STANLEY v. KIJAKAZI

Filing 18

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 1/19/2023; that the Commissioner's decision finding no disability be affirmed, that Plaintiff's Motion for Judgment on the Pleadings (Docket Entry 13 ) be denied, that Defendant's Motion for Judgment on the Pleadings (Docket Entry 16 ) be granted, and that this action be dismissed with prejudice. (Sheets, Jamie)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
REBECCA STANLEY,
Plaintiff,
v.
KILOLO KIJAKAZI,
Acting Commissioner of Social
Security,
Defendant.

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1:22CV43

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff, Rebecca Stanley, brought this action pursuant to
the Social Security Act (the “Act”) to obtain judicial review of a
final decision of Defendant, the Acting Commissioner of Social
Security (“Defendant” or “Commissioner”), denying Plaintiff’s claim
for Disability Insurance Benefits (“DIB”).

(Docket Entry 1.)

Defendant has filed the certified administrative record (Docket
Entry 9 (cited herein as “Tr. __”)), and both parties have moved
for judgment (Docket Entries 13, 16; see also Docket Entry
Docket

Entry

17

14

(Plaintiff’s

Memorandum),

(Defendant’s

Memorandum)).

For the reasons that follow, the Court should enter

judgment for Defendant.
I.

PROCEDURAL HISTORY

Plaintiff applied for DIB (Tr. 256-60), alleging an onset date
of November 13, 2015 (see Tr. 256, 259).

Upon denial of that

application initially (Tr. 78-96, 116-19) and on reconsideration

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 1 of 47

(Tr. 97-115, 123-26), Plaintiff requested a hearing de novo before
an Administrative Law Judge (“ALJ”) (Tr. 127).

Plaintiff, her

attorney, and a vocational expert (“VE”) attended the hearing.
(Tr. 45-77.)

The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act.

(Tr. 14-39.)

The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-8,
253-55, 361-63), 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] last met the insured status requirements
of the . . . Act on December 31, 2020.
2.
[Plaintiff] did not engage in substantial gainful
activity during the period from her alleged onset date of
November 13, 2015 through her date last insured of
December 31, 2020.
. . .
3.
Through the date last insured, [Plaintiff] had the
following severe impairments: degenerative disc disease;
degenerative joint disease; carpal tunnel syndrome;
migraines; and morbid obesity.
. . .
4.
Through the date last insured, [Plaintiff] did not
have an impairment or combination of impairments that met
or medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.
. . .
5.
. . . [T]hrough the date last insured, [Plaintiff]
had the residual functional capacity to perform a range
of sedentary work . . . . Specifically, she can lift,
carry, push, and pull 10 pounds occasionally and less
2

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 2 of 47

than 10 pounds frequently; she can sit up to 6 hours
total in an 8-hour workday; can stand and/or walk up to
2 hours total in an 8-hour workday; can never climb
ladders, ropes, and scaffolds; but can occasionally climb
ramps and stairs, occasionally balance as that term is
defined in the [Dictionary of Occupational Titles
(“DOT”)] or the [Selected Characteristics of Occupations
(“SCO”)] defined [sic] therein, occasionally perform
stooping, kneeling, crouching, and crawling.
She can
occasionally perform overhead reaching with her bilateral
upper extremities and frequently perform handling and
fingering. She can have occasional exposure to workplace
hazards such as moving machinery and unprotected heights.
She is limited to understanding, remembering, and
carrying out simple instructions, which is defined to
mean activity that is consistent with a reasoning level
of “two,” as defined in the [DOT]; can sustain
concentration, attention, and pace well enough to carry
out those simple instructions for two-hour intervals over
the course of an eight-hour work day; and is limited to
working in a low stress setting, which is specifically
defined to mean: no paced production, such as on an
assembly line where the worker does not control the pace
of production.
. . .
6.
Through the date last insured, [Plaintiff]
unable to perform any past relevant work.

was

. . .
10. Through
the
date
last
insured,
considering
[Plaintiff’s] age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national economy
that [she] could have performed.
. . .
11. [Plaintiff] was not under a disability, as defined in
the . . . Act, at any time from November 13, 2015, the
alleged onset date, through December 31, 2020, the date
last insured.
(Tr.

19-39

(bold

font

and

internal

parenthetical

citations

omitted).)
3

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 3 of 47

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, 390 (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) (internal citations and
quotation marks omitted).

“If there is evidence to justify a

refusal to direct a verdict were the case before a jury, then there

4

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 4 of 47

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

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 5 of 47

(quoting

42

U.S.C.

§

423(d)(1)(A)).1

“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. (internal citations omitted).

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
[(‘RFC’)] 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).2

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

1
The Act “comprises two disability benefits programs.
[DIB] . . .
provides benefits to disabled persons who have contributed to the program while
employed. The Supplemental Security Income Program . . . 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).
2

“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

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 6 of 47

whether the claimant is engaged in ‘substantial gainful activity.’
If the claimant is working, benefits are denied.
determines

if

the

claimant

benefits are denied.”

is

‘severely’

The second step

disabled.

If

not,

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 [RFC].”

Id. at 179.3

Step four

then requires the ALJ to assess whether, based on that RFC, the
claimant can perform past relevant
not qualify as disabled.

work; if so, the claimant does

Id. at 179-80.

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,

3
“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 workrelated 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

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 7 of 47

education, and past work 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 in the community,” the
claimant qualifies as disabled.
B.

Hines, 453 F.3d at 567.4

Assignments of Error

Plaintiff argues that the Court should overturn the ALJ’s
finding of no disability on these grounds:
1) “[t]he ALJ erred by failing to perform a proper functionby-function analysis of Plaintiff’s ability to sit when formulating
the RFC” (Docket Entry 14 at 4 (bold font and single-spacing
omitted)); and
2) “[t]he ALJ’s appointment violates the Appointments Clause”
(id. at 9 (bold font omitted)).
Defendant contends otherwise and seeks affirmance of the ALJ’s
decision.

(See Docket Entry 17 at 5-29.)
1. Function-by-Function Analysis

In Plaintiff’s first issue on review, she asserts that “[t]he
ALJ erred by failing to perform a proper function-by-function
analysis of Plaintiff’s ability to sit when formulating the RFC.”

4

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

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 8 of 47

(Docket Entry 14 at 4 (bold font and single-spacing omitted).)
More specifically, Plaintiff highlights her subjective statements
and those of her brother Jonathan Wayne Stanley, as well as certain
medical evidence, regarding her ability to sit that she believes
supported greater limitations in the RFC (see id. at 4-6 (citing
Tr. 64, 66, 292, 297, 300, 305, 370, 392, 421-22, 492, 519, 527,
550, 568-69, 641, 644, 652, 673, 675, 699, 709, 729, 764)), and
argues that, “[d]espite th[at] testimony and medical evidence, the
ALJ . . . f[ound] that [Plaintiff] could perform up to the full six
hours of sitting in an eight-hour work day,” and “incorporated no
limitations with regard to how long [Plaintiff] could maintain a
seated posture at one time” (id. at 6 (citing Tr. 26)).

According

to Plaintiff, “the ALJ performed the function-by-function analysis
with regards to [Plaintiff]’s ability to stand and walk” (id. at 7
(citing Tr. 34-35)), but “d[id] not perform the same analysis with
[her] ability to sit and never explain[ed] why she [wa]s not more
limited with regard to sitting in the RFC” (id. (citing Tr. 2637)).

Plaintiff deems that failure by the ALJ “important because

the calculation of frequency of position change (much like the
calculation of time off task) can be outcome determinative.”

(Id.

at 8 (citing Holland v. Commissioner of Soc. Sec. Admin., Civ. No.
17-1874,

2018

WL

1970745,

at

*10

(D.

Md.

Apr.

25,

2018)

(unpublished)).)

9

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 9 of 47

Plaintiff further faults the ALJ for failing to “explain how
she decided which of [Plaintiff]’s statements and evidence to
believe

and

‘which

to

discredit,

other

than

the

vague

(and

circular) boilerplate statement that [s]he did not believe any
claims of limitations beyond what [s]he found when considering
[Plaintiff’s RFC].’”

(Id. at 7 (some brackets added) (quoting

Mascio v. Colvin, 780 F.3d 632, 639-40 (4th Cir. 2015)).)

In

Plaintiff’s view, “‘[h]aving met [her] threshold obligation of
showing by objective medical evidence a condition reasonably likely
to cause the pain claimed, [she wa]s entitled to rely exclusively
on subjective evidence to prove the second part of the test, i.e.,
that [her] pain [wa]s so continuous and/or so severe as to prevent
[her] from working a full eight hour day.’”
Hines, 453 F.3d at 565).)
“[t]he

[United

States

(Id. at 8 (quoting

Plaintiff additionally emphasizes that
Court

of

Appeals

for

the]

Fourth

Circuit . . . in Dowling . . . determined that the ALJ should have
specifically addressed the claimant’s testimony regarding how long
[s]he was capable of sitting, especially in light of a sedentary
RFC.”

