Pearson v. Social Security Administration

Filing 26

MEMORANDUM AND ORDER: The judgment of the Commissioner is affirmed. Signed by U.S. District Senior Judge Sam A. Crow on 12/7/18. (msb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHELLE PEARSON,
Plaintiff,
vs.

Case No. 17-4031-SAC

NANCY A. BERRYHILL,
Acting Commissioner of
Social Security,
Defendant.

MEMORANDUM AND ORDER
This is an action reviewing the final decision of the
Commissioner of Social Security denying the plaintiff disability
insurance benefits.

The matter has been fully briefed by the

parties.
I.

General legal standards
The court's standard of review is set forth in 42 U.S.C.

§ 405(g), which provides that "the findings of the Commissioner
as to any fact, if supported by substantial evidence, shall be
conclusive."

The court should review the Commissioner's

decision to determine only whether the decision was supported by
substantial evidence and whether the Commissioner applied the
correct legal standards.
(10th Cir. 1994).

Glenn v. Shalala, 21 F.3d 983, 984

Substantial evidence requires more than a

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scintilla, but less than a preponderance, and is satisfied by
such evidence that a reasonable mind might accept to support the
conclusion.

The determination of whether substantial evidence

supports the Commissioner's decision is not simply a
quantitative exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes mere
conclusion.

Ray v. Bowen, 865 F.2d 222, 224 (10th Cir. 1989).

Although the court is not to reweigh the evidence, the findings
of the Commissioner will not be mechanically accepted.

Nor will

the findings be affirmed by isolating facts and labeling them
substantial evidence, as the court must scrutinize the entire
record in determining whether the Commissioner's conclusions are
rational.
1992).

Graham v. Sullivan, 794 F. Supp. 1045, 1047 (D. Kan.

The court should examine the record, including whatever

in the record fairly detracts from the weight of the
Commissioner's decision and, on that basis, determine if the
substantiality of the evidence test has been met.

Glenn, 21

F.3d at 984.
The Social Security Act provides that an individual shall
be determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period of
twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA).
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The claimant's physical or

mental impairment or impairments must be of such severity that
they are not only unable to perform their previous work but
cannot, considering their age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.

42 U.S.C. § 423(d).

The Commissioner has established a five-step sequential
evaluation process to determine disability.

If at any step a

finding of disability or non-disability can be made, the
Commissioner will not review the claim further.

At step one,

the agency will find non-disability unless the claimant can show
that he or she is not working at a “substantial gainful
activity.”

At step two, the agency will find non-disability

unless the claimant shows that he or she has a “severe
impairment,” which is defined as any “impairment or combination
of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities.”

At

step three, the agency determines whether the impairment which
enabled the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled.

If

the claimant’s impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her previous
work; unless the claimant shows that he or she cannot perform
their previous work, they are determined not to be disabled.
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If

the claimant survives step four, the fifth and final step
requires the agency to consider vocational factors (the
claimant’s age, education, and past work experience) and to
determine whether the claimant is capable of performing other
jobs existing in significant numbers in the national economy.
Barnhart v. Thomas, 124 S. Ct. 376, 379-380 (2003).
The claimant bears the burden of proof through step four of
Nielson v. Sullivan, 992 F.2d 1118, 1120 (10th

the analysis.
Cir. 1993).

At step five, the burden shifts to the

Commissioner to show that the claimant can perform other work
that exists in the national economy.

Nielson, 992 F.2d at 1120;

Thompson v. Sullivan, 987 F.2d 1482, 1487 (10th Cir. 1993).

The

Commissioner meets this burden if the decision is supported by
substantial evidence.

Thompson, 987 F.2d at 1487.

Before going from step three to step four, the agency will
assess the claimant’s residual functional capacity (RFC).

This

RFC assessment is used to evaluate the claim at both step four
and step five.

20 C.F.R. §§ 404.1520(a)(4), 404.1520(e,f,g);

416.920(a)(4), 416.920(e,f,g).
II.

History of case
On September 8, 2016, administrative law judge (ALJ)

Timothy G. Stueve issued his decision (R. at 11-24).

Plaintiff

alleges that she has been disabled since January 1, 2008 (R. at
11).

