Salas v. Commissioner of Social Security, No. 1:2019cv03009 - Document 19 (E.D. Wash. 2020)

Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (ECF No. 15 ) AND REMANDING FOR ADDITIONAL PROCEEDINGS and denying ECF No. 16 Defendant's Motion for Summary Judgment. File closed. Signed by Magistrate Judge John T. Rodgers. (PH, Case Administrator)

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Salas v. Commissioner of Social Security Doc. 19 1 2 FI LED I N THE U.S. DI STRI CT COURT EASTERN DI STRI CT OF WASHI NGTON 3 4 Jan 13, 2020 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 DAVID S., 10 No. 1:19-CV-03009-JTR Plaintiff, 11 v. 12 13 14 15 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY1, 16 ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND REMANDING FOR ADDITIONAL PROCEEDINGS Defendant. 17 BEFORE THE COURT are cross-motions for summary judgment. ECF 18 19 20 21 22 23 24 No. 15, 16. Attorney Edward Wicklund represents David S. (Plaintiff); Special Assistant United States Attorney Jeffrey Eric Staples represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. ECF No. 8. After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Plaintiff’s Motion for Summary Judgment; DENIES Defendant’s Motion for Summary Judgment; and 25 1 Andrew M. Saul is now the Commissioner of the Social Security 26 Administration. Accordingly, the Court substitutes Andrew M. Saul as the 27 Defendant and directs the Clerk to update the docket sheet. See Fed. R. Civ. P. 28 25(d). ORDER GRANTING PLAINTIFF’S MOTION . . . - 1 Dockets.Justia.com 1 REMANDS the matter to the Commissioner for additional proceedings pursuant to 2 42 U.S.C. § 405(g). 3 4 JURISDICTION Plaintiff filed applications for Disability Insurance Benefits and 5 Supplemental Security Income on August 27, 2014, alleging disability since June 6 30, 2013, due to diabetes, nerve damage, and arthritis. Tr. 89. The application was 7 denied initially and upon reconsideration. Tr. 167-75, 186-99. Administrative 8 Law Judge (ALJ) Tom Morris held a hearing on December 4, 2017, Tr. 43-86, and 9 issued an unfavorable decision on January 31, 2018, Tr. 19-31. Plaintiff requested 10 review of the ALJ’s decision from the Appeals Council. Tr. 247-48, 386-89. The 11 Appeals Council denied the request for review on November 20, 2018. Tr. 3-7. 12 The ALJ’s January 2018 decision is the final decision of the Commissioner, which 13 is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 14 action for judicial review on January 22, 2019. ECF No. 1. 15 16 STATEMENT OF FACTS Plaintiff was born in 1966 and was 47 years old as of the alleged onset date. 17 Tr. 29. He completed an autobody training and repairing degree, and worked a 18 series of odd jobs over his career. Tr. 45, 58-62, 293. He has uncontrolled 19 diabetes and wears braces on nearly all major joints. Tr. 64-66, 434, 649, 653, 20 797. In December 2014, he underwent cubital tunnel release surgery. Tr. 578. 21 His recovery from surgery was complicated by a fall in April 2015, leading to back 22 and hip pain. Tr. 617, 639, 910-11. He testified he was unable to work due to pain 23 in his back and joints. Tr. 63. 24 25 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The ALJ’s determinations of law are reviewed de novo, with 28 deference to a reasonable interpretation of the applicable statutes. McNatt v. Apfel, ORDER GRANTING PLAINTIFF’S MOTION . . . - 2 1 201 F.3d 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed 2 only if it is not supported by substantial evidence or if it is based on legal error. 