Opinion
23-cv-0125-AGS-VET
02-14-2024
ELIZABETH T.-J.,[1] Plaintiff, v. MARTIN O'MALLEY,[2] Defendant.
REPORT AND RECOMMENDATION ON JOINT MOTION FOR JUDICIAL REVIEW
[Doc. No. 21]
Honorable Valerie E. Tones United States Magistrate Judge
This Report and Recommendation is submitted to United States District Judge Andrew G. Schopler pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 72.1.c.
I. INTRODUCTION
Plaintiff Elizabeth T.-J. seeks review of the Commissioner of the Social Security Administration's (“Commissioner” or “Agency”) denial of her application for supplemental security income (“SSI”). Doc. No. 1. The parties filed a Joint Motion for Judicial Review, wherein Plaintiff requests the Court reverse the Agency's decision and the Commissioner requests the Court affirm the decision. Doc. No. 21 (“Joint Motion”). Having considered the parties' arguments, applicable law, and the record before it, and for the reasons discussed below, the Court RECOMMENDS that the District Court VACATE the Commissioner's decision and REMAND this matter for further proceedings.
II. BACKGROUND
A. Procedural History
Plaintiff first applied for SSI on June 24, 2013. AR 61.Following a hearing on April 14, 2015, Administrative Law Judge (“ALJ”) Eric Benham issued an unfavorable decision on September 24, 2015 (“2015 Decision”). AR 58, 61, 70. Plaintiff applied again for SSI on November 12, 2015. AR 80. Following a May 7, 2018 hearing, ALJ Mark Greenberg issued an unfavorable decision on July 16, 2018 (“2018 Decision”). AR 77, 80, 89. The record does not reflect that Plaintiff sought new hearings in connection with the 2015 and 2018 Decisions.
“AR” refers to the Administrative Record lodged on April 24, 2023. Doc. No. 13. The Court's AR citations use the pagination on the original document rather than the page numbers generated by the Court's case management/electronic case filing system.
On March 16, 2021, Plaintiff filed the instant application for supplemental security income, alleging disability commencing on March 1, 2021. AR 15, 115. After her application was denied initially and on reconsideration, Plaintiff requested a hearing before an ALJ. AR 15, 112, 129, 155. ALJ Kevin Messer held a hearing on April 8, 2022 and issued an unfavorable decision on May 11, 2022 (“2022 Decision”), concluding that Plaintiff was not disabled within the meaning of the Social Security Act. AR 12-31. The Appeals Council denied review on December 5, 2022. AR 1-6. On January 24, 2023, Plaintiff initiated this action seeking judicial review of ALJ Messer's 2022 decision. Doc. No. 1.
B. Summary of ALJ Messer's Decision
ALJ Messer followed the Agency's five-step sequential evaluation process to determine whether Plaintiff is disabled. See 20 C.F.R. § 404.1520(a)(4). At step one, ALJ Messer determined that Plaintiff had “not engaged in substantial gainful activity since March 16, 2021,” the application date. AR 17. At step two, ALJ Messer found that Plaintiff had the following severe impairments: degenerative disc disease of the lumbar spine, leftsided sciatica, and history of carpal tunnel syndrome, status post release. AR 18. These impairments significantly limited Plaintiff's ability to perform basic work activities. Id. At step three, ALJ Messer concluded that Plaintiff did not have an impairment or combination of impairments that met or was medically equivalent to those in the Commissioner's Listing of Impairments. Id. Following a review of the medical evidence, ALJ Messer further determined that Plaintiff had the residual functional capacity (“RFC”) to perform light work except she could do the following: (i) occasionally climb ladders, ropes, scaffolds, ramps, and stairs; (ii) occasionally balance, stoop, kneel, crouch, and crawl; and (iii) frequently hand and finger with the bilateral upper extremities. AR 19-24. At step four, ALJ Messer further concluded that Plaintiff could perform past relevant work as a deli cutter, which did not require the performance of work-related activities precluded by her RFC. AR 24. At step five, ALJ Messer alternatively found that Plaintiff could make a successful adjustment to other work that exists in significant numbers in the national economy. AR 24-25. ALJ Messer concluded that Plaintiff was not under a disability, as defined by the Act. AR 26.
