Opinion
Civil Action 3:21-CV-01782
10-07-2022
CYNTHIA REDDICK, Plaintiff, v. KILOLO KIZAKAZI, Defendant.
MARIANI, J.
REPORT AND RECOMMENDATION
KAROLINE MEHALCHICK, CHIEF UNITED STATES MAGISTRATE JUDGE
Plaintiff Cynthia Reddick (“Reddick”) brings this action pursuant to the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference), for judicial review of the final decision of the Commissioner of Social Security (the “Commissioner”) denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. (Doc. 1). For the following reasons, it is respectfully recommended that the Commissioner's decision be AFFIRMED.
I. Background and Procedural History
On August 1, 2019, Reddick protectively filed applications for Title II disability insurance benefits and Title XVI supplemental security income, claiming disability beginning October 30, 2018. (Doc. 14-7, at 4). The Social Security Administration (“SSA”) initially denied both applications on December 14, 2019, and upon reconsideration on August 18, 2020. (Doc. 14-2, at 16). On August 25, 2020, Reddick filed a request for a hearing, which Administrative Law Judge (“ALJ”) Randy Riley held on November 24, 2020. (Doc. 14-2, at 37). In a written opinion dated December 9, 2020, the ALJ determined that Reddick “has not been under a disability, as defined in the Social Security Act from October 20, 2018 through the date of this decision,” and therefore not entitled to benefits under Titles II or XVI. (Doc. 14-2, at 32). On August 19, 2021, the Appeals Council denied Reddick's request for review. (Doc. 14-2, at 2).
On October 18, 2021, Reddick filed the instant complaint. (Doc. 1). The Commissioner responded on January 12, 2022, providing an answer and the requisite transcripts from Reddick's disability proceedings. (Doc. 13; Doc. 14). The parties then filed their respective briefs, with Reddick raising two bases for reversal or remand. (Doc. 15; Doc. 20; Doc. 23).
II. Standards of Review
To receive benefits under Titles II or XVI of the Social Security Act, a claimant must demonstrate an “inability 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.”Additionally, to be eligible to receive benefits under Title II of the Social Security Act, a claimant must be insured for disability insurance benefits. 42 U.S.C. § 423(a)(1)(a); 20 C.F.R. § 404.131.
A “physical or mental impairment” is defined as an impairment resulting from “anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(d).
A. Administrative Review
In evaluating whether a claimant is disabled, the “Social Security Administration, working through ALJs, decides whether a claimant is disabled by following a now familiar five-step analysis.” Hess v. Comm'r Soc. Sec., 931 F.3d 198, 200-01 (3d Cir. 2019). The “burden of proof is on the claimant at all steps except step five, where the burden is on the Commissioner of Social Security.” Hess, 931 F.3d at 201; 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1). Thus, if the claimant establishes an inability to do past relevant work at step four, the burden shifts to the Commissioner at step five to show that jobs exist in significant numbers in the national economy that the claimant could perform consistent with his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1512(a)(1), 416.912(a)(1).
B. Judicial Review
The Court's review of a determination denying an application for benefits is limited “to considering whether the factual findings are supported by substantial evidence.” Katz v. Comm'r Soc. Sec., No. 19-1268, 2019 WL 6998150, at *1 (3d Cir. Dec. 20, 2019). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks omitted). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971).
A single piece of evidence is not substantial if the ALJ ignores countervailing evidence or fails to resolve a conflict created by such evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). In an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).
The question before the Court, therefore, is not whether Reddick was disabled, but whether the Commissioner's determination that Reddick was not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary). If “the ALJ's findings of fact . . . are supported by substantial evidence in the record,” the Court is bound by those findings. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
III. The ALJ's Decision
In his written decision, the ALJ determined that Reddick “has not been under a disability, as defined in the Social Security Act from October 30, 2018 through the date of this decision.” (Doc. 14-2, at 32). The ALJ reached this conclusion after proceeding through the five-step sequential analysis required by the Social Security Act. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). At the outset, the ALJ determined that Reddick meets the insured status requirements of the Social Security Act through September 30, 2023. (Doc. 142, at 18).
A. Step One
At step one of the five-step analysis, the ALJ must determine whether the claimant is engaging in substantial gainful activity (“SGA”). 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). If a claimant is engaging in SGA, the claimant is not disabled, regardless of age, education, or work experience. SGA is defined as work activity requiring significant physical or mental activity and resulting in pay or profit. 20 C.F.R. §§ 404.1520(b), 416.920(b). In making this determination, the ALJ must consider only the earnings of the claimant. 20 C.F.R. §§ 404.1574, 416.974. Here, the ALJ determined that Reddick “has not engaged in substantial gainful activity since October 30, 2018, the alleged onset date.” (Doc. 14-2, at 18). Thus, the ALJ's analysis proceeded to step two.
B. Step Two
At step two, the ALJ must determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the 12-month duration requirement. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the ALJ determines that the claimant does not have an impairment or combination of impairments that significantly limits his or her “physical or mental ability to do basic work activities,” the ALJ will find that the claimant does not have a severe impairment and is therefore not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c). If a claimant establishes a severe impairment or combination of impairments, the ALJ analysis continues to the third step. Here, the ALJ concluded that Reddick had the following severe impairments: degenerative disc disease of the lumbar spine, degenerative joint disease, systemic lupus erythematous, fibromyalgia, diabetes mellitus with neuropathy, obesity, depressive disorder and anxiety disorder. (Doc. 14-2, at 19). In addition, the ALJ determined that Reddick had the following non-severe impairments: hypertension and right lateral epicondylitis. (Doc. 14-2, at 19).
C. Step Three
At step three, the ALJ must determine whether an impairment or combination of impairments meets or equals the medical equivalent of an impairment listed in the version of 20 C.F.R. Part 404, Subpt. P, App. 1 that was in effect on the date of the ALJ's decision. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The sections in this appendix are commonly referred to as “listings.” If the ALJ determines that the claimant's impairments meet these listings, then the claimant is considered disabled. 20 C.F.R. §§ 404.1520(d), 416.920(d). The ALJ determined that none of Reddick's impairments, considered individually or in combination, meet or equal the severity of a listed impairment. (Doc. 14-2, at 19). The ALJ considered the listings under sections 1.02 (Major dysfunction of a joint), 1.04 (Disorders of the spine), 11.14 (Peripheral neuropathy), 12.04 (Depressive, bipolar and related disorders), 12.06 (Anxiety and obsessive-compulsive disorders), 14.02 (Systematic vasculitis), and 14.09 (Inflammatory arthritis). (Doc. 14-2, at 19-22).
D. Residual Functional Capacity
Between steps three and four, the ALJ determines the claimant's residual functional capacity (“RFC”), crafted upon consideration of the evidence presented. At this intermediate step, the ALJ considers “all [the claimant's] symptoms . . . and the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence.” 20 C.F.R. §§ 404.1529(a), 416.929(a). This involves a two-step inquiry where the ALJ must (1) determine whether an underlying medically determinable mental impairment or impairments could reasonably be expected to produce the claimant's symptoms and, if so, (2) evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functional limitations. See 20 C.F.R. §§ 404.1529(b)-(c), 416.929(b)-(c).