3 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is 4 defined as being more than a mere scintilla, but less than a preponderance. Id. at 5 1098. Put another way, substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson v. 7 Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one 8 rational interpretation, the Court may not substitute its judgment , or construction worker. Tr. 28-29. At step five the ALJ found that, considering Plaintiff’s age, education, work 6 7 experience and residual functional capacity, there were other jobs that existed in 8 significant numbers in the national economy that Plaintiff could perform, 9 specifically identifying the representative occupations of coin machine collector, 10 storage facility rental clerk, and outside deliverer. Tr. 29-30. The ALJ thus concluded Plaintiff was not under a disability within the 11 12 meaning of the Social Security Act at any time from June 30, 2013, the alleged 13 onset date, through January 31, 2018, the date of the decision. Tr. 30-31. ISSUES 14 The question presented is whether substantial evidence supports the ALJ’s 15 16 decision denying benefits and, if so, whether that decision is based on proper legal 17 standards. Plaintiff contends the Commissioner erred by (1) failing to find cubital 18 tunnel syndrome to be a severe impairment at step two; (2) giving insufficient 19 weight to a treating physician; and (3) improperly rejecting Plaintiff’s subjective 20 complaints. Plaintiff also asserts the case was adjudicated by an unconstitutionally 21 appointed ALJ. DISCUSSION 22 23 24 25 1. Appointments Clause Challenge Plaintiff argues the ALJ decision should be vacated and the claim remanded for further proceedings because at the time the ALJ decision was made the ALJ 26 was unconstitutionally appointed. Plaintiff relies on the Supreme Court’s ruling in 27 Lucia v. SEC, 138 S. Ct. 2044 (2018). ECF No. 15 at 13-15. Defendant does not 28 argue that the ALJ’s appointment was constitutional, but rather asserts Plaintiff has ORDER GRANTING PLAINTIFF’S MOTION . . . - 5 1 forfeited judicial review of this argument by failing to raise it at the administrative 2 level. ECF No. 16 at 7-16. 3 The Court is aware of no controlling precedent regarding the forfeiture of 4 Appointments Clause challenges in Social Security claims. Such arguments have 5 abounded in the district courts in the months since Lucia was decided. The 6 majority of courts have held that failure to raise the claim during the administrative 7 proceedings results in forfeiture. See, e.g. Rebecca Lou Younger v. Comm’r of Soc. 8 Sec. Admin, No. CV-18-2975, 2020 WL 57814, at *5 (D. Ariz., Jan. 6, 2020) 9 (referencing string cite of district court decisions finding forfeiture); Taylor v. Saul, 10 No. 1:16-cv-44, 2019 WL 3837975, at *5-6 (W.D. Va. Aug. 15, 2019); Hodge v. 11 Saul, No. 1:18-cv-206, 2019 WL 3767130 (M.D.N.C. Aug. 9, 2019). However, a 12 growing body of courts have held the opposite. See, e.g. Bizarre v. Berryhill, 364 13 F. Supp. 3d 418 (M.D. Pa. 2019); Bradshaw v. Berryhill, 372 F. Supp. 3d 349 14 (E.D.N.C. 2019). The Court is persuaded by the rationale in Bizarre and 15 Bradshaw, finding the Social Security Act does not require issue exhaustion at the 16 administrative level, and therefore the Appointments Clause challenge was not 17 forfeited. 18 a. Background 19 In June 2018, the U.S. Supreme Court issued its opinion in Lucia v. SEC, 20 holding that Securities and Exchange Commission (“SEC”) ALJs are “Officers of 21 the United States” subject to the Appointments Clause of the U.S. Constitution. 22 Lucia, 138 S. Ct. 2044 (2018). Under the Appointments Clause, only the 23 President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.” 24 Id. As none of those actors had appointed the SEC ALJs in Lucia, the Supreme 25 Court held that the ALJs had been unconstitutionally appointed, and vacated the 26 action taken by the ALJ. Id. 27 Following the Supreme Court’s decision in Lucia, the Social Security 28 Administration Acting Commissioner ratified the appointments of all Social ORDER GRANTING PLAINTIFF’S MOTION . . . - 6 1 Security ALJs, approving the appointments as her own in order to avoid any future 2 Appointments Clause challenges, and issued an Emergency Message detailing 3 instructions for dealing with Appointments Clause challenges raised before an ALJ 4 or before the Appeals Council. See Emergency Message EM-18003 REV 2, 5 Important Information Regarding Possible Challenges to the Appointment of 6 Administrative Law Judges in SSA’s Administrative Process (effective Aug. 6, 7 2018).2 The present matter was pending at the Appeals Council at the time Lucia 8 was decided and the Social Security Administration issued the Emergency 9 Message. 