1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ALEXANDER P., Case No.: 20-cv-01893-JLB
12 Plaintiff, ORDER RE: PLAINTIFF’S MERIT’S 13 v. BRIEF
14 KILOLO KIJAKAZI, (ECF No. 13) Acting Commissioner of Social Security, 15 Defendant.1 16 17 18 On September 23, 2020, plaintiff Alexander P. (“Plaintiff”) filed a Complaint 19 pursuant to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner 20 of Social Security (“Commissioner”) denying his application for disability insurance 21 benefits. (ECF No. 1.) 22 Now pending before the Court and ready for decision is Plaintiff’s merits brief. 23 (ECF No. 13.) The Commissioner filed an opposition (ECF No. 18), and Plaintiff filed a 24 reply (ECF No. 19). For the reasons set forth herein, the Court affirms the decision of the 25 Commissioner and DENIES Plaintiff’s request for reversal and remand. 26 27 1 Kilolo Kijakazi the Commissioner of Social Security is hereby substituted as 28 1 I. PROCEDURAL BACKGROUND 2 On April 28, 2017, Plaintiff filed an application for disability insurance benefits 3 under Title II of the Social Security Act, alleging disability beginning April 1, 2015. 4 (Certified Administrative Record (“AR”) at 371–74.) After his application was denied 5 initially and upon reconsideration (AR 213–17, 220–25), Plaintiff requested an 6 administrative hearing before an administrative law judge (“ALJ”) on October 16, 2017 7 (AR 226–27). An administrative hearing was held on August 23, 2018. (AR 41–87.) 8 Plaintiff appeared at the hearing with counsel, and testimony was taken from him, as well 9 as from a vocational expert (“VE”) and medical expert. (AR at 41–87.) On 10 October 24, 2018, the ALJ determined that Plaintiff was not disabled from April 1, 2015, 11 through the date of decision. (AR 166–90.) 12 Plaintiff requested reconsideration of the ALJ’s decision. (AR 284–86.) On 13 May 3, 2019, the Appeals Council remanded the case to an ALJ. (AR 191–94.) A second 14 administrative hearing was held on February 27, 2020, before a different ALJ, Kevin 15 Messer. (AR 88–127.) Plaintiff appeared at the hearing with counsel, and testimony was 16 taken from him, as well as from a VE. (AR at 88–126.) 17 As reflected in his April 1, 2020, hearing decision, ALJ Messer found that Plaintiff 18 had not been under a disability, as defined in the Social Security Act, from April 1, 2015, 19 through the date of decision. (AR 16–40.) The ALJ’s decision became the final decision 20 of the Commissioner on July 27, 2020, when the Appeals Council denied Plaintiff’s request 21 for review. (AR 1–6.) This timely civil action followed. 22 II. SUMMARY OF THE ALJ’S FINDINGS 23 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 24 evaluation process. See 20 C.F.R. § 404.1520. At step one, the ALJ found that Plaintiff 25 had been engaged in substantial gainful activity since December 2018. (AR 22.) However, 26 there was a continuous 12-month period during which Plaintiff did not engage in 27 substantial gainful activity. (AR 22.) The ALJ’s remaining findings only address the 28 period Plaintiff did not engage in substantial gainful activity. (AR 22.) 1 At step two, the ALJ found that Plaintiff had the following severe impairments: 2 degenerative disc disease of the lumbar spine, lumbar radiculopathy, right knee lateral 3 meniscus tear with osteoarthritis, diabetes mellitus type 2 with peripheral neuropathy, 4 subacromial impingement syndrome of the right shoulder status post arthroscopy with 5 subacromial depression, interstitial cystitis, anxiety, major depressive disorder, and 6 agoraphobia with panic disorder. (AR 22.) 7 At step three, the ALJ found that Plaintiff did not have an impairment or combination 8 of impairments that met or medically equaled the severity of one of the impairments listed 9 in the Commissioner’s Listing of Impairments. (AR 22.) 10 Next, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) 11 “to perform sedentary work,” as defined in 20 C.F.R. § 404.1567(a), with the following 12 limitations: 13 [T]he claimant is limited to occasional climbing of ramps and stairs, but can 14 never climb ladders, ropes, or scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. The claimant can never overhead reach bilaterally, 15 but frequently reach in all other directions. The claimant must avoid 16 concentrated exposure to hazards such as operational control of moving machinery and unprotected heights. The claimant is limited to understanding, 17 remembering, and carrying out simple, routine tasks, only occasional 18 interaction with the general public, only occasional work-related, non- personal, non-social interaction with coworkers and supervisors, and can 19 perform jobs requiring only simple work-related decisions. 20
