Ramos v. Berryhill

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 18-24519-Civ-TORRES

MARIA C. RAMOS,

Plaintiff,

v.

ANDREW SAUL,

Commissioner of Social

Security Administration,

Defendant.

__________________________________________/

ORDER ON THE PARTIES’

CROSS MOTIONS FOR SUMMARY JUDGMENT

This matter is before the Court on the parties’ cross motions for summary

judgment filed by Maria C. Ramos (“Plaintiff”) [D.E. 23] and Andrew Saul, the

Commissioner of the Social Security Administration (“Defendant” or the

“Government”) [D.E. 24] on whether the Administrative Law Judge (the “ALJ”) was

an appointed officer as required under the United Constitution.1 Under the limited

standard of review that governs this case, Plaintiff’s motion for summary judgment

[D.E. 23] is DENIED, Defendant’s motion for summary judgment [D.E. 24] is

GRANTED, and the ALJ’s decision is AFFIRMED.

1 On November 1, 2019, the parties consented to the jurisdiction of the

undersigned Magistrate Judge for disposition. [D.E. 14].

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I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was born on January 20, 1956 and alleges that she has been disabled

since January 1, 2012. On October 13, 2013 and May 5, 2016, Plaintiff filed an

application for Social Security benefits because she has been unable to work due to

obesity, diabetes, and osteoarthritis. The Social Security Agency denied Plaintiff’s

application at the initial and reconsideration levels. Plaintiff then requested a

hearing before an ALJ that took place on August 8, 2016.

The ALJ issued an unfavorable decision on August 23, 2016. Plaintiff later

filed a request for review with the Appeals Council the (“AC”) and the AC remanded

the back to the ALJ. A second hearing then took place on December 19, 2017 and

the ALJ issued a second decision on April 19, 2018, finding again that Plaintiff was

not disabled.

The ALJ found at step one of the sequential process that Plaintiff had not

engaged in substantial benefit activity since January 1, 2012. At step two, the ALJ

determined that Plaintiff had the severe impairments of obesity, diabetes,

osteoarthritis, bilateral knee osteoarthritis, and degenerative disc of the lumbar

spine. The ALJ found, however, at step three that Plaintiff did not have an

impairment that met or medically equaled a listed impairment. As part of the

analysis that followed, the ALJ found that Plaintiff retained the residual functional

capacity (“RFC”) to perform:

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[L]ight work as defined in 20 CFR 416.967(b) and 416.967(b) except the

claimant can stand and/or walk for about 4 hours and sit for up to 6

hours in an 8-houe workday, with normal breaks. She can never climb

adders, ropes or scaffolds. The claimant can occasionally climb ramps

and stairs, balance, stoop, kneel, crouch, and crawl. She can

occasionally be exposed to extreme cold, vibration, and hazards. The

claimant may use a cane to ambulate to get to and from the

workstation.

[D.E. 13 at 39].

Proceeding to step four, the ALJ evaluated the medical evidence in the record

and determined that Plaintiff could perform prior work as a file clerk. The ALJ did

not make an alternative step five finding. Following the ALJ’s unfavorable

decision, Plaintiff requested further review, but the Appeals Council denied that

request. Plaintiff then filed this action seeking judicial review of the

administrative proceedings pursuant to 42 U.S.C. § 405(g). Accordingly, this action

is now ripe for disposition.

II. STANDARD OF REVIEW

Judicial review of an ALJ’s final decision is limited to an inquiry into whether

there is substantial evidence in the record to support the ALJ’s findings, and

whether the correct legal standards were applied. See 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389, 401 (1971); Kelley v. Apfel, 185 F.3d 1211, 1212

(11th Cir. 1999). “Substantial evidence is more than a scintilla, but less than a

preponderance. It is such relevant evidence as a reasonable person would accept as

adequate to support a conclusion.” Bloodsworth v. Heckler, 703 F.2d 1233, 1239

(11th Cir. 1983) (citing Richardson, 402 U.S. at 401); see also Miles v. Chater, 84

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F.3d 1397, 1400 (11th Cir. 1996)).

In testing for substantial evidence, the court is not to “reweigh the evidence”

or “decide the facts anew.” Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178

(11th Cir. 2011) (citing another case). Instead, so long as the ALJ’s findings are

supported by substantial evidence, they are conclusive, and we must defer to the

ALJ’s decision even if the evidence may preponderate against it. See Crawford v.

Comm’r of Soc. Sec., 363 F.3d 1155, 1158-59 (11th Cir. 2004); see also Hunter v. Soc.