(Id. (citing Dowling v. Commissioner of Soc. Sec., 986 F.3d

377, 388-89 (4th Cir. 2021)).)

Plaintiff ultimately contends that

“the case must be remanded for further proceedings” (id. at 9),
because “the [VE] was not questioned regarding how any limitations
with sitting would impact the sedentary occupational base” (id.

10

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 10 of 47

(citing Tr. 75-76)).

Plaintiff’s arguments do not entitle her to

relief.
RFC measures the most a claimant can do despite any physical
and

mental

limitations.

§ 404.1545(a).

Hines,

453

F.3d

at

562;

20

C.F.R.

An ALJ must determine a claimant’s exertional and

non-exertional capacity only after considering all of a claimant’s
impairments, as well as any related symptoms, including pain.
Hines, 453 F.3d at 562–63; 20 C.F.R. § 404.1545(b).

See

The ALJ then

must match the claimant’s exertional abilities to an appropriate
level of work (i.e., sedentary, light, medium, heavy, or very
heavy).

See 20 C.F.R. § 404.1567.

Any non-exertional limitations

may further restrict a claimant’s ability to perform jobs within an
exertional level.

See 20 C.F.R. § 404.1569a(c).

An ALJ need not discuss every piece of evidence in making an
RFC determination. See Reid v. Commissioner of Soc. Sec., 769 F.3d
861, 865 (4th Cir. 2014).
evidence that

supports

accurate

logical

and

his

However, “the ALJ must both identify
[or

bridge

her]

from

conclusion
that

and

evidence

build
to

an

[that]

conclusion.” Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018)
(internal emphasis, quotation marks, and brackets omitted).
the

role

of

the

function-by-function

analysis

in

As to
that

determination, the relevant administrative ruling states: “The RFC
assessment

must

first

identify

the

individual’s

functional

limitations or restrictions and assess his or her work-related

11

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 11 of 47

abilities on a function-by-function basis. . . .

Only after that

may RFC be expressed in terms of the exertional levels of work,
sedentary, light, medium, heavy, and very heavy.”

Social Security

Ruling 96-8p, Policy Interpretation Ruling Titles II and XVI:
Assessing [RFC] in Initial Claims, 1996 WL 374184, at *1 (July 2,
1994) (“SSR 96-8p”).
The Fourth Circuit has addressed this administrative ruling
and

the

issue

of

whether

an

ALJ’s

failure

to

articulate

a

function-by-function analysis necessitates remand. See Mascio, 780
F.3d at 636–37.

Specifically, it stated “that a per se rule is

inappropriate given that remand would prove futile in cases where
the

ALJ

does

not

discuss

functions

that

are

irrelevant

or

uncontested,” id. at 636, but that “‘remand may be appropriate
where an ALJ fails to assess a claimant’s capacity to perform
relevant functions, despite contradictory evidence in the record,
or

where

other

inadequacies

in

the

ALJ’s

analysis

frustrate

meaningful review,’” id. (internal brackets and ellipsis omitted)
(quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir. 2013)).
Here, the ALJ did not perform an express function-by-function
analysis of Plaintiff’s ability to sit (see Tr. 26-37); however, no
basis for remand exists, because the ALJ’s decision supplies the
necessary “accurate and logical bridge,” Woods, 888 F.3d at 694
(internal quotation marks omitted), between the evidence and her
findings that Plaintiff’s lumbar spine degenerative disc disease

12

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 12 of 47

(A) qualified as a severe impairment (see Tr. 20), but (B) did not
cause limitations greater than the RFC’s allowance of up to six
hours of sitting in an eight-hour workday (see Tr. 26).
As an initial matter, to the extent Plaintiff intends her
contention that she could “rely exclusively on subjective evidence
to prove . . . that [her] pain [wa]s so continuous and/or so severe
as to prevent [her] from working a full eight hour day’” (id. at 8
(quoting Hines, 453 F.3d at 565)) to mean that the ALJ erred by
considering objective medical evidence in analyzing the intensity,
persistence, and limiting effects of Plaintiff’s symptoms, such an
argument misses the mark.

Although the Fourth Circuit recently

“reiterate[d ] long-standing [Circuit] law . . . that disability
claimants are entitled to rely exclusively on subjective evidence
to prove the severity, persistence, and limiting effects of their
symptoms,” Arakas v. Commissioner of Soc. Sec. Admin., 983 F.3d 83,
98 (4th Cir. 2020), long-standing cases containing the substance of
that holding, such as Craig and Hines (among others), clarify that,
“[a]lthough a claimant’s allegations about her [symptoms] may not
be

discredited

solely

objective

evidence

severity,

they

inconsistent

of

need

with

because
the

not

the

be

they

are

[symptoms
accepted

available

not

substantiated

themselves]
to

evidence,

the

or

extent

including

by

[their]
they

are

objective

evidence of the underlying impairment, and the extent to which that
impairment can reasonably be expected to cause the [symptoms] the

13

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 13 of 47

claimant alleges she suffers,” Craig, 76 F.3d at 595 (emphasis
added); see also Hines, 453 F.3d at 565 n.3 (quoting Craig, 76 F.3d
at 595).

In other words, under the appropriate circumstances, an

ALJ may choose to rely exclusively on a claimant’s subjective
symptom reports to find disabling symptoms; however, Arakas, Craig,
and Hines do not compel ALJs to consider only subjective evidence,
as such a requirement would conflict with the regulations, which
plainly require ALJs to consider a variety of factors, including
objective

medical

evidence,

in

evaluating

the

persistence, and limiting effects of symptoms.

intensity,

See 20 C.F.R.

§ 404.1529(c) (directing ALJs to assess a claimant’s medical
history, medical signs and laboratory findings, daily activities,
testimony about nature and location of pain, medication and other
treatment used to alleviate pain, along with medical opinions from
examining
§

and

423(d)(5)(A)

established

by

non-examining

sources);

(“Objective

medical

medically

acceptable

see

evidence

also
of

clinical

42

pain
or

U.S.C.
.

.

.

laboratory

techniques (for example, deteriorating nerve or muscle tissue) must
be

considered

in

reaching

a

conclusion

as

to

whether

[an]

individual is under a disability.” (emphasis added)).
Here, in compliance with Arakas, Hines, and Craig, the ALJ
considered the objective medical evidence as one part of her
evaluation of the intensity, persistence, and limiting effects of
Plaintiff’s alleged symptoms. (See Tr. 26-37.) As detailed below,

14

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 14 of 47

the ALJ also considered Plaintiff’s “subjective reports to medical
providers[,

]

the

nature

and

apparent

effectiveness

of

treatment” (Tr. 34-35), and the opinion evidence of record (see Tr.
35-37).5
Turning to Plaintiff’s assertions regarding the function-byfunction analysis, those assertions fall short because the ALJ’s
evaluation of Plaintiff’s subjective symptom reporting elucidates
the ALJ’s RFC findings regarding Plaintiff’s ability to sit.

In

that regard, the ALJ explicitly acknowledged Plaintiff’s statements
“that her pain is tolerable if she is laying down on her side, but
[that] sitting or standing exacerbates her pain” (Tr. 27 (emphasis
added) (referencing Tr. 64-65)), as well as that, “[i]f she sits in
a chair her legs will become numb after 10 to 15 minutes” (id.
(emphasis added) (referencing Tr. 66)).

The ALJ, however, found

that 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

5
Plaintiff’s complaint that the ALJ utilized a “vague (and circular)
boilerplate statement that [s]he did not believe any claims of limitations beyond
what [s]he found when considering [Plaintiff’s RFC]” (Docket Entry 14 at 7 (some
brackets added)) also lacks merit. The Mascio court held that an ALJ erred by
finding that “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms [we]re not credible to the extent they are
inconsistent with the [ RFC] assessment,” because “th[at] boilerplate gets things
backwards by implying that ability to work is determined first and is then used
to determine the claimant’s credibility.” Mascio, 780 F.3d at 639 (emphasis
added) (internal footnote and quotation marks omitted). The court noted that
“the ALJ [] should have compared [the plaintiff]’s alleged functional limitations
from pain to the other evidence in the record, not to [her RFC].”
Id.
In
contrast, the ALJ here did not use the forbidden language in her finding
regarding the intensity, persistence, and limiting effects of Plaintiff’s
symptoms. (See Tr. 27.)