Here, the ALJ found that while Reddick's medically determinable impairments could reasonably be expected to cause her alleged symptoms, her statements concerning the intensity, persistence, and limiting effects of these symptoms were not entirely consistent with the medical evidence and other evidence in the record. (Doc. 14-2, at 22). The ALJ concluded that Reddick has the RFC “to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),” subject to the following non-exertional limitations:
[S]he is capable of frequent climbing of ramps and stairs, kneeling, crouching and crawling and occasional balancing and stooping, but never climbing of ladders, ropes or scaffolds. [Reddick] is capable of working at occupations that can be performed while using a cane to ambulate. [Reddick] must avoid exposure to extreme cold and heat, humidity, excessive vibration and hazards.
[Reddick] retains the mental capacity to perform simple, routine, repetitive tasks.(Doc. 14-2, at 22).
E. Step Four
Having assessed a claimant's RFC, step four requires the ALJ to determine whether the claimant has the RFC to perform the requirements of his or her past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). A finding that the claimant can still perform past relevant work requires a determination that the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Past relevant work is defined as work that the claimant has done within the past 15 years, that was substantial gainful activity, and that lasted long enough for the claimant to learn how to do it. 20 C.F.R. §§ 404.1560(b), 416.960(b). “If the claimant can perform his [or her] past relevant work despite his [or her] limitations, he [or she] is not disabled.” Hess, 931 F.3d at 202 (citing 20 C.F.R. § 404.1520(a)(4)(iv)); see also 20 C.F.R. § 416.920(a)(4)(iv). Here, the ALJ noted that Reddick has past relevant work as a fat food services manager, a medical secretary, and an accounts receivable clerk. (Doc. 14-2, at 30). The ALJ determined that through the date last insured, Reddick is unable to perform any past relevant work. (Doc. 14-2, at 30). Thus, the ALJ proceeded to step five of the sequential analysis.
F. Step Five
At step five of the sequential analysis process, the ALJ considers the claimant's age, education, and work experience to see if a claimant can make the adjustment to other work. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). These factors are not considered when evaluating a claimant's ability to perform past relevant work. 20 C.F.R. §§ 404.1560(b)(3), 416.960(b)(3). If a claimant can adjust to other work, he or she will not be considered disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). Here, the ALJ noted that Reddick was 48 years old, which is define as a younger individual age 18-49, on the alleged onset date, with at least a high school education. (Doc. 14-2, at 31). Considering Reddick's age, education, work experience, and RFC, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Reddick can perform. (Doc. 14-2, at 31). In making this determination, the ALJ relied on the expertise of the vocational expert, who testified that Reddick could perform the requirements of occupations such as a (1) marker; (2) information clerk; and (3) assembler, electrical accessories I, which are occupations with open positions ranging from 39,000 to 141,000 nationally. (Doc. 14-2, at 31). Accordingly, the ALJ determined that Reddick has not been under a disability during the relevant period and denied her application for benefits. (Doc. 14-2, at 32).
IV. Discussion
On appeal, Reddick advances two bases to argue that the decision of the ALJ is not supported by substantial evidence. (Doc. 15, at 1). First, Reddick argues the ALJ committed reversible and harmful error of law by failing to assess the effects of Reddick's obesity in combination with her other impairments when considering her RFC. (Doc. 15, at 4-6; Doc. 23, at 1-2). Second, Reddick contends the appointment of Andrew Saul as a single commissioner of the SSA, who is removable only for cause and serves a longer term than that of the President, violates separation of powers. (Doc. 15, at 8-12; Doc. 23, at 3-12). Thus, Reddick argues the decision of the ALJ and Appeals Counsel judges, who derived their authority from Andrew Saul, is constitutionally defective. (Doc. 15, at 8). In response, the Commissioner maintains that substantial evidence supports the ALJ's decision and that Reddick is not entitled to a remand for a new hearing because her separation of powers argument fails . (Doc. 20, at 2).
A. The ALJ appropriately accounted for Reddick's obesity at EVERY STEP OF THE SEQUENTIAL EVALUATION.
Reddick argues that the ALJ did not appropriately account for the impact that obesity may exert on Reddick's RFc and her ability to engage in light work. (Doc. 15, at 6). Reddick asserts the ALJ committed reversable error because he only briefly alluded to obesity in her RFC analysis, referring to Reddick's height and weight on December 19, 2019, and to “the absence of documentation indicating that [Reddick] met with a weight management or nutritional provider for assistance with obesity.'” (Doc. 15, at 5). Moreover, Reddick contends her “obesity, in combination with the severe [osteoarthritis (“OA”)] of her right hip, mild to moderate OA of her left hip, and DDD of her lumbar spine, could reasonably be expected to limit the amount of standing and walking she can perform, and limit hers ability to engage in the prolonged standing and walking required by the full range of light work.” (Doc. 15, at 8). In opposition, the Commissioner argues “the ALJ appropriately accounted for Reddick's obesity at every relevant step of his decision consistent with Social Security Ruling (SSR) 19-2p.” (Doc. 20, at 44). Further, the Commissioner asserts “[i]n addition to explicitly considering [Reddick]'s weight, the ALJ also considered, in detail, the entirety of the relevant medical evidence including examination findings and diagnostic imaging, in the context of her impairments and related functional limitations including those related to obesity.” (Doc. 20, at 45). In response, Reddick claims the ALJ failed to explicitly consider obesity and its impact in a meaningful way in connection with Reddick's musculoskeletal impairments. (Doc. 23, at 2).
Although obesity was removed as a “listed impairment” in 1999, the Court of Appeals for the Third Circuit has recognized that this removal “did not eliminate obesity as a cause of disability.” Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 503 (3d Cir. 2009) (citing SSR 00-3p, 65 Fed. Reg. 31039, 31040-42 (May 15, 2000)). Rather, the SSA promulgated SSR 00-3p, which was superseded by SSR 02-1p, indicating that obesity is to be considered “with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant ....” Diaz, 577 F.3d at 503.
In this regard, the leading case addressing the issue off the compounding effect of obesity upon disability claimants is Diaz, 577 F.3d 500. In Diaz, the ALJ found at Step 2 of the analytical process that Diaz's obesity was a severe impairment, but then neglected to address the exacerbating effect of this condition at Step 3 or in any other subsequent steps in the disability analysis. 577 F.3d at 502. On these facts, the Third Circuit remanded the case for further consideration by the Commissioner and provided guidance regarding the duty of articulation required from ALJs in this setting. Diaz, 577 F.3d at 504-05. Thus, the court explained that “an ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.” Diaz, 577 F.3d at 504. While imposing this responsibility of articulation upon ALJs, the appellate court did not endeavor to impose some strict formulaic requirements upon these administrative adjudicators. Diaz, 577 F.3d at 503-04. Quite the contrary, the court made it clear that “[t]he ALJ, of course, need not employ particular ‘magic' words: ‘[Case law] does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.'” Diaz, 577 F.3d at 504 (citations omitted).
The Third Circuit also clarified that its decision related to the ALJ's duty to adequately articulate the rationale underlying any decision denying benefits and did not in any way alter the very deferential substantive standard of review in these cases. Diaz, 577 F.3d at 504 n.3. As the Court noted,
Were there any discussion of the combined effect of [obesity upon] Diaz's impairments, we might agree with the District Court [and affirm the ALJ decision]. However, absent analysis of the cumulative impact of Diaz's obesity and other impairments on her functional capabilities, we are at a loss in our reviewing function.Diaz, 577 F.3d at 504 (emphasis in original).
