Barbara B. v. Kijakazi

1

BARBARA B., Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant.

No. 1:21-cv-00094

United States District Court, D. Utah, Northern Division

July 29, 2022

David Barlow Judge

REPORT AND RECOMMENDATION TO AFFIRM THE COMMISSIONER'S DECISION DENYING DISABILITY BENEFITS

Daphne A. Oberg United States Magistrate Judge

Plaintiff Barbara B.^[1] brought this action asking the court to remand the case to the Acting Commissioner of the Social Security Administration (the “Commissioner”).^[2] The Commissioner determined Ms B. did not qualify as disabled.^[3] Ms. B. contends the Administrative Law Judge (“ALJ”) who made this determination legally erred in denying her application for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 404-434, 1381-1385.^[4] Specifically, Ms B. argues the ALJ failed in his obligation to account for her limited work pace and persistence-and failed to either account for limitations caused by her panic disorder and her somatoform disorder or to explain why such limitations were unnecessary.^[5] Ms. B. also challenges the decision on constitutional grounds, claiming the ALJ lacked authority because the Commissioner's position violates separation-of-powers principles.^[6]

After careful review of the entire record and the parties' briefs,^[7] the undersigned^[8]recommends the district judge affirm the Commissioner's decision. As a constitutional matter, a new hearing should not be ordered where Ms. B. has not shown the limitation on the President's ability to remove the Commissioner without good cause harmed her case. And where the ALJ's decision properly accounted for Ms B.'s limitations, including those related to her panic disorder, somatoform disorder, and work pace, her claims of legal error fail.

STANDARD OF REVIEW

Sections 405(g) and 1383(c)(3) of Title 42 of the United States Code provide for judicial review of a final decision of the Commissioner. In social security appeals, the district court is not the factfinder.^[9] Rather, this court reviews the ALJ's decision and the whole record to determine (1) whether substantial evidence supports the ALJ's factual findings, and (2) whether the ALJ applied the correct legal standards.^[10] The court may not substitute its judgment for that of the ALJ nor may it reweigh the evidence.^[11]

“[A]n ALJ's factual findings . . . shall be conclusive if supported by substantial evidence.”^[12] Although the evidentiary sufficiency threshold for substantial evidence is “not high,” it is “more than a mere scintilla.”^[13] Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”^[14] “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”^[15]

APPLICABLE LAW

The Social Security Act defines “disability” as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than [twelve] months.”^[16] Under the Social Security Act, an individual is considered disabled “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.”^[17]

The ALJ uses a five-step sequential evaluation to determine whether a claimant qualifies as disabled within the meaning of the Social Security Act. Specifically, the ALJ considers whether:

1) the claimant presently engages in substantial gainful activity;

2) the claimant has a severe medically determinable physical or mental impairment;

3) the impairment is equivalent to an impairment listed in the appendix of the relevant disability regulation, which precludes substantial gainful activity;

4) the claimant possesses a residual functional capacity to perform past relevant work; and

5) the claimant possesses a residual functional capacity to perform other work in the national economy considering his/her/their age, education, and work experience.^[18]

The claimant has the burden, in the first four steps, of establishing the disability.^[19] At step five, the burden shifts to the Commissioner to show the claimant is able to perform other work existing in the national economy.^[20]

BACKGROUND

Ms. B. applied for disability insurance benefits and supplemental security income benefits on October 20, 2017, alleging disability beginning on October 18, 2015.^[21] On July 24, 2020 (following a hearing in June), the ALJ found Ms. B. was not disabled.^[22]

The ALJ specifically found Ms. B. had not engaged in substantial gainful activity since the onset date of her alleged disability.^[23] At step two of the sequential evaluation he concluded Ms. B. had the severe impairments of right shoulder impingement, degenerative disc disease, obesity, somatic symptoms disorder, panic disorder, and bipolar disorder.^[24] Upon review of the record, at step three, the ALJ found Ms. B. had no impairment or combination of impairments which met or equaled an impairment listing.^[25] In reaching this conclusion, the ALJ found Ms. B.'s mental impairments primarily caused mild limitations, with moderate limitations only in her ability to concentrate, persist, or maintain pace.^[26]

In light of this, the ALJ determined Ms. B. had the residual functional capacity (RFC)^[27]to perform light work with the following limitations:

[S]he should have the option to sit or stand at the workstation while remaining on task; she can never climb ladders, ropes, or scaffolds; she can frequently climb ramps/stairs, stoop, balance, kneel, crouch, and crawl; she can never reach overhead with the right upper extremity and can occasionally reach in other directions with the right upper extremity; she can never be exposed to hazards such as moving machinery or working at unprotected heights; and she can perform and persist at work with instructions that can be learned in 1-3 months in an environment with low time and productivity pressures.^[28]

Based on this RFC and the testimony of a vocational expert, the ALJ concluded at step four that Ms. B. could not perform any of her past, relevant work.^[29] However, at step five, the ALJ found Ms. B. could perform jobs existing in significant numbers in the national economy, considering her age, education, work experience, and RFC, such “counter clerk,” “rental clerk,” and “information clerk.”^[30] Accordingly, the ALJ found Ms. B. was not disabled.^[31]

The Appeals Council denied Ms. B.'s request for review,^[32] making the ALJ's decision final for purposes of judicial review.

DISCUSSION

Ms. B makes four claims of error regarding the ALJ's decision. First, she challenges the ALJ's decision on constitutional grounds, claiming he lacked authority because the Commissioner's position is constitutionally illicit in violation of separation-of-powers principles.^[33] Second, she claims the ALJ legally erred by finding she had a severe panic disorder but failing to account for limitations caused by the disorder (or to explain why such limitations are unnecessary).^[34] Third, she claims the ALJ failed to account for her limited ability to concentrate, persist, or maintain pace.^[35] And finally, Ms. B. claims the ALJ failed to properly account for her somatoform disorder.^[36]

1. Impact of Separation-of-Powers Principles on the ALJ's Decision and Ms. B.'s Claim

Ms. B. argues the statutory structure limiting the President's authority to remove the Commissioner without good cause violates separation-of-powers principles, making the Commissioner's position constitutionally illicit.^[37] According to Ms. B., this deprives the ALJ of legal authority to handle her claim-because the ALJ's power is derived from that of the Commissioner.^[38] The Commissioner contends that even though the statutory removal restriction violates the separation-of-powers doctrine, Ms. B.'s argument fails because she cannot show the removal restriction caused harm to her.^[39] Where Ms. B. has not shown the removal restriction affected her claim, the undersigned recommends the district judge decline to grant relief on these grounds.

As it now stands, the President can only remove the Commissioner upon a finding of “neglect of duty or malfeasance in office.”^[40] The parties agree that to the extent this can be construed as limiting the President's authority to remove the Commissioner without cause, it violates separation-of-powers principles.^[41] But they disagree on the effect of this violation.

Ms. B argues ALJs have significant power through the Commissioner; they have broad power to decide contested benefits matters (based on regulations promulgated by the Commissioner) and their decisions are subject to deferential review standards.^[42] Ms. B. contends this shows the Commissioner is not subject to meaningful supervision. Instead, the Commissioner has unchecked power-where she can both set the rules and dictate how they must be interpreted-in violation of the principles in Seila Law LLC v. Consumer Financial Protection Bureau.^[43] Ms. B. claims she was directly injured by not receiving constitutionally valid decisions at any step of her claim process.^[44] She asks that the case “be remanded for a de novo hearing before a new ALJ who does not suffer from the unconstitutional taint of having previously heard and decided this case when the ALJ had no lawful...