Riccinto v. Commissioner of Social Security

NOUNRITTHEEDR SNT DAITSETSR DICISTT ORFIC NTE CWO YUORRTK

______________________________________________________________________

DANIELLE R..1,

Plaintiff,

v. 5:19-CV-538 (ATB)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

______________________________________________________________________

HOWARD D. OLINSKY, ESQ., for Plaintiff

CHRISTOPHER LEWIS POTTER, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment,

pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in

accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.

Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).

I. PROCEDURAL HISTORY

Plaintiff filed applications for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) on February 18, 2016, alleging disability

beginning January 1, 2013. (Administrative Transcript (“T”) at 15, 175-85). Her

applications were denied initially on May 17, 2016. (T. 75-100). Administrative Law

1 In accordance with recent guidance from the Committee on Court Administration and

Case Management of the Judicial Conference of the United States, which was adopted by the

Northern District of New York in June 2018 in order to better protect personal and medical

information of non-governmental parties, this Memorandum-Decision and Order will identify the

Judge (“ALJ”) Robyn L. Hoffman conducted a hearing on April 9, 2018, at which

plaintiff and Vocational Expert (“VE” ) David A. Festa testified. (T. 43-74).

In a decision dated May 10, 2018, the ALJ found that plaintiff was not disabled.

(T. 12-42). The ALJ’s decision became the Commissioner’s final decision when the

Appeals Council denied plaintiff’s request for review on March 7, 2019. (T. 1-6).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI

disability benefits must establish that she is “unable to engage in any substantial gainful

activity by reason of any medically determinable physical or mental impairment which

can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In

addition, the plaintiff’s

physical or mental impairment or impairments [must be] 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, regardless

of whether such work exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or whether he would be hired

if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections

404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently

engaged in substantial gainful activity. If he is not, the [Commissioner]

next considers whether the claimant has a “severe impairment” which

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whether, based solely on medical evidence, the claimant has an impairment

which meets or equals the criteria of an impairment listed in Appendix 1 of

the regulations. If the claimant has such an impairment, the [Commissioner

] will consider him disabled without considering vocational factors such as

age, education, and work experience . . . . Assuming the claimant does not

have a listed impairment, the fourth inquiry is whether, despite the

claimant’s severe impairment, he has the residual functional capacity to

perform his past work. Finally, if the claimant is unable to perform his past

work, the [Commissioner] then determines whether there is other work

which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,

416.920. The plaintiff has the burden of establishing disability at the first four steps.

However, if the plaintiff establishes that her impairment prevents her from performing

her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine

whether the correct legal standards were applied and whether substantial evidence

supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,

Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is

“such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more

than a scintilla” of evidence scattered throughout the administrative record. Id.

However, this standard is a very deferential standard of review “ – even more so than

the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.

“To determine on appeal whether an ALJ’s findings are supported by substantial

evidence, a reviewing court considers the whole record, examining the evidence from

both sides, because an analysis of the substantiality of the evidence must also include

that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859 F.2d

255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its

interpretation of the administrative record for that of the Commissioner, if the record

contains substantial support for the ALJ’s decision. Id. See also Rutherford v.

Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence in

the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v.

Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly

to reconcile every conflicting shred of medical testimony). However, the ALJ cannot

“‘pick and choose’ evidence in the record that supports his conclusions.” Cruz v.

Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.

09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

As of the date of the April 9, 2018 administrative hearing, plaintiff was 32 years

old. (T. 50). She resided with her fourteen-year-old son and twelve-year-old daughter,

sharing a two story home with a roommate. (T. 51-52, 63, 551). Plaintiff completed the

tenth grade in regular education classes, before leaving school. (T. 52).

Plaintiff had worked at a fast food restaurant for almost fifteen years. (T. 53, 226,

231). During that period, plaintiff had worked as a cashier, food preparer, and drive-

through window attendant, and served as a trainer for new employees. (T. 53, 226).

Beginning in 2013, plaintiff was limited by her physical impairments to working three-

and-one-half-hour shifts for three days per week, and her only job responsibility was

bagging food orders for customers. (T. 54, 226, 428). Although she had to stand for the

duration of her shift, plaintiff often leaned against the counter for support. (T. 54). She

was still working at the time of the hearing.2 (T. 53-55).

