Campbell v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: January 4, 2022
• Docket: 2:20-cv-02048
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Jennifer Campbell, No. CV-20-02048-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff Jennifer Campbell’s appeal from the 16 Commissioner of the Social Security Administration’s (“SSA”) denial of social security 17 disability benefits. (Doc. 18). The appeal is fully briefed (Doc. 18, Doc. 21, Doc. 22), and 18 the Court now rules. 19 I. BACKGROUND 20 The issues presented in this appeal are whether Plaintiff was deprived of a valid 21 adjudicatory process, whether substantial evidence supports the Administrative Law 22 Judge’s (“ALJ”) determination that Plaintiff was not disabled from January 1, 2014 to 23 February 13, 2020, and whether the ALJ committed legal error in her analysis. (Doc. 18 at 24 1). 25 a. Factual Overview 26 Plaintiff was 40 years old at the time of her alleged onset date. (Doc. 16-3 at 33). 27 She has a high school education and past relevant work experience as an office machine 28 sales representative, accounts receivable clerk, and a nurse assistant. (Id.) Plaintiff filed her 1 social security disability claim on March 13, 2017, alleging disabilities beginning on 2 January 1, 2014, including bipolar disorder, borderline personality disorder (“BPD”), 3 posttraumatic stress disorder (“PTSD”), alcohol use disorder, fibromyalgia, and 4 degenerative joint disease of the left ankle. (Id. at 19, 22). An ALJ denied Plaintiff’s claim 5 on February 13, 2020. (Id. at 35). The SSA Appeals Council denied a request for review 6 of that decision and adopted the ALJ’s decision as the agency’s final decision. (Id. at 2). 7 b. The SSA’s Five-Step Evaluation Process 8 To qualify for social security benefits, a claimant must show she “is under a 9 disability.” 42 U.S.C. § 423(a)(1)(E). A claimant is disabled if she suffers from a medically 10 determinable physical or mental impairment that prevents her from engaging “in any 11 substantial gainful activity.” Id. § 423(d)(1)–(2). The SSA has created a five-step process 12 for an ALJ to determine whether the claimant is disabled. See 20 C.F.R. § 404.1520(a)(1). 13 Each step is potentially dispositive. See id. § 404.1520(a)(4). 14 At the first step, the ALJ determines whether the claimant is “doing substantial 15 gainful activity.” Id. § 404.1520(a)(4)(i). If so, the claimant is not disabled. Id. Substantial 16 gainful activity is work activity that is both “substantial,” involving “significant physical 17 or mental activities,” and “gainful,” done “for pay or profit.” Id. § 404.1572(a)–(b). 18 At the second step, the ALJ considers the medical severity of the claimant’s 19 impairments. Id. § 404.1520(a)(4)(ii). If the claimant does not have “a severe medically 20 determinable physical or mental impairment,” the claimant is not disabled. Id. A “severe 21 impairment” is one which “significantly limits [the claimant’s] physical or mental ability 22 to do basic work activities.” Id. § 404.1520(c). Basic work activities are “the abilities and 23 aptitudes necessary to do most jobs.” Id. § 404.1522(b). 24 At the third step, the ALJ determines whether the claimant’s impairment or 25 combination of impairments “meets or equals” an impairment listed in Appendix 1 to 26 Subpart P of 20 C.F.R. Part 404. Id. § 404.1520(a)(4)(iii). If so, the claimant is disabled. 27 Id. If not, before proceeding to step four, the ALJ must assess the claimant’s “residual 28 functional capacity” (“RFC”). Id. § 404.1520(a)(4). The RFC represents the most a 1 claimant “can still do despite [her] limitations.” Id. § 404.1545(a)(1). In assessing the 2 claimant’s RFC, the ALJ will consider the claimant’s “impairment(s), and any related 3 symptoms, such as pain, [that] may cause physical and mental limitations that affect what 4 [the claimant] can do in a work setting.” Id. 5 At the fourth step, the ALJ uses the RFC to determine whether the claimant can still 6 perform her “past relevant work.” Id. § 404.1520(a)(4)(iv). The ALJ compares the 7 claimant’s RFC with the physical and mental demands of the claimant’s past relevant work. 8 Id. § 404.1520(f). If the claimant can still perform her past relevant work, the ALJ will find 9 that the claimant is not disabled. Id. § 404.1520(a)(4)(iv). 