Politte v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID P.,1 Case No.: 3:19-cv-1506-BEN-AHG

12 Plaintiff, ORDER: 13 v. (1) ADOPTING REPORT AND 14 ANDREW SAUL, Commissioner of RECOMMENDATION; Social Security, 15 Defendant. (2) DENYING PLAINTIFF’S 16 MOTION FOR SUMMARY 17 JUDGMENT; AND

18 (3) GRANTING DEFENDANT’S 19 CROSS-MOTION FOR SUMMARY JUDGMENT 20

21 [Docket Nos. 22, 24, and 28] 22 Plaintiff filed this action for judicial review of the Social Security Commissioner’s 23 denial of his application for disability insurance benefits. Compl., ECF No. 1. 24 Thereafter, Plaintiff moved for summary judgment and Defendant filed a cross-motion 25 26 27 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial 28 1 for summary judgment and an opposition to Plaintiff’s motion. ECF Nos. 22, 24. 2 Plaintiff’s motion for summary judgment raised two contentions. First, the 3 Administrative Law Judge (“ALJ”) rendered a decision not supported by substantial 4 evidence, arguing the ALJ failed to order a consultative examiner to develop the record 5 where the previous non-examining consultants provided their opinions before Plaintiff’s 6 condition deteriorated. Mot., ECF No. 22, 14. Second, the ALJ was appointed in 7 violation of the Appointments Clause of the United States Constitution. Id. at 18. Each 8 party replied. Replies, ECF Nos. 25, 26. 9 On July 17, 2020, Magistrate Judge Allison H. Goddard issued a thoughtful and 10 thorough Report and Recommendation, recommending that this Court deny Plaintiff’s 11 motion for summary judgment and grant Defendant’s cross-motion for summary 12 judgment. R&R, ECF No. 28. This Order incorporates by reference the background set 13 forth therein. 14 Magistrate Judge Goddard found the ALJ properly reached the residual functional 15 capacity (“RFC”) determination and that the decision was supported by substantial 16 evidence in the record. Id. at 26. She further recommended Plaintiff’s Appointments 17 Clause challenge be denied as untimely. Id. On July 30, 2020, Plaintiff filed an 18 objection to the Report and Recommendation. Obj., ECF No. 29. Defendant replied on 19 August 7, 2020. Reply, ECF No. 30. For the reasons that follow, the Report and 20 Recommendation is adopted. 21 I. LEGAL STANDARD 22 A district judge “may accept, reject, or modify the recommended disposition” of a 23 magistrate judge on a dispositive matter. Fed. R. Civ. P. 72(b)(3); see also 28 U.S.C. § 24 636(b)(1). “[T]he district judge must determine de novo any part of the [report and 25 recommendation] that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). 26 Meanwhile, the Court reviews the ALJ’s findings to see if they are supported by 27 substantial evidence and whether the proper legal standards were applied. See Batson v. 28 Comm’r of Soc. Sec., 359 F.3d 1190, 1193 (9th Cir. 2004); Holohan v. Massanari, 246 1 F.3d 1195, 1205 (9th Cir. 2001). “Substantial evidence means more than a mere scintilla, 2 but less than a preponderance. It means such relevant evidence as a reasonable mind 3 might accept as adequate to support a conclusion.” Revels v. Berryhill, 874 F.3d 648, 654 4 (9th Cir. 2017) (citations omitted); see also Biestek v. Berryhill, 139 S.Ct. 1148, 1154 5 (2019) (“whatever the meaning of ‘substantial’ in other contexts, the threshold for such 6 evidentiary sufficiency is not high”). If those standards are met, the Court affirms the 7 Commissioner’s decision. Batson, 359 F.3d at 1193; Holohan, 246 F.3d at 1205. 8 II. DISCUSSION 9 Plaintiff cites two objections to the Report and Recommendation, which are the 10 same arguments he advanced in his motion for summary judgement. The Court addresses 11 each of these arguments below. 12 A. The ALJ’s Decision was Supported by Substantial Evidence 13 First, Plaintiff argues “the ALJ failed to develop the record and order a 14 consultative examiner even though the opinions of the state agency medical consultants 15 were stale” and the ALJ’s findings were not supported by the record as a whole. Obj., 16 ECF No. 29, 2-3. Plaintiff argues the state agency consulting opinions were stale because 17 he suffered new impairments after those consulting opinions were issued. Id. Those new 18 impairments, Plaintiff argues, triggered the ALJ’s duty to develop the record which the 19 ALJ allegedly failed to do. Mot., ECF No. 22, 14. As discussed thoroughly in the Report 20 and Recommendation, Plaintiff’s argument is unpersuasive. 