Because the Agency previously denied Plaintiff's applications for supplemental security income in 2015 and 2018, ALJ Messer also discussed the presumption of nondisability applicable to the adjudication period following the period adjudicated in a prior decision. AR 15. ALJ Messer found the presumption rebutted based on Plaintiff's change in age category and a change in criteria for determining disability. Id. As a result, ALJ Messer did not “adopt the finding of the September 24, 2015, and July 16, 2018, decisions, concerning the claimant's residual functional capacity.” Id.
C. ALJ Messer's Reliance on Disability Determinations by Drs. Amado and Subin
In determining Plaintiff's RFC, ALJ Messer relied, in part, on the disability determinations of two consulting doctors: Dr. M. Amado and Dr. D. Subin. AR 23-24.
Dr. Amado conducted an initial disability determination, dated July 1, 2021, that included an analysis of available evidence and an assessment of Plaintiff's RFC. AR 94113. In the Disability Determination Explanation, Dr. Amado referenced both the 2015 and 2018 Decisions and specifically discussed the findings of the 2018 Decision in the “Findings of Fact and Analysis of Evidence.” AR 101-102. Dr. Amado agreed there was “no material change since [sic] unfavorable ALJ decision” and “adopted” the decision “per policy guidance.” AR 102. In conducting the physical RFC assessment, Dr. Amado in three separate instances also “adopted [the] unfavorable ALJ decision” when expressly asked to explain the exertional, postural, and manipulative limitations he identified for Plaintiff and “how and why the evidence supports [his] conclusions.” See AR 106-108. In assessing past relevant work, Dr. Amado further concluded that Plaintiff could not perform past work, and in explaining why, Dr. Amado stated as follows: “Adopted ALJ decision of Light RFC; Per ALJ; The vocational expert testified the demands of the clmt's [sic] past relevant work exceed the RFC.” AR 109. Dr. Amado ultimately concluded that Plaintiff was “not disabled.” AR 111.
On reconsideration, Dr. Subin reached the same conclusion in his disability determination, dated September 16, 2021. AR 128. He also repeatedly adopted the prior “unfavorable ALJ decision.” First, in his “Findings of Fact and Analysis of Evidence,” Dr. Subin concluded as follows: “I agree w/previous ALJ decision light RFC.” AR 121. Moreover, in his medical evaluation, without any meaningful analysis, Dr. Subin twice stated that he agreed with the “previous ALJ decision light,” stating that “these findings complete the medical portion of the disability determination.” AR 121. And like Dr. Amado's analysis, Dr. Subin expressly adopted the “unfavorable ALJ decision” when explaining the bases supporting his RFC assessment. See AR 125. Finally, in explaining why Plaintiff could not perform past jobs, Dr. Subin stated: “ADOPTED ALJ DECISION OF LIGHT RFC; PER ALJ, the vocational expert testified the demands of the Clmnt's [sic] PRW exceeds the RFC.” AR 127 (emphasis in original).
ALJ Messer considered the “findings” of both Drs. Amado and Subin. AR 23. He determined that their finding that Plaintiff was “unable to perform forceful gripping or torquing [was] more restricting than the record supports.” AR 24. Nevertheless, ALJ Messer concluded that the “remainder of their opinions were generally consistent with and supported by the record as a whole.” Id. Accordingly, he found “their opinions partially persuasive.” Id.
III. STANDARD OF REVIEW
A court may set aside the Social Security Administration's denial of benefits only when “the ALJ's findings are based on legal error or are not supported by substantial evidence in the record.” Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 2016); see 42 U.S.C. § 405(g). Substantial evidence is “such 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. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). The Court may affirm an erroneous decision if the error was harmless, meaning that it “was inconsequential to the ultimate nondisability determination.” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006).