15

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 15 of 47

record” (id.) and, beyond Plaintiff’s meritless assertions under
Hines and Mascio (see Docket Entry 14 at 7, 8) discussed above, she
has not challenged that finding by the ALJ (see id. at 4-9).
The ALJ’s evaluation of the opinion evidence provides further
support for the up to six-hour sitting allowance in the RFC.

In

particular, the ALJ found the opinions of the state agency medical
consultants to have “little persuasive value” (Tr. 36), because the
consultants opined that Plaintiff remained capable of a range of
light work involving occasional lifting of 20 pounds and frequent
lifting of 10 pounds (see Tr. 90, 108-09), noting that “more recent
evidence, including both objective imaging scans and treatment
notes

from

after

the[

consultants’]

opinions

were

issued,

sufficiently demonstrate[d Plaintiff] as being limited to less than
the full range of sedentary exertional activity” (Tr. 36 (emphasis
added)),

involving

occasional

lifting

of

only

10

frequent lifting of less than 10 pounds (see Tr. 26).

pounds

and

Notably, the

ALJ did not discount the consultants’ opinions that Plaintiff
remained capable of sitting for up to six hours in an eight-hour
workday.

(See Tr. 36; see also Tr. 90, 109.)

The ALJ also found

a Medical Statement from Nurse Practitioner Ayeshia Powell dated
June 14, 2021 (Tr. 764), only “partially persuasive,” deeming Nurse
Powell’s opinion that Plaintiff could sit for only 30 minutes at a
time “not

supported

by

any

narrative

explanation

and

[]

16

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 16 of 47

not

consistent

with

overall

record

evidence,

including

treatment

records” (Tr. 37).
In turn, the ALJ’s discussion of the “overall record evidence,
including treatment records” (Tr. 37) additionally supports the
RFC’s allowance for up to six hours of sitting in a workday.

In

particular, as the following observations by the ALJ make clear,
Plaintiff

consistently

reported

that

bending,

lifting,

and

weightbearing activities such as standing and walking (as opposed
to sitting) aggravated her lower back and leg pain, and that
physical therapy and her medications rendered that pain tolerable
and allowed her to function:
•

“On November 9, 2015, [Plaintiff] returned to
[Angela R. Boone, AGNP,] with complaints of leg
pain in the left posterior upper leg and left
posterior lower leg, described as aching and
stinging and exacerbated by weightbearing.” (Tr.
27 (citing Tr. 570-71) (emphasis added));

•

“After 9 physical therapy visits, [the physical
therapist] made a re-evaluation of [Plaintiff] on
January 17, 2016, noting that she rated her low
back pain as a 1 out of a possible 10 that
day, . . . stating that her lower extremity
symptoms had resolved,” and “that her low back pain
increases to a 4 out of a possible 10 with standing
of longer than 20 minutes . . . .” (Tr. 28 (citing
Tr. 419-20) (emphasis added));

•

“[Plaintiff] only attended one additional therapy
treatment
and
was
later
‘considered
selfdischarged,
secondary
to
noncompliance
with
established plan of care.’” (Id. (quoting Tr. 418)
(emphasis added) (internal parenthetical citation
omitted);

•

“On June 10, 2016, David A. O’Toole, M.D., saw
[Plaintiff] for evaluation and treatment options
17

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 17 of 47

of
.
.
. low
back
pain
with
associated
dysesthesias . . . into her left lower extremity,”
and
Plaintiff
reported
that
her
“pain
was
exacerbated with . . . lifting, bending, standing,
and walking. . . . [S]traight leg raising tests
were negative bilaterally.”
(Tr. 29 (citing Tr.
405-10) (emphasis added));
•

“On follow-up with Dr. O’Toole on September 21,
2016, [Plaintiff] reported good relief of her lower
back symptoms with her leg pain ‘pretty much
resolved.’”
(Tr. 30 (quoting Tr. 404) (emphasis
added));

•

“On June 14, 2017, [Plaintiff] transitioned care to
Greensboro Orthopaedics and . . . described low
back symptoms including stiffness and pain with
range of motion, more on the left side, with
weakness and pain in the legs, exacerbated with
standing and walking.”
(Id. (citing Tr. 491-92)
(emphasis added));

•

“Dr. [Kofi] Doonquah evaluated [Plaintiff] on May
10,
2018[,
and
]
noted
that
[Plaintiff]’s . . . ‘pain medication help[ed] her
be able to perform her [activities of daily living]
as well as light housework.’” (Tr. 31 (quoting Tr.
652) (closing quotation mark added));

•

“At [Plaintiff’s ] follow-up [with Dr. Doonquah] on
July 12, 2018, [Plaintiff] reported that [] her
chronic pain . . . w[as] ‘stable,’ and that she was
able to perform her activities of daily living as
well as light housework.” (Id. (quoting Tr. 657)
(emphasis added) (internal parenthetical citation
omitted));

•

“[Plaintiff] returned to Nurse Powell on August 6,
2019 and . . . complained of . . . lower back
pain[] and difficulties with her left leg shaking
if she stands for too long.” (Tr. 32 (citing Tr.
697-99) (emphasis added));

•

“On June 18, 2020, . . . Nurse Powell noted
[Plaintiff] stated that her lower back pain was
stable, and [that she] was more concerned with her
neck pain.” (Tr. 33 (citing Tr. 675-78) (emphasis
added)); and
18

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 18 of 47

•

“[O]n August 24, 2020[, Plaintiff] reported [to Dr.
Ashish C. Shah] that her lumbar back pain with
radiation to the left lower extremity with weakness
had symptoms that were ‘mild and improving’ though
exacerbated by back motion, prolonged standing, and
bending.”
(Id. (quoting Tr. 757) (internal
parenthetical citation omitted) (emphasis added)).

That evidence suffices to support the ALJ’s finding in the RFC that
Plaintiff remained able to sit for up to six hours in an eight-hour
workday.
Moreover, by pointing to record evidence Plaintiff believes
supports

greater

limitations

on

her

ability

misinterprets this Court’s standard of review.

to

sit,

she

The Court must

determine whether substantial evidence, i.e., “more than a mere
scintilla

of

evidence

but

.

.

.

somewhat

less

than

a

preponderance,” Mastro, 270 F.3d at 176 (brackets and internal
quotation marks omitted), supported the ALJ’s finding regarding
Plaintiff’s ability to sit, and not whether other record evidence
weighed against that finding, see Lanier v. Colvin, No. CV414-004,
2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015) (unpublished) (“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.”).
Additionally, the evidence Plaintiff cites in support of her
instant contentions (see Docket Entry 14 at 4-6 (citing Tr. 64, 66,
292, 297, 300, 305, 370, 392, 421-22, 492, 519, 527, 550, 568-69,
19

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 19 of 47

641, 644, 652, 673, 675, 699, 709, 729, 764)) would not have
compelled the ALJ to adopt a greater sitting limitation in the RFC.
Some of that evidence reflects Plaintiff’s subjective reports of
difficulty sitting (see id. at 4-5 (citing Tr. 64, 66, 292, 297,
421, 550, 675)), which ALJ discounted (see Tr. 27), in a manner
which

(for

reasons

discussed

above)

challenges (see Docket Entry 14 at 7-8).

withstands

Plaintiff’s

Other records constitute

opinions from Plaintiff’s brother that Plaintiff can sit for “a few
minutes” at a time (Tr. 300, 305), and Nurse Powell that Plaintiff
“is permanently disabled” (Tr. 673) and can sit for 30 minutes at
a time (see Tr. 764); however, the ALJ discounted those opinions as
“not consistent with the overall record evidence” (Tr. 36), as
involving an issue “reserved to the Commissioner” (id.), and as
“not supported by any narrative explanation and [as] not consistent
with overall record evidence” (Tr. 37), respectively, and Plaintiff
did not challenge those findings by the ALJ (see Docket Entry 14).
The remainder of that evidence supports the ALJ’s finding that
Plaintiff’s lumbar degenerative disc disease qualified as a severe
impairment (see Tr. 20) that “limit[ed] her to [] very significant
restrictions as described [in the RFC finding] as a reduced range
of

sedentary

work”

(Tr.

Plaintiff’s ability to sit.