21 “An ALJ’s duty to develop the record further is triggered only when there is 22 ambiguous evidence or when the record is inadequate to allow for proper evaluation of 23 the evidence.” Ford v. Saul, 950 F.3d 1141, 1156 (9th Cir. 2020) (quoting Mayes v. 24 Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001)). Although the ALJ has the duty to 25 develop the record, Plaintiff still bears the burden of establishing his disability. Tidwell v. 26 Apfel, 161 F.3d 599, 601 (9th Cir. 1998), as amended (Jan. 26 1999). “The opinions of 27 non-treating or non-examining physicians may also serve as substantial evidence when 28 1 the opinions are consistent with independent clinical filings or other evidence in the 2 record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) 3 Here, “[t]he Administrative Record is over 3,000 pages and includes medical 4 treatment records from over 30 different providers and medical facilities between 2005 5 and 2018 (although the majority of records reflect treatment from the relevant period of 6 October 19, 2015 – March 31, 2017).” R&R, ECF No. 28, 17. The record provides 7 substantial evidence to support the ALJ’s nondisability determination, which the Report 8 and Recommendation ably describes. Id. at 4-6. Such evidence included Plaintiff’s own 9 report to a medical provider that his back pain was not preventing him from working 10 (Administrative Record (“AR”), 2339), that he unsuccessfully asked his orthopedist’s 11 office to “document reason for his disability multiple times, along with asking for 12 narcotic pain medication,” (id.), and the opinions of medical consultants who assessed 13 Plaintiff could still perform light work (id. at 1725-59). Despite the voluminous medical 14 records submitted, no provider ever documented a reason for disability. Instead, Plaintiff 15 provided his own opinion of his disability through a “Medical Source Statement 16 Concerning the Nature and Severity of an Individual’s Physical Impairment” form, 17 indicating he had a disability and could not perform even sedentary work, before signing 18 the form as a “Health Care Provider.” Id. at 2321-32. Plaintiff’s testimony before the 19 ALJ revealed he held a “holistic health massage license” in 2012 or 2013, but otherwise 20 had no health care qualifications. Id. at 1703-04. 21 The ALJ’s decision must be upheld where evidence is susceptible of more than one 22 rational interpretation. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Gallant v. 23 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). Applying the appropriate standard of 24 review to the evidence in the record here, the Court concludes the ALJ’s decision was 25 supported by substantial evidence. 26 The Report and Recommendation also correctly distinguished Plaintiff’s citations 27 to two cases finding remand for further record development was appropriate. R&R, ECF 28 No. 28, 15-16. Those cases involved a conflict between the opinions of consulting and 1 treating medical providers. Arriaga v. Berryhill, No. 16-CV-0755-TUC-LCK, 2018 WL 2 1466234 (D. Ariz. Mar. 26, 2018); Huerta v. Astrue, No. 13-CV-1210-WHO, 2014 WL 3 1866427 (N.D. Cal. May 8, 2014). In his objection, Plaintiff argues those cases stand for 4 the proposition remand is appropriate merely where consulting opinions are “stale.” 5 Obj., ECF No. 29, 4-6. Plaintiff’s argument ignores the critical distinction between those 6 cases and his case addressed above – they involved a conflict between treating and 7 consulting medical providers where the ALJ sided against a treating provider. See e.g., 8 Huerta, 2014 WL 1866427, at *16 (“In sum, the ALJ improperly discounted the opinions 9 of Huerta’s treating physician, as well as the opinion of the examining consultant and the 10 favorable testimony of the medical examiner. Instead, the ALJ relied on a stale RFC 11 from a non-examining consultant that itself contradicted the ALJ’s own determination as 12 to Huerta’s RFC”). The Court declines to hold remand is required here as no conflict 13 exists and the consulting opinions are not stale.2 14 Plaintiff’s final argument on the ALJ’s decision is that he allegedly erred by 15 “interpreting raw medical data into functional limitations.” Obj., ECF No. 29, 7. The 16 Court notes that an RFC determination is within the exclusive province of the ALJ. See 17 20 C.F.R. § 404.1527(d)(2). While an RFC determination includes statements from 18 medical sources, it includes other non-medical sources as well. See 20 C.F.R. § 19 404.1545(a)(3). Reviewing the ALJ’s determination, it is clear he provided an adequate 20 explanation of his nondisability determination with specific support from medical sources 21 and his RFC determination was largely consistent with the opinions of the consulting 22 medical providers. AR, 575-76. To the extent the ALJ differed from the consulting 23 medical providers, it was only to provide Plaintiff a more restrictive RFC, which is within 24 25 2 In his motion for summary judgment, Plaintiff also relied on Rodriguez-Curtis v. Astrue, No. 10-CV- 26 2794-VBK, 2011 WL 536598 (C.D. Cal, Feb. 15, 2011), for the proposition that an ALJ should order a consultative examination where the present consultative examination is stale. Mot, ECF No. 22, 15. 