By noting that “any discussion of the combined effect of [obesity upon] Diaz's impairments” would have been sufficient, the appellate court underscored the continuing vitality of the deferential standard of review that applies in these cases. Diaz, 577 F.3d at 504.
Thus, fairly construed, Diaz holds that where an ALJ has defined a claimant's obesity as a severe impairment at Step 2 of this analysis, there is a basic duty of articulation that is owed the claimant, explaining how that obesity affects the issue of disability. However, once that duty of articulation is met, the substantive standard of review remains highly deferential. Applying this analytical paradigm, following Diaz it has been held that a single cursory assurance that an ALJ has considered a claimant's obesity may be insufficient to satisfy the requirement that “an ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.” Diaz, 577 F.3d at 504; see also Sutherland v. Berryhill, No. 3:17-CV-00124, 2018 WL 2187795, at *9 (M.D. Pa. Mar. 6, 2018), report and recommendation adopted sub nom. Sutherland v. Berryhill, No. CV 3:17-0124, 2018 WL 2183359 (M.D. Pa. May 11, 2018). However, a statement by an ALJ in a decision denying benefits that the ALJ has “considered any additional and cumulative effects of obesity,” when coupled with even a brief factual analysis of the medical evidence as it relates to obesity and impairment is sufficient to satisfy this duty of articulation. Cooper v. Comm'r of Soc. Sec., 563 Fed.Appx. 904, 911 (3d Cir. 2014). Further, when an ALJ considers the role of a claimant's obesity, evaluating it within the context of the overall record, consistent with the appropriate guidelines, this duty is satisfied. Woodson v. Comm'r Soc. Sec., 661 Fed.Appx. 762, 765 (3d Cir. 2016). Finally, this responsibility is met when the ALJ explicitly considers the claimant's obesity when assessing that claimant's residual functional capacity. Hoyman v. Colvin, 606 Fed.Appx. 678, 680 (3d Cir. 2015). Medina v. Berryhill, No. 3:17-CV-1941, 2018 WL 3433290, at *6-7 (M.D. Pa. June 8, 2018), report and recommendation adopted, No. CV 3:17-1941, 2018 WL 3426408 (M.D. Pa. July 16, 2018).DeJesus v. Kijakazi, No. 1:20-CV-1632, 2022 WL 1133825, at *13 (M.D. Pa. Feb. 10, 2022), report and recommendation adopted, No. CV 1:20-1632, 2022 WL 808227 (M.D. Pa. Mar. 16, 2022).
In this setting, the Court is not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, the Court must ascertain whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of evidence,” Pierce, 487 U.S. at 565, but rather “means-and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). Judged against these deferential standards of review, the Court finds that substantial evidence supported the ALJ's decision that Reddick was not disabled.
Here, the ALJ assessed the severity of Reddick's symptoms in accordance with the regulations and found that Reddick's statements regarding the intensity and persistence of her symptoms were not entirely consistent with the objective medical evidence. (Doc. 14-2, at 23). At step two of the sequential evaluation, the ALJ found that Reddick's obesity was a severe impairment. (Doc. 14-2, at 19). Next, at step three, the ALJ considered Reddick's obesity when determining whether her impairments met or medically equaled a listed impairment. (Doc. 14-2, at 20). The ALJ explained that “[t]here is no listing for obesity. The severity of [Reddick]'s obesity does not increase the severity of [Reddick]'s coexisting impairments to the extent that the combination of impairments meets the requirements of a listing.” (Doc. 14-2, at 20).
Subsequently, between steps three and four, the ALJ assessed Reddick's RFC and specifically considered Reddick's obesity in the RFC determination. (Doc. 14-2, at 22). The ALJ noted that from October 25, 2018, to June 20, 2019, Reddick gained 6.3 kilograms dur to her granddaughter's baking. (Doc. 14-2, at 24). Then, the ALJ noted that Reddick, who is five (5) feet, three (3) inches tall, weighed 191 pounds on December 19, 2019. (Doc. 14-2, at 23). The ALJ explained that the objective medical evidence, such as findings of normal sensation in her feet, normal gait, and her failure to meet with a pain management provider or to undergo physical therapy as directed did not support the more severe limitations as alleged by Reddick. (Doc. 14-2, at 23-24). The ALJ stated “[t]here is no imaging showing progressive findings with regard to [Reddick]'s lumbar spine degenerative disc disease that previous imaging described as mild.” (Doc. 14-2, at 26). Moreover, the ALJ stated “[t]here is no documentation indicating that [Reddick] met with a weight management or nutritional provider for assistance with obesity or diabetes. The record does not document regular reports of symptoms that may be associated with diabetes such as dyspnea upon exertion, shortness of breath or pedal edema.” (Doc. 14-2, at 27).
In addition, the ALJ considered Reddick's activities of daily living and found that her “ability to perform less than a full range of light work consistent with the [RFC] assigned.” (Doc. 14-2, at 27). The ALJ recognized that Reddick was able to engage in daily activities on her own such as preparing meals, cleaning the kitchen, laundering clothes, washing dishes, managing her own finances, and leaves her home to shop and go to church. (Doc. 14-2, at 27). It is well-settled that an ALJ can, and often must, reply upon such factors when conducting a symptom evaluation analysis. See e.g., Zirnsak v. Colvin, 777 F.3d 607, 615 (3d Cir. 2014); Durden v. Colvin, 191 F.Supp.3d 429, 442 (M.D. Pa. 2016). Thus, there was no legal error in the ALJ's reliance upon these considerations when addressing the severity of Reddick's symptoms. Further, substantial evidence, that is, ““such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,” Biestek, 139 S.Ct. at 1154, supported the ALJ's symptom evaluation in this case because the ALJ's symptom evaluation analysis was careful, thorough, and detailed, and focused upon an array of clinical and opinion evidence derived from various medical sources.
Reddick contends that the ALJ failed to consider her obesity in combination with the severe osteoarthritis of her right hip, mild to moderate osteoarthritis of her left hip, and degenerative disc disease of her lumbar spine. (Doc. 15, at 8). However, The ALJ considered relevant medical evidence including examination findings and diagnostic imagine, in the context of Reddick's impairments and related functional limitations including those related to obesity. (Doc. 14-2, at 23-27). For example, the ALJ made note of Reddick's lumbar MRIs from 2015, pain complaints and referrals to pain management, x-rays from 2018 that revealed moderate osteoarthritis in the right hip and mild osteoarthritis in the left hip, a December 2019 rheumatology evaluation and February 2020 follow-up, and additional records up until the summer of 2020. (Doc. 14-2, at 23-27). Furthermore, it is clear from the ALJ's opinion that the RFC determination was based on the ALJ's assessment of the objective medical evidence and various medical opinions with which he was presented.
Under the new analytical paradigm prescribed by Social Security regulations, persuasiveness is the touchstone for any medical opinion evaluation. Further, it is well settled that “supportability . . . and consistency . . . are the most important factors [to] consider when [ ] determine[ing] how persuasive [to] find a medical source's medical opinions . . . to be.” 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2). In this context, supportability means that “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(1); 416.920c(c)(1). Consistency, in turn, is defined to mean that: “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” 20 C.F.R. §§ 404.1520c(c)(2); 416.920c(c)(1).