34),

but

does

not

address

at

all

(See Docket Entry 14 at 5-6 (citing

Tr. 370 & 492 (MRI of lumbar spine and review of same by orthopedic
physician assistant), 392 (treatment note reflecting tenderness in

20

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 20 of 47

lumbar spine), 422 (physical therapy note documenting positive,
left-sided straight leg raising and sciatic nerve tension tests),
519 (office visit with primary care provider recording complaints
of pain in multiple joints), 525-27 (primary care treatment note
documenting complaints of lower back pain radiating to left buttock
and thigh described as “mild and improving” and “exacerbated by
back motion, prolonged standing and bending” (emphasis added)),
568-69 (treatment on alleged onset date with primary care provider
containing reports of lower back, left hip, and left leg pain and
numbness), 641-44 (visit to neurologist for complaints of lower
back pain radiating down left leg and reporting limits on abilities
to stand and walk), 652 (neurology visit recording Plaintiff’s
report that “she gets the most relief from laying flat on her back
or at a slight angle in the recliner”), 697-99 (neurology treatment
record describing Plaintiff’s function as worse and reflecting her
reported limitations in standing and walking), 709 (report from
neurologist reflecting Plaintiff’s statement in the history of
present illness section that “[h]er function continues to be
markedly limited by the condition of her spine and the resultant
pain”),

728-29

(orthopedist

treatment

record

noting

that

Plaintiff’s obesity contributed to her back pain)).)
Finally, Plaintiff has not shown that the ALJ’s decision
violated Dowling.

In that case, the plaintiff “argued throughout

her administrative and judicial proceedings that her [inflammatory

21

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 21 of 47

bowel disease] and anal fissure caused her to experience discomfort
when she s[at] for a prolonged period of time.”
at 388 (emphasis added).
lacks

such

consistent

Dowling, 986 F.3d

In contrast, here, the record entirely
complaints

of

difficulty

sitting

by

Plaintiff.

Although in her hearing testimony (see Tr. 64-66) and

a

Report

Function

submitted

to

the

SSA

(see

Tr.

292,

297),

Plaintiff claimed a decreased ability to sit due to pain, the ALJ
discounted Plaintiff’s subjective symptom reporting (see Tr. 27)
and, as explained supra, Plaintiff has not demonstrated error with
respect to that finding. Moreover, Plaintiff routinely reported to
her medical providers throughout the relevant period in this case
that her lower back pain limited her abilities to lift, bend,
stand, and/or walk (see Tr. 525, 557, 641, 655, 687, 697, 701, 704,
757) and, consistent with that fact, the ALJ placed substantial
limits

in

the

RFC

on

lifting,

bending

(i.e.,

stooping

and

crouching), standing, and walking (see Tr. 26; see also Tr. 34
(containing

ALJ’s

explanation

that

she

considered

Plaintiff’s

“subjective reports to medical providers” in determining RFC)).6
6

The record contains just three occasions on which Plaintiff reported a
decreased ability to sit to her providers, none of which would have compelled the
ALJ to adopt a greater sitting limitation in the RFC. On December 21, 2015,
shortly after Plaintiff began a medical leave of absence for back and leg pain,
she reported to her physical therapist that her current level of functioning
included a one-hour sitting tolerance. (See Tr. 421.) Just over a month later,
however, Plaintiff informed the therapist that her back pain rated as just 1 on
a scale of 1 to 10, that her lower extremity radicular symptoms had resolved, and
that standing for 20 minutes increased her back pain (see Tr. 419). Although
Plaintiff told her primary care provider on April 1, 2016, that she could not
“sit or stand for long periods without severe pain” (Tr. 550 (emphasis added)),
that report prompted the provider to refer Plaintiff to pain management (see
id.), after which Plaintiff made no more reports to her providers of difficulty
(continued...)

22

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 22 of 47

In light of the foregoing analysis, the Court should deny
relief on Plaintiff’s first assignment of error.
2. Appointments Clause
Plaintiff’s second and final issue on review maintains that
“[t]he ALJ’s appointment violates the Appointments Clause” of the
U.S. Constitution.

(Docket Entry 14 at 9 (bold font omitted)

(referencing U.S. Const. art. II, § 2, cl. 2).)

In particular,

Plaintiff contends that “[t]he ALJ’s appointment by Nancy Berryhill
on July 16, 2018, violates the Appointments Clause because Nancy
Berryhill was no longer the Acting Commissioner on that date and,
therefore, lacked the authority to ratify the ALJ’s appointment.”
(Id. (internal parenthetical citation omitted).)

According to

Plaintiff, Berryhill “became Acting Commissioner of SSA on January
20, 2017, when President Donald Trump assumed office and then[]Acting Commissioner Carolyn Colvin resigned.”

(Id. (citing

U.S.

Gov’t Accountability Office (“GAO”), No. B-329853, “Violation of
the Time Limit Imposed by the Federal Vacancies Reform Act of 1998–
Commissioner,

Social

assets/700/690502.pdf,

Security
at

1

Administration,”

(Mar.

6,

2018)

(“GAO

www.gao.gov/
Notice”)).)

Plaintiff points out that, “[o]n March 6, 2018, the GAO [Notice]

6
(...continued)
sitting for over four years, when she advised Nurse Powell, on June 16, 2020,
that she could not sit, stand, or walk “for very long” (Tr. 675 (emphasis
added)).
After that time, Plaintiff’s reports to her providers focused on
difficulty bending, standing, walking, and maintaining her balance. (See Tr.
701, 704, 757.) Such isolated complaints of difficulty sitting distinguish the
instant case from Dowling.

23

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 23 of 47

reported that Berryhill’s service as Acting Commissioner under the
[Federal Vacancies Reform Act (‘FVRA’)] had expired on November 16,
2017, and that her service after that date violated the FVRA.”
(Id. at 10 (citing GAO Notice, at 2).)

Plaintiff thus argues that

“Berryhill’s purported ratification of the ALJ in this case on July
16, 2018 was statutorily ineffective because her period of acting
service had expired on November 16, 2017, and the FVRA did not
allow her to resume acting as Commissioner at a later date.”

(Id.

(citing Brian T.D. v. Kijakazi, 580 F. Supp. 3d 615, 629 (D. Minn.
2022), appeal filed sub nom Dahle v. Kijakazi, No. 22-1601 (8th
Cir. Mar. 22, 2022).)
a.

Plaintiff’s argument falls short.

The FVRA
Resolution of Plaintiff’s third issue on review turns on

interpretation of the FVRA, which:
provides a framework for temporarily filling vacancies in
offices for which presidential appointment and Senate
confirmation (“PAS”) is required. 5 U.S.C. § 3345 et
seq.
The operative provision of the FVRA, 5 U.S.C.
§ 3345, sets a default that if a PAS official “dies,
resigns, or is otherwise unable to perform the functions
and duties of the office,” then “the first assistant to
the office of such officer shall perform the functions
and duties of the office temporarily in an acting
capacity subject to the time limitations of section
3346.” Id. § 3345(a)(1). Otherwise, “the President (and
only the President)” may fill vacant PAS offices on a
temporary, acting basis with certain other federal
officers. Id. § 3345(a)(2)– (a)(3). . . .
The FVRA is
the “exclusive means for temporarily authorizing an
acting official to perform the functions and duties of
any” PAS officer, unless another statute “expressly”
creates an alternative mechanism for filling vacancies in
a given agency. Id. § 3347. And violations of the FVRA
have consequences: “An action taken by any person who is
24

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 24 of 47

not acting” in compliance with the FVRA “in the
performance of any function or duty of a vacant office to
which” the FVRA applies “shall have no force and effect,”
id. § 3348(d)(1), and any such action “may not be
ratified,” id. § 3348(d)(2).
Northwest Immigrant Rts. Project v. United States Citizenship &
Immigr. Servs., 496 F. Supp. 3d 31, 53 (D.D.C. 2020), appeal
dismissed, No. 20-5369, 2021 WL 161666 (D.C. Cir. Jan. 12, 2021).
The specific provision of the FVRA at issue in this case, governing
the time limits on serving in an acting capacity under the FVRA,
provides as follows:
(a) . . . the person serving as an acting officer as
described under section 3345 may serve in the office-(1) for no longer than 210 days beginning on the date the
vacancy occurs; or
(2) subject to subsection (b), once a first or second
nomination for the office is submitted to the Senate,
from the date of such nomination for the period that the
nomination is pending in the Senate.
(b)(1) If the first nomination for the office is rejected
by the Senate, withdrawn, or returned to the President by
the Senate, the person may continue to serve as the
acting officer for no more than 210 days after the date
of such rejection, withdrawal, or return.
(2) Notwithstanding paragraph (1), if a second nomination
for the office is submitted to the Senate after the
rejection, withdrawal, or return of the first nomination,
the person serving as the acting officer may continue to
serve-(A) until the second nomination is confirmed; or
(B) for no more than 210 days after the second nomination
is rejected, withdrawn, or returned.
5 U.S.C. § 3346 (emphasis added).

25

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 25 of 47

b.

Factual Background
In December 2016, President Barack Obama issued a memorandum

providing an order of succession within the SSA that listed the
Deputy Commissioner of Operations (“DCO”) as first in line to serve
as Acting Commissioner in the case of vacancies in the positions of
Commissioner and Deputy Commissioner. See “Memorandum Providing an
Order of Succession Within the Social Security Administration,” 81
Fed. Reg. 96337, 2016 WL 7487744 (Dec. 23, 2016) (“Succession
Memo”).

