Vella v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 KASEY V., 8 Plaintiff, Case No. C20-6153 RAJ 9 v. ORDER AFFIRMING 10 DEFENDANT’S DENIAL OF COMMISSIONER OF SOCIAL SECURITY, BENEFITS AND DENYING 11 PLAINTIFF’S MOTION TO FILE Defendant. SUPPLEMENTAL REPLY AND 12 FOR ORAL ARGUMENT 13 Plaintiff appeals denial of his applications for Supplemental Security Income and 14 Disability Insurance Benefits. Plaintiff contends the ALJ erred by determining he had engaged 15 in substantial gainful activity, rejecting his testimony, failing to develop the record, and 16 addressing vocational issues. Dkt. 16. In supplemental briefing, Plaintiff contends a 17 constitutional deficiency in the statutory provision for removing the Commissioner of Social 18 Security necessitates remand for further administrative proceedings. Dkt. 20. As discussed 19 below, the Court AFFIRMS the Commissioner’s final decision and DISMISSES the case with 20 prejudice. 21 On November 16, 2021, Plaintiff filed a motion (the “Motion”) for leave to file a reply 22 brief to Defendant’s supplemental brief, and for oral argument. Dkt. 27. The Court DENIES 23 ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 this Motion. Plaintiff’s opening brief in this matter was originally due on April 26, 2021. Dkt. 2 8. Plaintiff was ultimately granted leave to file his opening brief on July 14, 2021, after the 3 Court entered an order to show cause and another order accepting Plaintiff’s late-filed opening 4 brief. See Dkts. 15, 17. 5 After initial briefing was complete, Plaintiff filed a motion to supplement his briefing on 6 his constitutional claim. Dkts. 20-21. Defendant did not oppose this motion, and Plaintiff in his 7 asked the Court to allow Defendant 30 days to respond to the substantive arguments in Plaintiff’s 8 supplemental brief. Dkts. 22-23. Plaintiff did not ask to submit a reply brief or for oral 9 argument. Dkt. 23. The Court granted Plaintiff’s motion to supplement his briefing, and granted 10 Defendant the opportunity to file a supplemental brief in response. Dkt. 24. Defendant timely 11 filed a supplemental brief on October 21, 2021. Dkt. 25. 12 On November 16, 2021, Plaintiff filed the present Motion, along with a 15-page brief. 13 Dkt. 26-27. 14 Plaintiff has had ample time and opportunity to present his arguments, in his opening and 15 reply briefs, as well as his original supplemental brief. See Dkts. 16, 19-20. Plaintiff now asks 16 to file a supplemental reply brief that is twice as long as his original supplemental brief, and is 17 clearly not limited to responding to Defendant’s supplemental brief. See Dkts. 25-27. To the 18 extent this supplemental reply brief responds to Defendant’s supplemental brief, the Court finds 19 additional briefing unnecessary, as it is fully advised of the parties’ arguments and the issues 20 surrounding them. To the extent Plaintiff’s supplemental reply brief raises new issues, the Court 21 will not consider new arguments made for the first time in a supplemental reply brief. See 22 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161, n.2 (9th Cir. 2008) (holding the 23 court “ordinarily will not consider matters on appeal that are not specifically and distinctly ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 argued in an appellant’s opening brief”) (quotation marks and internal citation omitted). 2 Furthermore, the Court finds oral argument unnecessary as this matter can be decided on 3 the parties’ briefs, including Plaintiff’s and Defendant’s supplemental briefs, excluding the 4 supplemental reply at issue in Plaintiff’s Motion. Therefore, Plaintiff’s Motion (Dkt. 27) is 5 DENIED and Plaintiff’s supplemental reply brief (Dkt. 26) is stricken. 6 BACKGROUND 7 Plaintiff is 42 years old, has a high school education, and has worked in retail and sales. 8 Dkt. 7, Admin. Transcript (Tr.) 547. Plaintiff applied for benefits in May 2012, and alleges 9 disability for a closed period from October 9, 2010, to December 31, 2016. Tr. 535-36. 10 Plaintiff’s applications were denied in a 2013 ALJ decision that, on appeal to the Court, was 11 reversed based on the parties’ stipulation. Tr. 535, 765–67. On remand, the ALJ issued another 12 unfavorable decision in 2017, which was remanded by the Appeals Council to reevaluate 13 Asperger’s disorder. Tr. 535, 812–14. 