IV. DISCUSSION
On appeal, Plaintiff argues that ALJ Messer's reliance on the assessments of Drs. Amado and Subin violates the Appointments Clause because each was “predicated” on the decisions of unconstitutionally appointed ALJs. Joint Motion at 5-6. Plaintiff also faults ALJ Messer for “fail[ing] to provide specific and germane reasons for rejecting” her husband's testimony, who generally corroborated Plaintiff's testimony concerning the severity of her impairments. Id. at 12-13; see also AR 308-15. For the reasons discussed below, this Court concludes that ALJ Messer's 2022 Decision was tainted by Appointment Clause violations.
A. Constitutional Challenge to ALJ Messer's 2022 Decision
1. Applicable Law
The Appointments Clause requires that the President, a court of law, or a head of an executive department appoint “Officers of the United States.” U.S. Const. art. II, §2, cl. 2. In Lucia v. SEC, the Supreme Court held that Securities and Exchange Commission ALJs are “Officers of the United States,” and thus subject to the requirements of the Appointments Clause. 138 S.Ct. 2044, 2049 (2018). Consequently, because SEC staff and not the SEC Commissioner appointed the ALJ at issue in Lucia, the ALJ was not properly appointed. Id. at 2051, 2055.
The Lucia court also “established remedies with bite for Appointments Clause violations.” Cody v. Kijakazi, 48 F.4th 956, 960 (9th Cir. 2022). To cure an “adjudication tainted with an appointments violation,” Lucia requires a new hearing before a different and properly appointed ALJ. Lucia, 138 S.Ct. at 2055. Such a remedy advances two purposes. It reinforces the structural purposes of the Appointments Clause and creates incentives for claimants to raise Appointment Clause challenges. Id. at 2055, n.5.
In response to Lucia, on July 16, 2018, “the Acting Commissioner of Social Security ratified the appointments” of the Agency's ALJs and “approved those appointments as her own,” curing any constitutional defects affecting the Agency's ALJs. 84 Fed.Reg. 9582, 9583 (March 15, 2019). Thereafter, the Ninth Circuit confirmed that social security “claimants are entitled to relief from any adjudication tainted with an appointments violation.” Cody, 48 F.4th at 962. In Cody, the court addressed whether an ALJ appointed in violation of the Appointments Clause could continue to decide a case after being ratified by a constitutionally authorized official. Id. at 958. Guided by Lucia, the court concluded that the ALJ's pre-ratification decision tainted her post-ratification decision and remanded the matter for a new hearing before a new ALJ. Id. at 962. The court reasoned that requiring a remand and new hearing supported the remedial aims set forth in Lucia. Id. The remedy promoted “the structural purposes of the Appointments Clause by ensuring only a properly appointed Officer [took] part in deciding Cody's case.” Id. Further, without a remand, the court reasoned that “claimants like Cody would see little benefit in defending the constitutional requirement.” Id. Accordingly, the Cody court held that social security claimants “are entitled to an independent decision issued by a different ALJ if a timely challenged ALJ decision is ‘tainted' by a pre-ratification ALJ decision.” Id. at 963.
2. Analysis
Here, the parties do not dispute that ALJ Benham was unconstitutionally appointed when he conducted a hearing on Plaintiff's 2013 application and issued the 2015 Decision. There is also no real dispute that ALJ Greenberg was unconstitutionally appointed during the hearing on Plaintiff's 2015 application on May 7, 2018, although his appointment was ratified the same day he issued the 2018 Decision, i.e., July 16, 2018. Nevertheless, based on the principles announced in Lucia and Cody, ALJ Greenberg's subsequent ratification did not cure the appointments violation that existed while he adjudicated Plaintiff's claim, including at the time of hearing. Id. at 958 (ALJ appointed in violation of the Appointments Clause cannot continue to decide a case after appointment is ratified). Accordingly, the Court finds that both the 2015 and 2018 Decisions suffer from an Appointments Clause violation. The Court further finds that in relying, in part, on Drs. Amado and Subin's disability determinations, the prior ALJ decisions tainted ALJ Messer's adjudication of Plaintiff's 2021 application.
