HERNANDEZ v. COMMISSIONER OF SOCIAL SECURITY

*NOT FOR PUBLICATION*

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

VICTORIA GARRIDO HERNANDEZ,

Plaintiff,

Civil Action No. 22-01556(FLW)

v.

KILOLO KIJAKAZI, OPINION

Commissioner of Social Security,

Defendant.

WOLFSON, Chief Judge:

Victoria Garrido Hernandez (“Plaintiff”) appeals from the final decision of the Acting

Commissioner of Social Security, Kilolo Kijakazi (“Defendant”), denying Plaintiff’s application

for disability under Title II of the Social Security Act (the “Act”). After reviewing the

Administrative Record (A.R.), the Court finds that the Administrative Law Judge’s (“ALJ”)

decision was based on substantial evidence, and accordingly, the ALJ’s decision is AFFIRMED.

I. FACTUAL AND PROCEDURAL HISTORY

Plaintiff, born on November 21, 1956, was 61 years old on July 12, 2018, the alleged onset

date of her disability. (A.R. 17, 29, 207.) Plaintiff has a college education and has past relevant

work as a nurse supervisor and general nurse. (A.R. 28, 62–63, 211, 228, 998.) On July 31, 2018,

Plaintiff filed a Title II application for a disability and disability insurance benefits due to choroidal

osteoma, frequent nose bleeds, thyroid cancer, malignant hypertension, chronic pain and fatigue,

systemic lupus erythematosus, rheumatoid arthritis, depression, anxiety, and stress. (A.R. 15, 210.)

Plaintiff’s application was denied initially on February 9, 2019, and again upon

reconsideration on May 13, 2019. (A.R. 15.) Plaintiff then filed a written request for a hearing

before an administrative law judge, which was held on September 29, 2020, before Jennifer

Pustizzi. (A.R. 15, 41.) On January 12, 2021, the ALJ determined Plaintiff was not disabled under

the meaning of the Social Security Act from July 12, 2018 through January 21, 2021. (A.R. 15–

16.) Plaintiff requested review of the ALJ’s decision by the Appeals Council, which was denied

on January 25, 2022. (A.R. 1.) Thereafter, Plaintiff filed the instant appeal on March 20, 2022.

(ECF No. 1.)

A. Review of Mental Health Evidence1

i. Plaintiff’s Hearing Testimony

At the September 29, 2020 hearing before the ALJ, Plaintiff testified regarding her mental

health treatment. Plaintiff testified that she had previously been prescribed and had taken Cymbalta

because it was effective for her depression and for pain. (A.R. 51.) However, Plaintiff explained

that she stopped taking Cymbalta because she experienced hallucinations as a side effect and has

not taken any other medications for her mental health issues since. (A.R. 51.) Plaintiff also stated

that she did not see any type of therapist or counselor for depression or anxiety. (A.R. 52.) In

addition, Plaintiff testified that she tries to go on walks each day with her husband for about three

miles total, taking a break after about one mile. (A.R. 51, 59.)

ii. Plaintiff’s Function Report

Plaintiff completed a function report on September 11, 2018 (“Function Report”). In her

report, Plaintiff stated that her daily activities include spending time taking care of her dog and

1 Plaintiff's appeal relates to the ALJ’s consideration of her mental health impairments. As such, the Court recitation

and review of the facts focus on evidence regarding Plaintiff’s mental health.

doing housework. (A.R. 235–236, 247.) Plaintiff reported no problems with personal care, (A.R.

235), and noted that she can drive, shop in stores for food, handle financial tasks, and prepares

meals approximately twice a week. (A.R. 236, 237.) Socially, Plaintiff reported that she does not

do many activities, but does attend church every week. (A.R. 238.) Plaintiff stated that she has no

problem getting along with authority figures nor has she ever been fired from a job due to issues

getting along with other people. (A.R. 240.) In terms of abilities, while Plaintiff reported some

issues with memory and concentration, she has no problem following instructions, handling

changes in her routine, and finishing what she starts. (A.R. 238–40.) Plaintiff did report fears of

dying in her sleep. (A.R. 240.)

iii. Consultative Mental Status Examination with Victoria C. Miller, Ph.D.

On January 17, 2019, psychologist Victoria C. Miller, Ph.D., conducted a mental status

examination of Plaintiff, during which she diagnosed Plaintiff with adjustment disorder with mixed

anxiety and depressed mood. (A.R. 1007–08.)

During the examination, Dr. Miller observed that Plaintiff was pleasant and cooperative,

was alert and fully oriented, had normal motor behavior, and had fair judgment, insight and

impulse control. (A.R. 1008.) Plaintiff also stated that she did not have thoughts of wanting to

harm herself or anyone else. (Id.)

In terms of Plaintiff’s mental health history, Plaintiff stated that she was briefly treated in

the past with Cymbalta, but she had side effects from it, such as hallucinations, and she did not

pursue other medications to address her issues with mood. (A.R. 1007.) Plaintiff explained that

she had not pursued psychotherapy because she had a good support system through her husband

and one of her sons. (A.R. 1007–08.) Plaintiff reported issues with anxiety and dysphoria

stemming from increasing stress from her job as a nurse. (A.R. 1007.) She also reported issues

with fatigue and diminished energy, as well as additional stress due to ongoing discord in her

relationship with one of her sons. (Id.) She denied a history of major depression, hospitalizations,

hallucinations, or delusions. She also stated that she had never suffered mania, paranoia, or

impulses towards violence. (Id.)

In terms of Plaintiff’s abilities, Dr. Miller found that Plaintiff had mild concentration

problems with active working memory, but there were no indications of any active thought

disorder. (A.R. 1008.) Dr. Miller conducted several mental exercises with Plaintiff. (Id.) For

instance, Plaintiff could name current and former presidents, could spell the word “world”

forwards and backwards, completed five trials of serial sevens with no errors, recalled three items

immediately after a delay. (Id.) Plaintiff, in recalling six digits forwards, reversed three digits

backwards. (Id.) Dr. Miller also noted that Plaintiff had adequate mentation and skills sufficient to

manage her own funds without the need for support. (Id.)

In terms of Plaintiff’s daily activities, Dr. Miller reported that Plaintiff spends her time at

home caring for her dog, attending to personal care without assistance, and housework with

accommodations. (A.R. 1008.) Plaintiff reported that she was learning to cook and that her

husband does most of the shopping. Plaintiff stated that she can drive, but avoids doing so at night

due to vision problems. (Id.) Socially, Plaintiff reported that she had regular contact with old

coworkers and friends, and that her husband and son are good support for her. Plaintiff also

reported issues sleeping. (Id.)

iv. State Agency Opinions

State-agency psychology consultants, Cheryl Sanford, Ph.D. and Crystal M. Duclos,

Psy.D., reviewed the record on separate occasions in January 2019 and May 2019, respectively.

On January 30, 2019, Dr. Sanford found that Plaintiff had only mild limitations in

concentration, persistence, or maintaining pace. (A.R. 84–85.) Dr. Sanford opined that there was

sufficient evidence to support a finding of a non-severe mental impairment. (A.R. 85.) Dr. Sanford

reasoned that Plaintiff’s mental symptoms, while present, did not significantly impede functioning,

and further opined that Plaintiff retained the ability to understand, remember, apply information

and sustain concentration, persistence, and pace to fulfill the mental demands of tasks. (Id.)

Thereafter, on May 8, 2019, Dr. Duclos affirmed Dr. Sanford’s prior decision and noted

that Plaintiff, on reconsideration, did not allege changes in her mental conditions or provide any

new mental medical sources. (A.R. 100.)

B. The ALJ’s Findings

On January 12, 2021, the ALJ issued a written decision analyzing whether Plaintiff

satisfied her burden of demonstrating disability using the standard five-step process.