Plaintiff was diagnosed with tendinitis in both hands in 2012, and reported pain

that radiated up her arms when lifting heavy objects or when engaging in repetitive hand

actions. (T. 431, 569, 1379). She also received treatment for widespread lower back,

knee, and muscle pain that increased with prolonged sitting and standing. (T. 369, 550,

1091). Plaintiff also experienced digestive difficulties and abdominal pain that had been

diagnosed as gastroparesis3 stemming from scar tissue in and around her abdomen. (T.

1385).

The ALJ’s decision sets forth the medical and other evidence of record. (T. 18-

34). Rather than reciting this evidence at the outset, the court will discuss the relevant

details below, as necessary to address the issues raised by plaintiff.

IV. THE ALJ’S DECISION

After finding that plaintiff met the insured status requirements through December

31, 2020, the ALJ found that plaintiff had not engaged in substantial gainful activity

2 The ALJ concluded that this part-time employment did not rise to the level of

substantial gainful activity during the relevant period, but considered this work activity as part of

the RFC determination. (T. 18).

3 Gastroparesis is a disease that prevents the stomach from emptying itself of food in a

normal fashion, and is often the result of nerve damage. https://my.clevelandclinic.org/health/

diseases/15522-gastroparesis

since her alleged onset date of February 1, 2012. (T. 18). Next, the ALJ found that

plaintiff had the following severe impairments at step two of the sequential evaluation:

gastroparesis; mild scoliosis with chronic low back pain; bilateral tendonitis of both

hands; and mild bilateral carpal tunnel syndrome. (T. 18- 21). At the third step, the ALJ

determined that plaintiff’s impairments or combination thereof did not meet or

medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part

404, Subpart P. (T. 21-22).

The ALJ found at step four of the analysis that plaintiff could physically perform

the full range of light work. (T. 22-34). In making the RFC determination, the ALJ

stated that she considered all of the plaintiff’s symptoms, and the extent to which those

symptoms could “reasonably be accepted as consistent with the objective medical

evidence and other evidence, based on the requirements of 20 C.F.R. 404.1529 and

416.929” and Social Security Rulings (“SSR”) 16-3p. (T. 22-23). Finally, the ALJ

stated that she considered opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and

416.927. (T. 23).

The ALJ also found that plaintiff’s medically determinable impairments could

reasonably be expected to cause some of her alleged symptoms, but that plaintiff’s

statements regarding the intensity, persistence, and limiting effects of those symptoms

were not entirely consistent with the medical evidence and other evidence in the record.

(T. 23). The ALJ then determined that plaintiff had no past relevant work, because her

earnings record and evidence of part-time employment did not meet the threshold levels

for substantial gainful activity during the relevant time period. (T. 34). However,

“considering the [plaintiff’]’s age, education, work experience, and residual functional

capacity, there are jobs that exist in significant numbers in the national economy that the

[plaintiff] can perform.” (T. 34-35). Accordingly, the ALJ determined that plaintiff was

not disabled from the alleged onset date of February 1, 2012, through the date of the

ALJ’s decision. (T. 35).

V. ISSUES IN CONTENTION

Plaintiff raises the following arguments:

1. Plaintiff’s case should be remanded because it was adjudicated by an

unconstitutionally appointed ALJ. (Pl.’s Br. at 22-25) (Dkt. No. 9).

2. The ALJ improperly weighed the evidence, particularly that related to

plaintiff’s upper extremity limitations. (Pl.’s Br. at 15-19).

3. The ALJ failed to adequately assess plaintiff’s subjective complaints.

(Pl.’s Br. at 19-22).

Defendant argues that Plaintiff failed to timely raise her Appointments Clause argument,

and that the Commissioner’s determination should be affirmed because it was supported

by substantial evidence. (Def.’s Br. at 3-18) (Dkt. No. 11). For the following reasons,

this court agrees with defendant and will dismiss the complaint.

