Barrett v. Kijakazi

• Court: District Court, S.D. California
• Decided: August 30, 2022
• Docket: 3:20-cv-01713
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 MICHAEL B., Case No.: 20-cv-1713-AGS 4 Plaintiff, ORDER ON SUMMARY-JUDGMENT MOTIONS (ECF 14 & 17) 5 v. 6 Kilolo KIJAKAZI, Acting Commissioner of Social Security, 7

8 Defendant. 9 10 In this disability-benefits appeal, claimant challenges the constitutionality of all 11 proceedings under the former Social Security Commissioner and criticizes the agency 12 judge’s handling of evidence supporting his disability claim. 13 BACKGROUND 14 In May 2019, plaintiff Michael B. testified at a hearing on his application for Social 15 Security disability benefits. (AR 276.) In August 2019, an Administrative Law Judge 16 denied his application, despite Michael’s testimony about the severity of his impairments 17 as well as the corroborating statement of his wife Mary B. (See AR 282–83, 287–88.) 18 Amid these proceedings, Andrew M. Saul became the Commissioner of Social 19 Security. See Soc. Sec. Admin., Social Security Commissioners 20 https://www.ssa.gov/history/commissioners.html (last visited Aug. 30, 2022); (ECF 14-1, 21 at 22). On appeal, Michael contends that Commissioner Saul’s appointment and tenure 22 were unconstitutional, which tainted his proceedings, and that the ALJ offered insufficient 23 reasons for discounting Michael’s testimony and Mary’s statement. 24 STANDARD OF REVIEW 25 A court may set aside the Social Security Administration’s denial of benefits only 26 when “the ALJ’s findings are based on legal error or are not supported by substantial 27 evidence in the record” as a whole. See Attmore v. Colvin, 827 F.3d 872, 875 (9th Cir. 28 2016); see also 42 U.S.C. § 405(g). “Substantial evidence is more than a mere scintilla, but 1 may be less than a preponderance.” See Attmore, 827 F.3d at 875 (quotation marks 2 omitted). When the evidence is “susceptible to more than one rational interpretation,” a 3 court must defer to the ALJ. Id. Even when the ALJ errs, “we must affirm if the error is 4 harmless.” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015). 5 DISCUSSION 6 A. Constitutional Challenge to Social Security Commissioner’s Tenure 7 Michael argues that Social Security Commissioner Saul’s “unconstitutional 8 appointment and tenure” rendered Michael’s entire proceedings constitutionally infirm.1 9 (See ECF 14-1, at 21–22.) The parties agree that the statute under which Commissioner 10 Saul was appointed is unconstitutional—at least as to its removal provision. (See id.; 11 ECF 17, at 16–17.) That statute guarantees that the Commissioner will only be removed 12 for “neglect of duty or malfeasance in office.” See 42 U.S.C. § 902(a)(3). But the 13 Constitution “prohibits even ‘modest restrictions’ on the President’s power to remove the 14 head of an agency with a single top officer.” Collins v. Yellen, 141 S. Ct. 1761, 1787 15 (2021). Thus, the Supreme Court has struck down similar removal restrictions for violating 16 separation of powers. See id. (invalidating a “for cause” restriction on the President’s 17 authority to remove the Director of the Federal Housing Finance Agency); Seila Law LLC 18 v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2197 (2020) (striking down a removal 19 restriction that limited the President to removing the Director of the Consumer Financial 20 Protection Bureau “only for inefficiency, neglect of duty, or malfeasance”). 21 The removal provision for the Social Security Commissioner likewise “violates 22 separation of powers principles” and is unconstitutional. Kaufmann v. Kijakazi, 32 F.4th 23 843, 849 (9th Cir. 2022). Michael contends that this renders the Social Security 24

