) Using this time period, this Court finds the ALJ's RFC supported by substantial evidence.
Noriega's Knee Impairment: Noriega argues that her knee impairment “was so severe by 2020 that she required a total knee replacement.” (Doc. 19 at 9.) Indeed, the ALJ acknowledged that Noriega had knee surgery in February 2020 and determined that, despite her knee surgery, Noriega's knee impairment did not meet the twelve month durational requirement. (AR 17.) The record establishes that in a May 2019 consultative examination, Noriega did not complain of knee problems and walked normally without an assistive device (AR 14; AR 17 citing 876, 878). Noriega was noted as being able to “squat and rise from that position with ease” and she was “able to rise from a sitting position without assistance.” (AR 879.) Noriega's physical examination was normal with the physician finding no deficits in her range of motion, strength, or ambulation, and concluding that she was able to perform all tasks without limitations. (AR 878-882.) The physician determined that Noriega's impairments would not impose any limitations for twelve continuous months. (AR 885.)
The ALJ also noted that Noriega's right knee replacement in February 2020 was successful. (AR 14; AR 17.) On March 12, 2020, following her surgery, Noriega reported that she was healing well and she denied any issues. (AR 1046.) Ambulation was noted as normal (“NL”). Id. Examination revealed Noriega to be “well appearing” with normal gait and station. (AR 1048-49.) The ALJ further noted that the record established that by August 21, 2020, Noriega had an unremarkable physical examination. (AR 17, citing AR 1035). Treatment records from this encounter indicate that Noriega took ibuprofen and tramadol for knee pain. (AR 1036.)
This Court agrees with the Commissioner that Noriega primarily supports her position with medical records of her knee impairment that were generated before the time period at issue. See Doc. 19 at 14, citing AR 1375 (2015 knee impairment record); AR 575 (2017 knee impairment record); AR 461-465, 471-475 (2017 right leg pain record); AR 529, 560-562 (June 2018 knee pain record); AR 527 (August 2018 right knee stiffness). Noriega identifies an examination on March 19, 2019, in which she is recorded as complaining of knee pain after a fall. (AR 897.) However, on examination the Noriega's knee range of motion and strength were recoded as “good.” (AR 899.)
Noriega's Foot Impairment: With respect to Noriega's foot impairment, the ALJ acknowledged that she had foot surgery in January 2018. (AR 17.) An examination relied upon by the ALJ occurred on May 11, 2019, and records Noriega as having normal gait and motor strength. (AR 17, citing 878.) During this May 2019 examination, the physician acknowledged Noriega's foot complaints and surgery, but recorded no abnormalities. (AR 882.) The physician commented that Noriega “has some left ankle deformity, however this does not result in any functional deficits.” (AR 887.) A July 2019 examination revealed Noriega was recommended conservative treatment, including motion control shoes and Voltaren gel. (AR 905, 907 A March 12, 2020 examination revealed normal gait and station. (AR 1049.) An August 2020 examination revealed no functional deficits. (AR 1035.)
Noriega complains that the ALJ only discussed her foot impairment in one sentence. (Doc. 19 at 14.) Contrary to Noriega's claim, the ALJ's decision reflects that the ALJ considered the May 2019 consultative examination discussed above and examinations in March and August of 2020, all showing that her gait and station were normal. (AR 14, 17.) Additionally, the record contains numerous instances documenting normal gait and station both before and after the time period in issue. See AR 922 (December 29, 2016 follow up visit noting normal gait and station); AR 926 (March 23, 2017 follow up visit noting normal gait and station); AR 414 (April 24, 2018 visit noting that physical therapy is going well and that Noriega is progressing well); AR 421 (March 27, 2018 visit noting left ankle weakness but otherwise normal examination and referring Noriega to physical therapy); AR 411 (June 7, 2018 follow up visit noting Noriega required hard soled shoes and can perform activities as symptoms dictate); AR 408 (July 27, 2018 follow up visit recording “markedly better” progression and that Noriega had “no complaints at this time”); AR 1063 (January 29, 2020 office visit noting normal gait and “able to exercise”).