21 (AR 24.) 22 For purposes of his step four determination, the ALJ determined that Plaintiff was 23 unable to perform any past relevant work. (AR 30.) 24 The ALJ then proceeded to step five of the sequential evaluation process. Based on 25 the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile and RFC 26 could perform the requirements of occupations that existed in significant numbers in the 27 national economy (i.e., inspector, electrical assembler, sealer), the ALJ found that Plaintiff 28 was not disabled under the law from April 1, 2015, through the date of decision, 1 April 1, 2020. (AR 31–32.) 2 III. PLAINTIFF’S CLAIMS OF ERROR 3 As reflected in Plaintiff’s merit brief, the disputed issues that Plaintiff is raising as 4 grounds for reversal and remand are as follows: 5 1. Whether the ALJ failed to resolve the apparent conflicts between the VE’s 6 testimony and the Dictionary of Occupational Titles (“DOT”) requirements 7 for the occupations identified; 8 2. Whether the ALJ failed to offer any reason for rejecting the reviewing doctor’s 9 opinion limiting Plaintiff to understanding, carrying out, and remembering 10 one- to- two- step instructions; and 11 3. Whether the final decision of the Commissioner, finding Plaintiff not 12 disabled, was prejudiced by an unconstitutional delegation of authority. 13 (ECF No. 13 at 4.) 14 IV. STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 16 determine whether the Commissioner’s findings are supported by substantial evidence and 17 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 18 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 19 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 20 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 21 “such relevant evidence as a reasonable mind might accept as adequate to support a 22 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 23 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529– 24 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 25 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1453 26 (9th Cir. 1984). In reaching his findings, the ALJ is entitled to draw inferences which 27 logically flow from the evidence. Id. 28 /// 1 V. DISCUSSION 2 A. The ALJ’s Consideration of the VE’s Testimony 3 At step five of the sequential evaluation process, the ALJ found that there are jobs 4 that exist in significant numbers in the national economy that Plaintiff can perform. (AR 5 31.) The ALJ based his determination on the VE’s testimony that a hypothetical person 6 with Plaintiff’s vocational profile and RFC could perform the requirements of 7 representative occupations such as inspector (with 13,000 jobs nationally), electrical 8 assembler (with 14,400 jobs nationally), and sealer (with 15,000 jobs nationally). (AR 31.) 9 The ALJ determined that the VE’s testimony was consistent with the information contained 10 in the DOT. (AR 31.) Based on this finding, the ALJ concluded that a finding of “not 11 disabled” was appropriate. (AR 31.) 12 Plaintiff argues that there are apparent and unresolved conflicts between the electrical 13 assembler and inspector occupations and the DOT, leaving only the sealer position. (ECF 14 No. 13 at 6.) Plaintiff further argues that if the electrical assembler and inspector 15 occupations are excluded, the ALJ did not find that the 15,000 sealer jobs nationally 16 represented a significant number of jobs and case law does not support such a conclusion. 17 (Id.) The Court addresses these arguments below. 18 1. Legal Standard 19 At step five, the Commissioner has the burden of establishing “there are a significant 20 number of jobs in the national economy that claimant can do.” Tackett v. Apfel, 180 F.3d 21 1094, 1099 (9th Cir. 1999). “There are two ways for the Commissioner to meet the burden 22 of showing that there is other work in ‘significant numbers’ in the national economy that 23 claimant can do: (1) by the testimony of a [VE], or (2) by reference to the Medical– 24 Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2,” known as the “Grids.” Id.; 25 see also Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002). “The Grids are used to 26 determine whether substantial gainful work exists for the claimant with respect to 27 substantially uniform levels of impairment.” Thomas, 278 F.3d at 960. When the Grids 28 1 “do not adequately take into account claimant’s abilities and limitations, the Grids are to 2 be used only as a framework, and a [VE] must be consulted.” Id. 3 “Hypothetical questions posed to the [VE] must set out all the limitations and 4 restrictions of the particular claimant,” which are supported by the record. Embrey v. 5 Bowen, 849 F.2d 418, 422 (9th Cir. 1988). A VE’s testimony has no evidentiary value if 6 the hypothetical does not reflect all impairments supported by the record. Id.; see also 7 Thomas, 278 F.3d at 956. 8 Occupational evidence provided by a VE “generally should be consistent with the 9 occupational information supplied by the DOT.” Social Security Ruling (“SSR”) 00-4P, 10 2000 WL 1898704, at *2 (Dec. 4, 2000).2 However, when a VE provides evidence about 11 the requirements of an occupation, the ALJ “has an affirmative responsibility to ask about 12 any possible conflict” between the VE evidence and information provided in the DOT. Id. 13 at *4; see also Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (holding that an 14 ALJ may not rely on a VE’s testimony regarding the requirements of a particular job 15 without first inquiring whether the testimony conflicts with the DOT). 