10 At the fifth and final step, the ALJ determines whether—considering the claimant’s 11 RFC, age, education, and work experience—she “can make an adjustment to other work.” 12 Id. § 404.1520(a)(4)(v). If the ALJ finds that the claimant can make an adjustment to other 13 work, then the claimant is not disabled. Id. If the ALJ finds that the claimant cannot make 14 an adjustment to other work, then the claimant is disabled. Id. 15 c. The ALJ’s Application of the Factors 16 Here, at the first step, the ALJ concluded that Plaintiff had not engaged in substantial 17 gainful activity since the alleged onset date of her disability. (Doc. 16-3 at 22). 18 At the second step, the ALJ determined that Plaintiff’s bipolar disorder, BPD, 19 PTSD, alcohol use disorder, fibromyalgia, and degenerative joint disease of the left ankle 20 constituted severe impairments under 20 C.F.R. § 404.1520(c). (Id. at 22). The ALJ also 21 determined that the rest of Plaintiff’s alleged impairments were non-severe. (Id. at 22–23). 22 At the third step, the ALJ determined that Plaintiff’s impairments did not meet the 23 severity of any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. 24 at 23). After evaluating Plaintiff’s RFC, the ALJ concluded that Plaintiff could perform 25 light work as defined in 20 C.F.R. § 404.1567(b) “except that she can frequently operate 26 foot controls with the left lower extremity, she can never climb ladders, ropes, and 27 scaffolds, she can frequently climb ramps and stairs, [and she can] frequently balance, 28 crouch, kneel, and crawl.” (Id. at 26). The ALJ also found that Plaintiff cannot be exposed 1 to dangerous machinery with moving mechanical parts nor to unprotected heights or 2 driving duties. (Id.) The ALJ also found that Plaintiff: could perform work involving understanding, remembering, 3 and carrying out simple instructions, work requiring simple 4 judgment, work with occasional routine changes in the work setting, could perform tasks that can be learned by 5 demonstration within 30 days, work with brief superficial in- 6 person interaction with the public, but no working in tandem with co-workers, and no work involving fast paced production 7 rate quotas. 8 (Id.) 9 At the fourth step, the ALJ concluded that Plaintiff is unable to perform past relevant 10 work as an office machine sales representative, accounts receivable clerk, or a nurse 11 assistant. (Id. at 33). 12 At the fifth and final step, the ALJ concluded that given Plaintiff’s age, education, 13 work experience, RFC, and the Medical-Vocational Guidelines set out in 20 C.F.R. Part 14 404, Subpart P, Appendix 2, a significant number of jobs existed in the national economy 15 that she could have performed. (Id. at 33–34). Accordingly, the ALJ determined that 16 Plaintiff was not disabled. (Id. at 35). 17 II. LEGAL STANDARD 18 This Court may not overturn the ALJ’s denial of disability benefits absent legal error 19 or a lack of substantial evidence. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). 20 “Substantial evidence means … such relevant evidence as a reasonable mind might accept 21 as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) 22 (quoting Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). 23 On review, the Court “must consider the entire record as a whole, weighing both the 24 evidence that supports and the evidence that detracts from the [ALJ’s] conclusion, and may 25 not affirm simply by isolating a specific quantum of supporting evidence.” Id. (quoting 26 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014)). The ALJ, not this Court, draws 27 inferences, resolves conflicts in medical testimony, and determines credibility. See 28 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 1 1453 (9th Cir. 1984). Thus, the Court must affirm even when “the evidence admits of more 2 than one rational interpretation.” Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 3 Court “review[s] only the reasons provided by the ALJ in the disability determination and 4 may not affirm the ALJ on a ground upon which he did not rely.” Garrison, 759 F.3d at 5 1010. 6 III. DISCUSSION 7 Plaintiff argues that (1) she has been deprived of a valid adjudicatory process due 8 to the unconstitutional structure of the Social Security Administration; and (2) the ALJ 9 erred in finding that Plaintiff could perform jobs exceeding her determined RFC. The Court 10 addresses each in turn. 11 a. Unconstitutional Removal Protections 12 Plaintiff argues that the ALJ’s decision is constitutionally defective in light of the 13 allegedly unconstitutional statutory removal restriction contained in 42 U.S.C. § 902(a)(3), 14 which limits the President’s authority to remove the Commissioner of Social Security 15 without cause. (Doc. 18 at 10). 16 Generally, restrictions on Presidential removal powers of an agency director violate 17 the separation of powers and render an agency’s structure unconstitutional. Seila Law LLC 18 v. CFPB, 140 S. Ct. 2183 (June 20, 2020); Collins v. Yellen, 141 S. Ct. 1761, 1786–87 19 (2021). However, the Supreme Court recently held that plaintiffs must show “compensable 20 harm” to seek legal remedies on this basis. Collins, 141 S. Ct. 1761 at 1787–89. First, the 21 agency action complained of must have been taken by a director subject to an 22 unconstitutional removal restriction. Id. at 1787. Additionally, plaintiffs must be able to 23 point to some compensable harm that they suffered as a result of the unconstitutional 24 removal restriction preventing a director’s removal. Id. at 1789. 25 Defendant concedes that under Collins, 42 U.S.C. § 902(a)(3) violates the separation 26 of powers “to the extent it is construed as limiting the President’s authority to remove the 27 Commissioner without cause,” but argues that the unconstitutionality of 42 U.S.C. § 28 902(a)(3) has no bearing on whether the ALJ’s disability determination should be upheld 1 because Plaintiff has not shown that the unconstitutional provision has caused her harm. 2 (Doc. 21 at 4–5). 3 Whether Collins is actually applicable to this case is an open question because the 4 current Commissioner of Social Security, Kilolo Kijakazi, is only an “Acting” 5 Commissioner who may not be subject to the same removal provision analyzed in Collins. 6 Further, Carolyn Colvin, who served as the Commissioner of Social Security during 7 President Obama’s two terms, was also only the “Acting” Commissioner of Social 8 Security. The Court did not review who the Commissioner of Social Security was at the 9 relevant time of all actions underlying the decision in Plaintiff's case. Nonetheless, the 10 Court notes that some courts have concluded that the social security removal statute is 11 broad enough to include even Acting Commissioners. Dante v. Saul, No. 20-0702 KBM, 12 2021 WL 2936576, at *8 (D.N.M. July 13, 2021) (“The plain language of § 902(a) suggests 13 that the Presidential removal restrictions may apply to a Senate-confirmed Commissioner, 14 but also to any individual serving in the office of Commissioner, including an Acting 15 Commissioner.”); see also Sylivia v. Kijakazi, No. 5:21-CV-076-M-BQ, 2021 WL 16 4692293, at *3 (N.D. Tex. Sept. 13, 2021) (citing Dante v. Saul approvingly). 17 Regardless, however, and assuming Collins applies to this case, for Plaintiff to be 18 entitled to relief under Collins, Plaintiff must show that her harm, in this case her 19 unfavorable decision, was tied to the unconstitutional removal provision. Collins, 141 S. 20 Ct. 1761 at 1787–89. Plaintiff contends that her harm stems from her unfavorable disability 21 determination decision—a decision that resulted from the Commissioner’s unauthorized 22 delegation of authority and promulgation of rules that affected the outcome. (Doc. 18 at 23 11). However, the Collins Court made clear that “the unlawfulness of the removal provision 24 does not strip [agency directors] of the power to undertake the other responsibilities of their 25 office,” particularly where there is no argument that the director was not properly 26 appointed. Collins, 141 S. Ct. 1761 at 1788, n. 23 (citing Seila Law, 140 S. Ct. 2183 at 27 2207–11). 