LOVE v. BERRYHILL
Filing
18
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 10/09/2019, that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Summary Judgment (Docket Entry 14 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that this action be dismissed with prejudice. (Garland, Leah)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
CRYSTAL LYNN LOVE,
Plaintiff,
v.
ANDREW M. SAUL,
Commissioner of Social Security,1
Defendant.
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)
)
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1:18CV448
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Crystal Lynn Love, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Commissioner of Social Security,
denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”)
and Supplemental Security
Income (“SSI”).
(Docket Entry 2.)
Defendant has filed the certified administrative record (Docket
Entries 8-10 (cited herein as “Tr. __”)), and both parties have
moved for judgment (Docket Entries 14, 16; see also Docket Entry 15
(Plaintiff’s
Memorandum);
Docket
Entry
17
(Defendant’s
Memorandum)).
For the reasons that follow, the Court should enter
judgment for Defendant.
1
The United States Senate confirmed Andrew M. Saul as the Commissioner of
Social Security on June 4, 2019, and he took the oath of office on June 17,
2019. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew
M. Saul should be substituted for Nancy A. Berryhill as the Defendant in this
suit.
Neither the Court nor the parties need take any further action to
continue this suit by reason of the last sentence of section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g).
I.
PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI, alleging a disability onset
date of February 12, 2014.
applications
initially
(Tr. 2088-95.)
(Tr.
1948-69,
Upon denial of those
2004-13)
and
on
reconsideration (Tr. 1970-2003, 2016-21), Plaintiff requested a
hearing
de
novo
(Tr. 2022).
(“VE”)
before
an
Administrative
Law
Judge
(“ALJ”)
Plaintiff, her attorney, and a vocational expert
attended
the
hearing.
(Tr.
1896-1947.)
The
ALJ
subsequently ruled that Plaintiff did not qualify as disabled under
the Act.
(Tr. 8-25.)
The Appeals Council thereafter denied
Plaintiff’s request for review (Tr. 1-7, 2086-87, 2167-69), thereby
making the ALJ’s ruling the Commissioner’s final decision for
purposes of judicial review.
In rendering that disability determination, the ALJ made the
following findings later adopted by the Commissioner:
1.
[Plaintiff] met the insured status requirements of
the [] Act through September 30, 2017.
2.
[Plaintiff] has not engaged in substantial gainful
activity since February 12, 2014, the alleged onset date.
. . .
3.
[Plaintiff] has the following severe impairments:
asthma;
chronic
pain
(multiple
areas/joints);
fibromyalgia; degenerative disc disease; left lower
extremity impairment; knee impairment (left knee meniscal
tear, sprain); migraines; obesity; anxiety; depression.
. . .
4.
[Plaintiff] does not have an impairment or
combination of impairments that meets or medically equals
2
the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [Plaintiff] has the residual functional
capacity to perform sedentary work . . . except she can
occasionally
push-pull
(including
foot
control
operations) with the left lower extremity.
She is
limited to only occasional climbing ramp/stairs,
balancing, stooping, kneeling, crouching, crawling; no
climbing ladders, ropes, or scaffolds. She requires the
flexibility to use [a] cane for all ambulation. She is
limited to only occasional exposure to cold [and] heat
extremes, wetness, humidity, vibration, and irritants
(such as fumes, odors, dust, gases, and poorly ventilated
areas). She can have no exposure to workplace hazards
(including operational control of moving machinery as
well as exposure to unprotected heights and hazardous
machinery). She is further limited to simple, routine
tasks in entry-level unskilled work, in a low stress job
(defined as only occasional, independent decisionmaking
and only occasional changes in the work setting).
. . .
6.
[Plaintiff] is unable to perform any past relevant
work.
. . .
10. Considering [Plaintiff’s] age, education, work
experience, and residual functional capacity, there are
jobs that exist in significant numbers in the national
economy that [she] can perform.
. . .
11. [Plaintiff] has not been under a disability, as
defined in the [] Act, from February 12, 2014, through
the date of this decision.
(Tr.
13-25
(bold
font
and
internal
omitted).)
3
parenthetical
citations
II.
DISCUSSION
Federal law “authorizes judicial review of the Social Security
Commissioner’s denial of social security benefits.”
Barnhart, 453 F.3d 559, 561 (4th Cir. 2006).
Hines v.
However, “the scope
of [the Court’s] review of [such a] decision . . . is extremely
limited.”
Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).
Plaintiff has not established entitlement to relief under the
extremely limited review standard.
A.
Standard of Review
“[C]ourts are not to try [a Social Security] case de novo.”
Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974).
Instead,
the Court “must uphold the factual findings of the ALJ if they are
supported
by
substantial
evidence
and
were
reached
through
application of the correct legal standard.” Hines, 453 F.3d at 561
(internal brackets and quotation marks omitted).
“Substantial
evidence means ‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
Hunter v. Sullivan,
993 F.2d 31, 34 (4th Cir. 1992) (quoting Richardson v. Perales, 402
U.S. 389, 401 (1971)).
“It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Mastro
v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (brackets and internal
quotation marks omitted).
“If there is evidence to justify a
refusal to direct a verdict were the case before a jury, then there
4
is substantial
evidence.”
Hunter, 993 F.2d at 34 (internal
quotation marks omitted).
“In reviewing for substantial evidence, the [C]ourt should not
undertake
to
re-weigh
conflicting
evidence,
make
credibility
determinations, or substitute its judgment for that of the [ALJ, as
adopted by the Commissioner].”
Mastro, 270 F.3d at 176 (internal
brackets and quotation marks omitted). “Where conflicting evidence
allows reasonable minds to differ as to whether a claimant is
disabled,
the
responsibility
for
that
decision
falls
on
the
[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks
omitted). “The issue before [the Court], therefore, is not whether
[the claimant] is disabled, but whether the ALJ’s finding that [the
claimant] is not disabled is supported by substantial evidence and
was reached based upon a correct application of the relevant law.”
Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).
When confronting that issue, the Court must take note that
“[a] claimant for disability benefits bears the burden of proving
a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),
and that, in this context, “disability” means 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 12 months,’” id.
5
(quoting
42
U.S.C.
§
423(d)(1)(A)).2
“To
regularize
the
adjudicative process, the Social Security Administration [(‘SSA’)]
has . . . detailed regulations incorporating longstanding medicalvocational evaluation policies that take into account a claimant’s
age, education, and work experience in addition to [the claimant’s]
medical
condition.”
Id.
“These
regulations
establish
a
‘sequential evaluation process’ to determine whether a claimant is
disabled.”
Id.
This sequential evaluation process (“SEP”) has up to five
steps:
“The claimant (1) must not be engaged in ‘substantial
gainful activity,’ i.e., currently working; and (2) must have a
‘severe’ impairment that (3) meets or exceeds the ‘listings’ of
specified impairments, or is otherwise incapacitating to the extent
that the claimant does not possess the residual functional capacity
to (4) perform [the claimant’s] past work or (5) any other work.”
Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475
n.2 (4th Cir. 1999).3
A finding adverse to the claimant at any of
several points in the SEP forecloses an award and ends the inquiry.
For example, “[t]he first step determines whether the claimant is
2
The Act “comprises two disability benefits programs.
[DIB] provides
benefits to disabled persons who have contributed to the program while
employed. [SSI] provides benefits to indigent disabled persons. The statutory
definitions and the regulations . . . for determining disability governing
these two programs are, in all aspects relevant here, substantively identical.”
Craig, 76 F.3d at 589 n.1 (internal citations omitted).
3
“Through the fourth step, the burden of production and proof is on the
claimant.
If the claimant reaches step five, the burden shifts to the
[Commissioner] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).
6
engaged in ‘substantial gainful activity.’ If the claimant is
working, benefits are denied.
The second step determines if the
claimant is ‘severely’ disabled.
If not, benefits are denied.”
Bennett v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at
each of the first three steps, “the claimant is disabled.” Mastro,
270 F.3d at 177.
Alternatively, if a claimant clears steps one and
two, but falters at step three, i.e., “[i]f a claimant’s impairment
is not sufficiently severe to equal or exceed a listed impairment,
the ALJ must assess the claimant’s residual functional capacity
(‘RFC’).”
Id. at 179.4
Step four then requires the ALJ to assess
whether, based on that RFC, the claimant can perform past relevant
work; if so, the claimant does not qualify as disabled.
179-80.
See id. at
However, if the claimant establishes an inability to
return to prior work, the analysis proceeds to the fifth step,
whereupon the ALJ must decide “whether the claimant is able to
perform other work considering both [the claimant’s RFC] and [the
claimant’s] vocational capabilities (age, education, and past work
4
“RFC is a measurement of the most a claimant can do despite [the claimant’s]
limitations.” Hines, 453 F.3d at 562 (noting that administrative regulations
require RFC to reflect claimant’s “ability to do sustained work-related
physical and mental activities in a work setting on a regular and continuing
basis . . . [which] means 8 hours a day, for 5 days a week, or an equivalent
work schedule” (internal emphasis and quotation marks omitted)).
The RFC
includes both a “physical exertional or strength limitation” that assesses the
claimant’s “ability to do sedentary, light, medium, heavy, or very heavy work,”
as well as “nonexertional limitations (mental, sensory, or skin impairments).”
Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only after [the
ALJ] considers all relevant evidence of a claimant’s impairments and any
related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.
7
experience) to adjust to a new job.”
Hall, 658 F.2d at 264-65.
If, at this step, the Commissioner cannot carry its “evidentiary
burden of proving that [the claimant] remains able to work other
jobs
available
disabled.
in
the
community,”
the
claimant
qualifies
as
Hines, 453 F.3d at 567.5
B.