16 When there is an apparent unresolved conflict between the VE evidence and the 17 DOT, the ALJ must elicit a reasonable explanation for the conflict before relying on the 18 VE evidence to support a determination or decision about whether the claimant is disabled. 19 SSR 00–4P, 2000 WL 1898704, at *2–4; see also Massachi, 486 F.3d at 1153. “[T]he 20 conflict must be ‘obvious or apparent’ to trigger the ALJ’s obligation to inquire further.” 21 Lamear v. Berryhill, 865 F.3d 1201, 1205 (9th Cir. 2017) (citing Gutierrez v. Colvin, 844 22 F.3d 804, 808 (9th Cir. 2016)). 23 24 25 2 SSRs “do not carry the force of law, but they are binding on ALJs nonetheless. They 26 reflect the official interpretation of the [Social Security Administration (“SSA”)] and are 27 entitled to some deference as long as they are consistent with the Social Security Act and regulations.” Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (superseded by 28 1 Neither the DOT nor the VE evidence automatically “trumps” when there is a 2 conflict; rather, the ALJ must resolve the conflict by determining if the explanation given 3 by the VE is reasonable and provides a basis for relying on the VE testimony rather than 4 the DOT information. SSR 00–4P, 2000 WL 1898704, at *2–4; see also Massachi, 486 5 F.3d at 1153. The ALJ must “explain the resolution of the conflict irrespective of how the 6 conflict was identified.” Id. at *4. 7 2. Analysis 8 During Plaintiff’s hearing, at the outset of the VE’s testimony, the ALJ asked the 9 VE to let him know if her testimony was “inconsistent with the DOT or [Selected 10 Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles 11 (‘SCO’)].” (AR 112.) The VE agreed to do so. (AR 112.) The ALJ then asked the VE 12 whether there would be any unskilled jobs in the national economy for the following 13 hypothetical person: an individual “who can do work at the sedentary exertional level” and 14 would be “limited to occasional climbing ramps and stairs, never climbing ladders, ropes, 15 scaffolds, occasional balancing, stooping, kneeling, crouching and crawling;” “limited to 16 no overhead reaching bilaterally and only frequent reaching all other directions”; “must 17 avoid concentrated exposure to hazards, operation and control of moving machinery and 18 unprotected heights”; limited to “understanding, remembering and carrying out only 19 simple, routine tasks, occasional interaction with the general public, occasional work 20 related, non-personal, non-social interaction with coworkers and supervisors and can 21 perform jobs requiring only a simple work-related decision.” (AR 114.) The VE 22 responded that the occupations of inspector, electrical assembler, and sealer would be 23 available. (AR 114.) 24 Based on the foregoing, the ALJ met his burden of providing a complete hypothetical 25 to the VE, which included all of the restrictions and limitations found in Plaintiff’s RFC. 26 (See AR 114.) The ALJ also asked the VE whether there was a possible conflict between 27 the VE’s evidence and the information provided in the DOT. (AR 112.) The VE did not 28 state that there was any inconsistency between her testimony and the DOT or SCO. 1 However, Plaintiff argues that there were obvious or apparent conflicts between the VE’s 2 testimony and the DOT with respect to the electrical assembler and inspector occupations, 3 and the ALJ’s failure to resolve these conflicts constitutes reversible error. (ECF No. 13 4 at 6.) The Court will address Plaintiff’s arguments with respect to each occupation below. 5 a. Electrical Assembler/Stem Mounter 6 The first representative occupation identified by the VE was an electrical assembler, 7 also known as a stem mounter. See Gutierrez, 844 F.3d at 807 (noting the DOT refers to 8 occupations, which may include numerous jobs, and lists the maximum requirements of 9 each occupation as generally performed). The DOT defines a stem mounter as someone in 10 the lighting fixtures industry who “[f]astens tungsten wire (filament) to glass stem to form 11 mount for electric light bulb,” “[l]oops wire over hooks on glass stem held in revolving 12 table and clinches hooks in place, using pliers,” and “[c]ements ends to lead wires, using 13 brush and carbon cement.” Stem Mounter, DICOT 725.684-018, 1991 WL 679557 (Jan. 14 1, 2016). 15 Plaintiff argues that the “DOT reports that stem mounters require constant reaching” 16 and Plaintiff is limited to “never reaching overhead bilaterally and frequently in all other 17 directions.” (ECF No. 13 at 6.) Plaintiff contends that this was an apparent unresolved 18 conflict that the VE did not self-identify. (Id.) Plaintiff further argues that “[i]n light of 19 the VE failing to self-identify the apparent conflict when she confirmed to the ALJ that she 20 would, the trustworthiness of the VE’s overall testimony is undermined.” (Id. at 7.) 21 Plaintiff concludes that the ALJ erred by finding the VE’s testimony consistent with the 22 information contained in the DOT. (Id.) 23 According to the DOT, a stem mounter reaches constantly or 2/3 or more of the time. 24 DICOT 725.684-018, 1991 WL 679557. Reaching involves “extending the hands and arms 25 in any direction.” SSR 85-15, 1985 WL 56857, at *7 (Jan. 1, 1985). “Constantly” is 26 defined as an activity or condition that exists “2/3 or more of the time,” while “frequently” 27 is defined as an activity or condition that exists “1/3 to 2/3 of the time.” See DOT App. C, 28 1991 WL 688702 (Jan. 1, 2016). 