At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since July 12, 2018. (A.R. 17.) At step two, the ALJ found that Plaintiff suffered from the following

severe impairments: rheumatoid arthritis, systemic lupus erythematosus, and degenerative disc

disease. (A.R. 18.) Regarding Plaintiff’s medically determinable mental impairments of

adjustment disorder and anxiety disorder, the ALJ found they did not cause more than minimal

limitation in Plaintiff’s ability to perform basic mental work activities and consequently, were non-

severe. (A.R. 19.) In making this finding, the ALJ considered the four broad areas of mental

functioning, also known as the “paragraph B” criteria, set out in the regulations: (1) understanding,

remembering, or applying information; (2) interacting with others; (3) concentrating, persisting,

or maintaining pace; (4) adapting or managing oneself. (A.R. 19–21.) For understanding,

remembering, or applying information, the ALJ found Plaintiff had a mild limitation, based on

evidence from her consultative mental status examination. (A.R. 20.) For interacting with others,

the ALJ found Plaintiff had a mild limitation, based on evidence from her consultative mental

status examination and her Function Report. (Id.) With respect to concentrating, persisting, or

maintaining pace, the ALJ found Plaintiff had a mild limitation due to evidence of mild

concentration issues from her consultative mental status examination. (Id.) Finally, the ALJ found

Plaintiff had no limitation in adapting or managing herself based on her independent ability to

handle her personal care, clean her house, drive and, cook, evidenced from her consultative mental

status examination and her Function Report. (Id.)

Before proceeding to step three, the ALJ noted her findings at step two were not an

assessment of Plaintiff’s residual functional capacity (“RFC”), but would still be considered in

formulating the RFC:

The limitations identified in the “paragraph B” criteria are not a residual functional capacity

assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the

sequential evaluation process. The mental residual functional capacity assessment used at

steps 4 and 5 of the sequential evaluation process requires a more detailed assessment. The

following residual functional capacity assessment reflects the degree of limitation the

undersigned has found in the “paragraph B” mental function analysis.

(A.R. 21.) At step three, the ALJ found that none of these mental-related impairments, or

any combination of these impairments, met or medically equaled the severity of any listed

impairments in 20 C.F.R. Pt. 404, Subpt. P., App. 1 (the “Impairment List”). (A.R. 18–21.) At step

four, the ALJ found that Plaintiff had the RFC to perform light work as defined by 20 C.F.R. §

404.1567(b), with modifications. (A.R. 21.) Light work is defined in the regulations as follows:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or

carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very

little, a job is in this category when it requires a good deal of walking or standing, or when

it involves sitting most of the time with some pushing and pulling of arm or leg controls.

To be considered capable of performing a full or wide range of light work, you must have

the ability to do substantially all of these activities. If someone can do light work, we

determine that he or she can also do sedentary work, unless there are additional limiting

factors such as loss of fine dexterity or inability to sit for long periods of time.

20 C.F.R. § 404.1567(b). The ALJ noted the following modifications: “can lift and carry a

maximum of 15 pounds; can occasionally climb ramps and stairs; cannot ever climb ladders, ropes,

or scaffolds; and can occasionally balance, stoop, kneel, crouch and crawl.” (A.R. 21.) This RFC,

the ALJ found, was insufficient to meet the requirements of Plaintiff’s past relevant work as a head

nurse, which Plaintiff performed at a medium exertional level. (A.R. 28.) The ALJ’s RFC

determination was based on consideration of “all [Plaintiff’s] symptoms and the extent to which

these symptoms can reasonably be accepted as consistent with the objective medical evidence and

other evidence”. (A.R. 21.) The ALJ determined that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged symptoms; however, [Plaintiff’s]

statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record” and, thus, “[b]ased

on the evidence in the record”, “[Plaintiff] is capable of performing light exertional level work.”

(A.R. 27–28.)

At step five, the ALJ found that there are jobs existing in significant numbers in the national

economy which Plaintiff can perform, given her age, education, work experience, and residual

functional capacity. (A.R. 29–30.) Based on the testimony of the Vocational Expert (“VE”) and

considering the above factors in addition to the limitations of Plaintiff’s RFC, the ALJ found that

Plaintiff had transferable work skills from her past relevant work that were transferable to various

occupations such as Office Nurse, Nurse Supervisor, and School Nurse. (A.R. 30.) Thus, Plaintiff

would be capable of successfully adjusting to other work that exists in significant numbers in the

national economy. (Id.) The ALJ concluded that Plaintiff had not been under a disability, as defined

in the Act, from July 12, 2018, through the date of her decision on January 12, 2021. (Id.)

II. STANDARD OF REVIEW

On a review of a final decision of the Commissioner of the Social Security Administration

(“SSA”), a district court “shall have power to enter, upon the pleadings and transcript of the record,

a judgment affirming, modifying, or reversing the decision of the Commissioner of Social

Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g); see Matthews

v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Commissioner's decisions regarding questions of

fact are deemed conclusive on a reviewing court if supported by “substantial evidence in the

record.” 42 U.S.C. § 405(g); see Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). While the court

must examine the record in its entirety for purposes of determining whether the Commissioner's

findings are supported by substantial evidence, Gober v. Matthews, 574 F.2d 772, 776 (3d Cir.

1978), the standard is highly deferential. Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

Indeed, “substantial evidence” is defined as “more than a mere scintilla,” but less than a

preponderance. McCrea v. Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004). “It means such

relevant evidence as a reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d

422, 427 (3d Cir. 1999) (internal quotations and citations omitted). A reviewing court is not

“empowered to weigh the evidence or substitute its conclusions for those of the fact-finder.”

Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert. denied, 507 U.S. 924 (1993).

Accordingly, even if there is contrary evidence in the record that would justify the opposite

conclusion, the Commissioner’s decision will be upheld if it is supported by the evidence. See

Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).

Disability insurance benefits may not be paid under the Act unless Plaintiff first meets the

statutory insured status requirements. See 42 U.S.C. § 423(c). Plaintiff must also demonstrate 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 can

be expected to last for a continuous period of not less than 12 months…” Id. § 423(d)(1)(A); see

Plummer, 186 F.3d at 427. An individual is not disabled unless “his physical or mental impairment

or impairments are of such severity that he is not only unable to do his previous work but cannot,

considering his age, education, and work experience, engage in any other kind of substantial

gainful work which exists in the national economy[.]” 42 U.S.C. § 423(d)(2)(A). Eligibility for

supplemental security income requires the same showing of disability. Id. § 1382c(a)(3)(A) – (B).

The Act establishes a five-step sequential process for evaluation by the ALJ to determine

whether an individual is disabled. See 20 C.F.R. § 404.1520. First, the ALJ determines whether

the claimant has shown that he or she is not currently engaged in “substantial gainful activity.” Id.

§ 404.1520(a)(4)(i); see Bowen v. Yuckert, 482 U.S. 137, 146–47 n.5 (1987). If a claimant is

presently engaged in any form of substantial gainful activity, he or she is automatically denied

disability benefits. See 20 C.F.R. § 404.1520(b); see also Bowen, 482 U.S. at 140. Second, the

ALJ determines whether the claimant has demonstrated a “severe impairment” or “combination

of impairments” that significantly limits his physical or mental ability to do basic work activities.

20 C.F.R. § 404.1520(c); see Bowen, 482 U.S. at 146–47 n.5. Basic work activities are defined as

“the abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1522(b). These activities

include physical functions such as “walking, standing, sitting, lifting, pushing, pulling, reaching,

carrying or handling.” Id. § 404.1522(b)(1). A claimant who does not have a severe impairment is

not considered disabled. Id. at § 404.1520(c); see Plummer, 186 F.3d at 428.

Third, if the impairment is found to be severe, the ALJ then determines whether the

impairment meets or is equal to the impairments listed in the Impairment List. 20 C.F.R. §

404.1520(a)(4)(iii). If the claimant demonstrates that his or her impairments are equal in severity

to, or meet those on the Impairment List, the claimant has satisfied his or her burden of proof and

is automatically entitled to benefits. See id. § 404.1520(d); see also Bowen, 482 U.S. at 146–47

n.5. If the specific impairment is not listed, the ALJ will consider in his or her decision the

impairment that most closely satisfies those listed for purposes of deciding whether the impairment

is medically equivalent. 20 C.F.R. § 404.1526(a). If there is more than one impairment, the ALJ

then must consider whether the combination of impairments is equal to any listed impairment. Id.