It is not the job of the district court to reweigh the evidence and where “evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2017) (quoting Burch, 400 F.3d at 679). A district court may overturn the decision to deny benefits only “when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole.” Aukland, 257 F.3d at 1035. Substantial evidence is “more than a mere scintilla but less than a preponderance.” Tackett, 180 F.3d at 1098. In light of the foregoing, this Court determines that the ALJ's RFC determination providing for no physical restrictions is supported by substantial evidence.
This Court finds that Noriega is not entitled to relief on her third claim of error.
...
Appointments Clause Challenge
Lastly, Noriega challenges the ALJ's appointment arguing that the ALJ and Appeals Council members were not properly appointed by then Acting Commissioner Nancy Berryhill or any subsequent commissioner. (Doc. 19 at 18-19.) According to Noriega, Commissioner Berryhill began serving as Commissioner on January 20, 2017. Id. at 18. Under the Federal Vacancies Reform Act (“FVRA”), and according to Noriega, Commissioner Berryhill's term ended 210 days later on November 16, 2017. Id. Noriega urges that as of November 17, 2017, Ms. Berryhill had no lawful right to serve as the head of SSA although she did so serve. (Doc. 23 at 9.) She urges that this “illegal action violated both FVRA and separation of powers by infringing on the Senate's ‘advice and consent' power.” (Doc. 23 at 9.) She relies on Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. Jan. 20, 2022), appeal filed, No. 22-1601 (8th Cir. Mar. 22, 2022).
The Commissioner urges that Ms. Berryhill served as Acting Commissioner from January 21, 2017, until November 16, 2017, when her initial 210-day period for acting service under the FVRA expired. (Doc. 22 at 13.) The Commissioner asserts that then, on April 17, 2018 when then-President Donald Trump nominated Andrew Saul to serve as Commissioner, upon submission of Mr. Saul's nomination, Ms. Berryhill resumed service as Acting Commissioner during the pendency of Mr. Saul's nomination and continued to so serve until Mr. Saul was sworn in as Commissioner. (Doc. 22 at 13-14.) The Commissioner relies upon the language of 5 U.S.C. § 3346(a)(2) and decisions from numerous district courts that have interpreted 5 U.S.C. § 3346(a)(2) as containing a “spring back” provision that permitted Ms. Berryhill to resume her role as Acting Commissioner as of the date of Mr. Saul's nomination. (Doc. 22 at 14-16.) As more fully explained below, this Court agrees with the Commissioner and the numerous district courts that have already decided this issue.
The Commissioner relies upon 17 district court decisions that are also relied upon by the district court in Williams v. Kijakazi, No. 1:21-cv-141-GCM, 2022 WL 2163008, at *3 (W.D. N.C. June 15, 2022), discussed herein. See Doc. 22 at 15 & n.5.
Through the FVRA, Congress authorized persons to serve as acting officials during vacancies in Senate-confirmed offices. The FVRA provides three options for designating an acting official. By default, the “first assistant” to the vacant office “shall perform [its] functions and duties.” 5 U.S.C. § 3345(a)(1). The President may also designate another Senate-confirmed official or an officer or employee within the same agency, provided that she satisfies certain tenure and salary requirements. Id. at § 3345(a)(2), (a)(3).
The FVRA's prescribed time limits for acting service are found in 5 U.S.C. § 3346. See 5 U.S.C. § 3346. Section 3346 provides that an acting official serving under the FVRA may serve “for no longer than 210 days beginning on the date the vacancy occurs; or . . . 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. at § 3346(a)(1)-(2).