On January 20, 2017, Donald Trump assumed the Presidency,

then-Acting Commissioner Carolyn Colvin resigned, and then-DCO
Berryhill began serving as Acting Commissioner pursuant to the
Succession

Memo,

as

the

offices

Commissioner remained vacant.

of

Commissioner

See GAO Notice, at 1.

and

Deputy

On March 6,

2018, the GAO Notice reported that, pursuant to Section 3346(a)(1)
of the FVRA, Berryhill’s service as Acting Commissioner had expired
on November 16, 2017.

See GAO Notice, at 2.7

Following the GAO

Notice, Berryhill stepped down as Acting Commissioner but continued
to lead the SSA as DCO.

See Patterson v. Berryhill, No. 2:18CV193,

2018 WL 8367459, at *1 (W.D. Pa. June 14, 2018) (unpublished).

On

April 17, 2018, President Trump nominated Andrew Saul to the
position of Commissioner of the SSA, an action which the SSA

7

The FVRA added 90 days to the 210-day time limit for Berryhill to serve,
because the Commissioner of SSA’s vacancy began on President Trump’s
“transitional inauguration day” (January 20, 2017). 5 U.S.C. § 3349a(b)(1).
Thus, November 16, 2017 constituted the 300th day after the January 20th
inauguration.

26

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 26 of 47

interpreted as permitting Berryhill to resume serving as Acting
Commissioner as of that date under Section 3346(a)(2) of the FVRA,
the so-called “spring-back” provision.

See Reuter v. Saul, No.

19CV2053, 2020 WL 7222109, at *15 n.11 (N.D. Iowa May 29, 2020)
(unpublished) (internal quotation marks omitted), recommendation
adopted, 2020 WL 6161405 (N.D. Iowa Oct. 21, 2020) (unpublished).
On June 21, 2018, the United States Supreme Court issued Lucia
v. Securities & Exh. Comm’n, 585 U.S. ___, 138 S. Ct. 2044 (2018),
which held, based on its prior case Freytag v. Commissioner of Int.
Rev., 501 U.S. 868 (1991), that the SEC’s ALJs qualified as
“inferior Officers” subject to the Appointments Clause rather than
federal

employees,

because

they

“h[e]ld

a

continuing

office

established by law” and “exercise[d] . . . significant discretion
when carrying out . . . important functions.”

Lucia, 585 U.S. at

___, 138 S. Ct. at 2053 (internal quotation marks omitted).8
Because the SEC ALJ who decided the plaintiff’s case lacked “the
kind of appointment the [Appointments] Clause requires,” i.e.,
appointment by the “President alone,” “the Courts of Law,” or “the
Heads of Departments,” U.S. Const. art. II, § 2, cl. 2, the Supreme

8

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.

27

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 27 of 47

Court “held that the appropriate remedy for an adjudication tainted
with an

appointments

violation

[wa]s

a

new

[different,] properly appointed official.”

hearing

before a

Id. at ___, 138 S. Ct.

at 2055 (internal quotation marks omitted).
Although

“[Lucia]

did

not

specifically

address

the

constitutional status of ALJs who work in . . . the [SSA, t]o
address any Appointments Clause questions involving Social Security
claims, and consistent with guidance from the [DOJ], on July 16,
2018[,] Berryhill ratified the appointments of [the SSA’s] ALJs and
approved those appointments as her own.”

Social Security Ruling

19-1p, Titles II and XVI: Effect of the Decision in Lucia v.
Securities and Exchange Commission (SEC) on Cases Pending at the
Appeals Council, 2019 WL 1324866, at *2 (Mar. 15, 2019) (“SSR 191p”).

At the time Berryhill did so, she continued to use the title

“Acting Commissioner of Social Security.”
c.

Id.

Brian T.D.
As

discussed

above,

Plaintiff

relies

primarily

on

the

reasoning in Brian T.D. to support her argument that “Berryhill’s
purported ratification of the ALJ in this case on July 16, 2018 was
statutorily ineffective.”

(Docket Entry 14 at 10 (citing Brian

T.D., 580 F. Supp. 3d at 629).)

In that case, the court concluded

that, because “Section 3346(a) [of the FVRA] applies to ‘the person
serving as an acting officer,’” Brian T.D., 580 F. Supp. 3d at 629
(emphasis added) (quoting 5 U.S.C. § 3346(a)), and because, “[w]hen

28

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 28 of 47

Saul was first nominated to become Commissioner on April 17, 2018,
Berryhill

was

not

then

serving

as

Acting

Commissioner,”

id.

(emphasis added), “by its plain language, § 3346(a)(2) d[id] not
apply to Berryhill,” id.; see also id. (stating that “[c]ourts have
frequently looked to Congress’ choice of verb tense to interpret
statutes,” and that, “[w]hen a [c]ourt is determining the meaning
of an Act of Congress, the present tense generally does not include
the past” (citing Carr v. U.S., 560 U.S. 438, 447 (2010) (in turn,
citing the Dictionary Act, 1 U.S.C. § 1))).
The

Brian

T.D.

court

thereafter

provided

further

interpretations of the FVRA that purportedly supported its abovedescribed conclusion regarding Section 3346(a)(2)’s inapplicability
to Berryhill, including that:
•

“[s]ubsection [3346](b)(1) states that if a
nomination is rejected, withdrawn, or returned,
‘the person may continue to serve as the acting
officer for no more than 210 days[,]’” id.
(emphasis supplied by Brian T.D.) (quoting 5 U.S.C.
§ 3346(b)(1)), and “[s]ubsection [3346](b)(2)
states that if a second nomination is unsuccessful,
‘the person serving as the acting officer may
continue to serve[,]’” id. (emphasis supplied by
Brian T.D.) (quoting 5 U.S.C. § 3346(b)(2));

•

Ҥ 3348 [of the FVRA] confirms this reading[
because, u]nless someone ‘is performing the
functions and duties’ in accordance with the FVRA,
the PAS office ‘shall remain vacant’ until the
PAS-appointment is complete,” id. at 630 (quoting 5
U.S.C. § 3348(b)(1) & (2)); see also id. at 631
(“[t]o accept [the Commissioner]’s interpretation
of § 3346(a)(2) would require the Court to ignore
(or rewrite) § 3348”);

29

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 29 of 47

•

the
Commissioner’s
interpretation
of
Section
3346(a) as “allow[ing] Berryhill to resume acting
as Commissioner (that is, to spring back into that
position) when President Trump nominated Saul, even
though
her
initial
statutory
term
had
expired . . . misreads the statutory language[,
because t]he word ‘or’ modifies the entire
provision that limits the acting officer to a
period ‘no longer than’ 210 days from the date the
vacancy arose[ and, t]hus, when read with the
entirety of subsection [3346](a)(1)[,] ‘or’ serves
to suspend that time limitation, not to create an
entirely separate and distinct period of service,”
id. (some internal quotation marks omitted)
(quoting 5 U.S.C. § 3346(a)(1)).

For the reasons more fully explained below, the Court should
decline to follow the reasoning of Brian T.D. and conclude that
Berryhill properly served as Acting Commissioner under the springback provision of Section 3346(a)(2) at the time she ratified the
appointments of the SSA’s ALJs in July 2018.
d.

Analysis
“Statutory construction must begin with the language employed

by Congress and the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose,” Park ‘N
Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194 (1985);
however,

in

construing

the

text

of

the

FVRA,

Brian

T.D.

misconstrues Congress’s use of the present tense verb “serving” in
Section 3346(a)(1), Brian T.D., 580 F. Supp. 3d at 629.

In that

regard, the court noted that “Congress, in enacting § 3346, used
the present participle ‘serving,’ rather than the past or present
perfect ‘served’ or ‘has served’” and thus that “Section 3346(a)

30

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 30 of 47

. . . applies to the person presently serving in that capacity and
not to a person who had previously served as Acting Commissioner.”
Id. (emphasis added).
That argument, however, glosses over the fact that using “the
past or present perfect ‘served’ or ‘has served’” to set out the
time limits for acting officials under the FVRA would not make
sense.

Had Congress drafted Section 3346(a) to provide that “the

person [who served or who has served] as an acting officer as
described under section 3345 may serve in the office for no longer
than 210

days,”

5

U.S.C.

§

3346(a)(1)

(dashes

and

numbering

omitted), the Section, by its terms, would provide service time
limits only for individuals who had already served as acting
officers, which renders the time limits nonsensical.

See United

States v. Turkette, 452 U.S. 576, 580 (1981) (holding that, in
construing statutory language, “absurd results are to be avoided”);
see also Sorrells v. United States, 287 U.S. 435, 447 (1932) (“All
laws should receive a sensible construction.