An impairment or combination of impairments is basically equivalent to a listed impairment if

there are medical findings equal in severity to all the criteria for the one most similar. Williams,

970 F.2d at 1186. If the claimant is not conclusively disabled under the criteria set forth in the

Impairment List, step three is not satisfied, and the claimant must prove at step four whether he or

she retains the RFC to perform his or her past relevant work. 20 C.F.R. § 404.1520(e); Bowen, 482

U.S. at 141.

If the claimant can perform past relevant work, the claimant is determined to not be

disabled. See 20 C.F.R. §§ 404.1520(e), 416.920(e); see also Bowen, 482 U.S. at 141–42. The

claimant bears the burden of demonstrating an inability to return to the past relevant work. See

Plummer, 186 F.3d at 428. Finally, if it is determined that the claimant is no longer able to perform

his or her past relevant work, the burden of production then shifts to the Commissioner to show,

at step five, that the “claimant is able to perform work available in the national economy.” Bowen,

482 U.S. at 146–47 n.5; Plummer, 186 F.3d at 428. This step requires the ALJ to consider the

claimant’s RFC, age, education, and past work experience. 20 C.F.R. § 404.1520(a)(4)(v). The

ALJ must analyze the cumulative effect of all the claimant's impairments in determining whether

the claimant can perform work and not disabled. Id.

III. PLANTIFF’S CLAIM ON APPEAL

Plaintiff raises two issues on appeal. First, Plaintiff argues that the ALJ erred by failing to

account for the impact of her mild mental limitations in the RFC assessment or in the hypothetical

questions posed to the VE. (Pl. Br. at 4, 15.) Even if the ALJ did consider Plaintiff’s mild mental

limitations in her step four assessment, Plaintiff claims the ALJ erred in failing to explain explicitly

why she omitted them from her final RFC determination and how Plaintiff could perform skilled

work with her mild mental limitations. (Pl. Br. at 4, 8, 11.)2

Second, Plaintiff argues that the ALJ and Appeals Council members lacked authority

because they were not properly appointed under both the Federal Vacancies Reform Act, 5 U.S.C.

3345 et seq. (1998) (“FVRA”), and the Constitution’s Appointments Clause, U.S. Const. art. II, §

2, cl. 2. (Pl. Br. at 15–17.)

A. The ALJ’s RFC determination properly accounted for Plaintiff’s mild, non-

severe mental impairments.

At step four, the RFC assessment is where the ALJ determines whether, despite limitations,

the claimant retains capacity to perform her past relevant work. See Poulos v. Comm’r of Soc. Sec.,

474 F.3d 88, 92 (3d Cir. 2007); see also 20 C.F.R. § 404.1545(a)(5)(i). In making an RFC

determination, “the ALJ must consider all evidence before [her].” Burnett v. Comm’r of Soc. Sec.

Admin., 220 F.3d 112, 121 (3d Cir. 2000) (citations omitted); see also 20 C.F.R. § 404.1545(a)(1).

However, the Third Circuit’s holding in Burnett “does not require the ALJ to use particular

language or adhere to a particular format in conducting [her] analysis. Rather, the function of

Burnett is to ensure that there is sufficient development of the record and explanation of findings

to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (citing Burnett,

2 Notably, Plaintiff does not contest any of the ALJ’s findings with respect to her mental impairments at step two.

220 F.3d at 120). Further, “[w]here the ALJ’s findings of fact are supported by substantial

evidence, [district courts] are bound by those findings, even if [the courts] would have decided the

factual inquiry differently.” Hagans v. Comm’r of Soc. Sec., 694 F.3d 287, 292 (3d Cir. 2012)

(internal quotation marks and citation omitted).

In this matter, Plaintiff argues that the ALJ failed to consider the mild mental limitations

she found in step two in her step four RFC determination that Plaintiff could perform skilled work.

(Pl. Br. at 4.) Specifically, Plaintiff asserts that the ALJ failed to apply Plaintiff’s mild mental

limitations in understanding, remembering, or applying information, interacting with others, and

concentrating, persisting or maintaining pace. (Id. at 5–6.) Alternatively, even if the ALJ declined

to adopt any mental limitations in her RFC assessment, Plaintiff claims that the ALJ still erred by

failing to offer any explanation as to why the ALJ did not accommodate Plaintiff’s mental

limitations in the RFC or in the subsequent determination that Plaintiff could perform skilled work.

(Id. at 7–8.) In response, Defendant argues that the ALJ’s RFC assessment is supported by

substantial evidence. (Def. Br. at 11.)

Having reviewed the ALJ’s decision and the administrative record, I find that, contrary to

Plaintiff’s contentions, the ALJ did consider Plaintiff's mental impairments at step four of the

sequential analysis. See Berry v. Kijakazi, No. 20-1629, 2021 WL 7162435, at *7 (M.D. Pa. Dec.

20, 2021), report and recommendation adopted, No. 20-01629, 2022 WL 551246 (M.D. Pa. Feb.

23, 2022) (explaining the holistic nature of an ALJ’s analysis); see also Jones, 364 F.3d at 505

(ALJ decisions are read “as a whole.”).

As an initial matter, the ALJ, in her RFC determination, “must consider limitations and

restrictions imposed by all of an individual’s impairments,” including any mild or non-severe

limitations found at step two. Hess v. Comm’r of Soc. Sec., 931 F.3d 198, 209 (3d Cir. 2019)

(internal quotations and citations omitted). Indeed, the Third Circuit has held that the step two and

three findings are “plainly relevant” to the ALJ’s later step four analysis because it involves “the

claimant’s actual impairments.” Id. However, the step two and step three “findings need only be

‘adequately conveyed’ in the ALJ’s statement of the limitation, not recited verbatim.” Id.

(emphasis added). Further, “the ALJ need only include in the RFC those limitations which [s]he

finds credible.” Garrett v. Comm’r of Soc. Sec., 274 Fed.Appx. 159, 163 (3d Cir. Apr. 17, 2008)

(citing Burnett, 220 F.3d at 121). In doing so, the ALJ may weigh the credibility of the evidence

provided that she “must give some indication of the evidence which [she] rejects and [her]

reason(s) for discounting such evidence.” Burnett, 220 F.3d at 121 (citations omitted). Where the

ALJ concludes that a claimant’s limitation is “so minimal or negligible that ... it would not limit

her ability” to perform certain work tasks, the ALJ may exclude that limitation from the RFC

without error. Ramirez v. Barnhart, 372 F.3d 546, 555 (3d Cir. 2004); see also Lee v. Comm’r of

Soc. Sec., 248 Fed.Appx. 458, 462 (3d Cir. 2007) (reasoning “[t]here was no need to include a

mental impairment in the hypothetical as the determination that her condition was not severe was

supported by substantial evidence.”).

Here, initially at step two, the ALJ considered evidence of Plaintiff’s mental health

impairments and understood their impact before determining Plaintiff’s RFC. The ALJ found that

Plaintiff had mild impairments in three of the four functional areas of mental functioning. (A.R.

19–20.) Indeed, the ALJ determined that Plaintiff’s mental impairments were non-severe because

they did not cause more than “minimal limitation” in Plaintiff’s ability to perform basic mental

work activities. (A.R. 19.) In reaching her findings, the ALJ relied primarily on Plaintiff’s

testimony at the hearing on September 29, 2020, her statements made in her Function Report, and

evidence from Plaintiff’s consultative mental status examination with Dr. Miller. (A.R. 19–20.)

This included testimony about Plaintiff’s limited mental health treatment. For instance,

Plaintiff testified at the hearing and told Dr. Miller that she had been briefly treated with Cymbalta

for her depression and anxiety but that she stopped taking it due to hallucinations. (A.R. 19, 51,

1007.) She also testified that since then, she had not pursued or taken any other medication for

depression and anxiety. (A.R. 19, 51, 1007.) Plaintiff further testified that she had not seen a

therapist or counselor for her depression or anxiety. (A.R. 19, 52.)