At the outset, the Court notes that ALJ Messer's appointment is not at issue- Plaintiff does not dispute that he was properly appointed when he adjudicated her application. Further, ALJ Messer expressly declined to adopt the RFC findings in the 2015 and 2018 Decisions. See AR 15. Also, in adjudicating Plaintiff's claim, ALJ Messer considered and evaluated new medical evidence not otherwise available or considered in the prior decisions. See, e.g., AR 20-23. The Commissioner relies on these facts, including that ALJ Messer adjudicated a new claim not at issue in the prior decisions, to argue that the instant case is factually distinguishable from Cody and other case law ordering remand. See Joint Motion at 7-8.
However, there is no dispute that ALJ Messer relied on the findings of Drs. Amado and Subin and found them at least “partially persuasive.” AR 23-24. And in arguing that ALJ Messer did not “fully endorse” their findings, the Commissioner fails to acknowledge that in their disability determinations, both doctors expressly “adopted” a prior unfavorable and constitutionally defective ALJ decision. And therein lies the problem. The instant case may not be identical to the facts in Cody, but the constitutional concerns expressed in Lucia and Cody are nevertheless the same.
The Court notes that Drs. Amado and Subin adopt a “prior” or “previous” unfavorable ALJ decision without specifying whether they are adopting the 2015 Decision or 2018 Decision. Because both decisions suffer from an Appointments Clause violation, the lack of specification does not impact the Court's analysis.
By adopting a prior ALJ decision, Drs. Amado and Subin introduced constitutional error into their respective analyses. While each had the opportunity to evaluate new medical evidence and make “fresh” disability determinations, both nevertheless expressly and repeatedly adopted the “prior ALJ decision” rather than reach conclusions and findings independent of that decision. In turn, ALJ Messer relied on their findings and conclusions, at least in part, and, in doing so, indirectly relied on the prior ALJ decision. As a result, ALJ Messer's 2022 Decision is tainted by an Appointments Clause violation.
Furthermore, several courts evaluating challenges outside the fact pattern in Cody similarly conclude that remand is required. For instance, in Noriega v. Comm'r of Soc. Sec. Admin., 657 F.Supp.3d 1219, 1226 (D. Ariz. 2023), the court considered whether a different and constitutionally appointed ALJ could rely on a 2017 decision issued by an unconstitutionally appointed ALJ. Because the new ALJ relied on the “improper and unconstitutional 2017 decision in finding a continuing presumption of non-disability,” the Noriega court concluded that the subsequent 2021 decision was “clearly tainted by the 2017 Appointments Clause violation pursuant to Cody.” Id. at 1226. The court vacated and remanded with instructions that the Commissioner assign the case to a new ALJ to adjudicate the case de novo. Id. at 1227.
Similarly, in Jennifer H. v. Comm'r of Soc. Sec., the plaintiff received a hearing before a new ALJ, but the new ALJ's decision repeated, in some instances verbatim, much of the analysis of a prior invalid decision. No. 2:22-CV-1845-DWC, 2023 U.S. Dist. LEXIS 182250, *7-8 (W.D. Wash. Oct. 10, 2023). Accordingly, the court found that the new ALJ decision did not give plaintiff the “fresh look” required by Cody. Id. at *5-7 (“If a new ALJ could rely entirely on-or even give deference to-the prior ALJ's analysis, afflicted claimants would not get the ‘remedy with bite' Cody purported to give them.”); but cf. Kimberly D. v. Comm'r of Soc. Sec., No. C22-5588-BAT, 2023 U.S. Dist. LEXIS 68541, *7-9 (W.D. Wash. April 19, 2023) (holding that despite similarities and identical language and analyses between a new and a prior ALJ decision, the plaintiff received the requisite new hearing and decision by a new and different ALJ). Notably, the Jennifer H. court rejected the proposition that consideration of new evidence could cure the taint caused by the prior unconstitutional decision. Id. at *10 (“Therefore, new evidence offered to a second ALJ cannot be enough to make that ALJ's decision ‘independent' of the first ALJ's decision.”).
