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Samuels v. Commissioner of Social Security

United States District Court, N.D. California, San Jose Division

September 18, 2019

MICHAEL SAMUELS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, [1]Defendant.

         ORDER RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 20, 30

          VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Michael Samuels appeals a final decision by defendant Commissioner of Social Security (“Commissioner”) denying his application for supplemental security income (“SSI”) under Title XVI of the Social Security Act (“Act”), 42 U.S.C. § 1381, et seq. The parties filed cross-motions for summary judgment. Dkt. Nos. 20, 30. Pursuant to the Court’s order (Dkt. No. 19), each side also submitted statements of the administrative record. Dkt. Nos. 21, 31, 35. The matter was submitted without oral argument. Upon consideration of the moving and responding papers, the relevant evidence of record, and for the reasons set forth below, Mr. Samuel’s motion for summary judgment is granted in part and denied in part, the Commissioner’s cross-motion for summary judgment is granted in part and denied in part, and this matter is remanded for further proceedings consistent with this order.[2]

         I. STANDARD FOR DETERMINING DISABILITY

         A claimant is considered disabled under the Act if he meets two requirements. First, a claimant must demonstrate an 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). Second, the impairment must be so severe that a claimant is unable to do previous work, and cannot “engage in any other kind of substantial gainful work which exists in the national economy, ” considering the claimant’s age, education, and work experience. Id. § 1382c(a)(3)(B).

         In determining whether a claimant has a disability within the meaning of the Act, an ALJ follows a five-step sequential analysis:

At step one, the ALJ determines whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. § 416.920(a)(4)(i). If so, the claimant is not disabled. If not, the analysis proceeds to step two.

         At step two, the ALJ assesses the medical severity of the claimant’s impairments. 20 C.F.R. § 416.920(a)(4)(ii). An impairment is “severe” if it “significantly limits [a claimant’s] physical or mental ability to do basic work activities.” Id. § 416.920(c). If the claimant has a severe medically determinable physical or mental impairment, or a combination of impairments, that is expected to last at least 12 continuous months, 20 C.F.R. § 416.920(d), he is disabled. Id. § 416.920(a)(4)(ii). Otherwise, the evaluation proceeds to step three.

         At step three, the ALJ determines whether the claimant’s impairments or combination of impairments meets or medically equals the requirements of the Commissioner’s Listing of Impairments. 20 C.F.R. § 416.920(a)(4)(iii). If so, a conclusive presumption of disability applies. If not, the analysis proceeds to step four.

         At step four, the ALJ determines whether the claimant has the residual functional capacity (“RFC”) to perform his past work despite his limitations. 20 C.F.R. § 416.920(a)(4)(iv). If the claimant can still perform past work, then he is not disabled. If the claimant cannot perform his past work, then the evaluation proceeds to step five.

         At the fifth and final step, the ALJ must determine whether the claimant can make an adjustment to other work, considering the claimant’s RFC, age, education, and work experience. 20 C.F.R. § 416.920(a)(4)(v). If so, the claimant is not disabled.

         The claimant bears the burden of proof at steps one through four. The Commissioner has the burden at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001).

         II. BACKGROUND

         Mr. Samuels was born in 1965 and was 50 years old at the time the ALJ rendered the decision under consideration here. He has a high school education and a limited work history. On December 6, 2013, Mr. Samuels applied for SSI, alleging an inability to work as of December 6, 2013[3] due to post-traumatic stress disorder, schizophrenia, a growth in his chest, and a history of drug use. AR[4] 220. The record also indicates that Mr. Samuels had a stent placed following a heart attack in December 2014. Id. at 486, 704-904. His application was denied initially and upon reconsideration, and Mr. Samuels requested a hearing before an ALJ.

         ALJ David Mazzi held a hearing on April 18, 2016, at which Mr. Samuels appeared and testified. Id. at 43-59. Although a vocational expert (“VE”) was present, he did not testify. The record was held open following that hearing. Id. at 27. At the ALJ’s request, consultative examiner Dr. Faith Tobias, Ph.D. evaluated Mr. Samuels on June 22, 2016. Additional records were submitted, and a second hearing was held on August 22, 2016. Id. at 27, 60-66, 303-304, 306. Mr. Samuels appeared and testified at the August 22 hearing. Id. at 60-66. Although a VE was also present at this second hearing, she did not testify. Id.