The ALJ also considered evidence, based on self-reported symptoms and findings from Dr.

Miller’s examination, that demonstrated Plaintiff’s mental impairments were minimal. During

Plaintiff’s examination, Dr. Miller diagnosed her with adjustment disorder with mixed anxiety and

depressed mood. (A.R. 20, 1008.) Plaintiff told Dr. Miller that an ongoing source of stress was

discord in her relationship with one of her sons. (A.R. 20, 1007.) Plaintiff reported that she did not

have a history of major depression, hospitalizations, hallucinations or delusions, nor did she have

any thoughts of wanting to harm herself or anyone else. (A.R. 19–20, 1007–08.) In the first

functional area of understanding, remembering, or applying information, the ALJ found Plaintiff

had a mild limitation. (A.R. 20.) The ALJ cited to Plaintiff’s examination with Dr. Miller during

which Plaintiff performed various mental recall exercises with minimal errors. (A.R. 20, 1008.) In

the second functional area, interreacting with others, the ALJ also found a mild limitation. (A.R.

20.) For support, the ALJ cited to statements Plaintiff made to Dr. Miller that she never pursued

psychotherapy to treat her anxiety or depression because she had a good support system. (A.R. 20,

1007–08.) Further, Dr. Miller described Plaintiff as pleasant and cooperative. (A.R. 20, 1008.) The

ALJ also cited to Plaintiff’s Function Report in which she reported that she had no problem getting

along with others. (A.R. 20, 240.) In the third functional area involving concentrating, persisting

or maintaining pace, the ALJ found Plaintiff had a mild limitation. (A.R. 20.) The ALJ relied on

Dr. Miller’s finding that Plaintiff had mild concentration problems with active working memory,

(A.R. 20, 1008), and further cited to Plaintiff’s Function Report in which she reported that her

impairments affected her ability to concentrate but that she had no problem paying attention and

finishing what she started. (A.R. 20, 238–40.) In the fourth functional area, the ALJ found no

limitation based on evidence that Plaintiff independently handles her personal care, including

cleaning her house, driving during the day and cooking meals twice a week. (A.R. 20, 235–36,

1008.)

Finally, the ALJ also noted that the opinions by the two state agency psychologists finding

Plaintiff’s mental impairments to be non-severe was consistent with the evidence in the record.

(A.R. 20, 84–85, 100.) In fact, the record contained no additional medical examinations or other

medical evidence for Plaintiff’s mental health.

As such, I find that the ALJ’s finding at this step was based on her substantial consideration

and in-depth analysis of the record with respect to Plaintiff’s mental impairments. See, e.g., Sleap

v. Kijakazi, No. 20-14002, 2022 WL 475874, at *7 (D.N.J. Feb. 16, 2022) (finding that substantial

evidence supported the ALJ’s step two finding that the claimant’s depressive and anxiety disorders

were non-severe where, inter alia, the claimant had “no history of psychiatric hospitalizations, nor

had she been prescribed psychotropic medications”, the claimant could “drive, go out alone, handle

her finances, play with her children, and shop online, among other things”, mental status exams

were normal, there was “little mental health treatment overall”, and psychological consultative

examinations revealed, inter alia, that the claimant “was appropriate, had logical and goal-directed

thought processes, good to fair concentration, and excellent intellectual functioning and abstract

thinking”); Cruz Vargas v. Comm’r of Soc. Sec., No. 20-0587, 2021 WL 1541047, at *4–5 (D.N.J.

Apr. 19, 2021) (concluding that substantial evidence supported the ALJ’s step two finding that the

claimant’s mental impairments were not severe where there was no evidence of mental health

treatment before her date last insured, that “evaluations were normal with the exception of some

mild impairments[,]” and that medication helped the claimant’s mental impairments (internal

quotations omitted)); Rolick v. Berryhill, No. 17-4481, 2019 WL 625599, at *5 (D.N.J. Feb. 14,

2019) (finding that while the claimant “does have mental health conditions that undoubtedly

produced symptoms, the ALJ had a more than adequate basis for concluding that those mental

health conditions were not severe as that term is used within the Act” where the claimant’s “mental

health examinations demonstrated adequate mental functioning with intact thought processes,

memory span, and concentration” and “[i]t would be inappropriate for this Court to substitute its

own judgment in weighing the mental health evidence because the ALJ properly relied on

substantial evidence in her determination that [the claimant’s] mental health impairments were

non-severe and caused only mild limitations.”).

Accordingly, at step four, the ALJ did not commit a reversible error by relying on her

thorough step-two findings. While the ALJ did not explicitly address Plaintiff’s mild mental

limitations in her RFC determination, as noted earlier, the Third Circuit has held that “findings at

steps two and three will not necessarily translate to the language used at steps four and five”. Hess,

931 F.3d at 209. In fact, the Third Circuit and several district courts within this Circuit have held

that “an RFC assessment does not need to contain in-depth analysis on mental impairments when

the ALJ finds earlier in his opinion that a claimant’s mental impairments are no greater than mild.”

D.C. v. Comm’r of Soc. Sec., No. 20-2484, 2021 WL 1851830, at *6 (D.N.J. May 10, 2021)

(citations omitted) (collecting cases); see also Holley v. Comm’r Soc. Sec., 590 F.App’x 167, 169

(3d Cir. 2014) (holding that the ALJ did not err by not including mental limitations in the RFC

when the ALJ found that the plaintiff “had—at most—minor mental impairments.”).

Further, just because the ALJ found mild mental limitations at step two does not obligate

her to deem them credible and thus, adopt them into her RFC determination. See, e.g., Makowski

v. Comm’r of Soc. Sec., No. 16-1656, 2017 WL 3151243, at *7 (D.N.J. July 24, 2017) (quoting

Ramirez v. Barnhart, 372 F.3d 546, 555 (3d Cir. 2004)) (finding that “even if the ALJ did not

discuss the impact of the admittedly mild limitations from Plaintiff’s mental impairments at the

RFC stage, despite having discussed them at length elsewhere in the opinion, this omission is not

reversible error because the ALJ was entitled to not include ‘minimal or negligible’ deficiencies

in the RFC.”). As stated above, ALJs are required only to include “credibly established

limitations”. Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005) (citation omitted); see also

Burnett, 220 F.3d at 121 (holding that the ALJ has discretion to determine which limitations are

credible by weighing the credibility of the evidence, provided she “give some indication of the

evidence which [s]he rejects and [her] reason(s) for discounting such evidence.”)

Here, after conducting an in-depth analysis of Plaintiff’s mental limitations at step two, the

ALJ provided adequate explanation for her omission of Plaintiff’s mild mental limitations from

her RFC determination. (A.R. 21.) Specifically, the ALJ stated that she did consider Plaintiff’s

non-severe mental impairments in determining the RFC and that their consideration did not result

in limitations beyond those included in her final RFC determination. (Id.) (noting, also, that the

ALJ considered the “entire record” in determining the RFC). Plaintiff takes issue with the ALJ’s

use of “boilerplate language” here to explain the relationship between the step two analysis and

the RFC analysis. (Pl. Reply. Br. at 2.) However, other courts in this Circuit have addressed nearly

identical language in holding that the step four RFC analysis adequately reflected the ALJ’s step

two in-depth analysis of mental limitations. See, e.g., Gita P. v. Comm’r of Soc. Sec. Admin., No.

21-6087, 2022 WL 1683834, at *6 (D.N.J. May 26, 2022) (finding that the ALJ did not err in

relying on his thorough step-two analysis finding mild mental limitations in crafting the plaintiff’s

RFC determination); Jennifer B. v. Kijakazi, No. 20-20364, 2022 WL 577960, at *12 (D.N.J. Feb.