Plaintiff is insured for disability insurance benefits
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through December 31, 2015 (R. at 13).

At step one, the ALJ

found that plaintiff has not engaged in substantial gainful
activity from her alleged onset date through the date last
insured (R. at 13).

At step two, the ALJ found that plaintiff

has severe impairments (R. at 13).

At step three, the ALJ

determined that plaintiff’s impairments do not meet or equal a
listed impairment (R. at 14).

After determining plaintiff’s RFC

(R. at 15-16), the ALJ found at step four that plaintiff is
unable to perform past relevant work (R. at 21).

At step five,

the ALJ found that plaintiff can perform jobs that exist in
significant numbers in the national economy (R. at 22-23).
Therefore, the ALJ concluded that plaintiff was not disabled (R.
at 23-24).
III.

Did the ALJ err by ignoring evidence of plaintiff’s edema?
In her brief, plaintiff points out diagnoses of edema1 from

November 2014 through May 2015 (R. at 537, 563, 597, 649, 650,
644, 643, 642, 662).

Plaintiff testified on August 3, 2016 that

she would elevate her legs because of the swelling (R. at 49).
A medical record from April 28, 2015 diagnosed edema and stated
that plaintiff should continue to keep feet elevated when seated
(R. at 642-643).

Plaintiff alleges that the ALJ erred by

ignoring the evidence of plaintiff’s edema.
1

Edema (which is noticed more is a person’s hands, arms, feet, ankles, and legs) is swelling caused by excess fluid
trapped in your body’s tissues. https;//www.mayoclinic.org/diseases-conditions/edema/symptoms-causes/syc20366493 (Dec. 3, 20).

5

In his decision, the ALJ acknowledged plaintiff’s testimony
that plaintiff experienced lower extremity swelling that
required her to elevate her legs (R. at 16).

Later, in his

decision, the ALJ cited to the opinion of Dr. Sankoorikal that
plaintiff did not need to elevate her legs with prolonged
sitting or standing (R. at 19, 632).

The ALJ gave significant

weight to this opinion because Dr. Sankoorikal did not find the
presence of any edema that would support the need for elevation
throughout the day (R. at 19).

On April 3, 2015, the treatment

notes of Dr. Sankoorikal stated that plaintiff had “no edema”
(R. at 620).

Treatment notes from May 12, 2015 also indicate

“no edema” (R. at 663).
The court will not reweigh the evidence or substitute its
judgment for that of the Commissioner.

Hackett v. Barnhart, 395

F.3d 1168, 1173 (10th Cir. 2005); White v. Barnhart, 287 F.3d
903, 905, 908, 909 (10th Cir. 2002).

Although the court will

not reweigh the evidence, the conclusions reached by the ALJ
must be reasonable and consistent with the evidence.

See Glenn

v. Shalala, 21 F.3d 983, 988 (10th Cir. 1994)(the court must
affirm if, considering the evidence as a whole, there is
sufficient evidence which a reasonable mind might accept as
adequate to support a conclusion).
the sufficiency of the evidence.

The court can only review

Although the evidence may

support a contrary finding, the court cannot displace the
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agency’s choice between two fairly conflicting views, even
though the court may have justifiably made a different choice
had the matter been before it de novo.

Oldham v. Astrue, 509

F.3d 1254, 1257-1258 (10th Cir. 2007).
The court finds no clear error by the ALJ in his
consideration of plaintiff’s edema.

He noted her testimony, and

the opinion of Dr. Sankoorikal that plaintiff did not need to
elevate her legs with prolonged sitting or standing (R. at 19,
632).

As the ALJ indicated, the treatment notes of Dr.

Sankoorikal from April 3, 2015 indicate no edema; a similar
finding was made by Dr. Sindler on May 12, 2015 (R. at 620,
663).

Furthermore, the ALJ gave partial weight to the opinions

of the state agency consultants, who had before them medical
records of plaintiff’s edema (R. at 68).

Plaintiff fails to

point to any medical opinion evidence that plaintiff’s edema
would result in additional limitations not set forth in the
ALJ’s RFC findings.

The court will not reweigh the evidence.

On the facts of this case, the court finds no clear error in the
ALJ’s consideration of plaintiff’s edema.
IV.