Sec. Admin., Comm’r, 808 F.3d 818, 822 (11th Cir. 2015) (“In determining whether

substantial evidence supports a decision, we give great deference to the ALJ’s

factfindings.”); Miles, 84 F.3d at 1400; 42 U.S.C. § 405(g). However, no

presumption of validity attaches to the Commissioner’s conclusions of law. See

Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). The Court also reviews

the ALJ’s decision to determine whether the correct legal standards were applied.

See Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997). In this respect, “the

ALJ has a basic obligation to develop a full and fair record,” as a hearing before an

ALJ is not an adversary proceeding. Id. (citing another source).

Ultimately, it is the function of the Commissioner to resolve conflicts in the

evidence and to assess the credibility of the witnesses. See Grant v. Richardson,

445 F.2d 656 (5th Cir. 1971). It is also the responsibility of the Commissioner to

draw inferences from the evidence, and those inferences cannot be overturned if they

are supported by substantial evidence. See Celebrezze v. O’Brient, 323 F.2d 989, 990

(5th Cir. 1963). In determining whether the Commissioner’s decision is supported

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by substantial evidence, a court is not to re-weigh the evidence anew. Rather, a

court is limited to determining whether the record as a whole contains sufficient

evidence to permit a reasonable mind to conclude that the claimant is not disabled.

If a decision is supported by substantial evidence, we must affirm even if the proof

preponderates against it. Therefore, a court’s responsibility is to ensure that the

proper legal standards were applied. See Lamb v. Bowen, 847 F.2d 698, 701 (11th

Cir. 1988).

III. ANALYSIS

A disability is defined as 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 is expected to last for

a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The

claimant bears the burden of producing evidence that proves he or she meets this

statutory definition. “The social security regulations establish a five-step

evaluation process, which is used to determine disability for both SSI and DIB

claims” and “[t]hese regulations place[] a very heavy burden on the claimant to

demonstrate both a qualifying disability and an inability to perform past relevant

work.” Moore v. Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005) (citing Spencer v.

Heckler, 765 F.2d 1090, 1093 (11th Cir. 1985)). The steps are followed in order to

determine if the claimant is disabled. “If the Commissioner’s decision is supported

by substantial evidence we must affirm, even if the proof preponderates against it.”

Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004) (internal quotation

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and citation omitted).

The ALJ must first determine whether the claimant is presently employed.

If so, a finding of non-disability is made and the inquiry ends. See 20 C.F.R. §

404.1520(b). In the second step, the ALJ must determine whether the claimant

suffers from a severe impairment or combination of impairments. If the ALJ does

not make such a finding, then the inquiry ends. See 20 C.F.R. § 404.1520(c). At

step three, the ALJ compares the claimant’s impairments with specific impairments

under the regulations that require a finding of disability without further inquiry into

the claimant’s ability to perform other work. See Gibson v. Heckler, 762 F.2d 1516,

1518 (11th Cir. 1985) (“Certain impairments are so severe either when considered

alone or in conjunction with other impairments that, if such impairments are

proved, the regulations require a finding of disability without further inquiry into

the claimant's ability to work.”). If the claimant’s impairment meets or equals a

listed impairment, the claimant’s disability is presumed, and benefits are awarded.

See 20 C.F.R. § 404.1520(d).

Step four involves a determination of whether the impairments prevent the

claimant from performing past relevant work. If the claimant cannot perform past

relevant work, then a prima facie case of disability is established. The ALJ

assesses a claimant’s RFC at this stage, based on all of the other relevant evidence,

to determine the extent of a claimant’s ability to work despite the alleged

impairments. See 20 C.F.R. § 416.945(a)(1). A claimant’s RFC is an

administrative finding of fact concerning the claimant’s maximum remaining

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capacity to perform work-related physical and mental activities on a regular and

continuing basis despite the functional limitations and environmental restrictions

imposed by his or her medically determinable impairment(s). See 20 C.F.R. §

404.1545 (“Residual functional capacity assessment. Your impairment(s), and any

related symptoms, such as pain, may cause physical and mental limitations that

affect what you can do in a work setting. Your residual functional capacity is the

most you can still do despite your limitations.”).

When making this finding, the ALJ is required to identify the limitations

and/or restrictions imposed by the claimant’s impairments and then assess his or her

work-related abilities on a function-by-function basis. Only upon the conclusion of

this function-by-function analysis may an ALJ express a claimant’s RFC in terms of

the exertional levels of work, i.e., sedentary, light, medium, heavy, and very heavy.

This leads to step five – the final inquiry – where the burden shifts to the

Commissioner to show that there is other work available in the national economy

that the claimant can perform. See 20 C.F.R. § 404.1520(e)-(f).