Assignments of Error
According to Plaintiff, the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ’s treatment of the medical opinion evidence is
erroneous” (Docket Entry 15 at 5 (bold font omitted));
2) “[t]he ALJ’s RFC is not supported by substantial evidence
because he failed to account for the total limiting effects of all
[Plaintiff’s] medically determinable impairments and the symptoms
she experiences as a result of these impairments and failed to
properly explain how he resolved the evidence with his conclusions
regarding [Plaintiff’s] RFC” (id. at 11 (bold font and singlespacing omitted)); and
3) “[r]emand is required because at the time [the ALJ’s]
decision was issued, [his] appointment did not comply with the
5
A claimant thus can establish disability via two paths through the SEP. The
first path requires resolution of the questions at steps one, two, and three
in the claimant’s favor, whereas, on the second path, the claimant must prevail
at steps one, two, four, and five. Some short-hand judicial characterizations
of the SEP appear to gloss over the fact that an adverse finding against a
claimant on step three does not terminate the analysis. See, e.g., Hunter, 993
F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the
process, review does not proceed to the next step.”).
8
Appointments Clause” (id. at 17 (bold font and single-spacing
omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.
(Docket Entry 17 at 3-22.)
1. Medical Opinion Evidence
Plaintiff’s first assignment of error asserts that the ALJ
erred by “fail[ing] to give adequate
reasons to support his
decision that [treating physician Dr. Thomas E.] Parrish’s medical
opinions were only entitled to little weight” (Docket Entry 15 at
5 (underscoring and single-spacing omitted) (citing Tr. 21-22)),
and by “fail[ing] to address or assign any weight to [Physician
Assistant
John
J.]
Robbins’s
medical
opinion”
(id.
at
11
(referencing Tr. 3577)). These contentions fail to warrant relief.
a. Dr. Parrish
The treating source rule generally requires an ALJ to give
controlling weight to the opinion of a treating source regarding
the nature and severity of a claimant’s impairment.
20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2) (“[T]reating sources . . . provide
a
detailed,
longitudinal
picture
of
[a
claimant’s]
medical
impairment(s) and may bring a unique perspective to the medical
evidence
that
cannot
be
obtained
from
the
objective
medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.”).
The rule
also recognizes, however, that not all treating sources or treating
9
source opinions merit the same deference.
The nature and extent of
each treatment relationship appreciably tempers the weight an ALJ
affords
an
opinion.
See
20
C.F.R.
§§
404.1527(c)(2)(ii),
416.927(c)(2)(ii). Moreover, as subsections (2) through (4) of the
rule
detail,
a
treating
source’s
opinion,
like
all
medical
opinions, deserves deference only if well-supported by medical
signs
and
laboratory
findings
and
substantial evidence of record.
(4),
416.927(c)(2)-(4).
consistent
with
the
other
See 20 C.F.R. §§ 404.1527(c)(2)-
“[I]f
a
physician’s
opinion
is
not
supported by clinical evidence or if it is inconsistent with other
substantial evidence, it should be accorded significantly less
weight.”
Craig, 76 F.3d at 590 (emphasis added).
Finally,
statements from medical sources (and even treating sources) that a
claimant qualifies as disabled or cannot work do not constitute
“medical
opinions
as
described
in
[§§
404.1527(a)(1),
416.927(a)(1)], but are, instead, opinions on issues reserved for
the Commissioner” and do not warrant controlling weight. 20 C.F.R.
§§ 404.1527(d), 416.927(d).6
Upon
Plaintiff’s
request,
Dr.
Parrish
completed
four
preprinted disability forms supplied by Plaintiff’s then-attorney
6
For claims filed on or after March 27, 2017, the Commissioner has
significantly amended the regulations governing opinion evidence.
The new
regulations provide that ALJs “will not defer or give any specific evidentiary
weight, including controlling weight, to any medical opinion(s) or prior
administrative medical finding(s), including those from your medical sources.”
20 C.F.R. §§ 404.1520c, 416.920c. As Plaintiff filed her claims prior to March
27, 2017 (see Tr. 11), this Recommendation has analyzed Plaintiff’s claims
pursuant to the treating physician rule set out above.
10
on June 22, 2016.
(See Tr. 2623-27, 2632-33, 3302, 3309, 3327.)7
On a form entitled “Medical Opinion Re: Ability to Do Work-Related
Activities
(Physical),”
Dr.
Parrish
opined
that,
due
to
“fibromyalgia” and “lumbar disc disease,” Plaintiff could lift and
carry less than 10 pounds occasionally and less than five pounds
frequently, stand and walk for a total of less than two hours, and
sit for a total of about two hours in an eight-hour workday.
2623.)
(Tr.
Dr. Parrish further indicated that Plaintiff would need to
change positions every 15 minutes and would need to lie down every
one to two hours during the workday.
(Id.)
According to Dr.
Parrish, Plaintiff’s impairments precluded her from
twisting,
stooping, crouching, and climbing stairs/ladders and limited her
ability to reach, finger, push/pull, and handle.
(See Tr. 2624.)
Dr. Parrish additionally included environmental restrictions, noted
that Plaintiff’s “[left] lower extremity [wa]s not dependable to
safely ambulate without [a] cane,” and predicted that Plaintiff’s
impairments would cause her to miss work “[m]ore than four days per
month.” (Id.) On another form requesting Dr. Parrish’s opinion as
to the exertional level of work Plaintiff remained capable of
performing, Dr. Parrish opined that Petitioner “[wa]s unable to
work.”
(Tr. 2625.)
7
Because Plaintiff neither generally challenged the ALJ’s findings regarding
Plaintiff’s mental impairments nor specifically faulted the ALJ for discounting
Dr. Parrish’s mental restrictions (see Docket Entry 15), the undersigned will
not discuss Dr. Parrish’s opinions on the form entitled “Medical Opinion Re:
Ability to Do Work-Related Activities (Mental)” (Tr. 2626-27).
11
Lastly,
on
a
“Fibromyalgia
Residual
Functional
Capacity
Questionnaire,” Dr. Parrish opined that Plaintiff met “the American
College of Rheumatology criteria for fibromyalgia” and that her
(Tr. 2632.)8
prognosis remained “[g]uarded.”
Dr. Parrish checked
boxes that listed Plaintiff’s fibromyalgia symptoms as “[m]ultiple
tender points,” “[n]onrestorative sleep,” “[c]hronic fatigue,”
“[m]orning
swelling,”
headaches,”
“[n]umbness
stiffness,”
“Irritable
“[m]uscle
Bowel
Syndrome,”
“Temporomandibular
and
“[d]ysmenorrhea,”
weakness,”
Joint
tingling,”
attacks,” and “[d]epression.”
“[f]requent,
Dysfunction
“Raynaud’s
“[b]reathlessness,”
(Id.)
“[s]ubjective
severe
(TMJ),”
Phenomenon,”
“[a]nxiety,”
“[p]anic
In addition, Dr. Parrish
opined that Plaintiff experienced “constant” pain in her spine,
chest, shoulders, arms, hands, hips, knees, ankles, and feet that
she rated at six to eight (and occasionally ten) out of ten on the
pain scale, and that Plaintiff’s complaints did not amount to
malingering.
pain
(Tr. 2633.)
“[c]onstantly”
Dr. Parrish concluded that Plaintiff’s
interfered
with
the
“attention
and
concentration needed to perform even simple work tasks,” but that
Plaintiff remained capable of performing “low stress jobs.”
8
(Id.)
The Questionnaire lacks a date and Dr. Parrish’s signature, as well as a
signature page. (See Tr. 2632-33.) Although other copies in the record of the
Questionnaire include a third page (see Tr. 2866, 3343), those pages appear
identical to the third page of the “Medical Opinion Re: Ability to Do WorkRelated Activities (Physical)” (compare Tr. 2625, with Tr. 2866, 3343), and the
question numbers at the top of the third page do not correlate to the question
numbers at the bottom of the Questionnaire’s second page (compare Tr. 2865,
3342, with Tr. 2866, 3343).
12
The ALJ evaluated and weighed Dr. Parrish’s
opinions as
follows:
[I]n June 2016, [Plaintiff’s] doctor completed a medical
source statement, indicating [Plaintiff] could stand/walk
less than [two] hours and sit about [two] hours in an
[eight]-hour day.
He said [Plaintiff] would have to
change positions every 15 minutes and would need to lie
down for [two] hours during the day. He said [Plaintiff]
could never twist, stoop, crouch, or climb.
He said
[Plaintiff] would miss more than four days of work per
month. [He] said [Plaintiff] was unable to work. These
opinions are given little weight. [Dr. Parrish] merely
checked off boxes on a form and did not provide an
explanation for the limitations given. The determination
that a claimant is disabled is an issue[] reserved to the
Commissioner. It appears the limitations were adopted
from [Plaintiff’s] subjective allegations rather than
based on the objective assessment of the treatment
provider.
Most importantly, the limitations are
inconsistent with the rest of the record and are overly
restrictive in light of the objective medical evidence.
. . .
[Dr. Parrish] said that pain would constantly interfere
with attention and concentration and that [Plaintiff] was
capable of performing low stress work. . . .
These opinions are given little weight. [Dr. Parrish]
merely checked off boxes on a form and did not provide an
explanation for the limitations given. It appears the
limitations were adopted from [Plaintiff’s] subjective
allegations rather than based on the objective assessment
of the treatment provider.
Most importantly, the
limitations are inconsistent with the rest of the record
and are overly restrictive in light of the objective
medical evidence.
(Tr. 21-22 (internal citations omitted).)
Plaintiff contests each
of the grounds offered by the ALJ for discounting Dr. Parrish’s
opinions.
13
First, Plaintiff argues that, contrary to the ALJ’s analysis,
“Dr. Parrish actually provided further explanation on each form he
completed citing the medical findings that support his conclusions”
(Docket Entry 15 at 6), but does not specifically identify any
“medical findings” provided by Dr. Parrish that support his extreme
restrictions (see id. at 5-8).
finding
that
Dr.
Parrish
Indeed, the ALJ did not err by
failed
explaining his limitations.
to
provide
(See Tr. 21-22.)
medical
findings
In support of Dr.
Parrish’s significant restrictions on lifting, carrying, standing,
walking, and sitting, as well as his opinion that Plaintiff needed
to lie down multiple times during the workday, Dr. Parrish listed
only the diagnoses of “fibromyalgia” and “lumbar disc disease,”
without any accompanying clinical findings or test results.
(Tr.
2623.) To bolster his postural and environmental restrictions, Dr.
Parrish included findings of “[left] lower extremity weakness” and
“generalized pain,” but failed to elucidate how those findings
supported either his limitations on upper extremity movements or
his significant environmental restrictions.
added).)