Here, the ALJ considered several medical opinions and assessed the persuasiveness of each opinion in accordance with the regulations. Specifically, the ALJ found that the opinion of John Gavazzi, Psy.D. (“Dr. Gavazzi”) persuasive, the opinion of Keven Hollick, D.O. (“Dr. Hollick”) partially persuasive, and the opinions of Nancy Graves, M.D. (“Dr. Graves”), Shirley Albano-Aluquin, M.D. (“Dr. Albano-Aluquin”), and Richard Small, Ph.D. (“Dr. Small”) not persuasive. (Doc. 14-2, at 27-30). The ALJ reasoned that the opinions he found unpersuasive were not consistent with the overall objective medical evidence, as well as the medical providers' own examinations. (Doc. 14-2, at 29-30). Further, the ALJ explained how and to what extent the opinions he found persuasive were consistent with the medical evidence. (Doc. 14-2, at 27-29). Specifically, in the context of addressing the medical opinions of Dr. Hollick and Dr. Albano-Aluquin, the ALJ reiterated that neither opinion contains “documentation indicating that [Reddick] met with a weight management or nutritional provider for assistance with obesity or diabetes and [Reddick]'s abilities to babysit and to assist in homeschooling of her grandchild and to waterski during the summer of 2020.” (Doc. 14-2, at 29-30). Accordingly, given that “[t]he ALJ - not treating or examining physicians or State agency consultants - must make the ultimate disability and RFC determinations,” in Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011), the undersigned finds that substantial evidence supports the ALJ's RFC determination.
As explained supra, when the ALJ considers the role of a claimant's obesity, evaluating it within the context of the overall record, consistent with the appropriate guidelines, the duty of articulation is satisfied. See Woodson, 661 Fed.Appx. at 765. Moreover, this responsibility is met when the ALJ explicitly considers the claimant's obesity when assessing that claimant's residual functional capacity. Hoyman, 606 Fed.Appx. at 680. Here, the ALJ noted that Reddick was obese, and that there were some findings in the medical record of weight gain. (Doc. 142, at 23). However, the ALJ concluded that “[t]here is no documentation indicating that the claimant met with a weight management or nutritional provider for assistance with obesity or diabetes. The record does not document regular reports of symptoms that may be associated with diabetes such as dyspnea upon exertion, shortness of breath or pedal edema.” (Doc. 142, at 27, 29). A statement by an ALJ that the ALJ has “considered any additional and cumulative effects of obesity,” when coupled with even a brief factual analysis of the medical evidence as it relates to obesity and impairment is sufficient to satisfy this duty of articulation. Cooper, 563 Fed.Appx. at 911. Therefore, the undersigned finds that the ALJ's duty of articulation has been met with respect to consideration of Reddick's obesity, and a remand is not warranted here.
To the extent Reddick asks the Court to re-weigh the record evidence or make new factual findings, the Court may not invade the ALJ's province as a finder of fact in disability proceedings, for “our inquiry is not whether an alternate conclusion would have been reached, but whether substantial evidence supported the ALJ's decision.” See Daub v. Colvin, No. 3:15-CV-1066, 2015 WL 8013037, at *9 (M.D. Pa Dec. 7, 2015). Finding that this deferential standard of review is met here, the undersigned concludes that a remand is not appropriate for the purpose of further assessing this opinion evidence or re-examining the ALJ's symptom evaluation in Reddick's case. DeJesus, 2022 WL 1133825, at *15-16 (affirming ALJ's denial of benefits where ALJ considered claimant's obesity and evaluated it within context of overall record).
Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, the undersigned finds that substantial evidence supported the ALJ's evaluation of Reddick's obesity and recommend that this decision be affirmed.
B. Reddick is not entitled to a de novo hearing of her disability CLAIM.
Next, Reddick argues that because the ALJ who adjudicated her claim, and/or Appeals Council members who considered her request for review, served under authority delegated from a Commissioner who enjoyed unconstitutional removal protection, the denial of her claim ipso facto violates the separation of powers. (Doc. 15, at 8; Doc. 23, at 8). First, Reddick argues the unfavorable decision by the ALJ and the Appeals Counsel was constitutionally defective because the social security Act provision that limits the President's authority to remove the Presidentially-appointed, senate-confirmed Commission of social security without good cause, 42 U.s.C. § 902(a)(3), violates the separation of powers. (Doc. 15, at 8; Doc. 23, at 3). Thus, Reddick contends she is entitled to a remand for a new hearing. (Doc. 15, at 8; Doc. 23, at 3). Second, Reddick challenges the service of Acting Commissioner Nancy Berryhill under the Federal Vacancies Reform Act (“FVRA”), 5 U.S.C. 3346(a). (Doc. 15, at 11; Doc. 23, at 8). In opposition, the Commissioner states “[e]ven if [Nancy] Berryhill was not validly serving as Acting Commissioner when she ratified the appointment of SSA ALJs, [Reddick] is not automatically entitled to a new hearing.” (Doc. 20, at 30). The Commissioner states “[t]he parties agree that 42 U.S.C. § 902(a)(3) violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause.” (Doc. 20, at 35) (citing Office of Legal Counsel, U.S. Dep't of Justice, Constitutionality of the Commissioner of Social Security's Tenure Protection, 2021 WL 2981542 (July 8, 2021) (“OLC Op.”)). However, the Commissioner argues that “without more, that conclusion does not support setting aside an unfavorable SSA disability benefits determination.” (Doc. 20, at 35). After consideration, the undersigned agrees with the rising tide of caselaw suggesting that there is no reversible error where a claimant has not shown a traceable injury linked to the unconstitutional removal clause. Accordingly, Reddick's argument is not a basis for a remand in this case.
In Seila Law LLC v. CFPB, 140 S.Ct. 2183 (2020), the Supreme Court held the Consumer Financial Protection Bureau's (“CFPB”) removal structure, which allowed for the CFPB director to be removed by the President only for “inefficiency, neglect of duty, or malfeasance of office,” 12 U.S.C. § 5491(c)(3), violated the separation of powers by insulating the director from removal by the President. Seila Law, 140 S.Ct. at 2197. The following year, in Collins v. Yellen, the Court held a provision limiting the President to remove the director of the Federal Housing Finance Agency (“FHFA”) only for cause violated the separation of powers. 141 S.Ct. 1761, 1783 (2021) (holding that “Seila Law is all but dispositive”). Applying the holdings in Seila Law and Collins here makes it clear that the provision for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the separation of powers. See Seila Law, 140 S.Ct. at 2197; Collins, 141 S.Ct. at 1783. The Commissioner, a single officer at the head of an administrative agency, is removable only for cause. See 42 U.S.C. § 902(a)(3). This statutory clause suffers from the same defect as the removal provisions at issue in Seila Law and Collins, and thus violates the separation of powers. See Seila Law, 140 S.Ct. at 2197; Collins, 141 S.Ct. at 1783; see also Office of Legal Counsel, Constitutionality of the Comm'r of Soc. Sec.'s Tenure Protection, 2021 WL 2981542, at *7.