10 b. Timeliness under Lucia 11 Defendant argues that Plaintiff’s failure to assert a challenge to the ALJ’s 12 appointment at any point during the administrative proceedings has resulted in 13 forfeiture of the issue. ECF No. 16 at 7. Defendant relies largely on the Supreme 14 Court’s statement in Lucia that a party “who makes a timely challenge to the 15 constitutional validity of the appointment of an officer who adjudicates his case is 16 entitled to relief.” Id. (emphasis in briefing). 17 Lucia’s timeliness language does not resolve the current question. There 18 was no timeliness or exhaustion question raised in Lucia’s litigation, as Mr. Lucia 19 raised his challenge before the SEC’s appellate body and in the lower federal court 20 proceedings. Lucia, at 2050. The Supreme Court’s use of the word “timely” to 21 describe Mr. Lucia’s challenge does not foreclose other procedural histories from 22 also being found timely. As was noted in Bizarre, 364 F. Supp. 3d at 420-21, 23 “[t]he [Lucia] majority’s statement as to timeliness was not a bright-line 24 demarcation ... it simply confirmed the obvious timeliness of the fully preserved 25 and exhausted claim as presented.” Therefore the analysis does not end here. 26 27 28 c. Exhaustion requirement 2 Available at https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM ORDER GRANTING PLAINTIFF’S MOTION . . . - 7 1 The operative question is whether exhaustion of issues is required at the 2 administrative level. The leading case addressing issue exhaustion before the 3 Social Security Administration is Sims v. Apfel, 530 U.S. 103 (2000). The 4 Supreme Court engaged in a lengthy discussion of the Social Security process, 5 noting that “requirements of administrative issue exhaustion are largely creatures 6 of statute,” and finding the Social Security Act to contain no such requirements.3 7 Sims, 530 U.S. at 107. Based on the non-adversarial nature of Social Security 8 proceedings, and the largely pro forma appellate review process, the Court 9 ultimately held issue exhaustion before the Appeals Council was not a requirement 10 “in order to preserve judicial review of those issues.” Id. at 112. However, the 11 Court noted that the question of whether a claimant must exhaust issues in front of 12 the ALJ was not before it. Id. at 107. 13 Defendant argues that, despite Sims, issue exhaustion is required before the 14 ALJ, citing Meanel v. Apfel, 172 F.3d 1111 (9th Cir. 1999), for the proposition that 15 a claimant “must raise all issues and evidence at their administrative hearings in 16 17 3 Defendant cites Kabani & Co. v. SEC, 733 Fed. Appx. 918 (9th Cir. 2018) 18 in support of holding an Appointments Clause claim to be forfeited for not being 19 raised before the Agency. ECF No. 16 at 8. However, Kabani involved an SEC 20 matter, which is governed by a statutory issue exhaustion requirement: “No 21 objection to an order or rule of the [SEC] . . . may be considered by [a reviewing] 22 court unless it was urged before the [SEC] or there was reasonable ground for 23 failure to do so.” 15 U.S.C. § 78y(c). The Ninth Circuit has also dismissed as 24 untimely Lucia claims related to the Department of Labor, which has a statutory 25 issue-exhaustion requirement. See Zumwalt v. National Steel and Shipbuilding 26 Company, No. 18-72257, -- Fed. Appx --, 2019 WL 6999492 (9th Cir., Dec. 20, 27 2019); Bussanich v. Ports America, 787 Fed. Appx 405 (9th Cir. 2019). No similar 28 statutory mandate exists in the Social Security Act. ORDER GRANTING PLAINTIFF’S MOTION . . . - 8 1 order to preserve them on appeal.” ECF No. 16 at 10. Defendant goes on to cite 2 an extensive string of cases finding various issues to be forfeited for failure to raise 3 them during administrative proceedings. Id. at 10-13. However, Meanel and the 4 other cases cited by Defendant all address a claimant’s failure to raise factual 5 issues regarding the merits of their disability