(Tr. 2624 (emphasis
Moreover, on the form requesting Dr. Parrish’s opinion
regarding Plaintiff’s exertional capacity, Dr. Parrish provided no
supporting explanation for his statement that Plaintiff “[wa]s
unable to work.”
Regarding
(Tr. 2625.)
the
Questionnaire,
Dr.
Parrish
declined
to
“[i]dentify the clinical findings, laboratory and test results that
14
show[ed] [Plaintiff’s] medical impairments,” responding instead
that “[t]here [we]re none to confirm fibromyalgia” and that his
“medical records have all testing.”
original).)
If,
in
stating
that
(Tr.
no
2632 (emphasis in
clinical
findings,
or
laboratory or test results exist “to confirm fibromyalgia” (id.),
Dr. Parrish meant to convey that his treatment records contain no
such findings, then that supports the ALJ’s criticism that Dr.
Parrish failed to justify his restrictions with medical findings
(see Tr. 21-22).
On the other hand, if Dr. Parrish intended to
state that, as a general matter, the medical community recognizes
no clinical findings, or laboratory or test results to confirm a
diagnosis of fibromyalgia, then that contradicts Social Security
Ruling 12-2p, Titles II and XVI: Evaluation of Fibromyalgia, 2012
WL 3104869 (July 25, 2012) (“SSR 12-2p”).9
That Ruling provides
that an ALJ will find that a claimant has fibromyalgia if a
physician
provides evidence of the “1990 American College of
Rheumatology
(ACR)
Criteria
for
the
Classification
of
Fibromyalgia,” which include, inter alia, “[a]t least 11 positive
tender points on physical examination . . . [which] must be found
bilaterally and both above and below the waist” and upon “digital
palpation with an approximate force of [nine] pounds.”
SSR 12-2p,
2012 WL 3104869, at *3 (parenthetical omitted). Thus, according to
9
Although Social Security Rulings do not have the same force and effect as
statutes or regulations, they bind all components of the SSA, including ALJs.
See 20 C.F.R. § 402.35(b)(1).
15
SSR 12-2p (and the ACR), clinical findings do exist that can
confirm a diagnosis of fibromyalgia, and Dr. Parrish failed to
include any such findings in support of his restrictions (see Tr.
2632).10
Plaintiff
next
attacks
the
ALJ’s
statement
that
“[t]he
determination that a claimant is disabled is an issue[] reserved to
the Commissioner” (Tr. 21), contending that Dr. Parrish “also
opine[d] on [Plaintiff’s] mental and physical limitations and . . .
d[id] not simply offer a medical opinion on an issue that is
reserved to the Commissioner.”
the
ALJ
clearly
recognized
(Docket Entry 15 at 6.)
that
Dr.
Parrish
However,
provided
both
exertional and nonexertional limitations, and the ALJ offered
several reasons why he discounted those limitations.
The ALJ’s
statement regarding “an issue[] reserved to the Commissioner” (Tr.
21-22) obviously referred to Dr. Parrish’s unsupported opinion that
Plaintiff “[wa]s unable to work” (Tr. 2625).
Plaintiff additionally takes issue with the ALJ’s observation
that Dr. Parrish appeared to base his limitations on Plaintiff’s
subjective
allegations
rather
than
Dr.
Parrish’s
objective
assessments, arguing that “the ALJ offer[ed] no evidence to support
[that] statement[]/conclusion[].”
10
(Docket Entry 15 at 7.)
In
Although Dr. Parrish checked the box “[m]ultiple tender points” on the
Questionnaire, indicating that Plaintiff’s fibromyalgia symptoms included such
tender points, he failed to provide any further information regarding those
tender points, such as the total number of tender points and their location on
Plaintiff’s body, as required by SSR 12-2p and the ACR. See SSR 12-2p, 2012
WL 3104869, at *3.
16
particular, Plaintiff contends that “[t]he treatment records near
the time of Dr. Parrish’s completion of the forms at issue reveal
that [Plaintiff] exhibited findings of tenderness over her chest
and back, discomfort with straight leg raise testing and range of
motion of the hips, weakness in the left foot, diminished bilateral
knee reflexes and positive findings of 17/19 on the wide-spread
pain index and an 11/12 on the symptom severity score in the [ACR]
forms.”
(Id. (citing Tr. 3309-10, 3327-28).)
Eight days before Dr. Parrish signed the forms in question,
Dr. Parrish examined Plaintiff and noted that “[s]he [wa]s applying
for disability” and “ha[d] [three] forms from an attorney for [Dr.
Parrish] to fill out.”
(Tr. 3309.)
Although Dr. Parrish did
document tenderness in Plaintiff’s chest and lower back, discomfort
during the straight leg raise test and hip range of motion, weak
dorsiflexion
of
her
left
foot,
and
decreased
knee
reflexes
bilaterally (see Tr. 3310), Plaintiff fails to explain how those
findings, documented at a single examination and in the context of
Plaintiff’s request that Dr. Parrish complete forms assisting her
application for
restrictions.
disability, support Dr. Parrish’s significant
(See Docket Entry 15 at 7.)
Furthermore, Dr.
Parrish’s express citation of Plaintiff’s scores of 17 out of 19 on
the ACR’s Widespread Pain Index (“WPI”) and 11 out of 12 on the
ACR’s Symptom Severity Scale (“SS Scale”) to find her “totally and
17
permanently disabled” (Tr. 3328) further confirms Dr. Parrish’s
over-reliance on Plaintiff’s subjective symptom reporting.11
The WPI involves a medical provider asking a patient “the
number [of] areas in which the patient has had pain over the last
week,” with the answer yielding a numerical score out of the 19
listed
body
areas.
www.rheumatology.org/Portals/0/Files/2010_
Preliminary_ Diagnostic_Criteria.pdf (last visited Sept. 23, 2019).
Similarly, the SS Scale requires providers to ask a patient to rate
the severity of his or her “[f]atigue,” “[w]aking unrefreshed,” and
“[c]ognitive symptoms” over the past week on a scale of zero (“no
problem”) to three (“severe”), as well as to rate the severity of
somatic symptoms in general on a scale of zero (“no symptoms”) to
three (“a great deal of symptoms”).
Id.
“The SS Scale score is
the sum of the severity of the three symptoms plus the extent
(severity) of somatic symptoms in general,” with “[t]he final
score”
yielding
a
number
(parenthetical omitted).
“between
[zero]
and
12.”
Id.
Thus, both the WPI and the SS Scale rely
11
Dr. Parrish did not report Plaintiff’s specific responses to the WPI and SS
Scale or otherwise indicate how he determined Plaintiff’s scores. (See Tr.
3328.) Moreover, Dr. Parrish failed to indicate whether Plaintiff’s symptoms
had remained at a similar severity level for at least three months or whether
Plaintiff had another disorder “that would otherwise explain the pain,” as
required
by
the
ACR’s
2010
Fibromyalgia
Diagnostic
Criteria,
www.rheumatology.org/Portals/0/Files/2010_Preliminary_ Diagnostic_Criteria.pdf
(last visited Sept. 23, 2019). (See Tr. 3328.) Furthermore, the office visit
at which Dr. Parrish derived Plaintiff’s WPI and SS Scale scores did not
include any documentation of musculoskeletal or neurologic findings. (See id.
(reflecting under “[o]bjective” only Plaintiff’s vital signs, her general
condition as “[w]ell [d]eveloped,” “[w]ell [n]ourished,” and in “[n]o
distress,” and her head as “atraumatic” and “normocephalic”).)
18
entirely on a patient’s subjective reports of symptom severity
during the week preceding the inquiry.12
Plaintiff also points to Dr. Parrish’s comment that he “spent
at least 30 minutes prior to [Plaintiff] actually getting [to Dr.
Parrish’s office] reviewing the [disability] forms and researching
[Plaintiff’s] records and another 30 minutes discussing with her
and filling out paperwork regarding her disability” (Tr. 3328) as
“indicat[ing] that Dr. Parrish did not rely only on [Plaintiff’s]
subjective allegations in completing the form[s].”
15 at 7.)
(Docket Entry
However, Dr. Parrish’s reviewing, discussing, and
completing the disability forms does not, in any fashion, suggest
that he relied on objective findings in completing the forms.
Further,
although
Dr.
Parrish
noted
that
he
“research[ed]
[Plaintiff’s] records” for up to 30 minutes prior to completing the
forms, he indicated neither which records he researched nor what
findings
(if
any
and
whether
subjective
or
objective)
he
considered.
12
Plaintiff additionally argues that “the ALJ fail[ed] to discuss how he
considered the factors in 20 C.F.R. §§ 404.1527(c) and 416.927(c) when
evaluating Dr. Parrish’s medical opinions.” (Docket Entry 15 at 7; see also
id. at 10.)
Plaintiff did not further develop that argument, identifying
neither which factors the ALJ failed to evaluate, nor how such failure
prejudiced her. (See id.) Those omissions preclude relief. See, e.g., Belk,
Inc. v. Meyer Corp., U.S., 679 F.3d 146, 152 n.4 (4th Cir. 2012) (“This issue
is waived because [the plaintiff] fails to develop this argument to any extent
in its brief.” ); United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)
(“[A] litigant has an obligation to spell out its arguments squarely and
distinctly, or else forever hold its peace.” (internal quotation marks
omitted)); Hughes v. B/E Aerospace, Inc., No. 1:12CV717, 2014 WL 906220, at *1
n.1 (M.D.N.C. Mar. 7, 2014) (Schroeder, J.) (“A party should not expect a court
to do the work that it elected not to do.”).
19
Plaintiff next challenges the ALJ’s finding that Dr. Parrish’s
restrictions did not harmonize “with the rest of the record and
[we]re
overly
evidence.”
restrictive
(Id. at 8.)
in
light
of
the
objective
medical
In that regard, Plaintiff notes that the
ALJ “fail[ed] to identify what limitations [we]re inconsistent with
the record or which medical records [we]re inconsistent with Dr.
Parrish’s medical opinions.”
(Id.)
Plaintiff then proceeds to
detail multiple subjective and objective findings in the record
which she contends demonstrate that Dr. Parrish’s opinions remained
consistent with the record.