However, unlike Appointments Clause defects, where the presiding official does not enjoy proper authority to occupy the office, see Lucia v. SEC, 138 S.Ct. 2044 (2018), agency action is not per se invalid simply because it can be traced back to an official subject to an unconstitutional removal protection. Rather, under Collins, where an agency official is properly appointed, there can be no claim that he “exercise[d] . . . power that [he] did not lawfully possess.” Collins, 141 S.Ct. at 1788, 1788 n. 23 (“the unlawfulness of [a] removal provision does not strip [an official] of the power to undertake the other responsibilities of his office”). Thus, “there is no reason to regard any of the actions taken” by officials with tenure protection during this period “as void.” Collins, 141 S.Ct. at 1787 (emphasis added); see also Collins, 141 S.Ct. at 1793 (Thomas, J., concurring) (where officials were properly appointed, there is “no barrier to them exercising power[.]”). Therefore, pursuant to Collins, actions taken by properly appointed officials are not void.
The undersigned also notes that in the recent Supreme Court decision in Carter v. Saul, 141 S.Ct. 1352 (2021). (Doc. 15, at 9), the Court resolved a Circuit split regarding the administrative exhaustion of an Appointments Clause challenge to the authority of an administrative law judge. The Court recognized its decision in Lucia v. SEC, 138 S.Ct. 2044 (2018), holding administrative law judges within the Securities and Exchange Commission had been unconstitutionally appointed in violation of the Appointments Clause. Carr, 141 S.Ct. at 1357. A violation of the Appointments Clause - not the separations of power clause -vacates the decision of an improperly appointed administrative law judge and requires a new review by a properly appointed adjudicator. Carr, 141 S.Ct. at 1357. The question for the Court in Carr is whether a claimant must raise an Appointment Clause challenge to an administrative law judge or the Appeals Council in a Social Security proceeding. The Court held there is no administrative exhaustion requirement to an Appointments Clause challenge. Carr, 141 S.Ct. at 1358-62.
Reddick's first constitutionality argument is that the ALJ's decision is void because Commissioner Saul, who appointed the ALJ, was not properly appointed due to the unconstitutional removal statute. (Doc. 15, at 8; Doc. 23, at 3). However, “the removal provision does not render the Commissioner's appointment invalid and thus, does not automatically void the ALJ's actions under the Commissioner.” Stamm v. Kijakazi, No. 3:20-cv-02273, 2021 WL 6197749, at *6 (M.D. Pa. Dec. 31, 2021) (citing Collins, 141 S.Ct. at 1787-88). In Collins, the Court found the defective removal procedure did not render the FHFA's actions void from the outset. 141 S.Ct. at 1787 (“Although the statute unconstitutionally limited the President's authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA [challenged on appeal] as void.”). Here, the ALJ who denied Reddick's disability claim “held office under an appointment ratified in July 2018 by then-Acting Commissioner Nancy Berryhill who, unlike a Presidentially appointed, Senate-confirmed Commissioner, enjoyed no statutory tenure protection,” pursuant to Section 902(a)(3). (Doc. 20, at 37 n.13). Rather, the ALJ was appointed by an Acting Commissioner of Social Security whom the President could remove at any time. (Doc. 20, at 37 n.13). Because an Acting Commissioner does not have the same removal restriction as the Commissioner and because the ALJ was properly appointed, Reddick's argument is not persuasive in this case. See Collins, 141 S.Ct. at 1781 (because removal restrictions of the FHFA applied only to the Director, “any constitutional defect in the provision restricting the removal of a confirmed Director would not have harmed [the plaintiffs], and they would not be entitled to any relief” by actions of an Acting Director who enjoyed no such protections); see also Boger v. Kijakazi, No. 1:20-CV-00331, 2021 WL 5023141, at *3 n.4 (W.D. N.C. Oct. 28, 2021) (finding that “Plaintiff's constitutional ‘removal restriction' argument is likely not even applicable to this case because ALJ Howard was appointed by an Acting Commissioner of Social Security who could be removed from that office at the President's discretion.”).
Other courts determining the issue of traceability for purposes of jurisdiction have disagreed with this position as it relates to the SSA. See Dante v. Saul, No. 20-CV-0702, 2021 WL 2936576, at *8 (D.N.M. July 13, 2021) (finding that “the plain language of § 902(a) suggests that the Presidential removal restrictions may apply not only to a Senate-confirmed Commissioner, but also to any individual serving in the office of Commissioner, including an Acting Commissioner”), but see Collins, 141 S.Ct. at 1783 (noting that “we generally presume that the President holds the power to remove at will executive officers and that a statute must contain ‘plain language to take [that power] away'” when discussing whether an acting director is a confirmed director) (quoting Shurtleff v. U.S., 189 U.S. 311, 316 (1903)).
Second, Reddick has not demonstrated that the unconstitutionality of 42 U.S.C. § 903(a)(3) inflicted compensable harm. See Boger, 2021 WL 5023141, at *3 (finding that the ALJ's decision was not constitutionally defective where “Plaintiff simply argues that all actions taken by the Commissioner - and in turn his appointed ALJ's - are void due to the unconstitutional removal provision[,]” but “offers no evidence to show that there is a nexus between the unconstitutional removal restriction and the denial of his application for disability benefits”); see also Robinson v. Kijakazi, No. 1:20-CV-00358, 2021 WL 4998397, at *3 (W.D. N.C. Oct. 27, 2021) (same); Amanda B. v. Comm'r of Soc. Sec., No. 3:20-CV-00434, 2021 WL 4993944, at *9-10 (D. Or. Oct. 26, 2021) (concluding that “the authorities cited by Plaintiff in her supplemental briefing do not affect the disposition of this matter” where plaintiff “does not allege ‘the SSA Commissioner took any action that is in any way related to the ALJ's decision' or the decision by the Appeals Council.”).
In Collins, the Court found it was “possible for an unconstitutional provision to inflict compensable harm,” and remanded to the lower court to determine whether the removal provision “inflicted harm.” 141 S.Ct. at 1788-89. In that case, the action challenged by the plaintiffs was the directors' adoption and implementation of an amendment (the “Third Amendment”) to certain financial agreements that “materially changed the nature of the agreements” and resulted in the companies in which plaintiffs were shareholders transferring to the U.S. Treasury “at least $124 billion dollars more than the companies would have had to pay” under the prior form of the agreements. Collins, 141 S.Ct. at 1774. The Third Amendment was not subject to full judicial review and the Supreme Court thus found that fact-finding by the lower courts was required in order to determine whether plaintiffs suffered harm directly as a result of the FHFA director's unconstitutional tenure protection. Collins, 141 S.Ct. at 1785, 1789. Relief is available in removal challenges only where officials subject to the challenged removal restrictions cause the alleged injuries, and where those restrictions themselves caused “compensable harm” upon plaintiffs. Collins, 141 S.Ct. at 1789.