         On September 16, 2016, the ALJ issued a decision concluding that Mr. Samuels is not disabled under the Act. Id. at 27-37. At step one of the sequential analysis, the ALJ found that Mr. Samuels had not engaged in substantial gainful activity since the alleged onset date of December 6, 2013. Id. at 29. At step two, the ALJ found that Mr. Samuels has the following severe impairments: emphysema, coronary artery disease, affective disorders, and schizophrenia. Id.; 20 C.F.R. § 416.920(c). However, at step three, the ALJ concluded that Mr. Samuels does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1, 20 C.F.R. §§ 416.920(d), 416.925, 416.926. AR 30. The ALJ determined that Mr. Samuels has the RFC to perform light work, as defined in 20 C.F.R. § 416.967(b), subject to the limitation that he would need to avoid concentrated exposure to respiratory irritants and is restricted to simple, routine tasks equating to unskilled work. Id. at 32. At step four of the sequential analysis, the ALJ found that Mr. Samuels has no past relevant work and that transferability of job skills is not an issue. Id. at 36. At step five, the ALJ looked to the Medical-Vocational Guidelines, 20 C.F.R., Part 404, Subpt. P, App. 2, commonly referred to as “the grids, ” and concluded that there are jobs that exist in significant numbers in the national economy that Mr. Samuels can perform. Id. at 36.

         The Appeals Council denied Mr. Samuel’s request for review, and the ALJ’s decision became the final decision of the Commissioner. Id. at 1-11.

         Mr. Samuels now seeks judicial review of that decision, arguing that the ALJ erred in five respects. First, he contends that the ALJ improperly rejected the opinions of his treating psychiatrist, William Mains, M.D., as well as portions of Dr. Tobias’s assessment without providing sufficient reasons supported by substantial evidence. Second, Mr. Samuels argues that the ALJ failed to provide specific, clear, or convincing reasons for discounting Mr. Samuels’s testimony. Third, Mr. Samuels argues that the ALJ’s RFC assessment failed to take all of his limitations into account. Fourth, Mr. Samuels contends that the ALJ’s finding at step five, that there are other jobs he can perform, is not supported by substantial evidence because the ALJ did not receive any testimony from a VE. Fifth, Mr. Samuels argues that the ALJ’s decision is invalid, and requires remand, because the ALJ was not properly appointed under the Appointments Clause of the U.S. Constitution. The Commissioner contends that the ALJ’s decision is correct and free of legal error and that Mr. Samuels has forfeited any challenge to the ALJ’s appointment.

         III. LEGAL STANDARD

         Pursuant to 42 U.S.C. § 405(g), this Court has the authority to review the Commissioner’s decision to deny benefits. The Commissioner’s decision will be disturbed only if it is not supported by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995). In this context, the term “substantial evidence” means “more than a mere scintilla but less than a preponderance-it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to support the Commissioner’s decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257; Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

         IV. DISCUSSION

         A. Appointments Clause Challenge

         Because Mr. Samuels’s fifth issue implicates the validity of the underlying administrative proceeding, the Court addresses that matter first. Mr. Samuels argues that under Lucia v. Securities and Exchange Comm’n, 138 S.Ct. 2044 (2018), ALJ Mazzi was not properly appointed under the U.S. Constitution and therefore lacked authority to hear and decide his case. In Lucia, the Supreme Court held that ALJs of the Securities and Exchange Commission (“SEC”) are “‘Officers of the United States, ’ subject to the Appointments Clause” of the U.S. Constitution, which prescribes that such “Officers” may be appointed only by the President, a court of law, or a head of department. Id. at 2051, 2055. Therefore, the ALJ at issue in Lucia, who had been retained by SEC staff, was not properly appointed by the SEC.[5] Lucia, 138 S.Ct. at 2055. Where such constitutional challenges are timely made, the appropriate remedy is to provide a new hearing before a different ALJ that is properly appointed. Lucia, 138 S.Ct. at 2055 (“This Court has held that one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.”) (emphasis added; internal quotations and citation omitted).