1 Resolving the question of whether the ALJ erred with respect to overhead reaching 2 requires the Court “to determine whether overhead reaching is such a common and obvious 3 part” of being a stem mounter that the ALJ should have recognized a conflict and 4 questioned the VE more closely before determining that Plaintiff could perform this 5 occupation. See Gutierrez, 844 F.3d at 807. In Gutierrez, the Ninth Circuit found that the 6 ALJ did not err in a similar situation “because there was no apparent or obvious conflict 7 between the [VE’s] testimony that [the claimant] could perform as a cashier, despite her 8 weight bearing and overhead reaching limitations with her right arm, and the [DOT’s] 9 general statement that cashiering requires frequent reaching.” Id. at 808. Although 10 reaching “connotes the ability to extend one’s hands and arms in any direction,” the Ninth 11 Circuit stated that “not every job that involves reaching requires the ability to reach 12 overhead” and “[c]ashiering is a good example.” Id. (internal quotation marks omitted). 13 Here, the Court is not convinced that a sedentary assembler who works on a revolving table 14 and assembles electrical items (as opposed to installing them) is an occupation that the ALJ 15 should have recognized as one that requires the ability to reach overhead. However, the 16 ALJ should have recognized and resolved the apparent conflict between Plaintiff’s 17 limitation to only frequent reaching and the DOT requirement that an assembler be able to 18 reach constantly, and he failed to do so. Accordingly, the Court finds that the ALJ erred 19 in this respect. 20 The Commissioner concedes that there appears to be a conflict but asserts that any 21 error was harmless because the ALJ properly found that Plaintiff could perform the sealer 22 and inspector occupations. (ECF No. 18 at 11.) The Court will therefore turn to address 23 these occupations. 24 b. Inspector/Dowel Inspector 25 The next representative occupation identified by the VE was an inspector, also 26 known as a dowel inspector. DICOT 669.687-014, 1991 WL 686074 (Jan. 1, 2016). The 27 DOT defines a dowel inspector as someone in the woodworking industry who “[i]nspects 28 dowel pins for flaws, such as square ends, knots, or splits, and discards defective dowels.” 1 Id. The occupation requires the ability to make judgments and decisions, which includes 2 “solving problems, making evaluations, or reaching conclusions based on subjective or 3 objective criteria.” (AR 682.) 4 Plaintiff argues that there is an apparent conflict between Plaintiff’s limitation to 5 only simple work-related decisions and the occupation of dowel inspector because the 6 occupation requires the temperament to make judgments and decisions. (ECF No. 13 at 7– 7 9.) Plaintiff contends that the VE did not self-identify the apparent conflict, so the conflict 8 remains unidentified and unresolved. (Id. at 9.) Plaintiff argues that the ALJ erred by 9 finding the VE’s testimony consistent with the information contained in the DOT. (Id.) 10 For the reasons set forth below, the Court disagrees. 11 The DOT states that the reasoning level for a dowel inspector is Level 1,3 which is 12 defined as the ability to “[a]pply commonsense understanding to carry out simple one- or 13 two-step instructions” and to “[d]eal with standardized situations with occasional or no 14 variables in or from these situations encountered on the job.” DICOT 669.687-014, 1991 15 WL 686074. The occupation is also identified as specific vocational preparation (“SVP”) 16 Level 2, which indicates preparation involving “[a]nything beyond short demonstration up 17 to and including 1 month.” Id. A job that a person can usually learn to do in thirty days is 18 unskilled work that “needs little or no judgment to do simple duties.” 20 C.F.R. § 19 404.1568(a); see also SSR 00-4P, 2000 WL 1898704, at *3 (Dec. 4, 2000) (“unskilled work 20 corresponds to an SVP of 1–2”). In addition, the ability to “us[e] reason and judgment to 21 make work-related decisions” falls under the paragraph B criteria relating to understanding, 22 remembering, or applying information. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 23 24 25 26 3 “There are six [General Educational Development] Reasoning Levels that range 27 from Level One (simplest) to Level Six (most complex).” Rounds v. Comm’r Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015) (citing DOT, App. C, 1991 WL 688702 (Jan. 28 1 12.00(E)(1). In this regard, the ALJ found that Plaintiff was only moderately limited. (AR 2 23.) 