25, 2022) (finding that, in using nearly identical language as the present case, the ALJ expressly

considered mild mental limitations from step two when crafting plaintiff’s RFC); D.C., 2021

WL1851830, at *5 (finding that “[t]his discussion and incorporation by reference is sufficient to

satisfy the requirement that the ALJ consider all of the Plaintiff’s impairments in formulating the

RFC”); Long v. Kijakazi, No. 20-1358, 2022 WL 609620, at *8 (D. Del. Jan. 31, 2022) (finding

that because the plaintiff’s mild mental impairments did not translate into work-related limitations,

the ALJ’s failure to explicitly discuss those impairments in the RFC analysis did not amount to an

error); Brumfield v. Saul, No. 19-4555, 2020 WL 4934315, at *6 (E.D. Pa. Aug. 21, 2020) (holding

that an RFC assessment without any non-severe mental limitations was consistent with the step

two analysis finding non-severe depression and anxiety impairments).

Finally, the ALJ’s analysis of the evidence at step four also provides substantial support

for her decision to exclude Plaintiff’s mild mental limitations from her final RFC determination.

(A.R. 21–28.) In reaching her RFC finding, the ALJ “considered all symptoms and the extent to

which these symptoms can reasonably be accepted as consistent with the objective medical

evidence[,]” as well as “the medical opinion(s) and prior administrative medical findings[.]” (A.R.

20.) In so doing, the ALJ reviewed the medical and testimonial evidence at length, including

evidence from Plaintiff’s hearing testimony, examination findings, medical opinions, and medical

records. (A.R. 21–28.) For instance, the ALJ noted that Plaintiff was able to independently handle

her personal care, including cooking, doing household chores, driving during the daytime, and

handling financial tasks. (A.R. 27.) The ALJ cited to Plaintiff’s own testimony describing her

typical daily activity, including walking at least a mile and up to three miles in 60 minutes. (A.R.

27, 51, 59, 998, 1008.) In her consideration of the evidence, the ALJ also reported that, during her

consultative internal medicine examination with Dr. Francky Merlin, M.D., Plaintiff stated that

she was “able to walk a mile, take care of her personal hygiene and do household chores”. (A.R.

27, 998.) Additionally, the ALJ cited to several medical examination records in which different

medical professionals noted that Plaintiff was “alert”, “oriented”, “well developed”, “nourished”,

“comfortable”. (A.R. 25, 26, 999, 1008.) These “relatively stable and unremarkable” examination

findings, the ALJ found, demonstrated Plaintiff had normal motor strength and normal sensation.

(A.R. 27–28.) Accordingly, the Court finds that the ALJ’s RFC determination was based on more

than a “mere scintilla” of evidence. See McCrea, 370 F.3d at 360 (“Although substantial evidence

is more than a mere scintilla, it need not rise to the level of a preponderance.”)

In sum, having carefully reviewed the underlying record and for the reasons above, I find

that the ALJ’s decision was supported by substantial evidence at step four, and as such, a remand

would not be appropriate. Johnson v. Comm’r of Soc. Sec., 497 F.App’x 199, 201 (3d Cir. 2012)

(stating that the court “will uphold the ALJ’s decision even if there is contrary evidence that would

justify the opposite conclusion, as long as the substantial evidence standard is satisfied.” (internal

quotations and citation omitted)).

As a final note, even if the ALJ’s consideration of Plaintiff’s mild mental impairments was

incomplete, any error was harmless. See, e.g., Rutherford, 399 F.3d at 553 (stating that remand is

not required when it would not affect the outcome of the case). The record contains sparse evidence

pertaining to Plaintiff’s depression and anxiety and any resulting work-related impairments. At the

hearing, Plaintiff testified that she did not take any medication, nor did she see a therapist or

counselor for her depression or anxiety. (A.R. 19, 51.) Beyond Plaintiff’s prescription for

Cymbalta, which she stopped taking without substituting it for a different medication, there is no

evidence in the record evidencing that Plaintiff sought or received any mental health treatment.

(A.R. 19, 51, 1007.) Medical source opinions also assessed Plaintiff to have non-severe mental

impairments. Dr. Miller diagnosed Plaintiff with adjustment disorder with mixed anxiety and

depressed mood. (A.R. 20, 1008.) The state agency psychologists found that Plaintiff’s mental

impairments were not severe because “they do not significantly impede functioning. Retains ability

to underst[and]/remem[ber]/apply information and sustain c[oncentration,] p[ersistence, and]

p[ace] to fulfill the mental demands of tasks”. (A.R. 84–85, 100.) Beyond this, the record contains

no other medical source opinions or objective medical records evidencing any mental impairments.

To the contrary, several medical professionals who treated Plaintiff for non-mental conditions

during the relevant period observed that Plaintiff was “pleasant”, “cooperative”, “alert”,

“oriented”, and had a normal mental status. (A.R. 20, 25, 26, 419, 424, 472, 819, 827, 833, 1027,

1495, 1893.)

Based on this limited mental health record, there is little evidence to support Plaintiff’s

claim that her mild mental impairments, when considered alone or in combination with her other

impairments, would result in work-related limitations. Indeed, Plaintiff fails to cite any other

evidence demonstrating that her mental impairments would cause any additional limitations not

considered by the ALJ. Accordingly, any alleged error by the ALJ was harmless. See, e.g.,

Brumfield, 2020 WL 4934315, at *8.

B. The ALJ’s appointment by the Acting Commissioner was constitutional and

statutorily valid.

In objecting to the constitutionality of the ALJ’s appointment, Plaintiff argues that the then-

Acting Commissioner Nancy A. Berryhill exceeded the statutory term limit under the FVRA when

she ratified the appointment of Plaintiff’s ALJ in July 2018. (Pl. Br. at 16–17.)

The FVRA provides the means for “temporarily authorizing an acting official to perform

the functions and duties”3 of a vacant executive branch position requiring Presidential appointment

and Senate confirmation. 5 U.S.C. § 3347. Individuals who may serve as an acting official are set

forth in 5 U.S.C. § 3345, subject to the time limitations prescribed in 5 U.S.C. § 3346. An acting

official may serve “for no longer than 210 days”, id. § 3346(a)(1), or, if a nomination for the office

is submitted to the Senate, “for the period that the nomination is pending in the Senate”, id. §

3346(a)(2).4 The FVRA also contains an enforcement provision, which provides that “[u]nless an

officer or employee is performing the functions and duties in accordance with sections 3345, 3346,

and 3347 … the office shall remain vacant” and “only the head of such Executive agency may

perform any function or duty of such office.” Id. § 3348(b)(1)–(2). Any action taken by an acting

official not in compliance with §§ 3345, 3346, and 3347 “shall have no force or effect.” Id. §

3348(d).

Berryhill began serving as Acting Commissioner on January 20, 2017, and she served until

her 210-day term ended, under 5 U.S.C. § 3346(a)(1), on November 16, 2017. (Pl. Br. at 16; Def.

Br. at 19.) Following the expiration of Berryhill’s initial term, as of November 17, 2017, the

position of Commissioner became vacant. See 5 U.S.C. § 3348. On April 17, 2018, President

Donald Trump nominated Andrew Saul to be the Commissioner. (Def. Br. at 19.) Upon submission

of the nomination, the SSA interpreted 5 U.S.C. § 3346(a)(2) to permit Berryhill to resume her

3 The FVRA defines the term “function or duty” to mean any function or duty of the application office that is

established and required by statute or regulation to be performed solely by the applicable officer. 5 U.S.C. §

3348(a)(2). Courts have interpreted the FVRA to apply only to non-delegable functions and duties. See Arthrex, Inc.

v. Smith & Nephew, Inc., 35 F.4th 1328, 1336 (Fed. Cir. 2022) (citing Schaghticoke Tribal Nation v. Kempthorne, 587

F.3d 132, 135 (2d Cir. 2009); Stand Up for Cal.! v. U.S. Dep’t of Interior, 994 F.3d 616, 622 (D.C. Cir. 2021)

(observing FVRA applies to “exclusive duties”).