Is the ALJ decision invalid because the ALJ was appointed

in violation of the Appointments Clause?
On June 21, 2018, the U.S. Supreme Court issued its opinion
in Lucia v. S.E.C., 138 S. Ct. 2044, 2049-2055 (2018), holding
that ALJs of the Securities and Exchange Commission (SEC) are
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officers under the Appointments Clause, and can only be
appointed by the President, a court of law, or a head of a
department.

The ALJ in this case had been appointed by SEC

staff members; therefore the ALJ was not appointed by one of
those designated in the Appointments Clause.
2051.

138 S. Ct. at

The court found that since Lucia made a timely challenge

to the constitutional validity of the appointment of the ALJ,
the case was remanded in order for the case to be heard by a
properly appointed ALJ.

138 S. Ct. at 2055.

Plaintiff argues that the appointment of Social Security
ALJs are also subject to the Appointments Clause, and asserts
that the Social Security ALJs were not appointed by one of those
designated in the Appointments Clause.

Therefore, the decision

is void.
Following the Supreme Court decision in Lucia, this court
asked the parties for additional briefing about the impact of
Lucia in this case (Doc. 15).

Defendant, in her response, does

not dispute the application of the Appointments Clause to Social
Security ALJs, nor does she argue that the Social Security ALJs
were appointed pursuant to the Appointments Clause.

This court

notes that on July 23, 2018, the Solicitor General released a
memorandum acknowledging that the Department of Justice
understands the Court’s reasoning to encompass all ALJs in
traditional and independent agencies who preside over
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adversarial administrative proceedings and possess the
adjudicative powers highlighted in Lucia.

Therefore, going

forward, ALJs must be appointed or have their prior appointment
ratified in a manner consistent with the Appointments Clause.
Page v. Commissioner of Social Security, 2018 WL 5668850 at *1
(E.D. Mich. Oct. 31, 2018).

Defendant’s only argument is that

plaintiff has waived his right to raise this issue because
plaintiff failed to raise it in a timely manner before the ALJ
or the Social Security Administration (Doc. 18).

Plaintiff

concedes that she did not raise this issue until filing her
brief with this court on July 8, 2017 (Doc. 10, 24).
In Lucia, the court held that “one who makes a timely
challenge to the constitutional validity of the appointment of
an officer who adjudicates his case is entitled to relief.”
S. Ct. at 2055.

138

In that case, Lucia contested the validity of

the ALJs appointment before the Commission, and continued to
press the claim in the courts.

Id.

The question is therefore

what constitutes a timely challenge.
Courts generally expect parties to raise constitutional
challenges under the Appointments Clause at the administrative
level, and hold them responsible for failing to do so.

Jones

Brothers, Inc. v. Secretary of Labor, 898 F.3d 669, 677 (6th Cir.
2018).

Parties may not wait until they are in court to raise a

statutory defect in the appointment of the official who issued
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the agency’s initial decision.

United States v. L.A. Tucker

Truck Lines, Inc., 344 U.S. 33, 38 (1952).

A party is required

to exhaust his constitutional claim before the administrative
agency before seeking review in federal court.
of Treasury, 567 U.S. 1, 23 (2012).

Elgin v. Dep’t

It is well established that

a party generally may not challenge an agency decision on a
basis that was not presented to the agency.

Therefore, a

challenge under the Appointments Clause which was first raised
in federal court was deemed waived.
1377, 1378-1381 (Fed. Cir. 2008).

In re DBC, 545 F.3d 1373,

Requiring exhaustion of such

claims allows agencies to take into account the specific facts
of each matter, and to change course if appropriate.

Gilmore v.

Weatherford, 694 F.3d 1160, 1169 (10th Cir. 2012); Kon v. United
States Securities and Exchange Commission, Case No. 17-3066 (10th
Cir. Mar. 31, 2017).
As of this date, courts that have considered this issue
have unanimously rejected attacks on the validity of the ALJ’s
appointment under Lucia if claimant failed to make a
constitutional challenge at the administrative level before the
ALJ or the Appeals Council.

Kabani & Company, Inc. v. U.S.