         Here, Mr. Samuels argues that ALJs of the Social Security Administration (“Administration”) are like those of the SEC, noting that the Administration’s ALJs are appointed pursuant to 5 U.S.C. § 3105[6] and may preside over hearings, receive evidence, issue subpoenas for the appearance of parties or the production of records, and take testimony under oath, 20 C.F.R. § 404.950. While this Court does not foreclose the possibility that the Administration’s ALJs may be officers of the United States subject to the Appointments Clause, [7] Mr. Samuels has not presented facts or evidence establishing that ALJ Mazzi was, in fact, not properly appointed.

         Moreover, Lucia “only provides a remedy for timely challenges that were made during the administrative process.” Morrow v. Berryhill, No. C18-04641 WHA, 2019 WL 2009303, at *4 (N.D. Cal. May 7, 2019). “While the Ninth Circuit has not directly spoken on the issue of preserving challenges under Lucia in the social security context, it has confirmed the general proposition that a social security claimant must exhaust issues before the ALJ to preserve judicial review.” Camilli v. Berryhill, No. 18-cv-06322-JSC, 2019 WL 3412921, at *13 (N.D. Cal. July 29, 2019) (citing Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017)). Indeed, district courts, including those within this district, have declined to remand a matter when the claimant’s Appointments Clause challenge was not raised during the administrative proceedings. See, e.g., Camili, 2019 WL 3412921 at *13 (concluding that the plaintiff forfeited her Appointments Clause challenge where that claim was not made during the administrative proceedings); Morrow, 2019 WL 2009303 at *4 (same, noting that “nearly all district courts that have faced this issue have declined to remand when the Appointments Clause challenge was not exhausted during the administrative process.”); Allen v. Berryhill, No. 17-cv-03414-HSG, 2019 WL 1438845 at *13 (N.D. Cal. Mar. 31, 2019) (same). Here, the Commissioner argues that Mr. Samuels forfeited his Appointments Clause challenge because he did not raise it during the administrative proceedings.

         Mr. Samuels did not reply to the Commissioner’s argument. Nor did he directly address the forfeiture issue in his moving papers. In his opening brief, Mr. Samuels merely cites parenthetically to Jones Bros. v. Sec’y of Labor, 898 F.3d 669 (6th Cir. 2018), a case that concerned an Appointments Clause challenge to an ALJ of the Federal Mine Safety and Health Review Commission. In Jones Bros., the Sixth Circuit found that the claimant forfeited his Appointments Clause challenge by failing to raise it during the administrative proceedings, but nonetheless concluded that specific provisions of the Mine Act excused the forfeiture of the claim. Id. at 677-78. Applying Lucia, the Sixth Circuit concluded that the ALJ in question was not properly appointed, thus requiring remand for a new hearing with a properly appointed ALJ. Id. at 679. The analysis in Jones Bros., however, turns upon the particular statutory provisions of the Mine Act. Mr. Samuels fails to offer any argument or even discuss why Jones Bros., which is not binding on this Court, extends to ALJ Mazzi in the present Social Security context.

         In his reply brief, Mr. Samuels makes a passing reference to Sims v. Apfel, 530 U.S. 103 (2000), noting that “[a] claimant seeking judicial review does not waive any issues that were not raised before the Appeals Council.” Dkt. No. 34 at 1. As discussed, however, Mr. Samuels does not deny that he did not raise the Appointments Clause issue at any time during the underlying administrative proceedings. Any such challenge would seem to require the presentation of additional facts and evidence that were never presented below. In similar circumstances, courts have rejected the argument that Sims permits a plaintiff to challenge the ALJ’s appointment for the first time in proceedings before the District Court. See, e.g., Camili, 2019 WL 3412921 at *13; Allen, 2019 WL 1438845 at *13.

         On this issue, Mr. Samuels’s motion for summary judgment is denied, and the Commissioner’s cross-motion for summary judgment is granted.