In Mygual J. v. Kijakazi, the court considered whether an ALJ adjudicating a new application for benefits erroneously relied on a prior unappointed ALJ's decision from 2016 in assessing the plaintiff's disability. No. CV 22-7835-KK, 2023 U.S. Dist. LEXIS 208077, *6 (C.D. Cal. Nov. 17, 2023). The ALJ used the 2016 decision, which found that the plaintiff's mental impairments were not severe, as a “‘helpful comparison' of Plaintiff's mental functioning absent substance abuse.” Id. at *11-12. Using this comparison and the prior finding, the ALJ concluded that the plaintiff's impairments were not severe absent his substance use, and hence substance use was a contributing factor to his disability. Id. at *12. The Mygual court held that, contrary to the Commissioner's contention that the ALJ did not “defer” to the prior decision, the ALJ did in fact rely on the prior finding that the plaintiff's mental impairments were not severe. Id. As a result, the ALJ's adjudication was tainted by the 2016 decision and deprived the plaintiff from receiving an independent, fresh look of his disability claim. Id.
The same holds true here. ALJ Messer may have declined to adopt the prior RFC findings as the Commissioner notes, see AR 15, but he nevertheless relied on disability determinations that expressly and unambiguously “adopted” those “prior” ALJ decisions, see, e.g., AR 102, 106-109, 121, 125, 127. Further, while ALJ Messer also analyzed and relied on new medical evidence, the Court agrees with the analysis of Jennifer H., namely that “no amount of new evidence can cure the ‘taint' of the old evidence's assessment having been done by a politically unaccountable officer.” Jennifer H., 2023 U.S. Dist. LEXIS 182250, *10.
Moreover, Cody confirms that “[t]he Appointments Clause is a key component of the Constitution's structural design,” thus an Appointments Clause violation is “no mere technicality or quaint formality-it weakens our constitutional design.” Cody, 48 F.4th at 960. As such, Cody's requirement of an independent decision is not trivial, and this Court cannot ignore the constitutional error introduced into ALJ Messer's adjudication via Drs. Amado and Subin's disability determinations. Because Plaintiff did not receive what Cody requires-“an adjudication untainted by an Appointment Clause violation”-the Commissioner's final decision must be vacated and remanded for another ALJ to hold a new hearing and adjudicate Plaintiff's 2021 application without relying, directly or indirectly, on the 2015 and 2018 Decisions. See id. at 962.
As this issue requires remand and reassignment, the Court declines to address the remaining issue raised by Plaintiff, namely whether ALJ Messer failed to articulate reasons for rejecting her husband's testimony. Cody, 48 F.4th at 958, n.1 (“Because we vacate and remand for a new hearing based on an Appointments Clause violation, we do not address Cody's challenge to the merits of the ALJ decision.”).
V. CONCLUSION
Based on the foregoing, the Court RECOMMENDS that the Commissioner's final decision be VACATED and the case be REMANDED for further administrative proceedings. On remand, the Court further recommends that the Commissioner assign a different ALJ to rehear and adjudicate Plaintiff's current application de novo.
IT IS HEREBY ORDERED that any written objection to this report must be filed with the Court and served on all parties no later than February 28, 2024 . The document should be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 13, 2024 . The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal. See Martinez v. Ylst, 951 F.2d 1153, 1156 (9th Cir. 1991).
IT IS SO ORDERED.