14 On remand, after conducting a hearing in July 2020, a new ALJ issued a decision finding 15 Plaintiff not disabled. Tr. 535-48, 634-733. In pertinent part, the ALJ found that Plaintiff had 16 severe impairments of Asperger’s/autism spectrum disorder, attention deficit/hyperactivity 17 disorder, mood disorder, spinal impairments, and left knee impairments. Tr. 539. The ALJ 18 found that Plaintiff had the residual functional capacity (“RFC”) to perform medium work with 19 cognitive, adaptive, and social limitations. Tr. 539-41. 20 The Appeals Council did not assume jurisdiction of Plaintiff’s claims, making the ALJ’s 21 decision the Commissioner’s final decision. See 20 C.F.R. §§ 404.984, 416.1484. 22 DISCUSSION 23 This Court may set aside the Commissioner’s denial of Social Security benefits only if ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 the ALJ’s decision is based on legal error or not supported by substantial evidence in the record 2 as a whole. Trevizo v. Berryhill, 871 F.3d 664, 674 (9th Cir. 2017). 3 A. Plaintiff’s Testimony 4 Where, as here, an ALJ determines a claimant has presented objective medical evidence 5 establishing underlying impairments that could cause the symptoms alleged, and there is no 6 affirmative evidence of malingering, the ALJ can only discount the claimant’s testimony as to 7 symptom severity by providing “specific, clear, and convincing” reasons supported by 8 substantial evidence. Trevizo, 871 F.3d at 678. The ALJ discounted Plaintiff’s testimony for 9 several reasons, including that it was contradicted by his work activity. Tr. 539, 542-44. 10 For the alleged closed period from October 2010 to December 2016, the ALJ found 11 Plaintiff performed substantial gainful activity as a dishwasher from June 2014 to November 12 2015, and had additional work as a tow truck driver in late 2015 to 2016 that did not rise to the 13 substantial gainful level. Tr. 538-39. The ALJ rejected Plaintiff’s testimony of disabling 14 limitations because he demonstrated the ability to work during the relevant period and because 15 he worked before and after the relevant period with no intervening change in his impairments. 16 Tr. 539, 542-43. An ALJ may discount a claimant’s testimony based on daily activities that 17 either contradict his testimony or that meet the threshold for transferable work skills. Orn v. 18 Astrue, 495 F.3d 625, 639 (9th Cir. 2007). Here, Plaintiff’s activities both contradicted his 19 testimony of disabling limitations and demonstrated work skills. 20 Plaintiff argues his work as a tow truck driver in 2015 and 2016 was not substantial 21 gainful activity. Dkt. 19 at 2.1 Nevertheless, the ALJ’s finding that this work activity 22 1 Plaintiff argues that the “ALJ erred in stating Plaintiff did not object to an SGA finding.” Dkt. 16 at 16 23 (capitalization removed). Plaintiff makes no effort to support this vague argument. In any case, ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 demonstrated an ability to perform less demanding work full time was supported by substantial 2 evidence. See Tr. 538-39. Plaintiff offers no reason that earning “slightly below” the substantial 3 gainful activity amount undermined the ALJ’s decision. Tr. 538. Moreover, Plaintiff worked at 4 the substantial gainful activity level as a dishwasher for over a year during the relevant period. 5 Plaintiff also argues some of his work was a trial work period that should not be counted 6 for up to nine months. Dkt. 16 at 4. The Commissioner contends a trial work period is only 7 applicable to individuals already awarded disability and thus Plaintiff must be referring to an 8 unsuccessful work attempt, which cannot last more than six months. Dkt. 18 at 5. In any case, 9 Plaintiff worked for far longer than nine months. His extensive work activity contradicted his 10 testimony that he cannot work due to his impairments. 11 There is no dispute that Plaintiff was able to work, and in fact did work, before and after 12 the alleged closed period of October 2010 to December 2016. Plaintiff argues recent medication 13 changes have enabled him to work after the alleged closed period. Dkt. 16 at 6. Even if true, 14 that does not explain how he was able to work before—and during—the closed period. Plaintiff 15 has shown no medical change around 2010 that could explain a new inability to work. In fact, 16 Plaintiff contends his limitations are due to “lifelong” impairments. Dkt. 16 at 5, 8, 11, 14, 15. 17 Plaintiff argues “[n]one of this prior work lasted more than a year or two,” but the ALJ 18 reasonably found two years at one job shows an ability to maintain employment. Dkt. 16 at 12. 19 Plaintiff fails to establish error. 20 The Court concludes the ALJ did not err by discounting Plaintiff’s testimony for the clear 21 and convincing reason that it was contradicted by his work activity. 