         B. The ALJ’s Assessment of Medical Source Statements

         As discussed above, the ALJ determined that Mr. Samuels has the RFC to perform light work, except that he needs to avoid concentrated exposure to respiratory irritants and is restricted to simple, routine tasks equating to unskilled work. AR 32. In reaching that conclusion, the ALJ gave “little weight” to the opinion of Mr. Samuels’s treating psychiatrist, William Mains, M.D., who diagnosed Mr. Samuels with schizoaffective disorder, prescribed Risperdal and Vistaril, and opined that his impairments are disabling, independent of any drug or alcohol use. Instead, the ALJ adopted the assessment of the consultative examining psychologist, Faith Tobias, Ph.D., who questioned Dr. Mains’s diagnosis and his assertion that Mr. Samuels’s impairments would persist even during periods of sobriety. Dr. Tobias found that, for the most part, Mr. Samuels’s work abilities are not limited, or are only mildly restricted, by his mental impairments. Mr. Samuels argues that the ALJ’s RFC determination is incomplete because he did not provide sufficient reasons, supported by substantial evidence, for discounting Dr. Mains’s opinion. He further contends that the ALJ improperly rejected or ignored portions of Dr. Tobias’s report in which she noted that Mr. Samuels’s impairments impose moderate restrictions on some of his work abilities.

         1. William Mains, M.D.

         Dr. Mains began treating Mr. Samuels at the Telecare CHANGES clinic in early 2014. The record indicates that for the first year, Dr. Mains saw Mr. Samuels approximately once every two months, as well as several times in 2015 and in 2016. See, e.g., AR 523, 525-527, 530, 567-568, 633, 666, 939-942, 963, 1076, 1078. As noted above, Dr. Mains diagnosed Mr. Samuels with schizoaffective disorder and prescribed Risperdal and Vistaril. Id. at 669, 1011.

         On April 30, 2015, Dr. Mains completed a mental impairment questionnaire in which he noted that Mr. Samuels had an “okay response” to antipsychotic medications, “[g]ood mood control” and “persistent psychotic symptoms.” Id. at 669. Dr. Mains’s clinical findings included disorganized, concrete thought process and auditory hallucinations. He assessed Mr. Samuels’s prognosis as “Guarded.” Id. Dr. Mains identified the following signs and symptoms of mental impairment: anhedonia; decreased energy; blunt, flat or inappropriate affect; poverty of content of speech; generalized persistent anxiety; difficulty thinking or concentrating; persistent mood or affect disturbances; seclusiveness or autistic thinking; emotional withdrawal or isolation; perceptual or thinking disturbances; hallucinations or delusions; and deeply ingrained, maladaptive behavior patterns. Id. at 670. With respect to functional limitations, Dr. Mains found that Mr. Samuels has mild restrictions in activities of daily living; marked limitations in maintaining concentration, persistence, or pace; and extreme difficulties in maintaining social functioning. Id. at 673. Dr. Mains noted that Mr. Samuels had repeated episodes of decompensation of at least two weeks duration within the last 12-month period preceding his assessment. Id. He also checked boxes on the assessment form indicating that Mr. Samuels has a medically documented history of chronic mental health disorders, lasting at least two years, that have caused more than a minimal limitation of ability to do any basic work activity, as well as a “[c]urrent history of 1 or more years’ inability to function outside a highly supportive living arrangement with an indication of continued need for such an arrangement.” Id.

         Dr. Mains found that Mr. Samuels would miss at least five days of work per month due to his impairments and would be “off-task” or precluded from performing a job more than 30% of the time during an eight-hour day, five days per week. Id. at 674. Dr. Mains further stated that Mr. Samuels’s impairments could be expected to last at least 12 months. Id. Although he noted that Mr. Samuels (who has a history of drug use) was not currently abusing alcohol or drugs, Dr. Mains stated that Mr. Samuels’s impairments would still be disabling independent of any drug or alcohol use. Id.

         On March 30, 2016, Dr. Mains wrote a letter reaffirming his assessment as stated in his April 30, 2015 mental impairment questionnaire. Id. at 1011. Noting that his assessment “was based on the fact that Mr. Samuels resided in a highly structured supported living environment which reduced the severity of some of his symptoms, ” Dr. Mains stated that “Mr. Samuels’s symptoms and functional impairments would worsen if he were no longer living in a supported environment.” Id. Dr. Mains opined that Mr. Samuels’s mental health symptoms and functional limitations “persist even during periods of sobriety”; that his “mental impairments would still be disabling without drug/alcohol abuse”; and that his “psychiatric symptoms are independent of drug and alcohol use.” Id.

         2.Faith ...


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