3 Plaintiff argues that the “the record does not disclose how making judgments or 4 decisions about which dowels are defective is a simple decision when that decision is based 5 on criteria involving some of the five senses, knowledge, and past experience about how 6 many square ends, knots, or splits renders a dowel defective.” (ECF No. 13 at 9.) Plaintiff 7 further argues that “[w]hile determining whether a dowel is defective or not might be a 8 simple decision for most dowels that pass by the inspector, deciding the suitability of 9 dowels that are on the borderline of acceptable or defective requires judgement and careful 10 consideration which elevates those work decisions above simple.” (Id.) In response, the 11 Commissioner states that although Plaintiff “speculates as to possible ways that inspecting 12 a dowel could be complicated, . . . he fails to cite any authority supporting his contentions.” 13 (ECF No. 18 at 11.) The Commissioner argues that Plaintiff’s “lay opinion about the 14 vocational requirements of an occupation is invalid and does not take precedence over the 15 [VE’s] testimony that the inspector occupation involved only simple tasks, would not 16 require more than simple judgments, and was consistent with an RFC for making simple 17 work-related decisions.” (Id.) 18 The Court agrees with the Commissioner. Although the dowel inspector occupation 19 requires Plaintiff to use some judgment, all indicators suggest the occupation requires little 20 to no judgment in the execution of simple duties. The definition in the DOT supports this 21 position. A dowel inspector is looking for “flaws, such as square ends, knots, or splits.” 22 See 1991 WL 686074. This does not obviously require abilities of careful consideration 23 beyond Plaintiff’s RFC. Rather, it appears consistent with Plaintiff’s RFC limitation to 24 25 26 27 28 1 “simple work-related decisions.” (AR 24.) Accordingly, the Court finds there was no 2 apparent unresolved conflict between the VE evidence and the DOT for the ALJ to resolve. 3 c. Sealer/Ampoule Sealer 4 The last representative occupation identified by the VE was a sealer, also known as 5 an ampoule sealer. DICOT 559.687-014, 1991 WL 683782 (Jan. 1, 2016). The DOT 6 defines a sealer as someone in the woodworking industry who “[s]eals ampoules filled with 7 liquid drug products, preparatory to packaging”; “[r]otates neck of ampoule in flame of 8 bunsen burner to melt glass”; “[g]rips tip of ampoule, using tweezers, and draws tip away 9 from neck to seal ampoule as glass hardens”; and “places sealed ampoule in basket for 10 sterilization and inspection.” Id. A sealer may also “hold unsealed ampoule against jet of 11 inert gas to displace air, . . . immerse sealed ampoules in dye bath to test for leaks, [and] . 12 . . tend machines that steam-wash and fill ampoules.” Id. The occupation involves 13 sedentary work, Reasoning Level 2, and is an SVP Level 2. Id. The occupation also 14 involves frequent reaching and handling. Id. 15 Plaintiff concedes that the “DOT/SCO description of an ampoule sealer ostensibly 16 fits within the parameters set forth in [Plaintiff’s RFC].” (ECF No. 13 at 10.) However, 17 Plaintiff argues that the “elimination of the other two jobs identified materially impacts this 18 claim” by reducing the aggregate number of jobs. (Id.) Plaintiff argues that the 15,000 19 sealer jobs, standing alone, does not represent a significant number. (Id.) 20 As set forth above, the Court finds that the ALJ properly identified the sealer and 21 inspector occupations as other work that Plaintiff could perform. The VE testified that 22 there are 13,000 inspector jobs nationally and 15,000 sealer jobs nationally, for a total of 23 28,000 jobs nationally. (AR 31, 114.) An ALJ may properly rely on a VE’s “testimony 24 regarding the number of relevant jobs in the national economy,” as an “ALJ may take 25
26 27 4 Plaintiff’s counsel also took the opportunity to question the VE about her testimony during the hearing. (AR 116–17.) The VE testified that Plaintiff making a “simple mistake 28 1 administrative notice of any reliable job information, including information provided by a 2 VE.” Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). The Court finds that 3 28,000 jobs nationally constitute a significant number. See Gutierrez v. Comm’r of Soc. 4 Sec., 740 F.3d 519, 529 (9th Cir. 2014) (finding 25,000 jobs nationally to be a significant 5 number of jobs); see also Garner v. Saul, 805 F. App’x 455, 459 (9th Cir. 2020) (finding 6 30,000 jobs of one occupation nationally to meet the statutory standard). 7 For the foregoing reasons, the Court finds that the ALJ did not err at Step Five in 8 determining that jobs existed in significant numbers in the national economy that Plaintiff 9 could perform considering his age, education, work experience, and RFC. (See AR 31.) 10 B. Opinion of Randall J. Garland, Ph.D. 11 Next, Plaintiff argues that the ALJ erred by failing to properly assess the opinion of 12 state agency psychological consultant Randall J. Garland, Ph.D. (ECF No. 13 at 11–15.) 13 On initial review of Plaintiff’s application, Dr. Garland provided a mental RFC for 14 Plaintiff. (AR 139–42.) As relevant here, Dr. Garland opined that Plaintiff was not 15 significantly limited in his ability to understand, remember, and carry out very short and 16 simple instructions, but he was moderately limited in his ability to understand, remember, 17 and carry out detailed instructions. (AR 140.) 