22 regardless of whether Plaintiff objected, the ALJ’s finding of substantial gainful activity in 2014 and 2015 23 was supported by substantial evidence. See Tr. 1075-76. ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 B. Lay Witness Testimony 2 An ALJ may discount lay witness testimony by giving a germane reason. Diedrich v. 3 Berryhill, 874 F.3d 634, 640 (9th Cir. 2017). 4 Plaintiff’s mother testified to similar limitations as Plaintiff. See Tr. 290-97, 702-10. 5 Similarly, the ALJ gave her statements “minimal weight” because they were contradicted by 6 Plaintiff’s work activities. Tr. 544. Compared to the time prior to the alleged onset date, when 7 Plaintiff performed substantial gainful activity, the record did “not establish any significant 8 decline” in his condition. Id. As with Plaintiff’s testimony, this was a valid reason, supported by 9 substantial evidence, to discount Plaintiff’s mother’s testimony. Plaintiff’s vague argument that 10 the ALJ discounted her testimony “without the specific reasons necessary to do so” fails to 11 establish error. Dkt. 16 at 9. 12 The Court concludes the ALJ did not err by discounting Plaintiff’s mother’s testimony. 13 C. Medical Opinions 14 The ALJ could only reject the contradicted opinion of an examining doctor by giving 15 “specific and legitimate” reasons. Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). 16 In May 2013, Anne Leefeld Kanters, Ph.D., examined Plaintiff and opined he had a “life 17 long [sic] history of disability” and “should be approved for social security disability.” Tr. 485- 18 86. The ALJ gave Dr. Kanters’s opinions “minimal weight” for several reasons, including that 19 they were contradicted by Plaintiff’s “gainful employment” between 2014 and 2016. Tr. 545-46. 20 This was a specific and legitimate reason to discount Dr. Kanters’s opinions. See Valentine v. 21 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (inconsistency with the 22 claimant’s actual work activity is a proper reason to reject a medical opinion). Plaintiff argues 23 Dr. Kanters relied on objective testing, and had great expertise with Asperger’s disorder. Dkt. 19 ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 at 3, 8. However, this does not undermine the ALJ’s finding of conflict with Plaintiff’s 2 activities. Conflict with activities is a valid reason to discount a doctor’s opinion; Ninth Circuit 3 precedent does not provide an exception based on the doctor’s expertise or testing. 4 The Court concludes the ALJ did not err by discounting Dr. Kanters’s opinions. 5 D. Appeals Council Order 6 Plaintiff contends the ALJ erred by failing to follow the Appeals Council’s order to 7 “[o]btain a medical expert.”2 Dkt. 16 at 1. The Appeals Council directed the ALJ to, “[i]f 8 necessary, obtain evidence from a medical expert related to the nature and severity of and 9 functional limitations resulting from the claimant’s impairments.” Tr. 813. Plaintiff argues 10 calling a medical expert was necessary to evaluate Dr. Kanters’s objective testing results. 11 An “ALJ must obtain [a medical expert] opinion” when “[t]here is a question about the 12 accuracy of medical test results reported, requiring evaluation of background medical test data.” 13 Hearing, Appeals, and Litigation Law Manual (HALLEX) § I-2-5-34(A)(1). Plaintiff argues that 14 the ALJ was required to consult a medical expert because Dr. Kanters performed objective 15 testing showing deficits in “auditory processing, speed of response, . . . and a visual speed test.” 16 Dkt. 19 at 4-5. However, the accuracy of Dr. Kanters’s test results was not at issue. Regardless 17 of any deficits in auditory processing and speed, Plaintiff was able to perform work activity, 18 some of which was at the substantial gainful level, during the alleged closed period. The ALJ 19 discounted Dr. Kanters’s opinions based on conflict with Plaintiff’s activities, not based on 20 21 2 Plaintiff also contends the ALJ erred by failing to “[f]urther evaluate the Asperger’s,” “[f]urther evaluate symptoms,” and [a]ddress limitations,” but fails to provide any argument in support. Dkt. 16 at 1. 22 Plaintiff’s conclusory assertion is insufficient to establish harmful error. See Indep. Towers of Wash. v. Wash., 350 F.3d 925, 929-30 (9th Cir. 2003) (court “will not consider any claims that were not actually 23 argued in appellant’s opening brief”). ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 questioning the accuracy of her testing results. The ALJ was not required to consult a medical 2 expert under these circumstances. Plaintiff fails to show harmful error. 