United States District Court, N.D. California, San Jose Division
RE CROSS-MOTIONS FOR SUMMARY JUDGMENT RE: DKT. NOS. 20,
VIRGINIA K. DEMARCHI UNITED STATES MAGISTRATE JUDGE.
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.
STANDARD FOR DETERMINING DISABILITY
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).
determining whether a claimant has a disability within the
meaning of the Act, an ALJ follows a five-step sequential
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.
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.
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.
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.
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.
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).
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 due to post-traumatic stress
disorder, schizophrenia, a growth in his chest, and a history
of drug use. AR 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.
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.
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.
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.
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
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.
Appointments Clause Challenge
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. 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).
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 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,  Mr. Samuels has
not presented facts or evidence establishing that ALJ Mazzi
was, in fact, not properly appointed.
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.
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.
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.
issue, Mr. Samuels’s motion for summary judgment is
denied, and the Commissioner’s cross-motion for summary
judgment is granted.
The ALJ’s Assessment of Medical Source
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
William Mains, M.D.
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.
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.
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.
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.