Securities & Exchange Commission, 733 Fed. Appx. 918, 919 (9th
Cir. Aug. 13, 2018); Faulkner v. Commissioner of Social
Security, 2018 WL 6059403 at *2-3 (W.D. Tenn. Nov. 19, 2018);
Page v. Commissioner of Social Security, 2018 WL 5668850 at *2-3
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(E.D. Mich. Oct. 31, 2018); Salmeron v. Berryhill, 2018 WL
4998107 at *3 n.5 (C.D. Cal. Oct. 15, 2018); Garrison v.
Berryhill, 2018 WL 4924554 at *2 (W.D. N.C. Oct. 10, 2018);
Davidson v. Commissioner of Social Security, 2018 WL 4680327 at
*1-2 (M.D. Tenn. Sept. 28, 2018); Stearns v. Berryhill, 2018 WL
4380984 at *4-6 (N.D. Iowa, Sept. 14, 2018); Davis v.
Commissioner of Social Security, 2018 WL 4300505 at *8-9 (N.D.
Iowa, Sept. 10, 2018.
Plaintiff relies on the case of Sims v. Apfel, 530 U.S.
103, 112 (2000), which held that claimants who exhaust
administrative remedies need not also exhaust issues in a
request for review by the Appeals Council in order to preserve
judicial review of those issues.

However, in that decision, the

court expressly stated that whether a claimant must exhaust
issues before the ALJ “is not before us.”

530 U.S. at 107.2

In

deciding Sims, the court noted that the form to be filled out
seeking review by the Appeals Council does not depend much, if
at all, on claimants to identify issues for review (the form
only provides three lines for the request for review).

The

court further stated that the Appeals Council, not the claimant,
has primary responsibility for identifying and developing the
2
Plaintiff’s brief also notes that raising constitutional issues before the agency is difficult when some claimants are
represented by non-attorney representatives, or are not represented at all (Doc. 24 at 2). However, in this case,
plaintiff was represented at his hearing before the ALJ by an attorney (R. at 34). Furthermore, in Sims, the
dissenting opinion pointed out that the Social Security Administration stated in its brief that it does not apply its
waiver rule where the claimant is not represented. 530 U.S. at 119.

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issues.

The court concluded that claimants who exhaust

administrative remedies need not also exhaust issues in a
request for review by the Appeals Council in order to preserve
judicial review of those issues.

530 U.S. at 112.3

The key in deciding this issue is in the language of the
Lucia decision.

In that case, the court held that one who makes

a timely challenge to the constitutional validity of the
appointment of an officer who adjudicates his case is entitled
to relief.

The court stated that Lucia made such a timely

challenge because he contested the validity of Judge Elliot’s
appointment before the Commission, and continued pressing that
claim in the federal courts.

138 S. Ct. at 2055.

Unlike the

case in Lucia, plaintiff in the case before the court never
raised the Appointments Clause issue before the agency.
Furthermore, in Shalala v. Illinois Council on Long Term Care,
Inc., 529 U.S. 1, 15 (2000), the court reiterated that 42 U.S.C.
§ 405(g) contains the nonwaivable and nonexcusable requirement
that an individual present a claim to the agency before raising
it in the court.

Consistent with the U.S. Supreme Court rulings

in Shalala and Sims, other courts that have addressed this issue
have held that Sims is not applicable when the claimant has
failed to raise his claim before the ALJ or the Appeals Council.
Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017); Stearns
3

Part II-B of the Sims opinion, cited here, is a plurality opinion of 4 justices. Justice O’Connor concurred in part
and concurred in the judgment, but did not join Part II-B of the opinion. 530 U.S. at 113.
12

v. Berryhill, 2018 WL 4380984 at *4-5 (N.D. Iowa, Sept. 14,
2018)(Strand, C.J.); Davis v. Commissioner of Social Security,
2018 WL 4300505 at *8-9 (N.D. Iowa, Sept. 10, 2018)(Reade, J.).
In light of the fact that plaintiff never raised this issue
before the Social Security Administration, the court finds that
plaintiff did not make a timely challenge to the constitutional
validity of the appointment of the ALJ.
IT IS THEREFORE ORDERED that the judgment of the
Commissioner is affirmed.
Dated this 7th day of December 2018, Topeka, Kansas.

s/Sam A. Crow
Sam A. Crow, U.S. District Senior Judge

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