United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER
Fashing, United States Magistrate Judge.
MATTER comes before the Court on plaintiff Renee
Rabache's Motion to Reverse and Remand for a Rehearing,
with Supporting Memorandum (Doc. 23), which was fully briefed
on August 1, 2019. See Docs. 25, 26, 27. The parties
consented to my entering final judgment in this case. Doc. 9.
Having meticulously reviewed the entire record and being
fully advised in the premises, I find that the Administrative
Law Judge (“ALJ”) applied the correct legal
standards and his decision is supported by substantial
evidence. I therefore DENY Ms. Rabache's motion and
AFFIRM the Commissioner's decision.
Standard of Review
standard of review in a Social Security appeal is whether the
Commissioner's final decision is supported by substantial
evidence and whether the correct legal standards were
applied. Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008). If substantial evidence supports the
Commissioner's findings and the correct legal standards
were applied, the Commissioner's decision stands, and the
plaintiff is not entitled to relief. Langley v.
Barnhart, 373 F.3d 1116, 1118 (10th Cir. 2004).
“The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that
appropriate legal principles have been followed is grounds
for reversal.” Jensen v. Barnhart, 436 F.3d
1163, 1165 (10th Cir. 2005) (internal quotation marks and
evidence is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Langley, 373 F.3d at 1118. A decision “is not
based on substantial evidence if it is overwhelmed by other
evidence in the record or if there is a mere scintilla of
evidence supporting it.” Id. While the Court
may not reweigh the evidence or try the issues de novo, its
examination of the record as a whole must include
“anything that may undercut or detract from the
ALJ's findings in order to determine if the
substantiality test has been met.” Grogan v.
Barnhart, 399 F.3d 1257, 1262 (10th Cir. 2005).
“‘The possibility of drawing two inconsistent
conclusions from the evidence does not prevent [the] findings
from being supported by substantial evidence.'”
Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007)
(quoting Zoltanski v. F.A.A., 372 F.3d 1195, 1200
(10th Cir. 2004)).
Applicable Law and Sequential Evaluation Process
qualify for disability benefits, a claimant must establish
that he or she is unable “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.” 42
U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
considering a disability application, the Commissioner is
required to use a five-step sequential evaluation process. 20
C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S.
137, 140 (1987). At the first four steps of the evaluation
process, the claimant must show: (1) the claimant is not
engaged in “substantial gainful activity”; (2)
the claimant has a “severe medically determinable . . .
impairment . . . or a combination of impairments” that
has lasted or is expected to last for at least one year;
and (3) the impairment(s) either meet or equal one
of the Listings of presumptively disabling impairments;
or (4) the claimant is unable to perform his or her
“past relevant work.” 20 C.F.R. §§
404.1520(a)(4)(i-iv); Grogan, 399 F.3d at 1260-61.
If the claimant cannot show that his or her impairment meets
or equals a Listing but proves that he or she is unable to
perform his or her “past relevant work, ” the
burden of proof shifts to the Commissioner, at step five, to
show that the claimant is able to perform other work in the
national economy, considering the claimant's residual
functional capacity (“RFC”), age, education, and
work experience. Id.
Background and Procedural History
Rabache is a 56-year-old woman, who completed three years of
college and who lives by herself in Santa Fe, New Mexico. AR
33, 66, 162, 188, 191, 202, 212, 222, 261, 264. Ms. Rabache
worked as a digital effects artist and a visual effects
artist from 1989 through 2000. AR 34-36, 193. Ms. Rabache
filed an application for Disability Insurance Benefits
(“DIB”) on December 15, 2014, alleging disability
since November 1, 2005, due to chronic fatigue immune
deficiencies, meningeo encephalopathy, chronic migraines and
orthostatic intolerance. AR 33, 66, 77, 161-62, 192. The
Social Security Administration (“SSA”) denied her
claim initially and on reconsideration. AR 65-84, 90-96. Ms.
Rabache requested a hearing before an ALJ. AR 98-101
(duplicate copies). On March 15, 2017, ALJ Cole Gerstner held
a hearing. AR 27-55. ALJ Gerstner issued his unfavorable
decision on June 26, 2017. AR 10- 23.
found that Ms. Rabache met the insured status requirements of
the Social Security Act through December 31, 2005. AR 15. At
step one, the ALJ found that Ms. Rabache had not engaged in
substantial, gainful activity “during the period from
her alleged onset date of November 1, 2005, through her date
last insured of December 31, 2005.” Id. At
step two, the ALJ found that Ms. Rabache “did not have
an impairment or combination of impairments that
significantly limited the ability to perform basic
work-related activities for 12 consecutive months.”