DISCUSSION

VI. APPOINTMENT OF ALJ

A. Legal Standards

Under the Appointments Clause, Congress may vest appointment of “inferior

Officers . . . in the President alone, in the Courts of Law, or in the Heads of

Departments.”) U.S. Const. Art. II, § 2, cl. 2. In Lucia v. Securities & Exch. Comm’n,

the Supreme Court held that ALJs for the Securities and Exchange Commission

(“SEC”) are “‘[o]fficers of the United States,’ subject to the Appointments Clause,” and

that the ALJ at issue had been improperly appointed by staff members, instead of the

head of the department. Lucia, ___ U.S. ___, 138 S. Ct. 2044, 2051 (2018). Upon a

judicial determination that an ALJ who presided over an administrative hearing had not

been appointed in compliance with the Appointments Clause, the appropriate remedy

was a new hearing by a different, constitutionally-appointed ALJ. Id. at 2055. District

Courts have since applied Lucia to Social Security Administration (“SSA”) ALJs. See,

e.g., Williams v. Berryhill, No. 17-CV-1660, 2019 Wl 1271647, at *6 (E.D.N.Y. Mar.

19, 2019); Bonilla-Bukhari v. Berryhill, 357 F. Supp. 3d 341, 349-50 (S.D.N.Y. 2019).

In Lucia, the Supreme Court specifically stated that one is only entitled to relief if

the challenge to the constitutional validity of the appointment of the adjudicating officer

is timely, but Lucia had raised that issue before the SEC. Lucia, 138 S. Ct. at 2055

(quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995) (emphasis added)). The

Second Circuit has not yet addressed whether the failure to raise an Appointments

Clause challenge to ALJs during the SSA administrative process precludes pursuing that

argument in subsequent judicial proceedings, although it recently ruled on that issue

with respect to SEC ALJs. See, Gonnella v. United States Sec. & Exch. Comm’n, 954

F.3d 536, 543-46 (2d Cir. Apr. 2, 2020) (“a litigant who does not object to the

constitutionality of an ALJ at any point during . . . SEC proceedings forfeits that

challenge”).

B. Application

Plaintiff contends that the ALJ did not exercise lawful authority denying her

claim, because the ALJ was an inferior officer who was not properly appointed pursuant

to the Appointments Clause of the United States Constitution.4 (Pl.’s Br. at 25-26.)

Accordingly, plaintiff argues that this case must be remanded to a different ALJ who

has been constitutionally appointed. (Pl.’s Br. at 26-27.) Defendant counters that

plaintiff forfeited her Appointments Clause claim because she failed to assert this

challenge during the administrative proceedings.5 (Def. Br. at 10-15).

Recently, the Third Circuit Court of Appeals adopted a view favorable to

plaintiff. See Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. Jan. 23, 2020).6

In Cirko, as in this case, the plaintiffs first raised an Appointments Clause challenge

before the district court. Id. In excusing the plaintiff’s failure to challenge the ALJ’s

4 Plaintiff’s brief does not address the details of ALJ Hoffmann’s appointment, but cites

the Commissioner’s July 16, 2018 corrective approval of all SSA ALJ appointments as proof that

her original appointment was invalid. (Pl.’s Br. at 25).

5 For purposes of this proceeding, Defendant does not dispute that SSA ALJs are inferior

officers, but notes that SSA’s Acting Commissioner ratified the appointment of SSA ALJs and

Appeals Council Administrative Appeals Judges (“AAJ”) and approved their appointments as

her own on July 16, 2018, in order to address any Appointments Clause questions involving SSA

proceedings raised by the Lucia decision. 84 Fed. Reg. 9582-02 (Mar. 15, 2019).

6 Plaintiff’s brief, which was filed prior to the Cirko decision, relies in part upon Bizarre

v. Berryhill, 364 F. Supp. 3d 418 (M.D. Pa. 2019). Bizarre was part of the consolidated appeal

that the Third Circuit decided in Cirko. Cirko, 948 F.3d at 152. Appeals addressing the

application of Lucia to SSA ALJs are also pending in the Fourth, Eighth, and Eleventh Circuits,

but had not been decided, as of the time of submission of this decision.

appointment during the administrative process, the Third Circuit determined that there

was no statutory or regulatory issue exhaustion requirement that governs SSA

proceedings. Id. at 153. Assessing three factors–the nature of the claim, the

characteristics of the SSA review, and the interests involved–the Third Circuit held that

timely exhaustion of an Appointments Clause challenge was not required in the SSA

context. Id. at 153.