Following Collins, many courts in this circuit have found that Social Security plaintiffs do not have standing to make a separation of powers challenge because they cannot show a nexus between the unconstitutional removal provision and some compensable harm. See e.g., Jones v. Kijakazi, No. 20-CV-1074, 2022 WL 1016610, at *12 (D. Del. April 5, 2022) (“Plaintiff does not articulate how the President's inability to remove the Commissioner without cause affected the ALJ's disability determination in this case”); Adams v. Kijakazi, No. 20-CV-3591, 2022 WL 767806, at * 11 (E.D. Pa. Mar. 14, 2022) (“Plaintiff has failed to establish any nexus between the removal restriction and the denial of her application for benefits”); Kowalski v. Kijakazi, No. 3:20-CV-01783, 2022 WL 526094, at *11 (M.D. Pa. Feb. 22, 2022) (“There is no allegation suggesting a direct nexus between the adjudication of Kowalski's disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner”); Mor v. Kijakazi, No. CV 21-1730, 2022 WL 73510, at *5 (D.N.J. Jan. 7, 2022) (“Plaintiff fails to point to any connection between the Commissioner's removal under Section 902(a)(3) and the ALJ's decision (or any other action in this case). As a result, the requisite nexus is not met”).
In this case, the action challenged by Reddick is the ALJ's decision to deny benefits. (Doc. 15, at 8; Doc. 23, at 10). Reddick has alleged no direct action by former Commissioner Andrew Saul and no involvement-or even awareness-by the former President in the ALJ's decision. Cf. Collins, 141 S.Ct. at 1802 (Kagan, J. concurring) (“[G]iven the majority's remedial analysis, I doubt the mass of SSA decisions-which would not concern the President at all-would need to be undone. When an agency decision would not capture a President's attention, his removal authority could not make a difference.”). Reddick cannot show how the President's supposed inability to remove the Commissioner without cause might have affected any ALJ's disability benefits decision, much less the decision on her specific claim. As the Commissioner points out in the brief in opposition, holding Reddick to a lower bar would provide her an “unwarranted remedial windfall,” in which many thousands of other disappointed claimants could receive the same relief. (Doc. 20, at 41). Further, Reddick has made no clear allegation that Commissioner Saul's unconstitutional tenure resulted in compensable harm to her. The ALJ's decision was based upon an uncontested factual record and the application of established law, including case law, which generally cannot be changed by the Commissioner. (Doc. 14-2, at 16-32). There is no allegation suggesting a direct nexus between the adjudication of Reddick's disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner. Reddick's allegations merely express general dissatisfaction with the outcome of the adjudication of her disability claim.
Lastly, as the Commissioner notes, several constitutional remedial doctrines support the denial of Reddick's request for a rehearing. (Doc. 20, at 42). The harmless error doctrine dictates that retrospective relief is only appropriate where a statutory provision that violates the Constitution caused the plaintiff some harm. (Doc. 20, at 43). Here, because Reddick cannot show that the Commissioner's tenure protection affected the ALJ's decision on her claim, her request for rehearing is denied. Next, “[t]he de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and see ks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.” Ryder v. United States, 515 U.S. 177, 180 (1995). Here, however, the Commissioner's appointment and the appointment of the presiding ALJ were entirely proper. To hold otherwise would risk unwinding untold thousands of disability determinations, endangering the efficient and orderly adjudication of benefits by the Social Security Administration and harming the interests of those whose disability claims have yet to be adjudicated-precisely the type of “chaos” the de facto officer doctrine was designed to prevent. Collins, 141 S.Ct. at 1802 (Kagan, J., concurring). Third, the rule of necessity states that a judge must exercise adjudicatory responsibility over a matter, notwithstanding some defect in his or her title or authority, where all other judges share the same defect. See Philadelphia v. Fox, 64 Pa. 169, 185 (Pa. 1870). Here, it could not have been an error for the deciding ALJ to hear Reddick's disability claim. If the Commissioner's tenure protection somehow filters down to affect one ALJ within the entire Social Security Administration, it affects all such ALJs. To hold that the assigned ALJ should have declined to adjudicate Reddick's claim for that reason would have meant that all other ALJs must decline to adjudicate as well for the same reason. Such widespread action would have left Reddick without a forum to adjudicate her claim and it would have denied her even the opportunity to qualify for benefits.
In the instant case, Reddick simply contends that she was not afforded a valid administrative adjudicatory process because the removal structure for the Commissioner of SSA is unconstitutional. (Doc. 15, at 11; Doc. 23, at 11). However, as recent caselaw illustrates, much more is needed than a generalized assertion that the unconstitutionality of the removal clause requires a remand. Rather, Reddick must show that the removal structure itself caused her harm. Reddick has not alleged any connection between the unconstitutional limit on the Commissioner of Social Security's removal and the ALJ's decision denying her benefits. See Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1138 (9th Cir. 2021) (“[T]here is no link between the ALJ's decision awarding benefits and the allegedly unconstitutional removal provisions. And nothing commands us to vacate the decisions below on that ground.”). Thus, while the removal clause in § 902(a)(3) violates the separation of powers, it does not independently require the Court to reverse the ALJ's decision absent a showing of compensable harm. Therefore, Reddick's first argument fails.
Reddick's second constitutionality argument is that the regulations under which the case was decided were unconstitutionally promulgated by Commissioner Saul because he was not properly appointed, due to 42 U.S.C. § 902(a)(3), and therefore did not have the power to promulgate them. (Doc. 15, at 9). As noted supra, Commissioner Saul was properly appointed such that he had “the authority to carry out the functions of the office.” Collins, 141 S.Ct. at 1788. Therefore, this inquiry turns on whether promulgating regulations was a function of the office of Commissioner of Social Security. It was. 42 U.S.C. § 902(a)(4)-(5) provides “[t]he Commissioner may prescribe such rules and regulations as the Commissioner determines necessary or appropriate to carry out the functions of the Administration.” 42 U.S.C. § 902(a)(4)-(5). Therefore, Reddick's second argument is rejected.
Reddick's third constitutionality argument is that this case must be remanded to a newly, properly appointed ALJ for a de novo hearing on the grounds that Berryhill's service as Acting Commissioner after November 17, 2017, violates the FVRA and, therefore, that appointment of SSA's ALJs and Appeals Council judges are void. (Doc. 15, at 11; Doc. 23, at 8). In support of her argument that all of the actions as Acting Commissioner taken by Berryhill after November 16, 2017, were unlawful, Reddick requests that the Court adopt the decision in Brian T.D. v. Kijakazi, 580 F.Supp.3d (D. Minn. Jan. 20, 2022). (Doc. 15, at 12; Doc. 23, at 8). In opposition, the Commissioner asserts that the Court should reject Reddick's argument because Brian T.D. is an outlier that conflicts with the plain text of the FVRA. (Doc. 20, at 20). The Commissioner argues Berryhill was able to lawfully ratify and approve the appointment of SSA ALJs because 5 U.S.C. § 3346(a)(2) “contains a ‘spring-back' provision that enabled Berryhill to resume her role as Acting Commissioner as of the date that Andrew Saul was nominated for Commissioner in April 2018.” (Doc. 20, at 22) (quoting Thomas S. v. Comm'r, No. C21-05213-MAT, 2022 WL 268844, at *3 (W.D. Wash. Jan. 28, 2022)).