(See id. at 8-10 (citing Tr. 1891-94,
2172-79, 2182-83, 2243-62, 2273, 2358-427, 2441-42, 2508, 2531-54,
2616-21, 2655-57, 2668-751, 2812-35, 2867-68, 3539-40, 3562, 357477).)
Plaintiff misinterprets this Court’s standard of review.
The
Court must determine whether the ALJ supported his decision to
discount Dr. Parrish’s opinions with substantial evidence, and not
whether other record evidence weighs against the ALJ’s analysis,
Lanier v. Colvin, No. CV414-002, 2015 WL 3622619, at *1 (S.D. Ga.
June 9, 2015) (“The fact that [the p]laintiff disagrees with the
ALJ’s decision, or that there is other evidence in the record that
weighs against the ALJ’s decision, does not mean that the decision
is unsupported by substantial evidence.”).
Here, although the ALJ
did not specify the objective evidence that failed to support Dr.
Parrish’s opinions in the same paragraph in which he weighed those
20
opinions (see Tr. 21-22), elsewhere in the ALJ’s decision, he
detailed evidence that
limitations
(see
Tr.
did not support Dr. Parrish’s extreme
18-21).
That
approach
suffices.
See
McCartney v. Apfel, 28 F. App’x 277, 279-80 (4th Cir. 2002)
(rejecting challenge to ALJ’s finding for lack of sufficient detail
where other discussion in decision adequately supported finding and
stating “that the ALJ need only review medical evidence once in his
decision”); Kiernan v. Astrue, No. 3:12CV459-HEH, 2013 WL 2323125,
at *5 (E.D. Va. May 28, 2013) (unpublished) (observing that, where
an “ALJ analyzes a claimant’s medical evidence in one part of his
decision, there is no requirement that he rehash that discussion”
in other parts of his analysis).
In the portion of the ALJ’s decision analyzing Plaintiff’s
RFC, the ALJ discussed the following evidence:
•
although a 2013 “MRI showed right paracentral disc
protrusion at L5-S1[, Plaintiff] had a series of
epidural steroid injections with ‘excellent relief
of [pain]’” (Tr. 18 (quoting Tr. 2172 (brackets
added), citing Tr. 2324));
•
“in April 2014, [Plaintiff’s] back was normal to
inspection and non-tender” with “painless” range of
motion, and in April and May 2014, although Romberg
and left straight leg raise tests proved positive,
Plaintiff “had normal movement of all extremities”
with “no dysfunction or weakness” and normal tone
and gait (id. (citing Tr. 2303, 2243-49));
•
“[a] lumbar MRI from June 2014 showed mild
degenerative disc disease at L5-S1 with posterior
annular fissure . . . unchanged from the 2013 MRI”
and “a lumbar x-ray from June 2014 was negative”
(Tr. 18-19 (citing Tr. 2183-84, 2274-76, 2283-85));
21
•
“in January 2015 . . . [a] lumbar myelogram CT
showed mild degenerative retrolisthesis of L5 on
S1” and “mild bilateral L5-S1 neuroforaminal
narrowing,”
which
were
not
consistent
with
[Plaintiff’s] complaints” (Tr. 19 (citing Tr. 2563,
2598-602,
2870-73) (internal
quotation
marks
omitted));
•
“in October 2015,” although Plaintiff “had pain
with flexion and extension[, s]traight leg raise
was negative” and sensation and reflexes “were
normal” (id. (citing Tr. 2655-57));
•
“[a] lumbar spine MRI in June 2016 showed unchanged
mild degenerative disc disease at L5-S1” (id.
(citing Tr. 2784));
•
“in the emergency room in September 2016 . . .,
[Plaintiff] did not have radicular symptoms or
saddle anesthesia[,] . . . [her] back was normal to
inspection other than lower paraspinal tenderness[,
and s]he had painless range of motion an[d] no
vertebral point tenderness” (Tr. 20 (citing Tr.
2775-77));
•
“[a] MRI of [Plaintiff’s] left knee in August 2014
showed findings suspicious for [a] small peripheral
tear of the lateral meniscus,” but “in May 2015
. . ., [x]-rays [of Plaintiff’s left knee] showed
no
fractures,
subluxations,
soft
tissue
calcification, [] malalignment[,] . . . significant
soft
tissue
swelling
or
obvious
effusion,”
Plaintiff’s “gait was normal,” and a cortisone
injection
“‘helped
significantly[,]’”
as
“[Plaintiff] walked out of the office pain-free”
(id. (quoting Tr. 3533, citing Tr. 2280-81, 252930, 3530-35, 3538)); and
•
“in August 2016 . . ., [Plaintiff] had ‘pretty good
range of motion’ of her knees . . ., and she
ambulated well without difficulty bearing full
weight on her knees” and “was in no undue pain”
(id. (quoting Tr. 3437)).
The ALJ’s above-described analysis details substantial evidence
supporting his finding that Dr. Parrish’s “limitations [we]re
22
inconsistent
with
the
rest
of
the
record
and
[we]re
overly
restrictive in light of the objective medical evidence.” (Tr. 22.)
b.
PA Robbins
Plaintiff also attributes error to “[t]he ALJ’s failure to
address or assign any weight to [PA Robbins’s] medical opinion.”
(Docket Entry 15 at 11 (underscoring and single-spacing omitted).)
In particular, Plaintiff notes that PA Robbins “provided a medical
opinion on February 3, 2016 that [Plaintiff] was not able to work”
(id. (citing Tr. 3577)) and that, although PA Robbins does not
qualify as an acceptable medical source, “[Plaintiff] has a long
history of treatment with Salem Neurological, treating with [PA
Robbins] and his supervising neurologist Dr. Runheim” (id.; see
also
id.
(quoting
20
C.F.R.
§§
404.1527(c)
and
416.927(c)
(“Regardless of its source, we will evaluate every medical opinion
we receive.”))).
As Plaintiff has conceded (see id.), PA Robbins did not, at
the time he offered his opinion, constitute an “[a]cceptable
medical source[]” under the regulations, 20 C.F.R. §§ 404.1513(a),
416.913(a)
(defined
physician[s]”),
but
to
rather
include,
an
inter
“[o]ther
§§ 404.1513(d)(1), 416.913(d)(1).13
13
alia,
source[],”
“[l]icensed
20
C.F.R.
As an “[o]ther source[],” PA
Applicable to claims filed on or after March 27, 2017, the Commissioner
enacted substantial revisions to Sections 404.1513 and 416.913, recodified the
definition of “[a]cceptable medical source” into Sections 404.1502(a) and
416.902(a), and, inter alia, included licensed physician assistants as
“[a]cceptable medical source[s].” See 20 C.F.R. §§ 404.1502(a), 416.902(a),
(continued...)
23
Robbins lacked the qualifications to offer “medical opinions” as
defined by the regulations.
See Social Security Ruling 06-03p,
Titles II and XVI: Considering Opinions and Other Evidence from
Sources Who Are Not “Acceptable Medical Sources” in Disability
Claims; Considering Decisions on Disability by Other Governmental
and Nongovernmental Agencies, 2006 WL 2329939, at *2 (Aug. 9, 2006)
(“SSR 06-03p”) (providing that “only ‘acceptable medical sources’
can give [the SSA] medical opinions . . . [and] can be considered
treating sources . . . whose medical opinions may be entitled to
controlling weight”).14
Nevertheless, the ALJ must still evaluate statements from
“other sources” like PA Robbins under the factors set forth in 20
C.F.R. §§ 404.1527(c) and 416.927(c).
See Social Security Ruling
96–5p, Policy Interpretation Ruling Titles II and XVI: Medical
Source Opinions on Issues Reserved to the Commissioner, 1996 WL
374183, at *5 (July 2, 1996) (“SSR 96–5p”) (noting that ALJs “must
weigh medical source statements . . . [and] provid[e] appropriate
explanations for accepting or rejecting such opinions”).15
The ALJ
here did not address or weigh PA Robbins’s statement regarding
13
(...continued)
404.1513, 416.913 (2017).
This Recommendation applies the versions of the
applicable regulations in effect on August 4, 2014, the protective filing date
of Plaintiff’s instant claims for DIB and SSI (see Tr. 11).
14
The Commissioner rescinded SSR 06-3p for claims filed on or after March 17,
2017. See 82 Fed. Reg. 15263 (Mar. 27, 2017).
15
The Commissioner rescinded SSR 96-5p for claims filed on or after March 27,
2017. See 82 Fed. Reg. 15263 (Mar. 27, 2017).
24
Plaintiff’s inability to work. (See Tr. 17-23.)
The ALJ’s failure
to discuss or weigh PA Robbins’s statement, however, qualifies as
harmless error for three reasons.
See generally Fisher v. Bowen,
869 F.2d 1055, 1057 (7th Cir. 1989) (observing that “[n]o principle
of administrative law or common sense requires us to remand a case
in quest of a perfect opinion unless there is reason to believe
that the remand might lead to a different result”).
As an initial matter, consideration of the context of PA
Robbins’s statement casts some doubt on whether he intended to
offer his opinion that Plaintiff could not work. Under the heading
“Plan” at the end of a treatment record dated February 3, 2016, PA
Robbins stated that, “[a]t the current time [Plaintiff] is unable
to do any form of work” and “is unable to afford physical therapy,
water exercises, low impact aerobics, or work hardening.”
3577.)
Given
that
Plaintiff’s
inability
to
afford
(Tr.
certain
therapies does not constitute a medical matter about which PA
Robbins had any expertise, its inclusion in the same setting as the
remark that Plaintiff could not work suggests that PA Robbins
merely reported Plaintiff’s own statements that she could not work
and could not afford additional therapies.
Second, as discussed
above, statements that a claimant cannot work address matters
reserved to the Commissioner and carry no special significance.
See 20 C.F.R. §§ 404.1527(d), 416.927(d).
Third, PA Robbins did
not support his conclusory statement with any clinical findings or
25
explanations.
(See Tr. 3577.)
Thus, Plaintiff cannot demonstrate
that the ALJ’s express discussion and weighing of PA Robbins’s
statement would have changed the outcome of her claims.