25 1 In his reply brief, Michael also complains that “two-layered removal” raises 26 “another constitutional defect.” (ECF 18-1, at 5.) This Court declines to consider this 27 contention as it “was not ‘argued specifically and distinctly in [the] opening brief,’ nor adequately developed in the reply brief.” See Caremark, LLC v. Chickasaw Nation, 28 1 Administration’s “structure unconstitutional” and all agency actions during Commissioner 2 Saul’s tenure “constitutionally defective.” (ECF 14-1, at 21–22.) But this argument goes 3 much too far, as the removal restriction “is severable from the remainder of the statute.” 4 See Kaufmann, 32 F.4th at 849. That is, courts must “sever the removal provision and hold 5 that the President possesses the authority to remove the Commissioner of Social Security 6 at will.” Id. At all events, the unconstitutional restriction “does not affect the authority of 7 the underlying agency officials to act.” Id. (citing Collins, 141 S. Ct. at 1787–88 & n.23). 8 To mount a successful constitutional challenge, then, Michael must “show how the 9 unconstitutional removal provision actually harmed” him. See Kaufmann, 32 F.4th at 849. 10 For instance, a claimant might be harmed if the President “express[ed] displeasure” with 11 the Commissioner and “asserted that he would remove [that official] if the statute did not 12 stand in the way.” Collins, 141 S. Ct. at 1789. Yet Michael points to no evidence that 13 President Trump considered removing Commissioner Saul when Michael’s disability case 14 was adjudicated in 2019 and 2020. Rather, Michael’s proof of harm is based on comments 15 and actions by President Biden. (See ECF 18-1, at 8–9.) But President Biden’s 16 dissatisfaction with the Commissioner sheds no light on President Trump’s feelings a year 17 or two earlier. 18 In short, there “is no link between the ALJ’s decision . . . and the allegedly 19 unconstitutional removal provisions.” See Decker Coal Co. v. Pehringer, 8 F.4th 1123, 20 1138 (9th Cir. 2021). And this Court cannot presume that the removal restriction “alone 21 tainted the ALJ’s decision.” Id. at 1137. 22 B. Michael’s Subjective Symptom Testimony 23 The next issue is whether the ALJ erred in disbelieving Michael’s testimony about 24 the severity of his limitations. The ALJ disregarded several aspects of Michael’s testimony, 25 including that he “is a fall risk and can stand for only about 20 minutes,” “uses a cane to 26 ambulate and balance,” “is unable to stand or sit for long periods at a time,” suffers from 27 “memory loss,” “can lift 15 pounds” but not “heavy objects,” “can stand/walk 20 minutes 28 1 . . . before needing to stop and rest,” “can pay attention for only 10 minutes,” and “does 2 not handle stress or changes in routine well.” (AR 283.) 3 In evaluating the credibility of subjective symptom testimony, the ALJ must 4 determine “whether the claimant has presented objective medical evidence of an 5 underlying impairment which could reasonably be expected to produce the . . . symptoms 6 alleged.” Ghanim v. Colvin, 763 F.3d 1154, 1163 (9th Cir. 2014) (citation omitted). If so, 7 and absent evidence of malingering, the ALJ may reject the claimant’s testimony about 8 symptom severity only if the ALJ offers “‘specific, clear and convincing reasons’ for the 9 rejection.” Id. “The clear and convincing standard is the most demanding required in Social 10 Security cases.” Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir. 2002). 11 The ALJ offered two reasons for discounting Michael’s symptom-severity allegations: 12 (1) that they were unsupported by the objective medical record and (2) that they were 13 undermined by Michael’s demeanor and testimony at his disability hearing. 14 1. Objective Medical Record 15 “While subjective pain testimony cannot be rejected on the sole ground that it is not 16 fully corroborated by objective medical evidence,” an ALJ may consider whether 17 claimant’s testimony is supported by “the medical evidence.” See Rollins v. Massanari, 18 261 F.3d 853, 857 (9th Cir. 2001). The ALJ appropriately noted the tension between the 19 relatively mild objective medical record and Michael’s more extreme testimony. For 20 example, the ALJ noted that at an April 2018 independent orthopedic consultation, Michael 21 had no “problems with balance [or] with ambulating and moving about the examination” 22 and that although he had “a cane with him,” he “did not use [it] to ambulate.” (AR 284.) 