Id. The ALJ therefore found that Ms. Rabache did not
have a severe impairment or combination of impairments, and
he denied her claim at step two. AR 15, 19.
Rabache requested that the Appeals Council review the
ALJ's unfavorable decision. AR 155-60. On July 23, 2018,
the Appeals Council denied the request for review. AR 1-6.
Ms. Rabache timely filed her appeal to this Court on
September 10, 2018. Doc. 1.
Ms. Rabache's Claims
Rabache raises two main arguments and several sub-arguments
for reversing and remanding this case. First, Ms. Rabache
contends that the ALJ did not have the authority to act
because he was not properly appointed under the
Constitution's Appointments Clause at the time of the
hearing, pursuant to Lucia v. S.E.C., 138 S.Ct. 2044
(2018). Doc. 23 at 1, 5. Second, Ms. Rabache contends that
the ALJ committed legal error in determining that she did not
have any severe impairments during the relevant time period.
Id. at 1, 5-16. In arguing that the ALJ erred in
finding that she did not have a severe impairment, Ms.
Rabache contends that the ALJ failed to properly analyze the
treating doctor evidence, and therefore the step two finding
was not supported by substantial evidence. Id. at
6-13. She further contends that the ALJ erred by failing to
develop the record with regard to Dr. Reddish's opinion.
Id. at 13. Finally, Ms. Rabache contends that the
ALJ failed to properly assess her symptoms pursuant to Social
Security Ruling (“SSR”) 96-3P. Id. at
14. Ms. Rabache's claims are without merit.
Ms. Rabache Has Waived Her Challenge to the
Constitutional Validity of the Appointment of the ALJ.
Lucia, Ms. Rabache contends that at the time of the
hearing, the ALJ was not properly appointed under the
Constitution's Appointments Clause, and therefore did not
have legal authority over this case. Doc. 23 at 5. The
Commissioner does not dispute that the ALJ had not been
properly appointed under the Appointments Clause at the time
of the hearing. See Doc. 25 at 7-18. The
Commissioner contends, however, that Ms. Rabache has waived
this argument because she did not timely raise it before the
ALJ or the Appeals Council. Doc. 25 at 7-18. I agree with the
Appointments Clause prescribes the exclusive means of
appointing ‘Officers.' Only the President, a court
of law, or a head of department can do so.”
Lucia, 138 S.Ct. at 2051. If an ALJ is not
considered to be a constitutional officer, then the
“Appointments Clause cares not a whit about who named
them.” Id. (quoting United States v.
Germaine, 99 U.S. 508, 510 (1879)). In
Lucia, the Supreme Court held that Securities and
Exchange Commission (“SEC”) ALJs are
“inferior officers” that must be appointed
pursuant to the Appointments Clause of the United States
Constitution. See Lucia, 138 S.Ct. at 2051-56. In so
holding, the Court briefly discussed challenges made to ALJ
appointments under the Appointments Clause. See Id.
at 2055. It said:
[O]ne who makes a timely challenge to the constitutional
validity of the appointment of an officer who adjudicates his
case is entitled to relief. Lucia made just such a timely
challenge: He contested the validity of Judge Elliot's
appointment before the Commission, and continued pressing
that claim in the Court of Appeals and this Court.
Id. (internal citations and quotations omitted).
applying Lucia, courts have struggled to interpret
what constitutes a “timely challenge” during SSA
proceedings. The majority of courts who have addressed the
timeliness issue have interpreted an Appointments Clause
challenge to an SSA ALJ to be “timely” if raised
at some point during the administrative process. See
Marchant on behalf of A.A.H. v. Berryhill, No. CV
18-0345, 2019 WL 2268982, at *3 (E.D. Pa. May 28, 2019)
(collecting cases). Most courts point to the fact that the
plaintiff in Lucia raised his Appointments Clause
challenge for the first time before the SEC appeals council;
thus, to be considered “timely, ” the challenge
must be raised during the administrative process.