Plaintiff raises only one challenge on appeal with respect to the unfavorable

decision in that the ALJ and the Appeals Council were unauthorized to act as

administrative judges in this case because they were not appointed in a method

permissible for officers of the United States. Plaintiff relies primarily on the U.S.

Supreme Court’s decision in Lucia v. SEC, 138 S. Ct. 2044, 2051 (2018), where the

Court held that ALJs employed with the Securities and Exchange Commission

(“SEC”) are officers of the United States and are subject to the Appointments

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Clause.2 Plaintiff claims that the ALJ’s decision cannot stand because other staff

members – as opposed to the Commissioner – selected the administrative judges in

this case and that the Commissioner did not approve of these appointments until

July 16, 2018. Plaintiff also states that she timely raised this issue on September

22, 2016, but that the Appeals Council ignored that argument and remanded this

case back to the same ALJ. Because all of the administrative judges, including the

one in this case, issued decisions without having been appointed in a manner

permissible under the Appointments Clause, Plaintiff concludes that the ALJ’s

decision must be reversed and remanded to the Commissioner for a new hearing.

The Government’s response is that Plaintiff’s motion is feeble because this is

the first time that she has ever raised this argument. Although Plaintiff contends

that she raised it in the administrative proceedings, the Government states that she

fails to point to anything in the record where she did so and that her failure to raise

it forfeits her claim. Instead, the Government asserts that Plaintiff only stated in

the underlying proceedings that her requests for review were “presented without

waiver of any other contentions under the Appeals Council’s optional procedures for

submitting arguments in this non-adversary fact-finding proceeding.” [Tr. at 423,

516, 518, 557]. The Government takes issue with this catchall statement because

it lacks any specificity as to what Plaintiff sought to challenge. Because this

objection is insufficient to put anyone on notice that Plaintiff sought to challenge the

2 Pursuant to the Appointments Clause of the United States Constitution,

“Officers of the United States” may only be appointed by the President, “Courts of

Law,” or “Heads of Departments.” U.S. CONST. Art. II., § 2, cl. 2.

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appointment of the administrative judges and Lucia requires that a claimant make

a “timely challenge to the constitutional validity of [an] appointment”, the

Government reasons that ALJ’s decision must be affirmed. Lucia, 138 S. Ct. at

2055) (citing Ryder v. United States, 515 U.S. 177, 182–183 (1995)).

We begin with a brief review of the Supreme Court’s decision in Lucia.

There, the Supreme Court addressed an Appointments Clause challenge to an ALJ

appointed by the Securities and Exchange Commission. Lucia, 138 S. Ct. at

2049-50. Lucia faced charges of misleading investors in connection with the sale of

retirement products. Id. at 2050. During the administrative hearing that

followed, the SEC ALJ found that Lucia’s products were, in fact, misleading,

required Lucia to pay substantial fines, and permanently banned Lucia from

working in the investment industry. Id. Lucia appealed the ALJ’s unfavorable

decision to the SEC, arguing that the ALJ had not been properly appointed under

the Appointments Clause. Id.

After losing that appeal, Lucia sued in federal court, challenging the penalties

imposed by the SEC ALJ and reiterating his earlier Appointments Clause argument.

Id. The D.C. Circuit Court of Appeals denied the challenge. Thereafter, the

Supreme Court heard the case, reversed the decision, and remanded the case so that

Lucia’s agency appeal could be heard by a different ALJ who had been properly

appointed under the Appointments Clause. Id. at 2055. The Supreme Court in

Lucia did not specifically address the constitutionality of the appointment of ALJs

working for other federal agencies, including the Social Security Administration

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(“SSA”). Nonetheless, following Lucia, Social Security claimants – like the one in

this case – have challenged the status of SSA ALJs under the Appointments Clause.

See, e.g., Gagliardi v. Social Security Administration, No. 0:18-CV-62106, at ECF

No. 35 (S.D. Fla. Jan. 17, 2020), report and recommendation adopted, No.

0:18-CV-62106, at ECF No. 38 (S.D. Fla. Feb. 28, 2020) (appeal filed Feb. 28, 2020).