18 Dr. Garland subsequently elaborated in a “notes” section as follows: 19 Cl should be able to meet the following criteria on a sustained basis in a 20 competitive, remunerative work context where there is relatively low 21 interpersonal contact (e.g., low contact with the public; working alone or with limited contact with supervisor or co-workers): To understand, carry out, and 22 remember simple instructions (e.g., understanding and learning terms, 23 instructions, and procedures; maintaining attention/concentration for approximately 2 hour blocks; understanding, carrying out, & remembering 1 24 to 2 step instructions; recognizing a mistake and correcting it; being able to 25 work consistently and at a reasonable pace for approximately 2 hour segments between arrival, first break, lunch, second break, and departure; attending 26 work regularly without excessive early departures or absences during the 27 typical 40 hour work week); to make simple judgments and work-related decisions; to respond appropriately to supervision, coworkers and work 28 situations (e.g., asking simple questions or requesting assistance, accepting 1 instructions, responding appropriately to criticism from supervisors, cooperating with others, appropriately handling disagreements with others, 2 not distracting others or exhibiting behavioral extremes); and to deal with 3 changes in a routine work setting. 4 (AR 141 (emphasis added).) Upon reconsideration, state agency psychological consultant 5 Alan L. Berkowitz, M.D., opined that Plaintiff had no limitations with respect to 6 understanding, remembering, or applying information. (AR 157–58.) 7 In his decision, the ALJ addressed the state agency psychological consultants’ 8 findings as follows: 9 The State agency psychological consultants initial prior administrative 10 medical finding the claimant had moderate limitation to understand, remember, or apply information, moderate limitation to interact with others, 11 moderate limitation to concentrate, persist, or maintain pace, and moderate 12 limitation to adapt or manage oneself [AR 136]. Upon reconsideration, the claimant had no limitation to understand, remember, or apply information, 13 mild limitation to interact with others, mild limitation to concentrate, persist, 14 or maintain pace, and mild limitation to adapt or manage oneself [AR 157]. The undersigned gives some weight to the prior administrative medical 15 finding, as it is consistent with the medical evidence of record and the 16 claimant’s consistent mental health treatment, as well as his current employment. 17 18 (AR 30.) With respect to Plaintiff’s mental RFC, the ALJ then determined that Plaintiff 19 was limited to “understanding, remembering, and carrying out simple routine tasks.” (AR 20 24.) The ALJ also determined that Plaintiff was limited to only “simple work-related 21 decisions,” “occasional interaction with the general public,” and “occasional work-related, 22 non-personal, non-social interaction with coworkers and supervisors.” (AR 24.) 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 Plaintiff argues that the ALJ erred by failing to explicitly consider and reject one of 2 the examples5 Dr. Garland provided in his notes—a limitation to “understanding, carrying 3 out, & remembering 1 to 2 step instructions.” (ECF No. 13 at 11–12.) Plaintiff argues this 4 was a significant “qualification” provided by Dr. Garland rather than just an example. (Id. 5 at 11.) Plaintiff further argues that the ALJ’s error was material to the ALJ’s Step Five 6 determination and therefore not harmless. (Id. at 12–14.)6 7 ALJs must “consider and address medical source opinions” when assessing a 8 claimant’s RFC. SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996); see also 20 C.F.R. § 9 404.1520c. “If the RFC assessment conflicts with an opinion from a medical source, the 10 [ALJ] must explain why the opinion was not adopted.” Id. “Where evidence is susceptible 11 to more than one rational interpretation, it is the ALJ’s conclusion that must be upheld.” 12 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005); see also Miner v. Berryhill, 722 F. 13 App’x 632, 633 (9th Cir. 2018) (“[W]here a minor conflict can be willfully read into 14 various parts of the record, such conflict goes only so far as to make the evidence 15 susceptible to more than one rational interpretation, which is not enough for the court to 16 disturb the ALJ’s decision.” (internal quotation marks and citation omitted)). 17 Here, the Court finds that the ALJ rationally concluded that Dr. Garland only opined 18 that Plaintiff was limited to understanding, carrying out, and remembering simple 19 instructions. This limitation is consistent with Dr. Garland’s finding that Plaintiff was only 20 “moderately limited” in his ability to understand, remember, and carry out detailed 21 instructions. Cf. Thomas v. Saul, 796 F. App’x 923, 926 (9th Cir. 2019) (finding a 22 psychologist’s report limiting the claimant to “simple, routine type work” with a moderate 23 24 25 5 “E.g.” is a Latin abbreviation and means “for example.” See E.G., Black’s Law 26 Dictionary (11th ed. 2019). 