In sum, Plaintiff’s first issue on review fails to warrant
reversal or remand.
2. Subjective Symptom Reporting and RFC
In Plaintiff’s second issue on review, she argues that “[t]he
ALJ’s RFC is not supported by substantial evidence because he
failed
to
account
for
the
total
limiting
effects
of
all
[Plaintiff’s] medically determinable impairments and the symptoms
she experiences as a result of these impairments and failed to
properly explain how he resolved the evidence with his conclusions
regarding [Plaintiff’s] RFC.”
and
single-spacing
challenges
the
(Docket Entry 15 at 11 (bold font
omitted).)
ALJ’s
More
rationale
for
specifically,
finding
that
Plaintiff
Plaintiff’s
“‘statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely consistent with the
medical evidence and other evidence in the record’” (id. at 12
(quoting Tr. 18)) and faults the ALJ for “fail[ing] to identify
what evidence in the record supports his RFC findings” (id. at 16).
Plaintiff’s contentions fall short.
a.
Subjective Symptom Reporting
Social Security Ruling 16-3p, Titles II and XVI: Evaluation of
Symptoms in Disability Claims, 2017 WL 5180304, at *5 (Oct. 25,
26
2017)
(“SSR
16-3p”)
(consistent
with
the
Commissioner’s
regulations) adopts a two-part test for evaluating a claimant’s
statements about symptoms.
See SSR 16-3p, 2017 WL 5180304, at *3;
see also 20 C.F.R. §§ 404.1529, 416.929.16
First, the ALJ “must
consider whether there is an underlying medically determinable
physical or mental impairment(s) that could reasonably be expected
to produce an individual’s symptoms, such as pain.”
2017 WL 5180304, at *3.
evidence
from
existence
of
an
a
SSR 16-3p,
A claimant must provide “objective medical
acceptable
medically
medical
source
determinable
to
establish
impairment
that
the
could
reasonably be expected to produce [the] alleged symptoms.”
Id.
Objective medical evidence consists of medical signs (“anatomical,
physiological,
medically
or
psychological
acceptable
clinical
abnormalities
diagnostic
established
techniques”)
by
and
laboratory findings “shown by the use of medically acceptable
laboratory diagnostic techniques.”
Id.
Upon satisfaction of part one by the claimant, the analysis
proceeds to part two, which requires an assessment of the intensity
16
Applicable to ALJ decisions on or after March 28, 2016, the Social Security
Administration superceded Social Security Ruling 96-7p, Policy Interpretation
Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims, 1996 WL
374186 (July 2, 1996) (“SSR 96-7p”), with SSR 16-3p.
The new ruling
“eliminat[es] the use of the term ‘credibility’ from . . . sub-regulatory
policy, as [the] regulations do not use this term.” Id. at *1. The ruling
“clarif[ies] that subjective symptom evaluation is not an examination of the
individual’s character,” id., and “offer[s] additional guidance to [ALJs] on
regulatory implementation problems that have been identified since [the
publishing of] SSR 96-7p,” id. at *1 n.1. The ALJ’s decision in this case
postdates the effective date of SSR 16-3p (see Tr. 25) and, thus, this
Recommendation will apply SSR 16-3p to Plaintiff’s argument regarding the ALJ’s
subjective symptom evaluation.
27
and persistence of the claimant’s symptoms, as well as the extent
to which those symptoms affect his or her ability to work.
at *4.
See id.
In making that determination, the ALJ must “examine the
entire case record, including the objective medical evidence; an
individual’s statements about the intensity,
persistence, and
limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.”
Id.
Where
relevant, the ALJ will also consider the following factors in
assessing the extent of the claimant’s symptoms at part two:
1. Daily activities;
2. The location, duration, frequency, and intensity of
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of
any medication an individual takes or has taken to
alleviate pain or other symptoms;
5. Treatment, other than medication, an individual
receives or has received for relief of pain or other
symptoms;
6. Any measures other than treatment an individual uses
or has used to relieve pain or other symptoms (e.g.,
lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual’s
functional limitations and restrictions due to pain or
other symptoms.
Id. at *7-8.
The ALJ cannot “disregard an individual’s statements
about the intensity, persistence, and limiting effects of symptoms
28
solely because the objective medical evidence does not substantiate
the
degree
of
individual.”
impairment-related
symptoms
alleged
by
the
Id. at *5 (emphasis added).
In this case, the ALJ found for Plaintiff on part one of the
inquiry,
but
ruled,
in
connection
with
part
two,
that
her
“statements concerning the intensity, persistence and limiting
effects of [her] symptoms [we]re not entirely consistent with the
medical evidence and other evidence in the record for the reasons
explained in [the ALJ’s] decision.”
(Tr. 18.)
Later in the
decision, the ALJ found as follows:
The [ALJ] finds that [Plaintiff’s] statements are not
entirely consistent with or supported by longitudinal
review of all of the evidence. [Plaintiff] failed to
show up for doctor appointments on a number of occasions.
This demonstrates a possible unwillingness to do that
which is necessary to improve her condition. It may also
be an indication that [Plaintiff’s] symptoms [we]re not
as severe as purported.
(Tr. 21 (citing Tr. 3116-18, 3409-11) (internal citation omitted).)
Plaintiff
respects.
challenges
the
ALJ’s
part
two
finding
in
two
First, Plaintiff asserts that, “[d]espite summarizing
some of the medical evidence in the record, the ALJ fail[ed] to
identify at any point in the decision which treatment records
[we]re not consistent with [Plaintiff’s] allegations regarding her
symptoms, including pain.”
Plaintiff
objects
to
the
(Docket Entry 15 at 13.)
ALJ’s
reliance
on
two
Second,
“missed
[]
appointments in the almost [three-year] period of time that spanned
29
from her alleged onset date of February 12, 2014 through the date
of the hearing on January 13, 2017.”
Contrary
to
Plaintiff’s
(Id.)
allegations,
the
ALJ’s
decision
sufficiently identifies the medical evidence that conflicts with
Plaintiff’s subjective statements.
The ALJ extensively discussed
Plaintiff’s testimony (see Tr. 17-18), including her testimony that
“[s]he spends most of the day in a recliner,” “[s]itting puts too
much pressure on her spine, [] walking is too painful[ and ] causes
her tachycardia to act up,” and that she “walks with a cane” (Tr.
17).
Following that discussion, the ALJ analyzed the evidence
pertaining to Plaintiff’s back pain with radiculopathy (see Tr. 1819), head and neck pain (see id.), leg weakness (see Tr. 19),
widespread fibromyalgia pain (see Tr. 20), and left knee pain (se
id.).
After each summarization paragraph, the ALJ specifically
noted the restrictions in the RFC that accommodated the evidentiary
findings discussed by the ALJ. (See, e.g., Tr. 18 (“The limitation
to sedentary work with use of a cane for ambulation in the above
[RFC]
sufficiently
accounts
for
these
findings.”),
19
(“The
limitations to sedentary work; never climbing ladders, ropes, and
scaffolds; and use of a cane for ambulation in the above [RFC]
account for th[e]s[e findings].”), 20 (“There is no indication
[Plaintiff]
above.”).)
experiences
limitations
greater
than
the
[RFC]
Thus, the ALJ indicated multiple times which evidence
30
conflicted with Plaintiff’s subjective complaints of disabling
symptoms.
Although an ALJ may permissibly consider a claimant’s failure
to attend medical appointments as part of the subjective symptom
inquiry, see Stephens v. Commissioner of Soc. Sec., No. 2:06CV3123,
2008 WL 68852, at *12 (D.S.C. Jan. 4, 2008) (unpublished) (“In
evaluating . . . a Social Security disability claimant’s subjective
complaints, an ALJ is not precluded from considering whether the
claimant complied with her prescribed treatment.”), the two missed
appointments relied on by the ALJ here provide little (if any)
support for the ALJ’s findings of “a possible unwillingness [on
Plaintiff’s part] to do that which is necessary to improve her
condition” or “an indication that [Plaintiff’s] symptoms are not as
severe as purported (Tr. 21).
As Plaintiff argues (see Docket
Entry 15 at 13), the ALJ cited to just two missed appointments out
of the dozens of office visits documented during the three-year
relevant period.
Furthermore, as Plaintiff notes, the missed
appointments, one for a thyroid ultrasound to investigate a thyroid
nodule (see Tr. 3116-18), and one for a bone density scan to test
for osteopenia/osteoporosis (see Tr. 3409-11), did not concern
Plaintiff’s “treatment for the medically determinable impairments
she alleges are the basis for her disability claim” (Docket Entry
15 at 13).
31
The
ALJ’s
reliance,
in
part,
on
Plaintiff’s
missed
appointments to discount her subjective statements constitutes
harmless error under the circumstances of this case, see generally
Fisher, 869 F.2d at 1057 (observing that “[n]o principle
of
administrative law or common sense requires us to remand a case in
quest of a perfect opinion unless there is reason to believe that
the
remand
might
lead
to
a
different
result”),
because,
as
discussed below, the ALJ here relied on other, permissible bases
amounting
to
substantial
subjective statements.
evidence
to
discount
Plaintiff’s
See Johnson v. Commissioner of Soc. Sec.,
535 F. App’x 498, 507 (6th Cir. 2013) (“[E]ven if an ALJ’s adverse
credibility determination is based partially on invalid reasons,
harmless error analysis applies to the determination, and the ALJ’s
decision will be upheld as long as substantial evidence remains to
support it.”); Shuler v. Berryhill, No. 0:16CV529, 2017 WL 3634595,
at *5 (D.S.C. Aug. 23, 2017) (unpublished) (concluding that,
because ALJ otherwise supported his analysis of the claimant’s
subjective statements with substantial evidence, the ALJ’s improper
statement regarding the claimant’s lack of treatment remained
harmless (citing Johnson)).
Plaintiff maintains that “the ALJ failed to identify or
consider
any
of
the
[]
factors
set
forth
in
20
C.F.R.
§§ 404.1529(c)(3) and 416.929(c)(3) or in [SSR 16-3p],” despite
Plaintiff’s testimony and evidence “regarding a number of the
32
factors [], including her daily activities, the location, duration,
frequency and intensity of her pain or other symptoms, [and]
additional measures (beyond medical treatment) that she utilizes
for pain and symptom relief.”