23 Similarly, the ALJ accurately noted that the record is full of normal or near-normal 24 examinations concerning strength, gait, and range of motion. (AR 284; see, e.g., AR 1322 25 (“5/5 [strength] x 4 limbs”); AR 1331 (noting “tenderness” and inability “to fully flex left 26 thumb” but “normal” “bulk,” “tone,” and “strength” in “all four extremities”); AR 1334 27 (noting “tenderness” on left hand, but “only a minimal contracture present” and “no 28 triggering”); AR 1341 (“Gait normal”); AR 1347 (noting “tenderness” on left hand, but 1 “only a minimal contracture present”); AR 1356 (“Muscle strength 5/5 all groups inserting 2 into feet” and “Gait steady”); AR 1553–58 (normal “range of motion” in “Shoulders,” 3 “Elbows,” “Wrists,” “Hips,” “Knees,” and “Ankles,” with some loss in his fingers, 4 “Normal motor strength throughout the upper and lower extremities bilaterally (5/5)”); 5 AR 1592 (“Motor: Tone and bulk normal. Strength 5/5 in the upper and lower extremities 6 in all motor groups,” “Gait: Antalgic on straightaway, can heel walk, toe walk”), 7 AR 1710–11 (“WNL [within normal limits]” for “Active Range of Motion” in the 8 “Shoulder,” “Elbow,” “Forearm,” “Wrist,” and “Thumb” but reduced on the “Finger: 9 Middle: Left hand” “2 weeks 3/7 days” after surgery on that finger); AR 1718–19 (same, 10 but somewhat improved range of motion in left middle finger “5 weeks post-op”); 11 AR 1725–26 (same at “6 weeks post-op”); AR 1743–44 (same at “8 weeks post-up” but 12 further improved range of motion, “Strength (lbs.): right/left 46/26lb grip”); AR 1751 13 (“muscle strength 5/5 all groups inserting into feet,” “Gait steady with cane”); AR 1915 14 (“diffuse pain across lumbar area . . . motor normal,” “[r]ight ankle with minimal lateral 15 swelling and pain, good rom). Cf. AR 1583 (“Upper extremity ROM WNL (within normal 16 limits),” “Upper extremity strength: triceps, biceps 4/5,” “Lower extremity strength: 17 Decreased in PF, DF,” “Gait: Limping”).) 18 Michael doesn’t dispute the ALJ’s reading of the record but instead offers two 19 counterarguments. (See ECF 14-1, at 12–13.) First, Michael maintains that the ALJ did not 20 “specifically discuss or provide reasons to reject [his] testimony.” (Id. at 12.) Not so. The 21 ALJ spelled out the parts of Michael’s testimony he questioned and then listed evidence 22 refuting those parts. An ALJ need not “perform a line-by-line exegesis of the claimant’s 23 testimony.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). And even if the ALJ 24 explained his “‘decision with less than ideal clarity,’ we must uphold it ‘if the agency’s 25 path may reasonably be discerned.’” Molina v. Astrue, 674 F.3d 1104, 1121 (9th Cir. 2012) 26 (quoting Alaska Dep’t of Env’t Conservation v. EPA, 540 U.S. 461, 497 (2004)). 27 Second, Michael argues that the “multiple surgical procedures to treat his severe 28 impairments demonstrate[]” that the “medical evidence actually supports his credibility in 1 that he has sought out and underwent non-conservative modes of treatment.” (ECF 14-1, 2 at 12.) But the ALJ did not ignore Michael’s aggressive course of treatment. He merely 3 surmised that the surgeries were successful, based on Michael’s comparatively normal 4 post-surgical testing and examination notes. (See generally AR 283–85; see also AR 284 5 (highlighting “improvement following treatment, which includes various surgeries noted 6 above” (emphasis added)); AR 285 (“His carpal tunnel surgery did well and he has no 7 residuals from that.”).) Of course, Michael’s reading of the record is a reasonable one, but 8 so is the ALJ’s. And the ALJ’s conclusion is supported by substantial evidence. When 9 faced with an ALJ’s “rational interpretation” drawn from “reasonabl[e]” record 10 “inferences,” this Court “must uphold” that reading. Molina, 674 F.3d at 1111. 11 So, this ground is a clear and convincing reason to discount Michael’s credibility.2 12 2. The ALJ’s Hearing Observations 13 Next, the ALJ concluded that Michael’s “demeanor and testimony at the hearing” 14 undermined his claims about his symptom “severity.” (AR 281.) The ALJ went on to give 15 examples: “[h]is answers demonstrated good memory recall and logical thinking” and 16 “reflected good social interaction and concentration, persistence and pace.” (Id.) 17 Michael doesn’t deny those observations but seeks to avoid their import for two 18 reasons. First, he contends that the Commissioner offered them as a “post hoc rationale” 19