Resolution of Reddick's third issue turns on interpretation of the FVRA, which:
provides a framework for temporarily filling vacancies in offices for which presidential appointment and Senate confirmation (“PAS”) is required. 5 U.S.C. § 3345 et seq. The operative provision of the FVRA, 5 U.S.C. § 3345, sets a default that if a PAS official “dies, resigns, or is otherwise unable to perform the functions and duties of the office,” then “the first assistant to the office of such officer shall perform the functions and duties of the office temporarily in an acting capacity subject to the time limitations of section 3346.” Id. § 3345(a)(1). Otherwise, “the President (and only the President)”
may fill vacant PAS offices on a temporary, acting basis with certain other federal officers. Id. § 3345(a)(2)- (a)(3).... The FVRA is the “exclusive means for temporarily authorizing an acting official to perform the functions and duties of any” PAS officer, unless another statute “expressly” creates an alternative mechanism for filling vacancies in a given agency. Id. § 3347. And violations of the FVRA have consequences: “An action taken by any person who is not acting” in compliance with the FVRA “in the performance of any function or duty of a vacant office to which” the FVRA applies “shall have no force and effect,” id. § 3348(d)(1), and any such action “may not be ratified,” id. § 3348(d)(2).
Northwest Immigrant Rts. Project v. United States Citizenship & Immigr. Servs., 496 F.Supp.3d 31, 53 (D.D.C. 2020), appeal dismissed, No. 20-5369, 2021 WL 161666 (D.C. Cir. Jan. 12, 2021).
Relevant the present issue, the FVRA prescribes time limits for acting service in 5 U.S.C. § 3346. 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.” 5 U.S.C. § 3346(a)(1)-(2). For vacancies existing during the first 60 days after a Presidential transition, the 210-day period runs from the later of 90 days after inauguration or 90 days after the date of the vacancy. 5 U.S.C. § 3349a(b). If a first nomination does not result in a confirmation, an acting official may serve for another 210 days, 5 U.S.C. § 3346(b)(1), and during the pendency of a second nomination, 5 U.S.C. § 3346(b)(2)(A). If the second nomination fails, then an acting official may serve for another 210 days. 5 U.S.C. § 3346(b)(2)(B). The FVRA also provides an enforcement provision 5 U.S.C. § 3348, which provides “[u]nless an officer or employee is performing the functions and duties in accordance with sections 3354, 3346, and 3347, . . . the office shall remain vacant [and] only the head of such Executive agency may perform any function or duty of such office.” 5 U.S.C. § 3348(b)(1)-(2).
In December 2016, President Barack Obama issued a memorandum providing an order of succession within the SSA that listed the Deputy Commissioner of Operations (“DCO”) as first in line to serve as Acting Commissioner in the case of vacancies in the positions of Commissioner and Deputy Commissioner. See “Memorandum Providing an Order of Succession Within the Social Security Administration,” 81 Fed. Reg. 96337, Following the GAO Notice, Berryhill stepped down as Acting Commissioner, but continued to lead the SSA as DCO. See Patterson v. Berryhill, No. 2:18CV193, 2018 WL 8367459, at *1 (W.D. Pa. June 14, 2018) (unpublished). On April 17, 2018, President Trump nominated Andrew Saul to the position of Commissioner of the SSA, an action which the SSA interpreted as permitting Berryhill to resume serving as Acting Commissioner as of that date under Section 3346(a)(2) of the FVRA, the so-called “springback” provision. See Reuter v. Saul, No. 19CV2053, 2020 WL 7222109, at *15 n.11 (N.D. Iowa May 29, 2020) (unpublished) (internal quotation marks omitted), recommendation adopted, 2020 WL 6161405 (N.D. Iowa Oct. 21, 2020) (unpublished).
The FVRA added 90 days to the 210-day time limit for Berryhill to serve, because the Commissioner of SSA's vacancy began on President Trump's “transitional inauguration day” (January 20, 2017). 5 U.S.C. § 3349a(b)(1). Thus, November 16, 2017, constituted the 300th day after the January 20th inauguration.
On June 21, 2018, the United States Supreme Court issued Lucia, which held, based on its prior case Because the SEC ALJ who decided the plaintiff's case lacked “the kind of appointment the [Appointments] Clause requires,” i.e., appointment by the “President alone,” “the Courts of Law,” or “the Heads of Departments,” U.S. Const. art. II, § 2, cl. 2, the Supreme Court “held that the appropriate remedy for an adjudication tainted with an appointments violation [wa]s a new hearing before a [different,] properly appointed official.” Lucia, 138 S.Ct. at 2055 (internal quotation marks omitted).
The Appointments Clause provides as follows:
[The President of the United States] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.U.S. Const. art. II, § 2, cl. 2.
Although “[Lucia] did not specifically address the constitutional status of ALJs who work in ... the [SSA, t]o address any Appointments Clause questions involving Social Security claims, and consistent with guidance from the [DOJ], on July 16, 2018[,] Berryhill ratified the appointments of [the SSA's] ALJs and approved those appointments as her own.” Social Security Ruling 19-1p, Titles II and XVI: Effect of the Decision in Lucia v. Securities and Exchange Commission (SEC) on Cases Pending at the Appeals Council, 2019 WL 1324866, at *2 (Mar. 15, 2019) (“SSR 19-1p”). At the time Berryhill did so, she continued to use the title “Acting Commissioner of Social Security.”
As noted supra, Reddick relies primarily on the reasoning in Brian T.D. to support her argument that Berryhill's ratification of the ALJ in this case on July 16, 2018, was statutorily ineffective. (Doc. 15, at 12; Doc. 23, at 8). In Brian T.D., the court concluded that because Berryhill's initial 210-day acting service period lapsed before the submission of Saul's nomination in April 2018, Berryhill could not serve as Acting Commissioner during the pendency of Saul's nomination and thus could not lawfully ratify and approve the appointment of SSA ALJs as her own. 580 F.Supp.3d at 631-32.
Just as with any other question of statutory interpretation, the undersigned turns first to the FVRA and its text. See Rotkiske v. Klemm, 890 F.3d 422, 424-25 (3d Cir. 2018) (en banc), aff'd, 140 S.Ct. 355 (2019). First, the undersigned considers the statute's plain meaning. See Burton v. Schamp, 25 F.4th 198, 207 (3d Cir. 2022). “This statutory language is unambiguous: the FVRA applies only to functions and duties that a PAS officer alone is permitted by statute or regulation to perform. It does not apply to delegable functions and duties.” Arthrex, Inc. v. Smith & Nephew, Inc., 35 F.4th 1328, 1336 (Fed. Cir. 2022). For the following reasons, the undersigned declines to adopt the decision in Brian T.D. and concludes that Berryhill properly served as Acting Commissioner under the spring-back provision of Section 3346(a)(2) at the time she ratified the appointments of the SSA's ALJs on July 16, 2018.
In Brian T.D., the district court based its interpretation that 5 U.S.C. § 3346(a) precluded Berryhill from assuming a second term in office upon the submission of Saul's nomination on the following analysis of the meaning of the word “or”:
The word “or” modifies the entire provision that limits the acting officer to a period “no longer than” 210 days from the date the vacancy arose. Thus, when read with the entirety of subsection (a)(1) “or” serves to suspend that time limitation, not to create an entirely separate and distinct period of service. A person serving as an acting officer may do so “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,” during the pendency of that nomination. Id. § 3346(a) (emphasis added). The ordinary usage of the word “or” is disjunctive, indicating an alternative. United States v. Smith, 35 F.3d 344, 346 (8th Cir. 1994).Brian T.D. 580 F.Supp.3d 615.
The undersigned finds that the decision in Brian T.D. errs in its interpretation of the word “or” at 5 U.S.C. § 3346(a) as finding the two alternatives mutually exclusive. The FVRA provides:
(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.5 U.S.C. § 3346 (emphasis added).