General terms should

be so limited in their application as not to lead to . . . an
absurd consequence.”); Harris v. United States, 215 F.2d 69, 75
(4th Cir. 1954) (holding that “interpretation of a statute leading
to absurd . . . results is to be avoided”).

Construing the phrase

“the person serving as an acting officer as described under section
3345,” 5 U.S.C. § 3346(a) (emphasis added), as merely descriptive,
i.e., as explaining that the time limits apply to acting officers

31

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 31 of 47

under Section 3345 of the FVRA, as opposed to acting officers under
other,

office-specific

vacancy

statutes,

constitutes

a

more

straightforward and common sense interpretation of Section 3346(a).
Moreover, as the Commissioner argues:
Reading § 3346(a)’s prefatory phrase to limit that
subsection’s application to only “the person presently
serving in [an acting] capacity,” Brian T.D., [580 F.
Supp. 3d at 629], would also create an irreconcilable
conflict with § 3345. Under the FVRA, the default rule is
that the first assistant automatically becomes the acting
official, but the President can subsequently displace the
first assistant from her acting role by choosing another
acting official. See 5 U.S.C. § 3345(a)(1)-(3); see also
Guedes v. ATF, 920 F.3d 1, 11 (D.C. Cir. 2019). But if
§ 3346(a) applied only to a “presently serving” acting
officer, it would incorrectly bar the President from
designating an alternative acting official.
Were the
President to designate an acting official after the first
assistant had assumed the role by default, the
alternative official would not be the person presently
“serving as an acting officer as described under section
3345.” Under the Brian T.D. court’s misinterpretation of
that phrase, § 3346(a) thus would not permit her to serve
at all because § 3346(a)’s prefatory phrase applies to
service under both § 3346(a)(1) and (a)(2). By the same
token, were a first assistant serving as an acting
official to die, resign, or otherwise be unable to serve
during the vacancy, the President would be incapable of
replacing her.
(Docket Entry 17 at 22-23.)

The Court should construe the meaning

of the word “serving” in Section 3346(a) in a manner that does not
create inconsistencies with other provisions of the FVRA. See NLRB
v. Wheeling Electric Co., 444 F.2d 783, 787 (4th Cir. 1971) (“The
cardinal rule of statutory construction is that the intent of the
legislative assembly is to be given effect . . . and where a
literal interpretation of a statutory provision would not accord

32

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 32 of 47

with the intended purpose of the legislation, or produces an absurd
result, courts must look beyond the plain words of the statute.”
(citations omitted)); Milan Puskar Health Right v. Crouch, 549 F.
Supp. 3d 482, 490 (S.D.W. Va. 2021) (“[T]he [c]ourt . . . is
obligated

to

avoid

statutory

interpretations

that

lead

to

absurd . . . results if ‘alternative interpretations consistent
with the legislative purpose are available.’” (quoting Griffin v.
Oceanic Contractors, Inc., 458 U.S. 564, 575 (1982))).
The Brian T.D. court next found that the “structure and
context” of Section 3346 supported the court’s interpretation of
Section 3346(a)(2) as not applying to Berryhill.
F. Supp. 3d at 629.

Brian T.D., 580

In support of that finding, the court noted

that:
[s]ubsection (b)(1) states that if a nomination is
rejected, withdrawn, or returned, “the person may
continue to serve as the acting officer for no more than
210 days.”
5 U.S.C. § 3346(b)(1) (emphasis added).
Subsection (b)(2) states that if a second nomination is
unsuccessful, “the person serving as the acting officer
may continue to serve.”
Id. § 3346(b)(2) (emphasis
added).
Therefore, the plain language of § 3346,
indicates that the use of the present participle is
deliberate — only a person presently serving may continue
to serve. The plain language of § 3346(a)(2) means that
it only applies to a person presently serving as Acting
Commissioner if at the time of nomination, someone “is
performing the functions and duties” in accordance with
the FVRA. There is no good reason for construing the
word “serving” when used in the first paragraph of
§ 3346(a) differently than when it is used in § 3346(b).
Id. at 629-30.

33

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 33 of 47

As

discussed

above,

interpreting

the

phrase

“the

person

serving as the acting officer” in Section 3346(a) as descriptive
rather than as a limitation to individuals presently holding the
acting official role comports with common sense.

Moreover, the

Brian T.D. court’s emphasis on the “continue to serve” language in
Sections 3346(b)(1) and 3346(b)(2) actually undermines that court’s
reasoning.

In those sections, Congress made clear that an acting

official may “continue to serve” in that role for 210 days after
the failure of a first or second nomination to the Senate.
U.S.C. §§ 3346(b)(1), (b)(2).

5

Had Congress wished to allow an

acting official to continue to serve beyond the initial 210 days
only if a nomination occurred during that initial 210-day period,
Congress could easily have included that same “continue to serve”
language in Section 3346(a)(2), but did not do so.
The Brian T.D. court next maintained that Ҥ 3348 confirm[ed
its] reading” of Section 3346(a)(2) because, “[u]nless someone ‘is
performing the functions and duties’ in accordance with the FVRA,
the PAS office ‘shall remain vacant’ until the PAS-appointment is
complete.”
§

3348(b)).

Brian T.D., 580 F. Supp. 3d at 630 (quoting 5 U.S.C.
The

court

disagreed

with

the

Commissioner’s

“interpret[ation of] § 3346 as providing a person with authority to
serve in an acting role (as distinct from merely defining the
length of that service),” and pointed out that “§ 3345 [] provides
the authority to act as an officer, while § 3346 merely defines the

34

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 34 of 47

period of that service.”

Id. at 632.

In other words, the court

reasoned, “[s]omeone cannot avoid § 3348’s directive that the
‘office shall remain vacant’ by invoking § 3346 as authority to
serve as acting officer because § 3348 requires that person to
already be performing duties according to §§ 3345, 3346, and 3347.”
Id.
The

Brian

T.D.

court

provided

no

authority

for

its

interpretation precluding Berryhill from invoking Section 3346 to
avoid the “remain vacant” provision of Section 3348(b) and to
authorize the “spring back” into her role as Acting Commissioner
upon the nomination of Saul, because Section 3346 prescribes only
“time limits,” id.
just

address

nomination

is

See id.

“time

In fact, Section 3346(a)(2) does not

limits,”

pending

in

i.e.,

the

“for

Senate,”

the
as

period

that

that

Section

the
also

prescribes a condition, i.e., a nomination to the Senate, which
triggers an additional period of service.

Moreover, Section

3348(b)(1) explicitly ties the “remain vacant” provision to the
phrase “performing the functions and duties in accordance with
sections 3345, 3346, and 3347,” 5 U.S.C. § 3348(b)(1) (emphasis
added), and, because Berryhill immediately resumed performing the
duties of the office in an acting capacity upon Saul’s nomination
in

accordance

“with

§

3346(a)(2)

(as

well

as

§

3345(a)),

§ 3348(b)(1) did not require the office to ‘remain vacant’” (Docket
Entry 17 at 25 (emphasis added)).

35

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 35 of 47

The Brian T.D. court further based its interpretation of
Section 3346(a)(2)’s inapplicability to Berryhill on the following
analysis of the meaning of the word “or”:
[The Commissioner’s] interpretation [of Section 3346(a)]
misreads the statutory language. The word “or” modifies
the entire provision that limits the acting officer to a
period “no longer than” 210 days from the date the
vacancy arose.
Thus, when read with the entirety of
subsection (a)(1) “or” serves to suspend that time
limitation, not to create an entirely separate and
distinct period of service.
A person serving as an acting officer may do so “for no
longer than 210 days beginning on the date the vacancy
occurs; or . . . once a first or second nomination for
the office is submitted to the Senate,” during the
pendency of that nomination.
Id. § 3346(a) (emphasis
added).
The ordinary usage of the word “or” is
disjunctive, indicating an alternative. United States v.
Smith, 35 F.3d 344, 346 (8th Cir. 1994). In this statute
“or” serves to provide an alternative length of service
not to create a series of non-contiguous periods of
service.
If the statute were read to create three
distinct periods of service — the initial 210 days, the
first nominee period, and the second nominee period — the
statute would have used the word “and” to separate the
three periods of service.
Construing the word “or” to mean “and,” as [the
Commissioner] argues for here, is conjunctive and
“clearly in contravention of its ordinary usage.” Id.
The plain reading and ordinary usage of the word “or” in
§ 3346(a) is that a person serving as Acting Commissioner
may serve for a 210-day period from the start of the
vacancy, or if the person is already “serving as acting
officer” according to the FVRA, may continue serving
during the pendency of a timely nomination. The 210-day
period is a limitation on Berryhill’s acting service and
after the 210-day limitation had expired, she could not
later return to acting service, turning § 3346’s “or”
into an “and.”
Brian T. D., 580 F. Supp. 3d at 631 (emphasis supplied by Brian
T.D.).
36