28 Here, Plaintiff does not contest the ALJ’s or the Commissioner’s proper 1 appointments. And while Plaintiff alleges that Andrew Saul served as A Senate-confirmed 2 Commissioner during her hearing and he received the benefit of unconstitutional removal 3 protections (Doc. 18 at 11), the Court makes no judgment on whether Saul’s tenure as 4 Commissioner tainted Plaintiff’s adjudication because Plaintiff does not allege that the ALJ 5 presiding over Plaintiff’s case was appointed during Saul’s tenure or otherwise received 6 her authority to adjudicate social security claims directly from him. Moreover, Plaintiff 7 does not specify which social security rules, if any, were promulgated by Saul during his 8 tenure and applied in Plaintiff’s case. Therefore, the Court finds that Plaintiff has not stated 9 a compensable harm tied to Saul’s actions or his unconstitutional removal protections that 10 would warrant a new hearing in this case. 11 b. Conflicts Between Jobs Identified at Step Five and Plaintiff’s RFC 12 Plaintiff argues that the ALJ erred in finding that Plaintiff could perform jobs 13 defined as having a Level Two reasoning requirement in view of the ALJ’s RFC 14 determination that Plaintiff is limited to work involving only simple instructions. (Doc. 18 15 at 13). Plaintiff argues that an RFC limitation of “simple instructions” precludes jobs with 16 Level Two reasoning because they require “detailed but uninvolved written or oral 17 instruction.” (Id.) 18 At step five, “the Commissioner has the burden ‘to identify specific jobs existing in 19 substantial numbers in the national economy that [a] claimant can perform despite [her] 20 identified limitations.’” Zavalin v. Colvin, 778 F.3d 842, 845 (9th Cir. 2015) (quoting 21 Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995)). Relying on vocational expert (VE) 22 testimony, an ALJ may consult the Dictionary of Occupational Titles (DOT) to identify 23 jobs in the national economy that are consistent with a claimant’s determined RFC. Terry 24 v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990); see also 20 C.F.R. §§ 416.969, 25 416.966(d)(1). Appendix C to the DOT sets forth criteria for evaluating jobs based on their 26 physical and mental requirements. DOT (4th ed. 1991) Appx. C, 1991 WL 688702. As 27 relevant here, the DOT uses General Educational Development (GED) Reasoning Levels 28 that apply to each job. Id. GED Reasoning Levels define “those aspects of education 1 (formal and informal) which are required of the worker for satisfactory job performance.” 2 Id. at III. Level Two positions require that a claimant be able to “apply commonsense 3 understanding to carry out detailed but uninvolved written or oral instructions.” Id. 4 (emphasis added). In contrast, Level One positions require only that a claimant be able to 5 “apply commonsense understanding to carry out simple one- or two-step instructions.” Id. 6 (emphasis added). 7 As discussed above, in evaluating the Plaintiff’s RFC, the ALJ determined that 8 Plaintiff had nonexertional limitations due to her mental impairments, such that Plaintiff’s 9 RFC was limited to “perform[ing] work involving understanding, remembering, and 10 carrying out simple instructions, work requiring simple judgment, … [and] perform[ing] 11 tasks that can be learned by demonstration within 30 days.” (Doc. 16-3 at 26). 