As the Commissioner argues:
Section 3346(a) provides that an acting official who is serving under the FVRA may serve “for no longer than 210 days” from the date of the vacancy, “or,” 5 U.S.C. § 3346(a)(1) (emphasis added), “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,” id. § 3346(a)(2). By using the disjunctive “or,” the
FVRA provides for acting service during either or both of two periods: (1) for 210 days after the vacancy, or (2) during the pendency of a first or second nomination. And it provides a single trigger for permissible service during a first or second nomination's pendency: the submission of the nomination. Thus, under § 3346(a)(2)'s plain text, “once” Mr. Saul's “nomination for the office” of Commissioner “[wa]s submitted to the Senate,” Ms. Berryhill could serve “for the period that the nomination [wa]s pending in the Senate.” Id. § 3346(a)(2).
The use of “or” to mean either one or both of two options is routine. “The word ‘or' has an inclusive sense (A or B, or both) as well as an exclusive one (A or B, not both).” Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015). “ ‘The meaning of or is usually inclusive.' ” Tex. Std. Oil Co. v. Forest Oil Corp., No. 05-490, 2008 WL 11399510, at *4 (S.D. Tex. Jan. 3, 2008) (quoting Bryan A. Garner, Dictionary of Modern Legal Usage 624 (2d ed. 1995)). For example, if a server comes to a table and asks whether anyone would like “dessert or coffee,” no one would interpret that to preclude ordering both.(Doc. 20, at 20-21, 21 n.8).
Upon consideration of the plain text of Section 3346(a)(2), the undersigned is persuaded by the reasoning set forth in Brooks v. Kijakazi, 2022 WL 2834345 (M.D. N.C. July 30, 2022):
Here, the word “or” appears in a permissive sentence, i.e., “the person serving as an acting officer as described under section 3345 may serve in the office,” 5 U.S.C. § 3346(a) (emphasis added), without qualifiers such as “either” and “but not both,” see id. Accordingly, the Court should interpret the word “or” in Section 3346(a)(1) in its more common, inclusive sense to permit Berryhill, after serving as Acting Commissioner for 300 days following the vacancy under Section 3346(a)(1), to spring back into that role upon Saul's nomination to the Senate under Section 3346(a)(2). See N.L.R.B. v. Sw Gen., Inc., __ U.S. __, 137 S.Ct. 929, 939, 197 L.Ed.2d 263, (2017). . . Consistent with that view, the legislative history of the FVRA makes clear that Congress intended “or” in its inclusive sense, and that Section 3346(a)(2) constitutes a second, permissible period of service for Berryhill:
Under new section 3346(a)(2), and subject to section 3346(b), an acting officer may serve more than 150 days if a first or second nomination is submitted to the Senate, and may serve while that nomination is pending from the date the nomination is submitted. The 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.
S. Rep. 105-250, reporting on Senate Bill 2176, “Federal Vacancies Reform Act of 1998,” 1998 WL 404532, at *14 (July 15, 1998) (emphasis added). Notably, beyond the change from 150 days to 210 days, Section 3346 of Senate Bill 2176 contains the exact same language as Section 3346 of the FVRA. Compare S.2176, 105th Cong., § 3346, available at www.congress.gov/bill/105th-congress/senate-bill/2176/text, with 5 U.S.C. § 3346.Brooks, 2022 WL 2834345, at *20.
Cases interpreting the application of Section 3346(a)(2) have also concluded that Section 3346(a)(2) serves as a spring-back provision. Cases addressing Section 3346(a)(2) in the setting of a claim for benefits under the SSA have found it to provide Berryhill with the authority to spring back into her role as Acting Commissioner. See Williams v. Kijakazi, No. 1:21CV141, 2022 WL 2163008, at *3 (W.D. N.C. June 15, 2022) (unpublished) (characterizing holding in Brian T.D. as “an outlier that conflicts with the plain text of the FVRA, nearly every other court to address the issue, as well as the views of the Executive Branch and the Legislative Branch - all of which agree that § 3346(a)(2) permits an acting official serving under the FVRA to serve during the pendency of a first or second nomination even when that nomination was submitted after the initial 210-day period for acting service has expired”); Thomas S., 2022 WL 268844, at *3 (unpublished) (“The FVRA contains a ‘spring-back' provision that enabled Berryhill to resume her role as Acting Commissioner as of the date that [ ] Saul was nominated for Commissioner in April 2018.”); Reuter, 2020 WL 7222109, at *15 (unpublished) (“Berryhill actually held the title of Acting Commissioner of Social Security twice. She first assumed the role on January 21, 2017 .... Immediately following the GAO[ Notice], [ ] Berryhill stepped down from her role as Acting Commissioner and continued to lead the agency from her [DCO] position of record .... [H]owever, on April 17, 2018, the President nominated [ ] Saul to be the next Commissioner of Social Security .... The FVRA contains a ‘spring-back' provision that enabled Berryhill to resume her role as Acting Commissioner as of the date of [ ] Saul's nomination.”); Patterson, 2018 WL 8367459, at *1 (unpublished). (“The FVRA contains a ‘spring-back' provision that enabled Berryhill to resume her role as Acting Commissioner as of the date of [ ] Saul's nomination.”).
Finally, the DOJ has, since at least 1999, interpreted Section 3346(a)(2) of the FVRA to constitute a spring-back provision:
The [FVRA] 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. 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.
DOJ, Office of Legal Counsel, “Guidance on Application of Federal Vacancies Reform Act of 1998,” 1999 WL 1262050, at *6-8 (Mar. 22, 1999) (emphasis added) (parentheticals omitted).
Like DOJ, the GAO - the same agency that found a violation in Berryhill's service beyond 300 days after the resignation of Colvin, see GAO Notice, at 1 - also interprets Section 3346(a)(2) of the FVRA to provide spring-back authority to resume acting service upon a nomination to the Senate, see GAO, No. B-328888, “Violation of the 210-Day Limit Imposed by the Federal Vacancies Reform Act of 1998 - Department of Energy, Director of Office of Science,” www.gao.gov/assets/b-328888.pdf, at 2 (Mar. 3, 2017) (reporting that the FVRA “contains a spring-back provision that allows an acting official to resume performing the duties of the office once a first or second nomination is submitted to the Senate for the period that such nomination is pending in the Senate” and thus that acting official whose initial 210-days had expired “could resume her service as Acting Director . . . when the President submitted [a] nomination to the Senate” (emphasis added)).
In sum, the plain language of Section 3346(a) of the FVRA makes clear that Section 3346(a)(2) provided authority for Berryhill to resume service as Acting Commissioner as of the date of President Trump's nomination of Saul for Commissioner on April 17, 2018. Further, the FVRA's legislative history, caselaw 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. As such, the undersigned finds that Berryhill lawfully ratified the SSA's ALJs' appointments as her own on July 16, 2018, and thus that Reddick's third issue on review fails as a matter of law.
Accordingly, it is recommended that the Court affirm the Commissioner's decision.
V. Recommendation
Based on the foregoing, it is respectfully recommended that the Commissioner's decision be AFFIRMED , and that judgment be entered in favor of the Commissioner and against Reddick. It is further recommended that the Clerk of Court be directed to CLOSE this case.
NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated October 7, 2022. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.