27 Magistrate Judge Goddard noted the court in Rodriguez-Curtis found a four-year-old opinion was not stale, cutting against Plaintiff’s argument here that a two-year-old opinion was stale. Plaintiff does not 28 1 an ALJ’s purview in making a decision exclusively reserved to the Commissioner. See 2 20 C.F.R. § 404.1527(d)(2). 3 Accordingly, the Court finds the ALJ’s decision was supported by substantial 4 evidence and that remand to further develop the record is not required. 5 B. Plaintiff’s Appointments Clause Argument is Untimely 6 Plaintiff also argues his case was improperly adjudicated because the ALJ was 7 appointed in contravention of the Constitution’s Appointments Clause. As relief, 8 Plaintiff requests his case be remanded for a new hearing “with a different and 9 constitutionally appointed ALJ.” Obj., ECF No. 29, 8. 10 The Report and Recommendation thoroughly summarizes the litany of cases that 11 have addressed this argument in similar matters. R&R, ECF No. 28, 21-26. Magistrate 12 Judge Goddard also noted that the Third and Tenth Circuit Courts of Appeal have 13 reached different conclusions on whether a plaintiff must raise this issue during 14 administrative proceedings or else waive it on appeal. Id. at 12. The Court agrees with 15 the Report and Recommendation and the clear majority of district courts that have 16 addressed this issue, holding that Plaintiff’s Appointments Clause argument is waived 17 because it was not raised before the ALJ. 18 Plaintiff’s argument is based on the Supreme Court’s holding in Sims v. Apfel, 530 19 U.S. 130 (2000). Prior to the Supreme Court’s decision in Sims, the Ninth Circuit held 20 that “at least when claimants are represented by counsel, they must raise all issues and 21 evidence at their administrative hearings in order to preserve them on appeal.” Meanel v. 22 Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). One year later, the Supreme Court found that 23 failure to raise an issue before the Social Security Appeals Council did not constitute 24 waiver of judicial review on that issue, but expressly did not address whether that holding 25 applied to issues that were not raised before the ALJ. Sims, 530 U.S. at 107, 111. 26 Thereafter, the Ninth Circuit upheld its earlier decision, stating that “[i]n light of the 27 [Supreme] Court’s express limitation on its holding in Sims, we cannot say that that 28 holding is ‘clearly irreconcilable’ with our decision in Meanel, and Meanel therefore 1 remains binding on this court with respect to proceedings before an ALJ.” Shaibi v. 2 || Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017). 3 Plaintiff argues his case is distinguishable because unlike the plaintiff in Meanel, 4 ||he was not represented by counsel before the ALJ. Obj., ECF No. 29, 9. In Meanel, 5 however, the Ninth Circuit did not, and to date has not, established a different standard 6 || for Social Security cases in which the claimant was not represented by counsel. The 7 Court declines to adopt one here. Cf. Sims, 530 U.S. at 114 (O’Connor, J., concurring) 8 || (“it would be unwise to adopt a rule that imposes different issue exhaustion obligations 9 || depending on whether claimants are represented by counsel’). 10 Moreover, allowing a nonjurisdictional Appointments Clause challenge to be 11 raised for the first time during judicial review of an ALJ’s opinion would have the effect 12 || of allowing a claimant to try his luck with the ALJ on the merits, and if unsuccessful 13 || obtain a second bite at the apple by raising an Appointments Clause challenge for the first 14 |/time on appeal. This Court agrees with many “other district courts in this Circuit which 15 ||have rejected Appointments Clause claims post Sims when the challenge was not timely 16 made at the administrative level.” Kathleen S. v. Saul, No. 19-CV-00651-JLS-RNB, 17 2020 WL 353602, at *3 (S.D. Cal. Jan. 21, 2020) (citations omitted). 18 Ht. CONCLUSION 19 The Court has conducted a de novo review of the Report and Recommendation and 20 || agrees with it. Accordingly, the Court ADOPTS the Report and Recommendation. 21 || Plaintiff's motion for summary judgment is DENIED. Defendant’s cross-motion for 22 |}summary judgment is GRANTED. Accordingly, the Commissioner of the Social 23 || Security Administration’s final decision is AFFIRMED. The Clerk shall enter judgment 24 || accordingly and terminate the case. 25 IT IS SO ORDERED. 26 || Date: August 11, 2020 HON. ROGER T. BENITEZ United States District Judge 28