4 If a first nomination for the office does not result in a confirmation, an acting official may continue to serve for

another 210 days, id. § 3346(b)(1), or, if a second nominated is submitted, during the pendency of that nomination,

id. § 3346(b)(2)(A). And if a second nomination does not result in a confirmation, then an acting official may continue

to serve for another 210 days. Id. § 3346(b)(2)(B).

role as Acting Commissioner during the nomination’s pendency. (Id.) Subsequently, on July 16,

2018, Berryhill ratified the appointments of all SSA ALJs, including the ALJ in this case. (Id.)

However, because Berryhill’s term had already expired in November 2017, Plaintiff claims

that 5 U.S.C. § 3346(a) did not authorize Berryhill to resume her service as Acting Commissioner

and thus, her appointment of Plaintiff’s ALJ on July 16, 2018, exceeded her statutory authority.

(Pl. Br. at 16–17.) Plaintiff argues that, because the ALJ who decided Plaintiff’s case was not

lawfully appointed, under Carr v. Saul, 141 S.Ct. 1352 (2021), she is entitled to a de novo hearing

on remand before a new ALJ. (Pl. Reply Br. at 10.)

Plaintiff offers no independent arguments of her own as to the appropriate statutory

interpretation of 5 U.S.C. § 3346(a) and instead, relies on two cases from the District of Minnesota,

Brian T.D. v. Kijakazi, 580 F.Supp.3d 615 (D. Minn. 2022) and Richard J.M. v. Kijakazi, No. 19-

827, 2022 WL 959914 (D. Minn. Mar. 30, 2022), to support her appointment clause argument. (Pl.

Br. at 17 (“Plaintiff offers the exact same arguments here as the claimants in those cases.”).) In

those cases, the courts held that because the initial 210-day term for Berryhill’s acting service had

expired prior to the submission of Saul’s nomination in April 2018, Berryhill could not return to

her position as Acting Commissioner while Saul’s nomination was pending and thus, could not

lawfully ratify and approve the July 2018 ALJ appointments. See 580 F.Supp.3d at 629–32; 2022

WL 959914, at *8–10. 5

For the following reasons, I disagree with Plaintiff, and adopt the prevailing interpretation,

that 5 U.S.C. § 3346(a)(2) operates as a spring-back provision which permits an individual to

resume his/her title as an official Acting Commissioner when a new Commissioner is nominated

after the expiration of the initial 210-day term.

i. Statutory Interpretation

5 Indeed, only district courts in the District of Minnesota have taken these views.

In statutory interpretation, the Court begins with the text. Ross v. Blake, 578 U.S. 632, 638

(2016); see also Douglass v. Convergent Outsourcing, 765 F.3d 299, 302 (3d Cir. 2014). “The role

of the courts in interpreting a statute is to give effect to Congress’s intent”, and “it is presumed

that Congress expresses its intent through the ordinary meaning of its language”. Idahoan Fresh

v. Advantage Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998) (citations omitted). “If the language

of the statute expresses Congress’s intent with sufficient precision, the inquiry ends there and the

statute is enforced according to its terms.” In re Lord Abbett Mut. Funds Fee Litig., 553 F.3d 248,

254 (3d Cir. 2009) (quoting U.S. v. Gregg, 226 F.3d 253, 257 (3d Cir. 2000)). To determine

whether the statutory language is sufficiently precise and unambiguous, the Court “must examine

‘the language itself, the specific context in which that language is used, and the broader context of

the statute as a whole.’” Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001) (quoting

Marshak v. Treadwell, 240 F.3d 184, 192–93 (3d Cir.2001)). The Court also considers “[t]he

overall ‘object and policy’ of the statute and avoid[s] constructions that produce ‘odd’ or ‘absurd

results’ or that are ‘inconsistent with common sense.’” Disabled in Action of Pa. v. Se. Pa. Transp.

Auth., 539 F.3d 199, 210 (3d Cir. 2008) (internal quotations and citations omitted).

Here, the text at issue states that a “person serving as an acting officer as described under

section 3345 may serve in the office … for no longer than 210 days beginning on the date the

vacancy occurs; or”, 5 U.S.C. § 3346(a)(1) (emphasis added), “once a first or second nomination

for the office is submitted to the Senate, from the date of such nomination for the period that the

nomination is pending in the Senate.” Id. § 3346(a)(2).

At issue here is whether, under the plain meaning of the statute, § 3346(a)(2) contains a

spring-back provision. The minority view, as set forth in Brian T.D., rejected the notion of a spring-

back. There, the court interpreted § 3346(a) to only apply to a person “presently serving” as Acting

Commissioner at the time of a nomination. See 580 F.Supp.3d at 629. Further, it found subsections

(a)(1) and (a)(2) to be mutually exclusive, meaning that acting service must end upon the expiration

of the initial 210-day time limit if a nomination had not occurred before that time. See id. at 631.

And because, at the time of Saul’s nomination, Berryhill’s acting service had ended, she was not

“presently serving” such that § 3346(a)(2) did not apply to her. See id. at 632.

The majority of all other courts that have considered this issue have declined to follow the

reasoning set forth in Brian T.D. Instead, those courts have uniformly held that § 3346(a)(2)

“‘contains a spring-back provision that enabled [Berryhill] to [spring back into] her role as Acting

Commissioner as of the date that Andrew Saul was nominated for Commissioner in April 2018.’”

Bauer v. Kijakazi, No. 21-2008, 2022 WL 2918917, at *4 & n.29 (N.D. Iowa July 25, 2022)

(quoting Williams v. Kijakazi, No. 21-141, 2022 WL 2163008, at *3 & n.3 (W.D.N.C. June 15,

2022)).6

Consistent with the majority of courts that have rejected the analysis set forth in Brian T.D.,

I do so here as well. First, the Brian T.D. court’s interpretation misconstrues the statute by reading

additional language into the text of the statute. See Snyder, 2022 WL 4464847, at *19. Section

3346 refers to “the person serving as an acting officer as described under section 3345”. 5 U.S.C.

§ 3346(a) (emphasis added). In turn, § 3345 sets out generally who may serve as an acting officer.

Id. § 3345. But because the language of the statute uses the present participle “serving”, the Brian

T.D. court extrapolated that the section applies only to the person presently serving in that capacity.

6 See also Bernadette H., v. Comm’r Soc. Sec., No. 21-20586, 2022 WL 17080743, at *8–9 (D.N.J. Nov. 18, 2022);

M.A.K. v. Kijakazi, No. 21-03028, 2022 WL 16855690, at *4 (D. Colo. Nov. 10, 2022); Raymond N. v. Kijakazi, No.

21-429, 2022 WL 16578854, at *10–11 (D. Neb. Nov. 1, 2022); Reddick v. Kijakazi, No. 21-01782, 2022 WL

16703903, at *17 (M.D. Pa. Oct. 7, 2022); Neale v. Kijakazi, No. 21-915, 2022 WL 6111689, at *9 (D. Del. Oct. 7,

2022); Snyder v. Kijakazi, No. 21-00103, 2022 WL 4464847, at *18–23 (N.D. Iowa Sept. 26, 2022); Sidney M. v.

Kijakazi, No. 21-2034, 2022 WL 4482859, at *18 (N.D. Iowa Sept. 26, 2022); Lance M. v. Kijakazi, No. 21-628, 2022

WL 3009122, at *12–14 (E.D. Va. July 13, 2022); Brooks v. Kijakazi, No. 21-609, 2022 WL 2834345, at *16–23

(M.D.N.C. July 20, 2022); Thomas S. v. Comm’r Soc. Sec., No. 21-05213, 2022 WL 268844, at *3 n.2 (W.D. Wash.

Jan. 28, 2022).

See 580 F.Supp.3d at 629–30. However, such a finding is not supported by the plain language of

the text. Nowhere in the text of the statute itself does the word “presently” or “currently” appear.