(Docket Entry 15 at 14.)
However,
as the Commissioner argues (see Docket Entry 17 at 11), the ALJ
clearly did consider those factors.
The ALJ discussed Plaintiff’s
statements that she experiences pain throughout her entire spine
which radiates down her legs, urinary incontinence, neck pain, hip
pain, knee pain, and headaches.
symptoms).)
(See Tr. 17-20 (location of
The ALJ further noted that Plaintiff claimed to have
“good days and bad days” but that “she only ha[d] about two good
days per week” which rated as “worse than a bad day for most
people” (Tr. 17 (duration and frequency of symptoms)), and that she
experienced
pressure,
tachycardia,
difficulty
nausea,
sleeping,
dizziness,
decreased
elevated
blood
concentration,
and
forgetfulness caused by her pain (see Tr. 17-18 (intensity of
symptoms)).
The ALJ also considered Plaintiff’s statements that
sitting, walking, heat, and cold exacerbated her symptoms.
(See
id. (precipitating and aggravating factors).) The ALJ additionally
discussed Plaintiff’s multiple epidural steroid injections, use of
hydrocodone
and
pain
management
services
(see
Tr.
18),
and
cortisone knee injections (see Tr. 20 (medications)), as well as
that she used ice on her lower back, applied heat on her upper
back, spent most of the day and slept in a recliner, used a cane
33
for walking (see Tr. 17), participated in physical therapy (see Tr.
20), declined a recommended TENS unit (see Tr. 19), and wore a back
brace (see Tr. 18 (other treatment and measures)).
Lastly, the ALJ
noted that, “[o]n a good day, [Plaintiff] said she can wash her
hair and make some food” (Tr. 17 (daily activities)) and, as
discussed
above,
detailed
the
objective
medical
evidence
inconsistent with Plaintiff’s subjective statements (see Tr. 1821).
Under such circumstances (particularly the ALJ’s multiple
references of what evidence within the extensive review of the
medical
record
supported
the
RFC
(and
undermined
Plaintiff’s
contrary symptom reporting)), the ALJ’s additional reliance on
Plaintiff’s missed appointments constitutes, at most, harmless
error.
b.
RFC
Plaintiff next contends that the ALJ “fail[ed] to identify
what evidence in the record support[ed] his RFC findings.” (Docket
Entry 15 at 16.)
However, as discussed above, the ALJ indicated,
after each paragraph summarizing the medical evidence, how the
restrictions in the RFC specifically accommodated the findings in
that evidence.
(See Tr. 18-21.)
Plaintiff also points out that “[t]he ALJ concluded that the
opinion evidence regarding [Plaintiff’s] physical limitations was
all entitled to little weight,” and did not explain which evidence,
34
not available to the state agency medical consultants, “‘indicat[ed
Plaintiff wa]s more limited than the [] consultants suggest[ed].’”
(Docket Entry 15 at 16 (quoting Tr. 22).)
Plaintiff essentially
argues that, because the ALJ rejected all the opinion evidence
present in the record, he impermissibly substituted his own lay
opinion of the evidence in formulating the RFC.
Here,
both
state
agency
medical
consultants
found
that
Plaintiff could perform light work with postural and environmental
restrictions (see Tr. 1953-55, 1963-65, 1982-83, 1998-99), which
the ALJ discounted as too permissive:
These opinions are given little weight. The state agency
consultants did not examine [Plaintiff]; they merely
reviewed written records. Moreover, additional evidence
was received at the hearing level – including testimony
and medical records – and which was not reviewed by the
state agency, indicating [Plaintiff] [wa]s more limited
than the state agency medical consultants suggest[ed].
(Tr. 22 (emphasis added).)
Thus, by adopting a sedentary-exertion
RFC, the ALJ struck a balance between the state agency medical
consultants’
light-exertion
RFC
and
the
less-than-sedentary-
exertion limitations opined by Dr. Parrish.
Far from error, that
constitutes one of the ALJ’s evidentiary duties.
See Finch v.
Astrue, 547 F.3d 933, 936 (8th Cir. 2008) (“The ALJ is charged with
the
responsibility
of
resolving
conflicts
among
medical
opinions.”); Russell v. Commissioner of Soc. Sec. Admin., No. CA
1:13-2283,
2014
WL
7005199,
at
*14
(D.S.C.
Sept.
5,
2014)
(unpublished) (finding no error where ALJ “accorded little weight
35
to the state agency physicians’ opinions because they did not
review additional evidence later made part of the record” and
rejected
treating
physician’s
less-than-sedentary
opinion
as
unsupported by objective evidence because, in so doing, “the ALJ
struck
a
balance
between
the
conflicting
opinion
data”),
recommendation adopted, 2014 WL 7005237 (D.S.C. Dec. 11, 2014)
(unpublished).17
In short, Plaintiff has not established prejudicial error in
her second issue on review.
3. Appointments Clause
Lastly, Plaintiff argues that “[r]emand is required because at
the time [the ALJ’s] decision was issued, [his] appointment did not
comply
with
the
Constitution].”
Appointments
Clause
[of
the
United
States
(Docket Entry 15 at 17 (bold font and single-
spacing omitted); see also U.S. Const. Art. 2, § 2, cl. 2.)
17
In
Plaintiff additionally asserts “that the RFC ‘assessment must first identify
the individual’s functional limitations or restrictions and assess his or her
work-related abilities on a function-by-function basis’” (Docket Entry 15 at
15 (quoting Social Security Ruling 96-8p, Policy Interpretation Ruling Titles
II and XVI: Assessing Residual Functional Capacity in Initial Claims, 1996 WL
374184, at *1 (July 2, 1996) (“SSR 96-8p”))), and “that remand was appropriate
where[] ‘an ALJ fail[ed] to assess a claimant’s capacity to perform relevant
functions, despite contradictory evidence in the record, or where other
inadequacies frustrate meaningful review’” (id. at 16 (quoting Mascio v.
Colvin, 780 F.3d 632, 636 (4th Cir. 2015))).
However, because Plaintiff
neither indicated what “relevant functions” the ALJ failed to assess, nor
further developed that argument (see Docket Entry 15 at 15-17), the Court need
not consider it. See, e.g., Belk, Inc., 679 F.3d at 152 n.4 (“This issue is
waived because [the plaintiff] fails to develop this argument to any extent in
its brief.” ); Zannino, 895 F.2d at 17 (“[A] litigant has an obligation to
spell out its arguments squarely and distinctly, or else forever hold its
peace.” (internal quotation marks omitted)); Hughes, 2014 WL 906220, at *1 n.1
(“A party should not expect a court to do the work that it elected not to
do.”).
36
support of that argument, Plaintiff relies on Lucia v. Securities
& Exch. Comm’n, 585 U.S. ___, 138 S. Ct. 2044 (2018), wherein “the
Supreme Court recently held that ALJ’s of the Securities and
Exchange Commission (‘SEC’) [we]re inferior officers subject to the
Appointments Clause.”
(Docket Entry 15 at 17 (citing Lucia, 585
U.S. at ___, 138 S. Ct. at 2053-54).)
Plaintiff notes that the
Supreme Court concluded that “a new hearing with a new properly
appointed ALJ” constituted “the appropriate remedy to cure the
constitutional error.” (Id. (citing Lucia, 585 U.S. at ___, 138 S.
Ct. at 2055)).
presided
over
According to Plaintiff, “[s]ince [the] ALJ [who
Plaintiff’s
case]
was
not
a
constitutionally
appointed judge who was appointed by the President, the Courts of
Law or the Commissioner of [the] SSA (i.e. Head of Department) at
the time he presided over and decided [Plaintiff’s] claim[,] the
appropriate remedy under the [Supreme] Court’s holding in Lucia is
for
[Plaintiff’s]
claim[s]
to
constitutionally appointed judge.”
be
remanded
to
a
different,
(Id.)
In response, the Commissioner appears to assume arguendo that
the Appointments Clause applies to the SSA’s ALJs (see Docket Entry
17 at 14-22), but maintains that “Plaintiff’s failure to raise her
Appointments Clause challenge at any point in the administrative
process forfeit[ed] her claim” (id. at 22).
According to the
Commissioner, “requiring a claimant to present an Appointments
Clause challenge to the agency to preserve it for judicial review
37
conforms to Lucia’s instruction that only a party ‘who makes a
timely challenge . . . is entitled to relief’” (id. at 18 (citing
Lucia, 585 U.S. at ___, 138 S. Ct. at 2055)), and “serve[s]
important efficiency interests . . . in the context of [the] SSA’s
adjudicative
system,
which
issues
hundreds
of
thousands
of
decisions each year” (id. at 19).
The Appointments Clause provides as follows:
[The President of the United States] shall nominate, and
by and with the Advice and Consent of the Senate, shall
appoint . . . Officers of the United States, whose
Appointments are not herein otherwise provided for, and
which shall be established by Law: but the Congress may
by Law vest the Appointment of such inferior Officers, as
they think proper, in the President alone, in the Courts
of Law, or in the Heads of Departments.
U.S. Const. art. II, § 2, cl. 2.
The Supreme Court in Lucia,
relying on its prior case Freytag v. Commissioner of Internal
Revenue, 501 U.S. 868 (1991), held that the SEC’s ALJs qualified as
“inferior Officers” rather than federal employees, because they
“hold a continuing office established by law” and “exercise . . .
significant
discretion
functions.”
Lucia, 585 U.S. at ___, 138 S. Ct. at 2053 (internal
quotation marks omitted).
when
carrying
out
.
.
.
important
However, the Supreme Court emphasized
that the plaintiff in Lucia had made a timely constitutional
challenge to the ALJ who decided his claim by contesting the
validity of the ALJ’s appointment before the SEC.
S. Ct. at 2055.
Id. at ___, 138
Notwithstanding that language in Lucia, Plaintiff
38
contends that she did not forfeit her Appointments Clause challenge
before this Court.