3 E. RFC Determination 4 Plaintiff argues the ALJ erred in assessing his RFC by failing to include limitations based 5 Plaintiff’s testimony, his mother’s statements, and Dr. Kanters’s opinions. This argument fails to 6 establish error because the ALJ properly rejected this evidence, as discussed above. See Stubbs- 7 Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). 8 F. Vocational Issues 9 Relying on Maxwell v. Saul, 971 F.3d 1128 (9th Cir. 2020), Plaintiff contends the ALJ 10 erred by relying on only three occupations to determine he was able to perform work existing in 11 significant numbers in the national economy. Dkt. 16 at 18. In Maxwell, the ALJ found the 12 claimant had a skill that was transferrable to only two occupations. 971 F.3d at 1129. The 13 Medical-Vocational Guidelines mandated a finding of disability unless the claimant’s skills were 14 “‘transferable to a significant range’” of work. Id. at 1131 (quoting 20 C.F.R. Pt. 404, Subpt. P, 15 App. 2)). The Ninth Circuit held “two occupations do not constitute a ‘significant range of 16 work’” under the Medical-Vocational Guidelines. Id. 17 Here, there is no dispute the Medical-Vocational Guidelines were not directly 18 applicable.3 Instead, the ALJ consulted a vocational expert, who testified that a person with 19 Plaintiff’s RFC could perform “sample occupations” such as automobile lot attendant, hospital 20 housekeeper, and office cleaner that, collectively, provided over 800,000 jobs nationwide. Tr. 21 22 3 The ALJ found transferability of job skills “not material” to the disability determination because the Medical-Vocational Guidelines, used as a framework rather than a rule, supported a finding of non- 23 disability whether or not Plaintiff had transferable skills. Tr. 547. ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 724. Based on this testimony regarding these “representative occupations,” the ALJ found 2 Plaintiff could perform “work that exists in significant numbers in the national economy.” Tr. 3 548. 4 Maxwell is inapplicable to this case. In fact, the Ninth Circuit expressly distinguished the 5 “significant range of work” necessary to find non-disability based on transferable skills from the 6 “work existing in significant numbers in the national economy” required to find non-disability 7 without transferable skills. Maxwell, 971 F.3d at 1131-32. Given that the Ninth Circuit has held 8 that “25,000 national jobs . . . represents a significant number of jobs,” the occupations in this 9 case, totaling over 800,000 jobs, were clearly sufficient. Gutierrez v. Comm’r of Soc. Sec., 740 10 F.3d 519, 529 (9th Cir. 2014). 11 The Court concludes the ALJ did not err in addressing vocational issues. 12 G. Separation of Powers 13 Plaintiff contends that the statutory clause for removal of the Commissioner of Social 14 Security is unconstitutional, rendering the Commissioner’s appointment invalid, and therefore 15 rendering the ALJ’s nondisability decision invalid. Dkt. 20 at 1-2. Removal of the 16 Commissioner of Social Security is governed by 42 U.S.C. § 902(a)(3). Under § 902(a)(3), the 17 Commissioner may only be removed from office “pursuant to a finding by the President of 18 neglect of duty or malfeasance in office.” Id. Two recent Supreme Court decisions call this 19 clause into question. 20 In Seila Law LLC v. Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020), the 21 Supreme Court held the Consumer Financial Protection Bureau’s (“CFPB”) removal structure, 22 which allowed for the CFPB Director to be removed by the President only for “inefficiency, 23 neglect of duty, or malfeasance of office,” 12 U.S.C. § 5491(c)(3), violated the separation of ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 powers by insulating the Director from removal by the President. Seila Law, 140 S. Ct. at 2197. 2 The Supreme Court addressed a removal provision again the following year in Collins v. 3 Yellen, 141 S. Ct. 1761 (2021). There, the Court held a provision limiting the President to 4 removing the Director of the Federal Housing Finance Agency (“FHFA”) only for cause violated 5 the separation of powers. Collins, 141 S. Ct. at 1783 (holding that “Seila Law is all but 6 dispositive”). 