In Williams v. Kijakazi, No. 1:21-cv-141-GCM, 2022 WL 2163008, at *3 (W.D. N.C. June 15, 2022), the District Court for the Western District of North Carolina rejected the argument that Noriega makes in this case. First, that district court found that “the text of § 3346(a)(2) is plain” and under that plain language an acting official serving under the FVRA (here, Ms. Berryhill) may serve “for no longer than 210 days” from the date of the vacancy, “ or,” once a first or second nomination for the office is submitted to the Senate . . . for the period that the nomination is pending in the Senate.” Williams, 2022 WL 2163008, at *3 (quoting § 3346(a) and (a)(2)) (emphasis in Williams). The district court reasoned that by using the disjunctive ‘ or,' the FVRA “provides a single trigger for permissible service during a first or second nomination's pendency: the submission of the nomination.” Id. Williams thus reasoned that once Mr. Saul's nomination for the office of Commissioner “[wa]s submitted to the Senate,” Ms. Berryhill could serve as Acting Commissioner “for the period that the nomination [wa]s pending in the Senate.” Id. (quoting § 3346(a)(2)).
Williams followed “[t]he great majority of courts that have address this issue agree[ing] that § 3346(a)(2) contains a ‘spring-back' provision” that permitted Ms. Berryhill to resume her prior role as Acting Commissioner as of the date of Mr. Saul's nomination. Id. (citing Thomas S. v. Comm'r, No. C21-05213-MAT, 2022 WL 268844, at *3 n.2 (W.D. Wash. Jan. 28, 2022); see also Reuter v. Saul, No. 19-CV-2053-LRR, 2020 WL 7222109, at *15 n.11 (N.D. Iowa May 29, 2020), adopted by 2020 WL 6161405, at *6 (N.D. Iowa Oct. 21, 2020); Nw. Immigrant Rts. Proj. v. U.S. Citizenship & Immigr. Servs., 496 F.Supp.3d 31, 57-58 (D.D.C. 2020) (although “far more than 210 days passed” after resignation of permanent official before submission of nomination, a “separate provision of the FVRA permits an acting official to serve ‘from the date of' a first nomination for the vacant office and ‘for the period that the nomination is pending in the Senate,'” such that acting official could “lawfully serv[e] as Acting Secretary” upon submission of nomination). AccordDonta J. v. Saul, No. 2:20-cv-131-RGD-DEM, 2021 WL 3705145, at *7 (E.D. Va. Apr. 2, 2021), adopted by 2021 WL 2711467 (E.D. Va. Jul. 1, 2021); Austin v. Saul, No. 19-CV-3017-CJW, 2020 WL 5229540, at *16 n.7 (N.D. Iowa May 12, 2020), adopted by 2020 WL 3100838 (N.D. Iowa June 11, 2020); Heins v. Saul, No. 19-CV-2043-LTS, 2020 WL 6052583, at *21 n.18 (N.D. Iowa June 11, 2020), adopted by 2020 WL 4369450 (N.D. Iowa July 30, 2020); Taylor v. Saul, No. 1:16-cv-00044, 2019 WL 3837975, at *4 (W.D. Va. Aug. 15, 2019); MarkF. v. Berryhill, No. 1:18-cv-02031-MJD-TWP, 2019 WL 1055098, at n.2 (S.D. Ind. Mar. 6, 2019); Vickie H. v. Berryhill, No. 1:18-cv-00351-SEB-DLP, 2019 WL 1370700, at n.2 (S.D. Ind. Mar. 1, 2019), adopted by 2019 WL 1367537 (S.D. Ind. Mar. 26, 2019); Charles K. v. Berryhill, No. 1:18-cv-02013-JPH-DML, 2019 WL 667760, at n.2 (S.D. Ind. Feb. 15, 2019); Lopez Davila v. Berryhill, No. 17-cv-12212-ADB, 2018 WL 6704722, at *1 n.1 (D. Mass. Nov. 6, 2018); Patterson v. Berryhill, No. 2:18-cv-00193, 2018 WL 8367459, at *1 (W.D. Pa. June 14, 2018). See also, Avalon v. Kijakazi, No. 2:21-cv-02051-NJK, 2022 WL 1746976, at *7 (D. Nev. May 25, 2022) (holding that “the overwhelming weight of authority addressing this issue recognizes that the FVRA contains a spring-back provision that made Acting Commissioner Berryhill's appointment valid at the time she appointed the ALJs and Appeals Council Judges”); Vidaurri v. Kijakazi, No. 2:20-cv-01963-CDS-DJA, 2022 WL 1187364, at *7 (D. Nev. Oct. 19, 2022) (same); Smoak v. Kijakazi, No. 5:22-CV-00007-KDB, 2022 WL 4590584, at *3 (W.D. N.C. Sept. 29, 2022) (holding that “the plain language of 5 U.S.C. § 3346 allows for Ms. Berryhill to have resumed her role as Acting Commissioner on the date that Andrew Saul was nominated”).