claim, or their failure to challenge 6 how a particular ALJ conducted the proceedings in the particular case. These are 7 all issues directly within the ALJ’s purview, and in such situations mandating 8 exhaustion is administratively efficient, particularly in light of the agency’s 9 expertise. See e.g. Meanel, 172 F.3d at 1115 (noting that “the ALJ rather, than this 10 Court, was in the optimal position” to resolve the claimant’s factual challenge); 11 Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017)(“an agency, its experts, 12 and its administrative law judges are better positioned to weigh conflicting 13 evidence than a reviewing court.”). 14 Conversely, requiring a claimant to raise a constitutional challenge regarding 15 the appointment processes of the entire agency to an individual ALJ who had no 16 power to decide the issue (and who was hired through the very process being 17 challenged) makes little sense. See Weinberger v. Salfi, 422 U.S. 749, 767 18 (1975)(“[M]atter[s] of constitutional law [are] concededly beyond [SSA’s] 19 competence to decide.”); Bizarre, 364 F. Supp. 3d at 424 (quoting Califano v. 20 Sanders, 430 U.S. 99, 109 (1977))(“Constitutional questions obviously are 21 unsuited to resolution in administrative hearing procedures and, therefore, access 22 to the courts is essential to the decision of such questions.”). Furthermore, one 23 week after the Lucia decision was released, the Social Security Administration 24 issued an Emergency Message instructing ALJs to address Appointments Clause 25 challenges raised before them with the following language: “The claimant 26 [/representative] also raised a challenge to the manner in which I was appointed as 27 an administrative law judge under the Appointments Clause of the Constitution. I 28 do not have the authority to rule on that challenge and do not address it further in ORDER GRANTING PLAINTIFF’S MOTION . . . - 9 1 this decision[/dismissal].” Soc. Sec. Admin. EM-18003 REV, Important 2 Information Regarding Possible Challenges to the Appointment of Administrative 3 Law Judges in SSA’s Administrative Process-Update (effective date June 25, 4 2018).4 To mandate a claimant raise an issue before an officer who had no 5 authority to decide it, simply to preserve the issue for a later theoretical appeal, is 6 contrary to administrative efficiency. 7 In support of the argument that issues must be raised during the 8 administrative process, Defendant points to several Social Security regulations 9 requiring claimants to raise all issues to the agency at the earliest possible juncture. 10 ECF No. 16 at 14. However, the cited regulations all pertain to the merits of the 11 claimant’s disability claim, or objections to individual ALJs, not the system as a 12 whole.5 20 C.F.R. §§ 404.933(a)(2), 404.939, 404.940, 404.946(b). While an SSA 13 14 4 available at 15 http://dataserver.lrp.com/DATA/servlet/DataServlet?fname= PolicyNet- 16 Instructions+ Updates- 17 EM+ 18003+ REV+ Important+ Information+ Regarding+ Possible+ Challenges+ to 18 + the+ Appointment+ of+ Administrative+ Law+ Judges+ in+ SSA%BFs+ Administrati 19 ve+ Process--UPDATE.htm. This Emergency Message was revised six weeks later 20 following the Acting Commissioner’s reappointment of all Social Security ALJs. 21 See https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM 22 5 Defendant’s passing reference to an expedited appeals process in certain 23 cases where constitutional issues are raised is similarly inapplicable to the current 24 matter. See 20 C.F.R. § 404.924, stating: “You may use the expedited appeals 25 process if . . . you have claimed, and we agree, that the only factor preventing a 26 favorable determination or decision is a provision in the law that you believe is 27 unconstitutional.” (emphasis added). The constitutionality of the appointment of 28 the ALJ was not the only factor preventing a favorable determination here, as the ORDER GRANTING PLAINTIFF’S MOTION . . . - 10 1 claimant must state the reasons he disagrees with an adverse disability 2 determination in petitioning for