27 6 An RFC limitation to simple or repetitive tasks is consistent with Reasoning Level 1 or 2; however, a limitation to one- or two- steps tasks is only consistent with Reasoning 28 1 limitation on the ability to deal with detailed instructions, when “[r]ead as a whole,” does 2 not conflict with the conclusion that the claimant was capable of Reasoning Level 2). 3 Moreover, it appears that Dr. Garland was merely stating that Plaintiff could perform 4 the basic mental demands of unskilled work, which are defined as follows: 5 The basic mental demands of competitive, remunerative, unskilled work 6 include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, 7 coworkers, and usual work situations; and to deal with changes in a routine 8 work setting. 9 SSR 85-15, 1985 WL 56857, at *4 (Jan. 1, 1985). The SSA Program Operations Manual 10 System (POMS) similarly defines the basic mental demands of unskilled work as follows: 11 The basic mental demands of competitive, remunerative, unskilled work 12 include the abilities (on a sustained basis) to: 13 • understand, carry out, and remember simple instructions; • make judgments that are commensurate with the functions of 14 unskilled work, i.e., simple work-related decisions. 15 • respond appropriately to supervision, coworkers and work 16 situations; and 17 • deal with changes in a routine work setting. 18 Mental Limitations, SSA POMS DI 25020.010. 19 The only limitation Dr. Garland added to these demands, as opposed to providing an 20 example,7 was a limitation to “relatively low interpersonal contact.” (AR 141.) The ALJ 21 included this limitation in Plaintiff’s RFC. (AR 24.) Therefore, Dr. Garland’s statement 22 could reasonably have been interpreted by the ALJ as follows: Plaintiff should be able to 23 carry out the demands of unskilled work in a work context “where there is relatively low 24 25 7 Cf. 20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00(E) (explaining the paragraph B 26 criteria for mental disorders, such as understanding, remembering, or applying information, 27 by way of examples and stating that “[t]hese examples illustrate the nature of this area of mental functioning,” but noting that the SSA “do[es] not require documentation of all of 28 1 interpersonal contact.” See Rounds, 807 F.3d at 1006 (ALJs are permitted a certain amount 2 of leeway in “translating and incorporating clinical findings into a succinct RFC”). The 3 RFC provided to the VE included a limitation to low interpersonal contact and all of the 4 jobs identified by the VE were unskilled jobs. 5 Accordingly, the Court finds that the ALJ’s decision not to incorporate each of 6 Dr. Garland’s examples as further limitations or qualifications on Plaintiff’s mental ability 7 to understand, remember, and carry out instructions was rational. Therefore, the Court 8 finds that the ALJ did not err in assessing the opinion of Dr. Garland. 9 C. Constitutionality 10 Lastly, Plaintiff argues that the statutory clause for removal of the Commissioner of 11 Social Security is unconstitutional, rendering Commissioner Andrew Saul’s8 appointment 12 invalid, and therefore rendering the ALJ’s nondisability decision, which was issued during 13 Commissioner Saul’s tenure, tainted. (ECF No. 13 at 15–18.) In opposition, the 14 Commissioner concedes that the statutory removal clause in the Social Security Act 15 “violates the separation of powers to the extent it is construed as limiting the President’s 16 authority to remove the Commissioner without cause.” (ECF No. 18 at 13.) However, the 17 Commissioner argues that this conclusion alone does not support setting aside Plaintiff’s 18 unfavorable disability benefits determination; rather, Plaintiff must demonstrate that the 19 unconstitutional removal clause affected the ALJ’s determination of his claim, and he has 20 failed to do so. (Id. at 14–20.) As set forth below, the Court agrees with the Commissioner. 21 In Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022), the Ninth Circuit held, as a 22 matter of first impression, that the Social Security Act’s removal provision, 42 U.S.C. § 23 902(a)(3), is unconstitutional, but also that it is severable from the remainder of the statute. 24 Id. at 848. Therefore, the unconstitutional removal provision “does not affect the authority 25
26 27 8 Andrew Saul was the Acting Commissioner of Social Security during Plaintiff’s hearing, the ALJ’s decision, and the Appeals Council’s final denial of review. (ECF No. 28 1 of the underlying agency officials to act.” Id. at 849 (citing Collins v. Yellen, 141 S. Ct. 2 1761, 1787–88 & n.23 (2021)). To the extent the ALJ, the members of the Appeals 3 Council, and the SSA Commissioner all served, at all relevant times, under valid 4 appointments, “there is no reason to regard any of the actions taken by the [SSA] as void.” 5 Id. (quoting Collins, 141 S. Ct. at 1787). 