7 A straightforward application of Seila Law and Collins dictates a finding that the removal 8 provision in § 902(a)(3) violates separation of powers. As in Seila Law and Collins, the Social 9 Security Commissioner is a single officer at the head of an administrative agency and removable 10 only for cause. See 42 U.S.C. § 902(a)(3). Section 902 suffers from the same defect as the 11 removal provisions at issue in Seila Law and Collins. The Court accordingly concludes 12 § 902(a)(3) violates separation of powers. See Seila Law, 140 S. Ct. at 2197; Collins, 141 S. Ct. 13 at 1783; see also Office of Legal Counsel, Constitutionality of the Commissioner of Social 14 Security’s Tenure Protection, 2021 WL 2981542, at *7 (July 8, 2021). 15 Plaintiff contends because the removal clause was unconstitutional, Commissioner Saul’s 16 appointment and tenure were invalid.4 This argument fails. 17 First, the removal provision in § 902(a)(3) is severable from the remainder of the statutes 18 governing the SSA. In Seila Law, the Court found the constitutionally defective removal 19 procedure was severable from the remainder of the CFPB’s governing statutes because the CFPB 20 21 4 The ALJ who decided Plaintiff’s case was appointed by then-Acting Commissioner Nancy Berryhill. See SSR 19- 22 1p, 2019 WL 1324866, at *2 (Mar. 15, 2019). Defendant contends Ms. Berryhill, as Acting Commissioner, was not subject to the same removal provision as Commissioner Saul. The Court need not reach this issue because, as explained below, Plaintiff cannot establish a link between the removal provision at issue here and his claims. 23 ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 was capable of functioning independently even if the offending removal restriction was erased. 2 140 S. Ct. at 2209-10, 2245.5 Similarly, if the removal clause in § 902(a)(3) is stricken, the SSA 3 remains fully functional. 4 Second, the removal provision does not render the Commissioner’s appointment invalid, 5 and thus does not automatically void the SSA’s actions under the Commissioner. In Collins, the 6 Court found the defective removal procedure did not render the FHFA Director’s appointment 7 invalid, and thus did not render the FHFA’s actions under the Director void from the outset. 141 8 S. Ct. at 1787 (“Although the statute unconstitutionally limited the President’s authority to 9 remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed 10 method of appointment to that office. As a result, there is no reason to regard any of the actions 11 taken by the FHFA [challenged on appeal] as void.”). The same is true here. The infirm 12 removal provision does not render Commissioner Saul’s appointment invalid, which in turn does 13 not render the ALJ’s disability decision void. Plaintiff’s reliance on Lucia v. SEC, 138 S. Ct. 14 2044 (2018), is therefore inapt. 15 Plaintiff nonetheless contends that “[b]ecause the Social Security Administration’s 16 structure unconstitutionally violates the separation of powers, the underlying ALJ (and AC 17 decision) [sic] presumptively applied an inaccurate legal standard at the administrative level.” 18 Dkt. 20 at 4. But, as discussed above, the ALJ satisfied the correct legal standard in finding 19 Plaintiff not disabled. Plaintiff has failed to show any connection between the unconstitutional 20 removal provision and the ALJ’s decision denying him benefits. See Decker Coal Co. v. 21 22 5 Four Justices dissented from Chief Justice Roberts’s lead opinion holding the CFPB removal provision was unconstitutional, but agreed that “if the agency’s removal provision is unconstitutional, it should be severed.” Id. at 23 2245 (Kagan, J., concurring in the judgment with respect to severability and dissenting in part). ORDER AFFIRMING DEFENDANT’S DENIAL OF 1 Pehringer, 8 F.4th 1123, 1138 (9th Cir. 2021) (“[T]here is no link between the ALJ’s decision 2 awarding benefits and the allegedly unconstitutional removal provisions. And nothing 3 commands us to vacate the decisions below on that ground.”)); cf. Collins, 141 S. Ct. at 1802 4 (Kagan, J. concurring) (“[G]iven the majority’s remedial analysis, I doubt the mass of SSA 5 decisions—which would not concern the President at all—would need to be undone. . . . When 6 an agency decision would not capture a President’s attention, his removal authority could not 7 make a difference.”). 8 In sum, although the removal clause in 42 U.S.C. § 902(a)(3) violates separation of 9 powers, it does not require the ALJ’s decision to be reversed. 10 CONCLUSION 11 For the foregoing reasons, the Commissioner’s final decision is AFFIRMED and this 12 case is DISMISSED with prejudice. 13 DATED this 11th day of January, 2022. 14 A 15 16 The Honorable Richard A. Jones United States District Judge 17 18 19 20 21 22 23 ORDER AFFIRMING DEFENDANT’S DENIAL OF