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Rabache v. Saul

United States District Court, D. New Mexico

December 30, 2019

RENEE RABACHE, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of the Social Security Administration, Defendant.

          MEMORANDUM OPINION AND ORDER

          Laura Fashing, United States Magistrate Judge.

         THIS 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.

         I. Standard of Review

         The 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 brackets omitted).

         “Substantial 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)).

         II. Applicable Law and Sequential Evaluation Process

         To 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).

         When 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[2] 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.

         III. Background and Procedural History

         Ms. 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.[3] Ms. Rabache worked as a digital effects artist and a visual effects artist from 1989[4] 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.

         The ALJ 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.

         Ms. 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.[5]

         IV. Ms. Rabache's Claims

         Ms. 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.[6] Id. at 14. Ms. Rabache's claims are without merit.

         V. Analysis

         A. Ms. Rabache Has Waived Her Challenge to the Constitutional Validity of the Appointment of the ALJ.

         Citing 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 Commissioner.

         “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)).[7] 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).

         In 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).[9] 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. Id.

         There 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 process.

         A plain 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.

         Ms. 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.

         Ms. Rabache is correct that Lucia was decided after both her hearing before the ALJ and her request for review before the Appeals Council.[10] 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.

         First, 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.

         The 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 its practice.

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 ...

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