(See Docket Entry 15 at 17-20.)18
a. Issue Exhaustion
Plaintiff first asserts that “[t]he Supreme Court determined
that a judicially created exhaustion requirement is inappropriate
in the context of proceedings before the [SSA] in Sims v. Apfel
concluding 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.’”
(Id. at 18 (quoting Sims v. Apfel, 530 U.S. 103, 112 (2000)
(plurality opinion).) As the Commissioner argues, “Sims holds that
a claimant need not raise an issue to the Appeals Council in order
to preserve it” (Docket Entry 17 at 19 (emphasis added)), but “did
not address the question[] of whether a claimant must raise an
18
Given the pendency of appeals in the Fourth Circuit involving the forfeiture
of Appointments Clause challenges, see, e.g., Probst v. Berryhill, 377 F. Supp.
3d 578 (E.D.N.C. 2019), appeal filed, No. 19-1529 (4th Cir. May 17, 2019);
Bradshaw v. Berryhill, 372 F. Supp. 3d 349 (E.D.N.C. 2019), appeal filed, No.
19-1531 (4th Cir. May 17, 2019), the Court could, in its discretion, elect to
stay the present case pending resolution of those issues by the Fourth Circuit.
However, in light of this Court’s prior decisions uniformly finding
Appointments Clause challenges forfeited when not raised before the SSA, see
Hodge v. Saul, No. 1:18CV206, 2019 WL 3767130, at *5 (M.D.N.C. Aug. 9, 2019)
(unpublished) (Peake, M.J.), recommendation adopted, 2019 WL 4538736 (M.D.N.C.
Sept. 19, 2019) (unpublished) (Schroeder, C.J.); Williams v. Saul, No.
1:18CV539, 2019 WL 3582374, at *5-6 (M.D.N.C. Aug. 6, 2019) (unpublished)
(Peake, M.J.), recommendation adopted, slip op. (M.D.N.C. Aug. 27, 2019)
(Biggs, J.); Clinton v. Saul, No. 1:18CV266, 2019 WL 3556946, at *10-11
(M.D.N.C. Aug. 5, 2019) (unpublished) (Peake, M.J.), recommendation adopted,
slip op. (M.D.N.C. Aug. 29, 2019) (Eagles, J.); Smith v. Berryhill, No.
1:18CV329, slip op. (M.D.N.C. Apr. 23, 2019) (Webster, M.J.), recommendation
adopted, slip op. (M.D.N.C. May 10, 2019) (Biggs, J.); Martin v. Berryhill, No.
1:18CV115, slip op. (M.D.N.C. Dec. 11, 2018) (Webster, M.J.), recommendation
adopted, slip op. (M.D.N.C. Jan. 4, 2019) (Eagles, J.), this Recommendation
addresses Plaintiff’s Appointments Clause claim under Lucia, as well as the
additional, non-Lucia claims presented for resolution.
39
issue to the ALJ in order to preserve it” (id. at 20 (emphasis
added) (citing Sims, 530 U.S. at 106 (“Whether a claimant must
exhaust issues before the ALJ is not before us.”))).
Furthermore,
including
following
Sims,
numerous
federal
courts,
judges of this Court, have continued to find that
claimants forfeited the right to bring issues on judicial review
that they failed to raise before the ALJ.
See, e.g., Shaibi v.
Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (“[A]t least when
claimants are represented by counsel, they must raise all issues
and evidence at their administrative hearings in order to preserve
them on appeal.”); Anderson v. Barnhart, 344 F.3d 809, 814 (8th
Cir. 2003) (holding the claimant’s failure to raise issue before
ALJ “waived [the claim] from being raised on appeal”); Mills v.
Apfel, 244 F.3d 1, 8 (1st Cir. 2001) (indicating court “ha[d] no
intention of extending th[e] rule [in Sims] . . . to the failure of
an applicant to raise an issue at the ALJ level” and deeming issue
not raised before ALJ waived); Bunton v. Colvin, No. 1:10CV786,
2014 WL 639618, at *5 (M.D.N.C. Feb. 18, 2014) (unpublished)
(finding waiver of issue where the plaintiff failed to raise it at
ALJ’s hearing), recommendation adopted, slip op. (M.D.N.C. Mar. 10,
2014) (Schroeder, J.); Stepinski v. Astrue, No. CA 11-183, 2012 WL
3866678, at * 9-10 (D.R.I. Aug. 6, 2012) (unpublished) (“The
[c]ourt views unfavorably the silence of [the p]laintiff’s counsel
at the hearing regarding the omission about which he now complains.
40
Reversal and remand . . . would encourage other counsel to remain
silent in similar circumstances.
provide such an incentive.
This [c]ourt is disinclined to
Accordingly, the [c]ourt finds that
[the p]laintiff waived this issue by failing to raise it before the
ALJ.” (internal citations omitted)); see also Sayre v. Chater, 113
F.3d 1232 (table), 1997 WL 232305, at *2 (4th Cir. May 8, 1997)
(unpublished) (finding, prior to Sims, issue on appeal waived where
“nothing in the record [] suggest[ed] that [the plaintiff] provided
either the ALJ or the Appeals Council with the opportunity to
consider” issue).
b.
Futility
Plaintiff next argues that “the [Supreme] Court determined
. . . [that] it was not necessary for the individual bringing the
Appointments Clause challenge to raise the issue with the ALJ”
(Docket Entry 15 at 18 (citing Lucia, 585 U.S. at ___, 138 S. Ct.
at 2055)), which “is in line with prior holdings of the [Supreme]
Court recognizing that it is not necessary to raise challenges with
government officials who do not have the institutional competency
to resolve the particular type of issue presented, such as the
constitutionality of a procedure” (id. at 18 (citing Moore v. East
Cleveland, Ohio, 431 U.S. 494, 497 n.5 (1977), Mathews v. Diaz, 426
U.S. 67, 76 (1976), and Mathews v. Eldridge, 424 U.S. 319, 329-30
(1976))). However, Plaintiff glosses over the fact that, in Lucia,
the plaintiff had challenged the constitutionality of the ALJ under
41
the Appointments Clause before the SEC, i.e., while his case
remained before the agency involved.
138 S. Ct. at 2055.
See Lucia, 585 U.S. at ___,
Thus, the fact that the plaintiff did not
raise the Appointments Clause challenge before the ALJ did not
alter Lucia’s observation that that only a party “who makes a
timely challenge . . . is entitled to relief.”
Id.
Moreover, the
other cases Plaintiff cites do not aid her cause.
In Moore, a plurality of the Supreme Court merely noted in a
footnote that the plaintiff’s failure to request a variance from
the city regarding a housing ordinance criminally enforced against
her
did
not
prevent
the
Supreme
Court
from
hearing
her
constitutional challenge to that ordinance. See Moore, 431 U.S. at
497 n.5.
In so doing, the Supreme Court noted that, “[t]here are
sound reasons for requiring exhaustion of administrative remedies
in some situations, but such a requirement is wholly inappropriate
where the party is a criminal defendant . . . defend[ing] against
the [s]tate’s prosecution on the ground that [an] ordinance is
facially invalid.”
Id. (emphasis added).
This case involves
neither a criminal prosecution nor a facial challenge to the
validity of a law enforced against Plaintiff.19
19
For that same reason, Plaintiff’s reliance on Jones Bros., Inc. v. Secretary
of Labor, 898 F.3d 669 (6th Cir. 2018) (see Docket Entry 15 at 19-20), misses
the mark. In that case, the Sixth Circuit held only that failure to exhaust
administrative remedies would not bar facial Appointments Clause challenges,
where the plaintiff challenges the constitutionality of the law authorizing
appointment of officers. See id. at 674. The court noted that waiver could
bar as-applied challenges, where the plaintiff claims that the agency has not
(continued...)
42
In Diaz, the Supreme Court found that the Department of
Health, Education, and Welfare (“DHEW”) had waived the requirement
that
the
plaintiffs
raise
their
constitutional
challenge
to
Medicare eligibility requirements before the DHEW by expressly
acknowledging in open court the futility of doing so.
426 U.S. at 72, 75-77.
See Diaz,
No such circumstances exist here.
With regard to Eldridge, as the Commissioner argues, “the
Supreme Court held only that a plaintiff’s failure to raise a Due
Process claim during the administrative process, and the failure to
complete the administrative process, did not divest the district
court of jurisdiction under 42 U.S.C. § 405(g),” and “did not hold,
as Plaintiff suggests, that a district court must always excuse
forfeiture in Social Security appeals.”
(Docket Entry 17 at 21
(emphasis added) (citing Eldridge, 424 U.S. at 329-30).) Moreover,
a court may exercise its discretion to excuse forfeiture in “rare
case[s],” Freytag, 501 U.S. at 879, and the Eldridge court noted
that the plaintiff had “raised at least a colorable claim that
because
of
his
physical
condition
and
dependency
upon
the
disability benefits, an erroneous termination would damage him in
19
(...continued)
applied authorizing law consistently with the Constitution, but did not raise
the challenge before the agency in question. See id. at 674-77. As in Jones,
Plaintiff here “seeks to enforce [the laws authorizing the appointment of the
SSA’s ALJs], not to invalidate [them].” Id. at 676-77; see also 5 U.S.C. §
3105 (“Each agency shall appoint as many [ALJs] as are necessary for
proceedings required to be conducted . . . .”); 42 U.S.C. § 904(a)(1) (“The
Commissioner shall appoint such additional officers and employees as the
Commissioner considers necessary to carry out the functions of the [SSA]
. . . .”).
43
a way not recompensable through retroactive payments,” Eldridge,
424 U.S. at 331.
Plaintiff has not shown similar circumstances
that make her case sufficiently “rare” to warrant relief from
forfeiture.
Furthermore, Plaintiff’s interpretation of Eldridge
simply does not square with Lucia’s much more recent command that
only “one who makes a timely challenge” under the Appointments
Clause is entitled to relief, Lucia, 585 U.S. at ___, 138 S. Ct. at
2053.
*5
See Stearns v. Berryhill, No. C17-2031, 2018 WL 4380984, at
(N.D.
Iowa
Sept.