Further, under this reading, the only way a person can serve during the pendency of a nomination

under subsection (a)(2) is if that person was currently serving the initial 210-day term under

subsection (a)(1). See Bauer, 2022 WL 2918917, at *7. Such a reading goes against the plain

meaning of the statute. See Bates v. U.S., 522 U.S. 23, 29 (1997) (stating that “we ordinarily resist

reading words or elements into a statute that do not appear on its face”). Instead, this Court finds

it more appropriate that while the word “serving” is in the present tense, its application is not

limited to people presently serving; rather, it describes the person next designated to serve pursuant

to § 3345. See Snyder, 2022 WL 4464847, at *19.

Second, this Court finds that the use of “or” between subsections (a)(1) and (a)(2) of §

3346 was meant to be inclusive. See, e.g., Bernadette H., 2022 WL 17080743, at *8–9; Reddick,

2022 WL 16703903 at *15. Courts have recognized that the word “or” can be used in either an

inclusive, meaning “A or B, or both”, or an exclusive sense, meaning “A or B, but not both”,

depending on the statutory context. See Varga v. Colvin, 794 F.3d 809, 815 (7th Cir. 2015)

(citations omitted); see also U.S. v. One 1973 Rolls Royce, V.I.N. SRH-16266 By & Through

Goodman, 43 F.3d 794, 815 (3d Cir. 1994) (“Whether requirements in a statute are to be treated

as disjunctive or conjunctive does not always turn on whether the word ‘or’ is used; rather it turns

on context”); Tex. Std. Oil Co. v. Forest Oil Corp., No. 05-490, 2008 WL 11399510, at *4 (S.D.

Tex. Jan. 3, 2008) (“The meaning of or is usually inclusive.” (internal quotations and citations

omitted)).

In Brian T.D., the court adopted an exclusive interpretation of the word “or” to mean that

subsection (a)(1) and (a)(2) did not “create a series of non-contiguous periods of service.” 580

F.Supp.3d at 631. Instead, it interpreted § 3346(a)(2) to extend the initial period of service under

(a)(1) if, during those 210 days, a nominee for the office is named. See id. at 630–31 (finding that

“subsection (a)(1) ‘or’ serves to suspend that time limitation, not to create an entirely separate and

distinct period of service.”). However, reading § 3346(a)(2) to “extend” the initial period of service

when a nomination occurs within the initial 210 days incorrectly reads language into the statue

that does not exist. Instead, the more natural reading is that, when a nomination occurs within the

initial period of service, the acting officer may serve pursuant to the time limitations set forth in

both subsection (a)(1) and subsection (a)(2). See Bauer, 2022 WL 2918917, at *7. Indeed, the

context of the statute does not support an exclusive interpretation of “or”. The text of § 3346(a)

uses the word “or” without the use of any qualifying language such as “either”, “but not both”, or

“limited to”. See 5 U.S.C. § 3346(a)(1)–(2); see also Brooks, 2022 WL 2834345, at *20

(interpreting the word “or” in its more “common, inclusive sense”); Bauer, 2022 WL 2918917, at

*7 n.39 (reading the word “or” to indicate the two subsections were mutually exclusive) (citing

Allstate Ins. Co. v. Plambeck, 66 F. Supp. 3d 782, 788 (N.D. Tx. 2014)). Accordingly, this Court

finds that the more natural reading of “or” in this provision allows for acting service during either

or both of two periods: (1) for 210 days upon the date a vacancy occurs; or (2) during the pendency

of a nomination if that nomination was submitted after the 210-day term expired. See Republic of

Sudan v. Harrison, 139 S.Ct. 1048, 1056 (2019) (choosing the “most natural reading” of the

statutory language over other plausible readings).

While this Court agrees with the majority of courts in interpreting the meaning of “or” to

be inclusive, I depart from those courts in finding that the plain language of § 3346(a) is

unambiguous as to whether subsection (a)(2) contains a spring-back provision permitting an acting

official to resume service during the pendency of a nomination, even if the nomination was

submitted after the initial statutory period for acting service expires.

Here, the statute simply states that “once a first or second nomination ... is submitted,” the

acting official designated under the FVRA may serve “for the period that the nomination is

pending”. 5 U.S.C. § 3346(a)(2); see also Raymond N., 2022 WL 16578854, at *10. The plain

language of the statute does not include an express spring-back provision, nor does it provide any

guidance in that regard. Further, nothing in the plain text of the statute under subsection (a)(2)

conditions acting service on the submission of a nomination within the initial 210-day period. See

Neale, 2022 WL 611689, at *9 (citing Bauer, 2022 WL 2918917, at *7; Williams, 2022 WL

2163008, at *3). Congress could have chosen to explicitly require nomination before the 210-day

period expired. See Lance M., 2022 WL 3009122, at *13 (citing 28 U.S.C. § 1367(d) (tolling the

limitations period); 38 U.S.C. § 3103(b)(1) (preventing eligibility period from running under

certain conditions)). On the other hand, the plain language of the statute does not specify that a

nomination may be submitted even after the initial 210-day period. Such language Congress also

could have chosen to adopt.

As such, the text is silent as to whether 3348(a)(2) to contain a spring-back provision. See

Va. Uranium, Inc. v. Warren, 139 S.Ct. 1894, 1900 (2019) (“[I]t is our duty to respect not only

what Congress wrote but, as importantly, what it didn’t write.”). Without such guidance, I find that

the plain text of the statute is not unambiguous with respect to the application of § 3346(a)(2) in a

situation in which the initial statutory period expires prior to the submission of a nomination.

ii. Legislative History and Extratextual Considerations

When the plain meaning of a statute is not self-evident, then the text is “merely a starting

point.” In re Price, 370 F.3d 362, 369 (3d Cir. 2016). “Where a statute’s text is ambiguous, relevant

legislative history, along with consideration of the statutory objectives, can be useful in

illuminating its meaning.” U.S. v. E.I. Dupont De Nemours & Co. Inc., 432 F.3d 161, 169 (3d Cir.

2005) (citing Gen. Dynamics Land Sys. v. Cline, 540 U.S. 581, 600 (2004)); see also G.L. v.

Ligonier Valley School Dist. Auth., 802 F.3d 601, 621–22 (3d Cir. 2015) (“[L]egislative history

can play a confirmatory role in resolving ambiguity when statutory language and structure support

a given interpretation.” (citations omitted)).

Here, the legislative history of the FVRA supports the inclusion of a spring-back provision

in § 3346(a)(2). Indeed, Senate Committee members discussed and contemplated the specific at-

issue situation in this case, that is when a nomination is submitted after the acting official’s initial

term under § 3346(a)(1) had expired. See S. Rep. No. 105-250, 105th Cong., 2nd Sess. 1998, 1998

WL 404532 (July 15, 1998).7 The Senate Committee stated that one significant consideration that

went into the statute’s adoption was “the need for a ‘cure’ in the case of a nomination made

subsequent to the expiration of [the time period for service by an acting official absent a

nomination] to allow an acting official to resume the functions and duties of the vacant office”. Id.

at *30. In discussing the specific statutory provision at issue here, § 3346(a)(2), the Committee

stated:

Under new section 3346(a)(2), and subject to section 3346(b), an acting officer may serve

more than [210] days if a first or second nomination is submitted to the Senate, and may

serve while that nomination is pending from the date the nomination is submitted. The

acting officer may serve even if the nomination is submitted after the [initial 210] days

has passed”.

7 With the sole exception of changing the initial time period in § 3346(a)(1) from 150 days to 210 days, the proposed

language is identical to the language that was ultimately adopted in 5 U.S.C. § 3346. See Bauer, 2022 WL 2918917,

at *8.

Id. at *14 (emphases added); see also id. at *19 (discussing how the enforcement provision

§ 3348 tracks other provisions that allow the acting officer to serve once a nomination is made,

“even if more than [210] days have elapsed”.) As such, Congress clearly intended for the same

individual to serve as an acting official for the initial 210-day period, under § 3346(a)(1), and, if a

nomination was submitted after that period, to resume acting service upon that nomination, under

§ 3346(a)(2).