Plaintiff makes the same argument here in that Lucia applies to Social

Security ALJs, requiring this Court to vacate the current ALJ’s Decision and

remand the case to a different ALJ appointed in accordance with the Appointments

Clause.3 Plaintiff’s motion lacks merit because, long before Lucia, there has been a

well-established principle that Appointments Clause challenges must be timely

made before an ALJ renders a decision. Indeed, in Ryder v. United States, the

Supreme Court found that a claimant must make “a timely challenge to the

constitutional validity of the appointment of an officer who adjudicates [her] case is

entitled to a decision on the merits,” because otherwise there would be “a

disincentive to raise Appointments Clause challenges with respect to questionable

judicial appointments.” 515 U.S. at 182-83. Moreover, “regularly permitting

3 We note that the Supreme Court in Lucia did not make a blanket finding that

all ALJs are subject to the Appointments Clause, but only those ALJs working for

the SEC. At the time of the Supreme Court’s decision, the SEC had only five ALJs,

see Lucia, 138 S. Ct. at 2049, whereas there are over 1,700 SSA ALJs. The SSA

conducts hundreds of thousands of hearings and adjudicates hundreds of thousands

of disability claims each year. If courts were to apply Lucia to Social Security

cases as Plaintiff argues this Court should, millions of cases would need be

remanded for rehearing to a different ALJ. Given these important efficiency

concerns and the Supreme Court’s specific findings in Lucia, the Court is skeptical

that Lucia is even controlling as to SSA ALJs.

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unsuccessful claimants to raise [Appointments Clause] challenges for the first time

on judicial review would encourage the practice of ‘sandbagging:’ suggesting or

permitting, for strategic reasons, that the [adjudicative entity] pursue a certain

course, and later – if the outcome is unfavorable – claiming that the course followed

was reversible error.” Muhammad v. Berryhill, 381 F. Supp. 3d 462, 469-70 (E.D.

Pa. 2019) (quoting Freytag v. Comm’r, 501 U.S. 868, 895 (1991)); see also Gutierrez

v. Berryhill, 2019 WL 2240602, at *4 (D. Mont. May 24, 2019) (concluding that

failure to raise an Appointments Clause objection during claimant’s administrative

proceedings precludes claimant from raising the issue on judicial review).

Against this backdrop, Plaintiff has forfeited her Appointments Clause

challenge because she did not present this issue during the administrative

proceedings. This is a position that federal courts have consistently adopted

because an Appointments Clause challenge must be raised before an ALJ’s decision

becomes final at the administrative level. See, e.g., Perez v. Berryhill, 2019 WL

1405642, at *4 (S.D. Fla. Mar. 28, 2019) (rejecting as untimely claimant’s

Appointments Clause argument raised for the first time before the district court)

(relying on Lucia, 138 S. Ct. at 2055 and Ryder, 515 U.S. at 182-83); Parker v.

Berryhill, 2019 WL 3097511, at *10-11 (S.D. Fla. July 15, 2019) (rejecting same

argument, explaining that “[a]lthough the Eleventh Circuit has yet to decide this

issue, the courts within this circuit have held that an Appointments Clause

challenge, in the context of social security disability proceedings, is nonjurisdictional

and must be raised at the administrative level”); Lopez v. Berryhill, 2019 WL

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1429632, at *5-7 (S.D. Fla. Mar. 29, 2019) (explaining that if plaintiff “truly wished

to raise an Appointments Clause challenge, Lucia and Ryder require[d] her to have

done so either during the proceedings before [the] ALJ . . . or to the Appeals’ Council

after the ALJ issued his decision”).4

To the extent Plaintiff suggests that she failed to raise such a challenge

because the Lucia decision was rendered on June 21, 2018 and the ALJ’s decision

was determined two months earlier on April 19, 2018, both Ryder and Lucia are fatal

to this argument. In Ryder, the petitioner – a member of the United States Coast

Guard – challenged his conviction by court martial. See Ryder, 515 U.S. at 179.

He appealed the conviction to the Coast Guard’s Court of Military Review, raising

an Appointments Clause challenge to the composition of the issuing court. Id. at

179. After the Court of Military Review rejected his Appointments Clause

challenge and largely affirmed his conviction, Ryder appealed to the United States

Court of Military Appeals, which agreed that two of the three judges on the Court of

Military Review panel had been appointed in violation of the Appointments Clause.

The administrative appeals court nevertheless affirmed Ryder's conviction, ruling

4 See also Jones v. Berryhill, 2019 WL 2583157, at *7-8 (N.D. Fla. June 21,

2019) (finding that claimant forfeited her Appointments Clause challenge by failing

to raise it at any point during the administrative process, and commenting that

“post-Sims cases have found that although Sims held that a Plaintiff need not

exhaust an issue before the Appeals Council, the Court ‘specifically left open the

question of whether an issue is waived if it is not raised in the administrative

hearing’ ”); Valle-Roman v. Comm’r of Soc. Sec., 2019 WL 1281171, at *2 (M.D. Fla.