ALJ review, 20 C.F.R. § 404.933(a)(2), the issues 3 before the ALJ are “the issues brought out in the initial, reconsidered or revised 4 determination that were not decided entirely in [the claimant’s] favor[,]” 20 C.F.R. 5 § 404.946(a), which can hardly be expected to include a constitutional challenge to 6 the ALJ’s authority. On the contrary, these issues are those germane to the 7 disability application itself, most commonly in the form of objections to the 8 agency’s treatment of medical or vocational evidence or testimony. While an ALJ 9 or any party may also raise new issues prior to the hearing, 20 C.F.R. § 404.946(b), 10 this is designed to afford a claimant the opportunity to identify new disability- 11 related evidence or testimony obtained after the written request for hearing but 12 before the hearing itself. See id. (a new issue “may be raised even though it arose 13 after the request for a hearing and even though it has not been considered in an 14 initial or reconsidered determination.”). The regulation regarding disqualification 15 of a particular ALJ references individual ALJ bias or interest in the matter, and 16 anticipates appointment of a different ALJ if necessary; it does not provide a 17 mechanism for a claimant to object to all ALJs. 20 C.F.R. § 404.940. None of the 18 cited regulations state that issues not raised are forfeited. These regulations do not 19 impose an issue exhaustion requirement as the Commissioner contends. 20 Absent statutory directive or binding precedential court ruling, the Court 21 finds no basis to create an issue exhaustion requirement with respect to the 22 Appointments Clause challenge. Plaintiff did not forfeit his right to bring the 23 challenge by not raising it during the administrative proceedings. 24 d. Lucia applied to Social Security ALJs 25 26 27 Social Security Administration found Plaintiff did not meet the medical 28 requirements of disability. ORDER GRANTING PLAINTIFF’S MOTION . . . - 11 1 As to the merits of Plaintiff’s appointments clause challenge, Lucia’s 2 reasoning has been applied to other ALJs, requiring that they, as “inferior officers,” 3 be appointed according to the Appointments Clause. See, e.g., Bank of Louisiana 4 v. FDIC, 919 F.3d 916, 921 (5th Cir. 2019) (FDIC ALJs); Jones Bros., Inc. v. Sec'y 5 of Labor, 898 F.3d 669, 679 (6th Cir. 2018) (Department of Labor Federal Mine 6 Safety and Health Review Commission ALJs); Island Creek Coal Co. v. 7 Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018)(Department of Labor Benefits 8 Review Board ALJs). Defendant has not argued that Social Security ALJs are not 9 inferior officers under the Appointments Clause. ECF No. 16 at 8 n.1. Because 10 Defendant has not disputed the merits of Plaintiff’s challenge and limited the 11 response to the forfeiture issue, the Court finds Plaintiff’s challenge to be 12 meritorious for the reasons set forth in Lucia. CONCLUSION 13 14 Defendant has not disputed the merits of the Appointments Clause 15 challenge. As the Court finds the challenge was not forfeited, this claim is 16 remanded for rehearing before a properly appointed ALJ. The merits of Plaintiff’s 17 additional assignments of error are not being addressed because a new ALJ must 18 conduct a de novo review on remand. 19 Accordingly, IT IS ORDERED: 20 1. 21 22 23 24 25 26 Plaintiff’s Motion for Summary Judgment, ECF No. 15, is GRANTED. 2. Defendant’s Motion for Summary Judgment, ECF No. 16, is DENIED. 3. The matter is REMANDED to the Commissioner for additional proceedings consistent with this Order. 4. An application for attorney fees may be filed by separate motion. 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 12 1 The District Court Executive is directed to file this Order and provide a copy 2 to counsel for Plaintiff and Defendant. Judgment shall be entered for Plaintiff and 3 the file shall be CLOSED. 4 IT IS SO ORDERED. 5 DATED January 13, 2020. 6 7 8 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING PLAINTIFF’S MOTION . . . - 13

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