The Senate Report evinces legislative intent that further undermines the statutory

interpretation adopted by the Brian T.D. court. For instance, the Senate Report clarified that §

3346(a)(1) and (a)(2) applied to “the only person eligible to be the acting officer, whether during

the [210] days or upon submission of a nomination.” Id. at 14–15 (emphasis added). In other words,

Congress intended for § 3346(a)(2) to apply to the same individual who originally was eligible to

be the acting officer at the time the vacancy arose under § 3346(a)(1). This legislative intent

conflicts with the Brian T.D. court’s analysis, which found that the plain language of § 3346(a)(2)

only applied to a person presently serving as Acting Commissioner at the time of a nomination.

See 580 F.Supp.3d at 629–30. Instead, the Senate Report reveals that the Senate intended for both

subsections to apply to the same individual, regardless of whether the nomination was submitted

while an acting officer was serving under the 210-day period. S. Rep. No. 105-250, 1998 WL

404532, at *14–15 (stating that the Committee chose its wording “deliberately” when it drafted

the statutory language of § 3346 to apply to “[t]he person serving as an acting officer as described

under section 3345.”) Further, the Senate Report supports the interpretation of the word “or”

between § 3346(a)(1) and (a)(2) to be inclusive, such that the same acting officer could serve under

either or both time periods. Id. at *14 (stating that under § 3346(a)(2), “an acting officer may serve

more than [210] days if a first or second nomination is submitted to the Senate, and may serve

while that nomination is pending from the date the nomination is submitted.” (emphasis added)).

The Committee’s use of the word “and”, rather than “or”, in its explanation of § 3346(a)(2) is

inconsistent with the Brian T.D. court’s finding that the “or” in § 3346(a) was mutually exclusive

such that Berryhill could serve for the 210-day period or during the pendency of a nomination, but

not both. See 580 F.Supp.3d at 631.

The Committee’s discussions of the operation and structure of enforcement provision §

3348 also support the interpretation of § 3346(a)(2) as incorporating a spring-back provision. It

stated in the Senate Report that the “enforcement mechanism is to make an office vacant if, [210]

days after the vacancy arises, no presidential nominee has been submitted to the Senate for the

office.” S. Rep 105-250, 1998 WL 404532, at *2. Between the date the initial 210-day term expired

and the date that a nomination is made, “neither the acting officer nor anyone else could fill the

vacant role.” Id. at *18. This designated vacancy, however, could be filled when the President

submits a nominee after the 210-day period, “whereupon the acting officer can resume service.”

Id. at *2 (emphasis added).

In drafting such an enforcement mechanism, the Committee recognized the potential

administrative concerns in the event of a vacancy beyond the initial 210 days without a nomination.

Id. at *19, *30–31) (stating that the Committee’s goal in providing for an enforcement mechanism

in the statute was neither “to punish or obstruct, nor to inconvenience for the purpose of

inconveniencing”, nor to “cause an unintended shutdown of the Federal agency ... due to

administrative paralysis”.) Accordingly, the Committee clarified that the vacancy only prevented

duties “expressly vested by law or regulation exclusively in the vacant position” from being

performed. Id. at *31. Delegable functions and “[a]l the normal functions of government thus could

still be performed” by other officers or employees of the agency. Id. at *18. As such, Berryhill,

upon the expiration of her 210-day official acting service, continued to functionally lead the SSA

and perform the normal and delegable duties of the SSA office. See Patterson v. Berryhill, No. 18-

00193, 2018 WL 8367459, at *1 (W.D. Pa. June 14, 2018); Mateo v. Berryhill, No. 16-1057, 2018

WL 1965286, at *1 n.1 (M.D. Pa. Apr. 25, 2018). Upon Saul’s nomination, she was able to return

to her official title of Acting Commissioner. Indeed, the Committee specifically explained that any

such inconvenience to the executive branch could be “eliminated instantly” upon the President’s

decision to make a nomination “for once such a nomination is made, the acting officer can resume

service, including performing the non-delegable duties of the office.” S. Rep. No. 105-250, 1998

WL 404532, at *19 (emphasis added).

Thus, the Committee’s statements made in the Senate Report strongly evince that “the

legislative intent was that 5 U.S.C. § 3346(a)(2) would provide an additional period of service

upon submission of a nomination even if the initial 210-day term had expired”. Snyder, 2022

WL4464847, at *22. The Court finds persuasive that the legislative history of the FVRA supports

the statutory interpretation that § 3346(a)(2) contains a spring-back provision and authorizes a

separate period of acting service. See, e.g., Lance M., 2022 WL 3009122, at *13–14; Brooks, 2022

WL 2834345, at *20; Bauer, 2022 WL2918917, at *8–9; Williams, 2022 WL 2163008, at *4.

Finally, guidance from both the Legislative Branch’s Government Accountability Office

(“GAO”) and the U.S. Department of Justice’s Office of Legal Counsel (“DOJ’s OLC”) provides

further support for my interpretation of § 3346(a)(2). See, e.g., Brooks, 2022 WL 2834345, at *22–

23; Williams, 2022 WL 2163008, at *4.

The Executive Branch has interpreted § 3346(a)(2) as containing a spring-back provision

since the FVRA’s enactment. In a memorandum published in 1999, DOJ’s OLC expressly stated

that subsection (a)(2) contains a spring-back provision:

The Vacancies Reform Act incorporates a spring-back provision, which permits the acting

officer to begin performing the functions and duties of the vacant office again upon the

submission of a nomination, even if the 210-day period expired before that nomination was

submitted. If the 210-day limitation period expires before the President has submitted a

nomination, the restrictions in § 3348 of the Act, which bar anyone from serving in an

acting capacity, become operative.... If thereafter the President submits a nomination, an

acting officer is again able to perform the functions and duties of the office as of the date

the nomination is submitted.

DOJ’s OLC, Guidance on Application of Federal Vacancies Reform Act of 1998, 23 U.S.

Op. O.L.C., 1999 WL 1262050, at *8 (Mar. 22, 1999) (emphases added).

The GAO’s interpretation is not dissimilar. See GAO, Violation of the 210-Day Limit

Imposed by the Federal Vacancies Reform Act of 1998 — Department of Energy, Director of Office

of Science, No. B-328888 (Mar. 3, 2017), www.gao.gov/assets/b-328888.pdf (stating that 5 U.S.C.

§ 3346(a)(2) “contains a spring-back provision that allows an acting official to resume performing

the duties of the office once a first or second nomination is submitted to the Senate for the period

that such nomination is pending in the Senate.”)8

Given these considerations, this Court finds that Berryhill was validly serving as Acting

Commissioner under 5 U.S.C. § 3346(a) of the FVRA when she ratified the appointment of

Plaintiff’s ALJ in 2018. From January 20, 2017 to November 16, 2017, Berryhill served as Acting

Commissioner. Following the expiration of Berryhill’s initial 210-day term, from November 2017

to April 2018, the position of Commissioner became vacant, and Berryhill no longer served under

the official title of Acting Commissioner. During that time, she continued to functionally lead the

SSA from her prior position as Deputy Commissioner of Operations. See Mateo, 2018 WL

1965286, at *1 n.1. And pursuant to this Court’s finding supra, that the two time periods in §

8 In reaching the same statutory interpretation as the GAO and the DOJ’s OLC, this Court does not defer to either

agency’s analysis of the FVRA. However, reviewing the guidance published by both agencies reinforces the finding

from this Court’s separate analysis that Congress intended for 5 U.S.C. § 3346(a)(1) and (a)(2) to authorize a person

in Berryhill’s position to serve in two separate periods of acting service.

3346(a)(1) and (a)(2) were inclusive, Berryhill remained eligible to return to her official title as

Acting Commissioner upon the submission of a nomination. Thus, on April 17, 2018, upon the

nomination of Saul, § 3346(a)(2) permitted Berryhill to spring back into her role as Acting

Commissioner during the nomination’s pendency. Therefore, Plaintiff’s ALJ was properly

appointed.

IV. CONCLUSION

For the reasons set forth above, the ALJ’s decision is AFFIRMED. An appropriate order

shall follow.

DATED: December 19, 2022

/s/ Freda L. Wolfson

Hon. Freda L. Wolfson

U.S. Chief District Judge