Mar. 20, 2019) (holding that plaintiff’s failure to raise Appointments Clause issue at

the administrative level is “fatal” to her claim because “[a]ny challenge to the

constitutional validity of the ALJ’s appointment that was not first raised at the

administrative level is rejected as untimely”).

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the actions of these judges were de facto valid. Id. at 179-80. The Supreme Court

reversed, finding that the lower court erred when it accorded “de facto validity to the

actions of the civilian judges of the Court Guard Court of Military Review.” Id. at

188. In doing so, the Court took note that “petitioner challenged the composition of

the Coast Guard Court of Military Review while his case was pending before that

court on direct review” and “raised his objection to the judges' titles before those

very judges and prior to their action on his case.” Thus, in Ryder – which

pre-dated Lucia by more than twenty years – the petitioner challenged the

appointment of the military officers in the administrative proceedings, just as

Plaintiff was free to do here.

Likewise, in Lucia, the Court held that the petitioner had raised a “timely”

challenge to the appointment of the ALJ who heard his case because he first raised

the issue during the administrative proceedings that took place before the

SEC. Lucia, 138 S.Ct. at 2055. Lucia then re-asserted the claim to both the

federal appellate court and the Supreme Court on appeal. Id. Therefore, the

petitioners in Ryder and Lucia both raised their Appointments Clause challenges at

the administrative level, before the very “entities utilizing the deficiently appointed

official or officials.” Abington v. Berryhill, 2018 WL 6571208, at *2 (S.D. Ala. Dec.

13, 2018). The impact of the timing of the Lucia decision was not the determining

factor in both of those cases, so Plaintiff’s argument must be rejected here.

As a final attempt to overturn the ALJ’s decision, Plaintiff suggests that she

raised a boilerplate objection during the administrative proceedings and that any

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arguments that could have been raised were preserved for further review. This too

is a weak argument because it is entirely unclear how Plaintiff raised an issue with

Appointments Clause if she only did so with a boilerplate, vague, and conclusory

objection. Indeed, the statement she made gave no indication that she ever took

issue with the appointment of any administrative judge and she cannot, in

retrospect, try to fit this issue into a catchall objection now that the ALJ has found

her not disabled. If the rule was that simple, any claimant could make a catchall

objection, lose the underlying proceedings, and then develop new arguments on

appeal with the hope of overturning an ALJ’s decision. Plaintiff’s objection is akin

to no objection at all because it fails to give any notice to the Government, the ALJ,

or the Appeals Council that this was an issue during the administrative proceedings.

See Alacare Home Health Servs., Inc. v. Sullivan, 891 F.2d 850, 855 n.5 (11th Cir.

1990) (“[T]he government responds correctly by stating that an argument not raised

in an administrative hearing cannot be raised on appeal.”) (citing United States v.

Tucker Truck Lines, 344 U.S. 33, 35-36 (1952); Beale v. Blount, 461 F.2d 1133, 1140

(5th Cir. 1972) (appellant could not allege that disciplinary dismissal was due to

race where he did not raise this claim at administrative level)).

Because Plaintiff has failed to identify a single case that has allowed a

claimant to rely on a vague objection to preserve an argument that should have been

presented before an ALJ and Plaintiff has otherwise failed to timely present this

contention during the underlying proceedings, Plaintiff’s motion for summary

judgment [D.E. 23] is DENIED, Defendant’s motion for summary judgment [D.E.

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24] is GRANTED, and the ALJ’s decision is AFFIRMED.5

IV. CONCLUSION

For the foregoing reasons, Plaintiff’s motion for summary judgment [D.E. 23]

is DENIED, Defendant’s motion for summary judgment [D.E. 24] is GRANTED,

and the ALJ’s decision is AFFIRMED. Judgment is entered in favor of the

Government, and this action is now CLOSED.

DONE AND ORDERED in Chambers at Miami, Florida, this 22nd day of

July, 2020.

/s/ Edwin G. Torres

EDWIN G. TORRES

United States Magistrate Judge

5 Plaintiff does not challenge any other component of the ALJ’s decision and

therefore any argument not raised is deemed waived for purposes of this appeal.

See, e.g., Robinson v. Astrue, 235 F. App’x 725 (11th Cir. 2007) (holding

claimant waived argument that ALJ failed to fully develop record when that

argument was not raised in the district court); Hamilton v. Southland Christian

Sch., Inc., 680 F.3d 1316, 1318-19 (11th Cir. 2012) (explaining that a party waives an

argument not raised in his appeal brief and that a passing reference to an issue is

insufficient to preserve the issue).

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