14,
2018)
(unpublished)
(rejecting
the
plaintiff’s argument based on Eldridge “that an issue need not be
raised if the ALJ does not have authority to decide it,” noting
that such an argument “does not hold water under Lucia . . .,
[because] with regard to Appointments Clause challenges, only ‘one
who
makes
a
timely
challenge’
is
entitled
to
relief,”
and
concluding that, “[i]n the context of Social Security disability
proceedings, that means the claimant must raise the issue before
the ALJ’s decision becomes final”).
In
further
support
of
her
futility
argument,
Plaintiff
maintains that, “even if [she] had raised the issue before the ALJ
or the Appeals Council, [the] SSA’s own position would have
precluded the ALJ or the Appeals Council from entertaining a
challenge to the constitutionality of the ALJ’s appointment.”
(Docket Entry 15 at 19.)
According to Plaintiff, “[i]n the
Emergency Message (‘EM’) [the] SSA issued prior to the [Supreme]
44
Court’s decision in Lucia[,] [the] SSA instructed that[,] ‘because
[the] SSA lacks the authority to finally decide constitutional
issues such as these, ALJ’s will not discuss or make any findings
related to the Appointments Clause issue on the record’” and “‘the
[Appeals Council] will not acknowledge, make findings related to,
or
otherwise
discuss
the
Appointments
Clause
issue.’”
(Id.
(quoting Emergency Message 18003, Important Information Regarding
Possible Challenges to Appointment of Administrative Law Judges in
SSA’s Administrative Process (Jan. 30, 2018) (“EM-18003”)).)
In both EM-18003, issued while Lucia remained pending before
the Supreme Court, and in Revised Emergency Message 18003 (June 25,
2018) (“EM-18003 REV”), issued four days after Lucia, the SSA
instructed that, “[b]ecause [the]
SSA lacks the authority to
finally decide constitutional issues such as these, ALJs will not
discuss or make any findings related to the Appointments Clause
issue on the record” EM-18003 § C.1, EM-18003 REV § C.1, and “the
[Appeals Council] will not acknowledge, make findings related to,
or otherwise discuss the Appointments Clause issue” EM-18003 § C.3,
EM-18003 REV. § C.3.20
Thus, no Emergency Message signaling the
“futility” of raising an Appointments Clause challenge with either
20
On August 6, 2018, the SSA revised EM-18003 REV to advise that, “[o]n July
16, 2018, the Acting Commissioner ratified the appointment of ALJs . . . and
approved their appointments as her own in order to address any Appointments
Clause questions involving SSA claims,” and, with regard to Appointments Clause
challenges received before July 16, 2018, to instruct ALJs to “acknowledge[
such challenges] in the record . . . for any necessary action” EM-18003 REV 2,
§ C.1, and the Appeals Council to “consider the challenge in the context of the
facts of the case,” EM-18003 REV 2, § C.3.
45
the ALJ or the Appeals Council existed from the time Plaintiff
first requested a hearing before an ALJ (June 5, 2015 (see Tr.
2022)) to the date of the ALJ’s decision (Apr. 6, 2017 (see Tr.
25)).
That circumstance defeats Plaintiff’s futility argument.
See Bennett v. Berryhill, No. 2:17CV520, 2019 WL 1104186, at *11
(E.D. Va. Feb. 15, 2019) (unpublished) (finding EM-18003, issued
after ALJ’s decision, irrelevant, because “[t]he fact that ALJs
were directed at some later time to not address the same argument
[the plaintiff] has now raised ha[d] no bearing on the ALJ’s or the
Commissioner’s
[prior]
ability
to
address
[the
plaintiff’s]
Appointment Clause challenge”), recommendation adopted, 2019 WL
1102203 (E.D. Va. Mar. 8, 2019) (unpublished).
Furthermore, although the Supreme Court decided Lucia on June
21, 2018, nearly three months after the Appeals Council denied
Plaintiff’s request for review on March 30, 2018 (see Tr. 1-7), the
Supreme Court decided Freytag in 1991 and, in Lucia, found that
Freytag provided the precise test the court needed to gauge whether
the SEC’s ALJs constituted “inferior Officers” subject to the
Appointments Clause, see Lucia, 585 U.S. at ___, 138 S. Ct. at
2053.
Thus, long-standing authority existed during the time
Plaintiff’s claim remained pending before the ALJ under which
Plaintiff, proceeding through counsel, could have asserted her
Appointments Clause challenge.
See Island Creek Coal Co. v.
Wilkerson, 910 F.3d 254, 257 (6th Cir. 2018) (“[The plaintiff]
46
cannot hold the line on the ground that its Appointments Clause
challenge lacked merit until the Supreme Court decided [Lucia]. No
precedent
prevented
the
[plaintiff]
from
bringing
the
constitutional claim before then. Lucia itself noted that existing
case law ‘says everything necessary to decide this case.’”); Lee v.
Berryhill, No. 2:18CV214, 2019 WL 1299366, at *2 n.1 (E.D. Va. Mar.
21, 2019) (unpublished) (rejecting the plaintiff’s assertion “that
she raised her claim at the earliest possible opportunity after
Lucia
was
counsel,
decided,”
had
ample
because
notice
the
of
“[p]laintiff,
the
ability
to
represented
raise
the
by
ALJ
appointment issue during her administrative proceeding in light of
the . . . fact that the Lucia opinion is self-described as an
application
quotation
of
marks
existing
and
Supreme
citation
Court
omitted)
precedent”
(emphasis
in
(internal
original)
(citing Lucia, 585 U.S. at ___, 138 S. Ct. at 2053)).
Moreover, even if EM-18003 or EM-18003 REV had applied while
Plaintiff’s case remained before the ALJ, she could not establish
the futility of raising her Appointments Clause challenge before
the SSA.
As another district court reasoned:
Even if the Emergency Messages were relevant here, the
[recommendation’s] futility analysis is incorrect. . . .
The issue is not whether the ALJ could resolve or decide
an issue of constitutional law, but instead whether the
SSA, alerted to the problem by [the plaintiff’s] timely
objection, could have corrected any error in the ALJ’s
appointment or assigned a different ALJ to preside over
[the plaintiff’s] hearing.
47
There seems to be little dispute that this could have
been done. All the [Acting] Commissioner needed to do
was to appoint or reappoint the ALJs herself, given that
‘inferior officers’ such as the ALJs can be appointed by
‘Heads of Departments.’ See U.S. Const., art. II, § 2,
cl. 2. This is in fact precisely what the head of the
SSA eventually did.
Muhammad v. Berryhill, 381 F. Supp. 3d 462, 471 (E.D. Pa. 2019);
see also id. at 471 n.9 (“[R]aising the challenge to the ALJ could
have at least made it possible for the SSA to understand and
correct the infirmity of the ALJ’s appointment, or at a minimum,
repetition of the objection may have led to a change of policy or
put the SSA ‘on notice of the accumulating risk of wholesale
reversals being incurred by its persistence.’” (quoting United
States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952)));
Flack v. Commissioner of Soc. Sec., No. 2:18CV501, 2018 WL 6011147,
at *4 (S.D. Ohio Nov. 16, 2018) (unpublished) (“[R]egardless of
[EM-18003],
[the
plaintiff]
still
could
have
raised
her
Appointments Clause challenge before the ALJ.”), recommendation
adopted, 2018 WL 1236097 (S.D. Ohio Mar. 18, 2019) (unpublished).
Lastly, since Lucia (and notwithstanding contrary rulings in
Probst v. Berryhill, 377 F. Supp. 3d 578 (E.D.N.C. 2019), appeal
filed, No. 19-1529 (4th Cir. May 17, 2019), and Bradshaw v.
Berryhill, 372 F. Supp. 3d 349 (E.D.N.C. 2019), appeal filed, No.
19-1531 (4th Cir. May 17, 2019)), other district courts in the
Fourth Circuit overwhelmingly have rejected as forfeited challenges
to the SSA’s ALJs under the Appointments Clause when the plaintiff
48
did not raise the issue while his or her claim remained pending
before the SSA.
See, e.g., Joines v. Berryhill, No. 5:18CV65, 2019
WL 4197190, at *4 (W.D.N.C. Sept. 4, 2019) (unpublished); Lamb v.
Berryhill, No. 1:18CV202, 2019 WL 4197182, at *2-3 (W.D.N.C. Sept.
4, 2019) (unpublished); Taylor v. Saul, No. 1:16CV44, 2019 WL
3837975, at *4-6 (W.D. Va. Aug. 15, 2019) (unpublished); Harris v.
Saul, No. 4:18CV135, 2019 WL 2865840, at *5 (E.D.N.C. July 2, 2019)
(unpublished); Lewark v. Saul, No. 2:18CV45, 2019 WL 2619370, at *2
(E.D.N.C. June 26, 2019) (unpublished); Morrison v. Berryhill, No.
5:18CV156,
2019
(unpublished);
2619542,
at
WL
2607026,
Edwards
*4-5
v.
(E.D.
at
*1
Berryhill,
Va.
June
(W.D.N.C.
No.
6,
June
25,
3:18CV615,
2019)
2019)
2019
WL
(unpublished),
recommendation adopted, 2019 WL 2620005 (E.D. Va. June 26, 2019)
(unpublished);
Edwards
v.
Berryhill,
No.
2:18CV121,
2019
WL
1919167, at *4 (E.D. Va. Apr. 29, 2019) (unpublished); Shelton v.
Berryhill, No. 2:17CV609, 2019 WL 1330897, at *11-12 (E.D. Va. Mar.
25, 2019) (unpublished), appeal filed, No. 19-1715 (4th Cir. July
8, 2019); Shipman v. Berryhill, No. 1:17CV309, 2019 WL 281313, at
*3 (W.D.N.C. Jan. 22, 2019) (unpublished).
In sum, the Court should conclude that Plaintiff’s failure to
raise her challenge under the Appointments Clause while her claim
remained pending before the SSA forfeited her right to raise the
issue on judicial review.
49
III.
CONCLUSION
Plaintiff has not established an error warranting relief.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision
finding no disability be affirmed, that Plaintiff’s Motion for
Summary Judgment (Docket Entry 14) be denied, that Defendant’s
Motion for Judgment on the Pleadings (Docket Entry 16) be granted,
and that this action be dismissed with prejudice.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
October 9, 2019
50
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