12 In accordance with Plaintiff’s RFC, the VE testified that based on Plaintiff’s age, 13 education, experience, and RFC, Plaintiff is capable of successfully transitioning to other 14 work as a collator operator, photocopy machine operator (nonretail setting), or a silver 15 wrapper. (Doc. 16-3 at 34). According to the DOT, all of these jobs require Level Two 16 reasoning, including “detailed but uninvolved written or oral instructions.” DOT (4th ed. 17 1991) § 208.685-010, 1991 WL 671753 (collator operator); id. § 208.685-014, 1991 WL 18 671745 (photocopy machine operator); 1991 WL 672757 (silver wrapper). The ALJ 19 accepted the VE’s testimony because the ALJ “determined that the [VE]’s testimony [was] 20 consistent with the information contained in the Dictionary of Occupational Titles” and 21 was properly based on “his experience in vocational rehabilitation, employer interviews, 22 labor market surveys and personal observation of jobs.” (Doc 16-3 at 34). Plaintiff contends 23 that there is an apparent conflict between her RFC and the identified jobs. (Doc. 18 at 13). 24 “When there is an apparent conflict between the [VE]’s testimony and the DOT— 25 for example, expert testimony that a claimant can perform an occupation involving DOT 26 requirements that appear more than the claimant can handle—the ALJ is required to 27 reconcile the inconsistency.” Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015). During 28 the hearing, the ALJ must ask the VE to explain the conflict and then decide whether the 1 explanation is reasonable before relying on the VE’s testimony in determining a claimant’s 2 disability status. Id. If the ALJ fails to resolve any apparent conflicts between the identified 3 jobs and a claimant’s RFC, a reviewing court may be precluded from determining if 4 substantial evidence supports the ALJ’s findings. Id. 5 Specifically, Plaintiff argues that because the identified jobs are defined as Level 6 Two reasoning occupations, those jobs are inconsistent with her determined RFC limiting 7 her to work “involving understanding, remembering, and carrying out simple instructions.” 8 (Id.) “This argument is without merit as courts within the Ninth Circuit have consistently 9 held that a limitation requiring simple or routine instructions encompasses the reasoning 10 levels of one and two.” Staples v. Acting Comm’r of Soc. Sec. Admin., No. CV 17-03253- 11 PHX-ESW, 2018 WL 3238448, at *6 (D. Ariz. July 3, 2018) (quotations omitted) 12 (collecting cases). While Plaintiff relies on Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 13 996 (9th Cir. 2015) for its position that an RFC limitation to “simple instructions” demands 14 jobs with Level One reasoning, the Ninth Circuit expressly distinguished its holding from 15 other decisions because the RFC in Rounds explicitly included a limitation to “one- or two- 16 step tasks.” Rounds, 807 F.3d at 1004 (“In his RFC assessment, the ALJ did not merely 17 restrict Rounds to ‘simple’ or ‘repetitive’ tasks.”). As in other Ninth Circuit decisions, here 18 too, where an RFC does not specifically call out one- or two-step instructions, “an RFC 19 limitation to simple or repetitive tasks is consistent with Level Two reasoning.” Id. at 1004, 20 n. 6 (collecting cases). Because Plaintiff’s RFC is not limited to one- or two-step 21 instructions, the Court finds no apparent conflict between Plaintiff’s RFC and the identified 22 jobs requiring “detailed but uninvolved instructions.” Barnes v. Colvin, No. 6:14-cv- 23 01906-HZ, 2015 WL 8160669, at *4 (D. Or. Dec. 7, 2015) (“Considering the entire phrase, 24 ‘detailed but uninvolved,’ [this Court] find[s] that while the instructions may be detailed, 25 they may also be simple.” (quotations omitted)). 26 Accordingly, the Court finds that the ALJ did not err at step five. 27 c. Further Proceedings 28 Plaintiff requests a remand for a new hearing in front of a new ALJ to address the □□ alleged errors in the ALJ’s decision. (Doc. 18 at 13-14). However, because the Court is 2|| affirming the ALJ’s decision, the Court denies Plaintiff's request for a remand. 3 IV. CONCLUSION 4 For the foregoing reasons, 5 IT IS ORDERED that the ALJ decision is AFFIRMED. The Clerk of Court shall 6 || enter judgment accordingly. 7 Dated this 4th Day of January, 2022. 8 '

10 _ James A. Teil Org Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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