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 36 of 47

The Commissioner persuasively argues that the Brian T.D.
court’s above-quoted interpretation of the word “or” in Section
3346(a)(1)

constitutes

an

unreasonable

construction

of

that

commonly-used word:
The use of “or” to mean either one or both of two options
is routine. “The word ‘or’ has an inclusive sense (A or
B, or both) as well as an exclusive one (A or B, not
both).” Varga v. Colvin, 794 F.3d 809, 815 (7th Cir.
2015). “‘The meaning of or is usually inclusive.’” Tex.
Std. Oil Co. v. Forest Oil Corp., No. G-05-490, 2008 WL
11399510, at *4 (S.D. Tex. Jan. 3, 2008) (quoting Bryan
A. Garner, Dictionary of Modern Legal Usage 624 (2d ed.
1995)). For example, if a server comes to a table and
asks whether anyone would like “dessert or coffee,” no
one would interpret that to preclude ordering both.
(Docket Entry 17 at 18 n.7 (underscoring added).) Indeed, as wellexplained by another district court:
Authorities agree that . . . or has an inclusive sense as
well as an exclusive sense.” Bryan A. Garner, Garner’s
Dictionary of Legal Usage 639 (3d ed. 2011).
In its
inclusive sense, “or” means “A or B, or both.” Id. In
its exclusive sense, “or” means “A or B, but not both.”
Id.
Although “or” is used in both senses in common
usage, “[t]he meaning of or is usually inclusive.” Id.
(quoting Scott J. Burnham, The Contract Drafting
Guidebook 163 (1992)) (internal quotation marks omitted).
[The defendant] argues as if the court must choose
between construing “or” in its exclusive sense or
construing it to mean “and.” But . . . both senses of
“or” are commonly used. In fact, the inclusive use of
“or” is the more common.
B-50.com, LLC v. InfoSync Servs., LLC, No. 3:10CV1994, 2014 WL
285096, at *6–7 (N.D. Tex. Jan. 27, 2014) (unpublished) (emphasis
added) (certain citations omitted); see also Great Lakes Ins. SE v.
Lassiter, No. 21-21452-CIV, 2022 WL 1288741, at *10 (S.D. Fla. Apr.

37

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 37 of 47

29, 2022) (unpublished) (“If the [p]olicy sought to use ‘or’ in an
exclusive sense, then it would have prevented such overlap by
prefacing the definition with a qualifier like ‘either.’” (emphasis
added)); Mason v. Range Res.-Appalachia LLC, 120 F. Supp. 3d 425,
445 (W.D. Pa. 2015) (“‘Stating the matter broadly, we can say that
in a permissive sentence the inclusive “or” is interchangeable with
the several “and.”

Again, this does not say that “and” means “or.”

It says that in such a context the two words are reciprocally
related: the implied meaning of one is the same as the express
meaning of the other.’” (quoting Maurice B. Kirk, Legal Drafting:
The Ambiguity of “And” and “Or,” 2 Tex. Tech L. Rev. 235, 243
(1971))); Allstate Ins. Co. v. Plambeck, 66 F. Supp. 3d 782, 788
(N.D. Tex. 2014) (noting that, “[a]bsent a qualifying ‘either,’
‘or’

is

typically

interpreted

in

the

inclusive

manner”

and

explaining that statute in question lacked “limiting words or
phrases — such as ‘either’ or ‘but not both’ — that might support
reading [the statute]’s use of ‘or’ in the ‘exclusive’ sense”
(emphasis added) (internal quotation marks omitted)).
Here, the word “or” appears in a permissive sentence, i.e.,
“the person serving as an acting officer as described under section
3345 may serve in the office,” 5 U.S.C. § 3346(a) (emphasis added),
without qualifiers such as “either” and “but not both,” see id.
Accordingly, the Court should interpret the word “or” in Section
3346(a)(1) in its more common, inclusive sense to permit Berryhill

38

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 38 of 47

to serve both as Acting Commissioner for 300 days following the
vacancy under Section 3346(a)(1), and to spring back into that role
upon Saul’s nomination to the Senate under Section 3346(a)(2).
Notably, Congress did not include language in Section 3346(a)(2)
clarifying that the period of service under that Section applied
only if the nomination to the Senate occurred during the pendency
of the initial, 210-day period of service.
Gen.,

Inc.,

___

U.S.

___,

___,

137

S.

See N.L.R.B. v. SW
Ct.

929,

939

(2017)

(rejecting NLRB’s interpretation of Section 3345 of the FVRA, while
noting that Congress “could easily have chosen clearer language,”
as well as finding that “‘[t]he fact that Congress did not adopt []
readily available and apparent alternative [language] strongly
support[ed]’” the Supreme Court’s interpretation of Section 3345
(brackets omitted) (quoting Knight v. Commissioner, 552 U.S. 181,
188 (2008)).9
Consistent with that view, the legislative history of the FVRA
makes clear that Congress intended “or” in its inclusive sense, and

9

Another section of the FVRA makes clear that Congress knew how to include
language indicating that certain time periods for service did not permit breaks
in service:
[T]he President (and only the President) may direct an officer who
is nominated by the President for reappointment for an additional
term to the same office in an Executive department without a break
in service, to continue to serve in that office subject to the time
limitations in section 3346, until such time as the Senate has acted
to confirm or reject the nomination, notwithstanding adjournment
sine die.
5 U.S.C. § 3345(c)(1) (emphasis added).

39

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 39 of 47

that Section 3346(a)(2) authorizes a second, permissible period of
service for Berryhill:
Under new section 3346(a)(2), and subject to section
3346(b), an acting officer may serve more than 150 days
if a first or second nomination is submitted to the
Senate, and may serve while that nomination is pending
from the date the nomination is submitted. The acting
officer may serve even if the nomination is submitted
after the 150 days has passed although . . . the acting
officer may not serve between the 151st day and the day
the nomination is submitted.
S. Rep. 105-250, reporting on Senate Bill 2176, “Federal Vacancies
Reform Act of 1998,” 1998 WL 404532, at *14 (July 15, 1998)
(emphasis added).10 Notably, beyond the change from 150 days to 210
days, Section 3346 of Senate Bill 2176 contains the exact same
language as Section 3346 of the FVRA. Compare S.2176, 105th Cong.,
§

3346,

available

at

www.congress.gov/bill/105th-congress/

senate-bill/2176/text, with 5 U.S.C. § 3346.
The Brian T.D. court focused on a different part of the FVRA’s
legislative history to support its reasoning.

Section 3348(b) of

Senate Bill 2176 provided, in pertinent part, as follows:
(1) if the President does not submit a first nomination
to the Senate to fill a vacant office within 150 days
after the date on which a vacancy occurs-(A) the office shall remain vacant until the President
submits a first nomination to the Senate; and . . .
(2) if the President does not submit a second nomination
to the Senate within 150 days after the date of the
rejection,
withdrawal,
or
return
of
the
first
nomination-10

The version of the FVRA Congress ultimately passed expanded the term an
acting official could serve from 150 days to 210 days. See 5 U.S.C. § 3346(a).

40

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 40 of 47

(A) the office shall remain vacant until the President
submits a second nomination to the Senate.
S.2176, 105th Cong., § 3348(b), available at www.congress.gov/bill/
105th-congress/senate-bill/2176/text (emphasis added) (quotation
marks omitted). The Brian T.D. court found that the absence of the
above-emphasized

language

in

FVRA’s

final

text

supported

the

court’s interpretation of Section 3346(a)(2) as not applying to
Berryhill:
The FVRA’s final text does not include the express
“spring-back” language.
Publ. L. 105-277, § 151, 112
Stat. 2681 (Oct. 21, 1998). Enacting the FVRA included
a “period of intense negotiations” and resulted in “a
compromise measure.” N.L.R.B., [___ U.S. at ___,] 137 S.
Ct. at 942. “What Congress ultimately agrees on is the
text that it enacts, not the preferences expressed by
certain legislators.” Id.
Here, the Senate Report shows that the Senate considered
allowing an officer who had previously acted as
Commissioner to return to acting service upon a
nomination to the Senate, however Congress chose not to
include such language in the final, enacted version of
the FVRA. Certainly, the original language of § 3348
demonstrates that if Congress had intended the FVRA to
contain a spring back provision they were able to craft
such language to clearly and unambiguously express that
intent.
At best the reliance on the Senate Report
illustrates
the
folly
of
attempting
to
discern
legislative intent from statements made during the
legislative process. See id. at 942-93; see also Milner
v. Dep’t of Navy, 562 U.S. 562, 572[] (2011) (“When
presented, on the one hand, with clear statutory language
and, on the other, with dueling committee reports, we
must choose the language.”).
Brian T.D., 580 F. Supp. 3d at 633.
Brian T.D.’s reasoning falls short, because the Senate Report
did not tie its interpretation of Section 3346(a)(2) as a spring-

41

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 41 of 47

back provision to the language in Section 3348(b) providing that
the office remain vacant “until the President submits a first [or
second] nomination to the Senate,” 5 U.S.C. § 3348(b) (emphasis
added); rather, the Report grounded its interpretation in the
language of Section 3346 itself:
Under new section 3346(a)(2), . . . [t]he acting officer
may serve even if the nomination is submitted after the
150 days has passed although . . . the acting officer may
not serve between the 151st day and the day the
nomination is submitted.
S. Rep. 105-250, 1998 WL 404532, at *14 (emphasis added).