is a split among the district courts in the Tenth Circuit on
the question of whether a claimant has waived his or her
Appointments Clause claim if it is not raised during the
administrative process. See Pearson v. Berryhill,
No. 17-4031-SAC, 2018 WL 6436092 (D. Kan. Dec. 7, 2018)
(holding plaintiff did not make a timely challenge to the
constitutional validity of the appointment of the ALJ);
Heather M.H. v. Berryhill, No. 2:16-CV-1056 JNP/BCW,
2019 WL 2305951 (D. Utah Apr. 29, 2019) (holding that in the
Tenth Circuit, social security applicants were put on notice
regarding the suspect appointment of ALJs before the Supreme
Court's decision in Lucia), report and
recommendation adopted, No. 2:16-CV-1056 JNP/BCW, 2019
WL 2297706 (D. Utah May 30, 2019); Klotz v. Saul,
No. 2:17-CV-453 RJS/CMR, 2019 WL 4119159 (D. Utah Aug. 12,
2019) (holding that even if the court granted the
plaintiff's request to reopen the case, plaintiff waived
the Appointments Clause arguments by failing to timely make
them and has provided no excuse for the failure), report
and recommendation adopted, No. 2:17-CV-453 RJS/CMR,
2019 WL 4110498 (D. Utah Aug. 29, 2019); but see Kim L.
M. v. Saul, No. 18-CV-418-FHM, 2019 WL 3318112 (N.D.
Okla. July 24, 2019) (finding that plaintiff did not forfeit
the Appointments Clause claim by failing to raise that issue
before the SSA). I agree with the majority of courts that
find a claimant waives his or her Appointments Clause
challenge if it is not raised during the administrative
language reading of Lucia provides that a challenge
at some point during the administrative process is sufficient
to raise a timely claim. See Lucia, 138 S.Ct. at
2055 (“Lucia made just such a timely challenge: He
contested the validity of Judge Elliot's appointment
before the Commission . . . .”). According to SSA
regulations, a claimant must raise objections concerning the
presiding ALJ “at [the] earliest opportunity.” 20
C.F.R. § 404.940. Therefore, I find that the
“earliest opportunity” to raise an Appointments
Clause challenge is at the administrative level-before the
ALJ or the Appeals Council, and the claim must be made
sometime during the administrative process to be considered
timely. Ms. Rabache did not raise her Appointments Clause
challenge during any phase of the administrative process.
Accordingly, her Appointments Clause challenge in this Court
is untimely, and therefore waived.
Rabache makes two arguments in favor of her Appointments
Clause challenge. First, she argues that she could not have
raised the challenge below because Lucia was decided
on June 21, 2018, after the date of the hearing before the
ALJ on March 15, 2017, and after the ALJ's decision on
June 21, 2017. Doc. 26, at 2. Second, relying on Sims v.
Apfel, 530 U.S. 103 (2000), Ms. Rabache contends that
there is no issue exhaustion requirement at the Appeals
Council and, accordingly, her Appointments Clause challenge
has not been waived. These arguments are not persuasive.
Rabache is correct that Lucia was decided after both
her hearing before the ALJ and her request for review before
the Appeals Council. There was law in place, however, that put
her on notice that she was required to raise her Appointments
Clause challenge during the administrative process to
preserve the issue for review by this Court.
in United States v. L. A. Tucker Truck Lines, Inc.,
344 U.S. 33 (1952), the Supreme Court held that the challenge
to the appointment of an administrative adjudicator must be
made at the administrative level. In L. A. Tucker,
the Interstate Commerce Commission issued a certificate to a
“one Cunningham” to extend his existing motor
carrier route. 344 U.S. at 34. L.A. Tucker Truck Lines
(“L.A. Tucker”) opposed the issuance of the
certificate and sought reconsideration from the full
Commission, which was denied. Id. L.A. Tucker
petitioned the district court to set aside the certificate.
Id. On the day set for hearing, L.A. Tucker raised,
for the first time, the argument that “the
Commissioner's action was invalid for want of
jurisdiction because the examiner had not been appointed
pursuant to § 11 of the Administrative Procedure
Act.” Id. at 35. The district court allowed
the argument and determined that the appointment had not been
in accordance with the Act, and it invalidated the
certificate without addressing the merits. Id. The
United States and the Interstate Commerce Commission appealed
to the Supreme Court, raising the question “whether
such an objection, first made at that stage of the
proceedings, was not erroneously entertained.”
Id. The Supreme Court held that it was. Id.
Supreme Court explained that
orderly procedure and good administration require that
objections to the proceedings of an administrative agency be
made while it has opportunity for correction in order to
raise issues reviewable by the courts.
Id. at 37. In addition,
Simple fairness to those who are engaged in the tasks of
administration, and to litigants, requires as a general rule
that courts should not topple over administrative decisions
unless the administrative body not only has erred but has
erred against objection made at the time appropriate under
Id. The Supreme Court therefore held that
the defect in the examiner's appointment was an
irregularity which would invalidate a resulting order if the
Commission had overruled an appropriate objection made during
the hearings. But it is not one which deprives the Commission
of power or jurisdiction, so that even in the ...