20 21 2 An ALJ “may not reject a claimant’s subjective complaints based solely on a lack of medical evidence to fully corroborate the alleged severity of pain.” Burch v. Barnhart, 22 400 F.3d 676, 680 (9th Cir. 2005). But the Ninth Circuit has sometimes treated a lack of 23 objective medical evidence differently than a direct contradiction with the medical record, as here. For example, in Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155 (9th Cir. 24 2008), the ALJ rejected claimant’s testimony “that he can lift only 10 pounds occasionally 25 in favor of Dr. Patton’s contradictory opinion that he can lift up to 10 pounds frequently.” Id. at 1161. The Court held that this sort of “[c]ontradiction with the medical record is a 26 sufficient basis for rejecting the claimant’s subjective testimony.” Id. The identical type of 27 direct contradiction here could—by itself—justify the ALJ’s decision to reject Michael’s testimony. But this Court need not rely solely on that rationale, as the ALJ provided another 28 1 that was “not articulate[d] by the ALJ.” (ECF 18-1, at 3.) But that’s not accurate. The ALJ 2 wrote that Michael’s “demeanor and testimony at the hearing . . . undermines [his] 3 allegations, including the severity and limiting effects of his impairments.” (AR 281 4 (emphasis added).) 5 Next, Michael asserts that, when determining credibility, the ALJ may not engage 6 in the “‘sit and squirm’ jurisprudence” of analyzing a claimant’s demeanor. (See ECF 18-1, 7 at 3.) Yet the Ninth Circuit has repeatedly endorsed the role of demeanor evidence in 8 credibility analysis. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) 9 (affirming ALJ’s reliance on a claimant’s “demeanor at the hearing” to find “she seemed 10 to engage in considerable histrionic exaggeration”); Molina, 674 F.3d at 1120–21 (ruling 11 that ALJs have the “prerogative to determine the credibility of witnesses” because they are 12 “generally in a unique position to observe the witnesses’ demeanor and conduct 13 firsthand”); Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (noting that an ALJ may 14 properly consider whether a claimant “was able to testify in a responsive manner without 15 any noticeable problems with memory or thought content”); Moseley v. Saul, 780 F. App’x 16 514, 515 (9th Cir. 2019) (holding that the ALJ did not “err in considering [claimant’s] 17 demeanor while testifying as ‘one among many’ factors bearing upon credibility”); see also 18 Soc. Sec. Ruling 16-3p Titles II & XVI: Evaluation of Symptoms in Disability Claims, 19 SSR 16-3p (S.S.A. Oct. 25, 2017) (requiring ALJs to “consider any personal observations” 20 of claimants while testifying, including “how consistent those observations are with 21 [claimant]’s statements about his or her symptoms as well as with all of the evidence in the 22 file”). Thus, Michael’s criticism is meritless, and this ground is also a valid reason for the 23 ALJ’s decision. 24 Since both reasons were clear, convincing, and supported by substantial evidence, 25 the ALJ did not err in discounting Michael’s testimony. 26 C. Michael’s Wife’s Statement 27 Finally, Michael faults the ALJ for not giving “germane” reasons “to reject [his wife 28 Mary’s] testimonial evidence.” (ECF 14-1, at 18; see also id. at 17.) In fact, the ALJ offered 1 no reasons for disregarding Mary’s statement. (See AR 287.) But no reasons were needed. 