As the

Commissioner argued in Brian T.D., the final version of the FVRA
likely did not include the language in question from Senate Bill
2176’s Section 3348, because the plain text of Section 3346(a)
rendered that language unnecessary.

See Brian T.D., 580 F. Supp.

3d at 633.
In addition, cases interpreting the application of Section
3346(a)(2) have also concluded that Section 3346(a)(2) serves as a
spring-back provision.

In a case outside of the SSA context,

another district court held as follows:
Executive Order [13753 (‘EO 13753’)] designated its order
of succession [for the position of Secretary of the
Department of Homeland Security (‘DHS’)] pursuant to the
FVRA, which includes a 210-day time limit for acting
officials “beginning on the date the vacancy occurs.” 5
U.S.C. § 3346(a)(1). Here, [Secretary of DHS Kirstjen]
Nielsen resigned on April 10, 2019, and far more than 210
days passed before [the Acting Secretary of DHS under EO
13753 Peter] Gaynor purported to amend the order of
succession [to list DHS Under Secretary for Strategy,
Policy, and Plans Chad Wolf as Acting Secretary of DHS],
potentially rendering [Gaynor’s] action void.
But a
42

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 42 of 47

separate provision of the FVRA permits an acting official
to serve “from the date of” a first nomination for the
vacant office and “for the period that the nomination is
pending in the Senate.”
Id. § 3346(a)(2).
Because
President Trump nominated Wolf [to serve as Secretary of
DHS] the same day that Gaynor purported to amend the
order of succession, Gaynor was lawfully serving as
Acting Secretary under [EO 13753] and the FVRA at the
time he amended the order of succession.
Northwest

Immigrant

(emphasis added).

Rts.

Project,

496

F.

Supp.

3d

at

57–58

Cases addressing Section 3346(a)(2) in the

setting of a claim for benefits under the SSA have also found it to
provide Berryhill with the authority to spring back into her role
as Acting Commissioner.

See Taylor v. Kijakazi, No. 1:21CV648,

2022 WL 4668273, at *9 (M.D.N.C. Aug. 2, 2022) (unpublished)
(Webster, M.J.) (noting “agree[ment] with the other judges from
this Court, Circuit, and others who have considered this issue at
considerable length and concluded that this appointment clause
argument [under the FVRA] has no merit”), recommendation adopted,
2022 WL 4621418 (M.D.N.C. Sept. 30, 2022) (unpublished) (Osteen,
J.); Lance M. v. Kijakazi, No. 2:21CV628, 2022 WL 3009122, at *11
(E.D. Va. July 13, 2022) (unpublished) (“[T]he plain language and
legislative history of the FVRA confirm that Berryhill could resume
her service after Saul’s nomination was submitted notwithstanding
the fact that her original 210-day period expired before the Senate
received his nomination.”), recommendation adopted, 2022 WL 3007588
(E.D. Va. July 28, 2022) (unpublished); Williams v. Kijakazi, No.
1:21CV141,

2022

WL

2163008,

at

*3

(W.D.N.C.

June

15,

2022)

43

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 43 of 47

(unpublished) (characterizing holding in Brian T.D. as “an outlier
that conflicts with the plain text of the FVRA, nearly every other
court to address the issue, as well as the views of the Executive
Branch and the Legislative Branch - all of which agree that
§ 3346(a)(2) permits an acting official serving under the FVRA to
serve during the pendency of a first or second nomination even when
that nomination was submitted after the initial 210-day period for
acting service has expired”); Early v. Kijakazi, No. 5:21CV96, 2022
WL 2057467, at *4 (W.D.N.C. June 7, 2022) (unpublished) (expressly
disagreeing with Brian T.D. and holding: “[T]he plain language of
5 U.S.C. § 3346 allows for Ms. Berryhill to have resumed her role
as Acting Commissioner on the date that Andrew Saul was nominated.
Consequently, she had the necessary statutory authority to ratify
the appointment the ALJs in 2018 and [the p]laintiff’s [] argument
fails.”), appeal filed sub nom., Rush v. Kijakazi, No. 22-1797 (4th
Cir. June 21, 2021); Thomas S. v. Commissioner of Soc. Sec., No.
C21-5213,

2022

WL

268844,

at

*3

(W.D.

Wash.

Jan.

28,

2022)

(unpublished) (“The FVRA contains a ‘spring-back’ provision that
enabled Berryhill to resume her role as Acting Commissioner as of
the date that [] Saul was nominated for Commissioner in April
2018.”); Reuter, 2020 WL 7222109, at *15 (“Berryhill actually held
the title of Acting Commissioner of Social Security twice.
first assumed the role on January 21, 2017. . . .

She

Immediately

following the GAO[ Notice], [] Berryhill stepped down from her role

44

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 44 of 47

as Acting Commissioner and continued to lead the agency from her
[DCO] position of record. . . .

[H]owever, on April 17, 2018, the

President nominated [] Saul to be the next Commissioner of Social
Security. . . .

The FVRA contains a ‘spring-back’ provision that

enabled Berryhill to resume her role as Acting Commissioner as of
the date of [] Saul’s nomination.”); Patterson, 2018 WL 8367459, at
*1 (“The FVRA contains a ‘spring-back’ provision that enabled
Berryhill to resume her role as Acting Commissioner as of the date
of [] Saul’s nomination.”).
Finally, the DOJ has, since at least 1999, interpreted Section
3346(a)(2) of the FVRA to constitute a spring-back provision:
The [FVRA] incorporates a spring-back provision, which
permits the acting officer to begin performing the
functions and duties of the vacant office again upon the
submission of a nomination, even if the 210-day period
expired before that nomination was submitted.
If the
210-day limitation period expires before the President
has submitted a nomination, the restrictions in § 3348 of
the Act, which bar anyone from serving in an acting
capacity, become operative. If thereafter the President
submits a nomination, an acting officer is again able to
perform the functions and duties of the office as of the
date the nomination is submitted.
DOJ, Office of Legal Counsel, “Guidance on Application of Federal
Vacancies Reform Act of 1998,” 1999 WL 1262050, at *6-8 (Mar. 22,
1999) (emphasis added) (parentheticals omitted). Like the DOJ, the
GAO - the same agency that found a violation in Berryhill’s service
beyond 300 days after the resignation of Colvin, see GAO Notice, at
1 - also interprets Section 3346(a)(2) of the FVRA to provide
spring-back authority to resume acting service upon a nomination to
45

Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 45 of 47

the Senate, see GAO, No. B-328888, “Violation of the 210-Day Limit
Imposed by the Federal Vacancies Reform Act of 1998 — Department of
Energy,

Director

b-328888.pdf,

at

of
2

Office
(Mar.

3,

of

Science,”

2017)

www.gao.gov/assets/

(reporting

that

the

FVRA

“contains a spring-back provision that allows an acting official to
resume performing the duties of the office once a first or second
nomination is submitted to the Senate for the period that such
nomination is pending in the Senate” and thus that acting official
whose initial 210-days had expired “could resume her service as
Acting Director . . . when the President submitted [a] nomination
to the Senate” (emphasis added)).
In sum, the plain language of Section 3346(a) of the FVRA
makes

clear

that

Section

3346(a)(2)

provided

authority

for

Berryhill to resume service as Acting Commissioner as of the date
of President Trump’s nomination of Saul for Commissioner on April
17,

2018.

interpreting

Further,
Section

the

FVRA’s

3346(a)(2),

legislative
and

history,

interpretations

caselaw
of

that

Section from the DOJ and the GAO all support the interpretation of
Section 3346(a)(2) as a spring-back provision.

As such, the Court

should find that Berryhill lawfully ratified the SSA’s ALJs’
appointments as her own on July 16, 2018, and thus that Plaintiff’s
second issue on review fails as a matter of law.

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Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 46 of 47

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
Judgment on

the

Pleadings

(Docket

Entry

13)

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
January 19, 2023

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Case 1:22-cv-00043-CCE-LPA Document 18 Filed 01/19/23 Page 47 of 47