6 “A party challenging an agency’s past actions must instead show how the 7 unconstitutional removal provision actually harmed the party—for example, if the 8 President would have removed the agency’s head but for the provision or, alternatively, if 9 the agency’s head ‘might have altered his behavior in a way that would have benefited’ the 10 party.” Id. (quoting Collins, 141 S. Ct. at 1789). Plaintiff therefore must “demonstrat[e] 11 that the unconstitutional provision actually caused [him] harm.” Id. (quoting Decker Coal 12 Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021)). “Absent a showing of harm, [a court 13 will] refuse to unwind the decision[] below.” Id. (quoting Decker Coal Co., 8 F.4th at 14 1137). 15 Here, Plaintiff initially argues that the appointment of Commissioner Saul was 16 unconstitutional and therefore the case should be remanded for a new hearing and 17 administrative decision. (ECF No. 13 at 15–18.) However, the cited authority does not 18 support the argument that Commissioner Saul’s appointment was unconstitutional. See 19 Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct. 2183, 2209 (2020) (“The only 20 constitutional defect we have identified in the [Consumer Financial Protection Bureau’s] 21 structure is the Director’s insulation from removal.”); Lucia v. S.E.C., 138 S. Ct. 2044, 22 2051 (2018) (holding that Securities and Exchange Commission ALJs are “Officers of the 23 United States” for purposes of the Appointments Clause of the Constitution);9 Office of 24 25 26 9 In response to the Supreme Court’s holding in Lucia, Acting Commissioner 27 Berryhill ratified the appointments of all SSA ALJs in July 2018. See SSR 19-1P, 2019 WL 1324866, at *2 (Mar. 15, 2019). Plaintiff concedes that ALJ Messer was properly 28 1 Legal Counsel, Constitutionality of the Comm’r of Soc. Sec.’s Tenure Prot., 2021 WL 2 2981542, at *11 (O.L.C. July 8, 2021) (concluding that “the President may remove the 3 SSA Commissioner at will” and that “disregarding the constitutionally unenforceable 4 restriction on removal in 42 U.S.C. § 902(a)(3) would not affect the validity of the 5 remainder of the statute”). To the contrary, in Collins, the Supreme Court found that a 6 defective removal procedure did not render the confirmed Federal Housing Finance 7 Agency (“FHFA”) Director’s appointment invalid, and thus did not render the FHFA’s 8 actions under the Director void from the outset. 141 S. Ct. at 1787 (“Although the statute 9 unconstitutionally limited the President’s authority to remove the confirmed Directors, 10 there was no constitutional defect in the statutorily prescribed method of appointment to 11 that office. As a result, there is no reason to regard any of the actions taken by the FHFA 12 [challenged on appeal] as void.”). The same is true here. The infirm removal provision 13 does not render Commissioner Saul’s appointment invalid, which in turn does not render 14 the SSA’s nondisability decision void from the outset.10 15 The question is therefore whether Plaintiff has demonstrated that the 16 unconstitutional removal provision actually caused him harm. The Court finds that 17 Plaintiff has not presented any evidence or a plausible theory to show that the removal 18 provision specifically caused him any harm. See Kaufmann, 32 F.4th at 849–50. Plaintiff 19 argues that the White House’s statement that Commissioner Saul was terminated in part 20 because he “undermined and politicized Social Security disability benefits” and “reduced 21 due process protections for benefits appeals hearings,” and the timing of the termination, 22 is the type of harm contemplated by Collins. (ECF No. 19 at 6.) However, Plaintiff does 23 not identify any direct connection between the unconstitutional removal clause and the 24 25 26 10 The Ninth Circuit in Kaufmann assumed for purposes of its analysis that 27 Commissioner Saul served under a valid appointment. See Kaufmann, 32 F.4th at 849. In his reply, Plaintiff appears to concede that Commissioner Saul was properly appointed. 28 1 || ALJ’s specific decision denying Plaintiff benefits and the Court cannot identify one in the 2 ||record. See Kaufmann, 32 F Ath at 849-50 (suggesting the claimant could demonstrate the 3 || unconstitutional removal provision caused her harm by asserting “‘that the President took 4 ||an interest in her claim or that the Commissioner directed the Appeals Council to decide 5 ||her case in a particular way because of the statutory limits on the President’s removal 6 || authority’’); see also Collins, 141 S. Ct. at 1802 (Kagan, J. concurring in part) (opining that 7 doubt the mass of SSA decisions—which would not concern the President at all—would 8 ||need to be undone” because “[w]hen an agency decision would not capture a President’s 9 || attention, his removal authority could not make a difference”). Absent a showing of harm, 10 Court will not unwind the SSA’s decision. 11 Accordingly, although the Social Security Act’s removal provision 1s 12 || unconstitutional, the Court does not find remand appropriate on this basis. 13 || VI. CONCLUSION AND RECOMMENDATION 14 For the reasons discussed above, the Court affirms the decision of the Commissioner 15 |}and DENIES Plaintiff's request for reversal and/or remand. 16 IT IS SO ORDERED. 17 || Dated: September 6, 2022 -
n. Jill L. Burkhardt 19 ited States Magistrate Judge 20 21 22 23 24 25 26 27 28
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