2 Under the current regulations, which took effect March 27, 2017, “ALJs are not required 3 to articulate specific reasons for their findings about the persuasiveness of nonmedical- 4 source testimony, and instead must merely show that they considered such evidence in 5 deciding the claim.” Mary M. v. Kijakazi, No. 20-CV-1457-AGS, 2022 WL 891445, at *6 6 (S.D. Cal. Mar. 25, 2022); see also 20 C.F.R. § 404.1502(e)(4) (“Nonmedical source[s] 7 include[] . . . [f]amily members . . . .”); 20 C.F.R. § 404.1520c(d) (ALJs are “not required 8 to articulate how [they] considered evidence from nonmedical sources using the 9 requirements [for medical sources].”). 10 The ALJ complied with the current regulatory framework by showing that he 11 “considered [Mary’s] evidence in deciding the claim.” See Mary M., 2022 WL 891445, 12 at *6. That is, the ALJ wrote, “All the evidence relevant to the claim has been considered, 13 including statements.” (AR 287 (emphasis added).) And the ALJ even cited to Mary’s 14 statement. (Id. (citing “Ex. 5E/4-11”); AR 1201–08 (Exhibit 5E; Mary’s report).) 15 At oral argument before this Court—rather than dispute the above analysis— 16 Michael’s counsel changed tack slightly. Counsel argued that the ALJ mistakenly thought 17 that the regulations didn’t require him “to consider [Mary’s statement] as opinion evidence 18 after March 27, 2017.” (See also AR 287 (ALJ concluding that Mary’s statement “is not 19 opinion evidence for cases filed on or after March 27, 2017”).) The Court agrees that the 20 ALJ did not consider Mary’s statement as opinion evidence, but that was not a mistake. 21 Under the old regulations, nonmedical-source statements like Mary’s would indeed qualify 22 as lay “opinions.” See 20 C.F.R. § 404.1527(f) (explaining the consideration of “[o]pinions 23 . . . from nonmedical sources” for claims filed “before March 27, 2017”). But not under 24 the current regulations. Now “nonmedical sources” like Mary merely provide “information 25 or statement[s],” and only “medical source[s]” render “opinions.” See 20 C.F.R. 26 § 404.1513(a)(4) (“Evidence from nonmedical sources is any information or 27 statement(s) . . . .”); 20 C.F.R. § 404.1520c (contrasting “medical opinions” and “evidence 28 from nonmedical sources”). The ALJ applied the correct legal framework. 1 At any rate, even if the ALJ mishandled Mary’s statement, any error would be 2 || harmless. Even under the old regulations—which had more stringent requirements for such 3 ||evidence—an ALJ could disregard a nonmedical source’s statement when (1) the ALJ 4 ||appropriately rejected the claimant’s testimony, and (2) the nonmedical source’s 5 || “testimony was similar to [claimant’s] complaints.” See Valentine v. Comm’r of Soc. Sec., 6 F.3d 685, 694 (9th Cir. 2009) (holding that when the wife’s “testimony was similar to 7 [claimant’s] complaints” and the ALJ properly rejected claimant’s testimony, “it follows 8 ||that the ALJ also gave germane reasons for rejecting [the wife’s] testimony”); see also 9 || Molina, 674 F.3d at 1122 (holding that ignoring lay-witness testimony altogether “is 10 || harmless” when “the same evidence that the ALJ referred to in discrediting [the claimant’s] 11 claims also discredits [the lay witness’s] claims”). This dooms Michael’s argument. His 12 ||testimony and Mary’s statement both make similar points about Michael’s functional 13 || limitations. (Compare AR 283 (Michael’s testimony) with AR 1201, 1206 (Mary’s 14 || statement).) Michael has never contested that point, either when raised in the 15 |}Commissioner’s brief (see ECF 17, at 16) or by the Court at oral argument. See Greger vy. 16 || Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) (holding that Social Security “issue is waived” 17 || because claimant “did not raise [it] before the district court’). Since Michael’s testimony 18 || was appropriately rejected on this point, any error in considering Mary’s similar statement 19 harmless. 20 CONCLUSION 21 Thus, Michael’s summary-judgment motion is denied, and the Commissioner’s 22 || cross-motion for summary judgment is granted. The Clerk is directed to issue a judgment 23 close this case. 24 AFFIRMED. 25 ||Dated: August 30, 2022 26 07 Hon. ndrew G. Schopler United States Magistrate Judge 28