Statutory interpretation “begins with the text.” Williams, 2022 WL 2163008, at *3 (citing Ross v. Blake, 578 U.S. 632, 638 (2016)). Likewise, the court must “resist reading words . . . into a statute that do not appear on its face.” Id. (quoting Dean v. United States, 556 U.S. 568, 572 (2009)). Adhering to these principles, Williams buttressed its decision with the finding that the text of § 3346 contains no requirement that a nomination be submitted within the initial 210-day period, pointing out that the statute “simply says ‘ once a first or second nomination . . . is submitted,' the acting official designated under the FVRA may serve ‘for the period that the nomination is pending.'” Williams, 2022 WL 2163008, at *3 (quoting 5 U.S.C. § 3346(a)(2)).
Lastly, Williams recognized that the “legislative history and the views of the Executive Branch and Legislative Branch confirm that § 3346(a)(2) serves as a spring-back provision.” Williams, 2022 WL 2163008, at *4 (recognizing that the Senate Report accompanying the bill that became the FVRA supports the finding of a spring-back provision in § 3346(a)(2) and that the Executive Branch “has understood § 3346(a)(2) to operate this way”). See also, M.A.K. v. Kijakazi, No. 1:21-cv-03028-JLK, 2022 WL 16855690, at *4 (D. Colo. Nov. 10, 2022) (holding “[t]he plain language of 5 U.S.C. § 3346(a)(2), as well as the FVRA's legislative history, caselaw [ sic ] interpreting Section 3346(a)(2), and interpretations of that Section from the DOJ and the GAO all support the interpretation of Section 3346(a)(2) as a spring-back provision.” (internal quotations and citations omitted)).
This Court is not persuaded by Plaintiff's reliance on Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. 2022). (Doc. 19 at 18-19; Doc. 23 at 7-14.) Williams referred to Brian T.D. as “an outlier that conflicts with the plain text of the FVRA, and nearly every other court to address the issue, as well as the views of the Executive Branch and Legislative Branch[.]” See Williams, 2022 WL 2163008, at *3 (quoting Thomas S., 2022 WL 268844, at *2 n.2). See also, M.A.K., 2022 WL 16855690, at *5 (expressly rejecting the decision in Brian T.D.). As laid out above, this Court finds that weight of persuasive authority holds that 5 U.S.C. § 3364(a)(2) contains a spring back provision that enabled Ms. Berryhill to resume her role as Acting Commissioner as of the date that Mr. Saul was nominated for Commissioner. This Court declines to follow Brian T.D. and declines to recommend that the District Court depart from the reasoning of the weight of persuasive authority that is to the contrary.
For the reasons explained above, this Court finds that Noriega is not entitled to relief on her fourth claim of error.
RECOMMENDATION
It is recommended that the District Court, after its independent review, affirm the decision of the ALJ. Pursuant to Federal Rule of Civil Procedure 72(b)(2), any party may serve and file written objections within fourteen days of being served with a copy of the Report and Recommendation. A party may respond to the other party's objections within fourteen days. No reply brief shall be filed on objections unless leave is granted by the District Court. If objections are not timely filed, they may be deemed waived.
If objections are filed, the parties should use the following case number: 4:21-cv-472-RM.