Cirko and other cases endorsing an exception to any issue exhaustion requirement

in SSA proceedings first look to two cases that preceded Lucia. In Freytag v. Comm’r

of Internal Revenue, 501 U.S. 868, 879-80 (1991), the Supreme Court held that

Appointments Clause challenges were deemed to be “in the category of

nonjurisdictional structural constitutional objections that could be considered on appeal

whether or not they were ruled upon below.” Id. The plaintiff in Freytag was

challenging the appointment of a Special Trial Court Judge in the Tax Court. Id. The

Court reasoned that it was “‘faced with a constitutional challenge that is neither

frivolous nor disingenuous,’” because “[t]he alleged defect in the appointment of the

Special Trial Judge goes to the validity of the Tax Court proceeding that is the basis for

this litigation.” Id. at 879. The Court concluded that despite “disruption to sound

appellate process entailed by entertaining objections not raised below . . . this is one of

those rare cases in which we should exercise our discretion to hear petitioners’

challenge to the constitutional authority of the Special Trial Judge.” Id.

years after Freytag. In Ryder, the Court found that the challenge to the constitutional

appointment of civilian judges to the Court of Military Review must be “timely.”

Ryder, 515 U.S. at 182-83. The Lucia court also applied a timeliness requirement in the

context of Securities and Exchange Commission proceedings. Lucia, 138 S.Ct. at 2055.

Recognizing that these precedents all involved different agencies and different

procedural backgrounds, the Third Circuit found that exhaustion was generally

inappropriate “where a claim serves to vindicate constitutional claims like

Appointments Clause challenges, which implicate both individual constitutional rights

and the structural imperative of separation of powers.” Cirko, 948 F. 3d at 154.7 It

noted the Supreme Court’s holding in Sims v. Apfel, 530 U.S. 103, 107 (2000), that

exhaustion of issues before the SSA Appeals Council was not required to obtain judicial

relief, and observed that the “rationales driving Sims generally apply to ALJs no less

than AAJs . . . .” Id. at 156. Echoing the plurality opinion in Sims, the Cirko decision

emphasized that ALJ hearings are “inquisitorial and driven by the agency rather that the

claimant,” and that the governing regulations did not have an express exhaustion

requirement. Id. at 155-56. Finally, the Third Circuit found that the individual interests

7 The Second Circuit would appear to have a different view on this general issue than the

Third Circuit panel in Cirko. See Gonnella, 954 F.3d at 543 (“‘[O]rderly procedure and good

administration require that objections to the proceedings of an administrative agency be made

while [the agency] has opportunity for correction in order to raise issues reviewable by the

courts.’” . . . Constitutional claims are no different.”) (citations omitted).

156-57. Unlike an adversarial proceeding, the Commissioner has the primary

responsibility for identifying and developing the issues, and the claimant is not required

to develop facts or make arguments. Id. An exhaustion requirement would therefore

impose an “unprecedented burden” on SSA claimants. Id. at 156. In contrast, the Cirko

decision described the SSA Commissioner’s interest in requiring exhaustion as low,

because constitutional questions are outside the agency’s expertise and the agency was

incapable of providing effective relief to an applicant who raised concerns about the

Appointments Clause. Id. at 158.

This court has carefully reviewed the Third Circuit’s ruling in Cirko, as well as

those cases within the Second Circuit that have found its reasoning “persuasive.” See

Jenny R. v. Comm’r of Soc. Sec., No. 5:18-CV-1451 (DEP), 2020 WL 1282482, at *5

(N.D.N.Y. Mar. 11, 2020); Suarez v. Saul, No. 3:19-CV-173 (JAM), 2020 WL 913809,

at *3 (D. Conn. Feb. 26, 2020). Ultimately, this court finds that plaintiff was still

required to raise the Appointments Clause issue at the agency level prior to raising it in

federal court, particularly in light of the long-standing requirement, reaffirmed in Lucia,

that challenges to the constitutional appointment of a judge must be timely. This ruling

is consistent with the “vast majority” of district courts that have considered the

F. Supp. 3d at 351 (summarizing cases in this Circuit following Lucia prior to Cirko);

Herring v. Saul, No. C18-120, 2020 WL 1528163, at *10 (N.D. Iowa, March 31, 2020)

(listing cases outside the Third Circuit that declined to follow Cirko).

In Lucia, the Court specifically stated that one is only entitled to relief if the

challenge to the constitutional validity of the appointment of the adjudicating officer is

timely. Lucia, 138 S. Ct. at 2055 (quoting Ryder v. United States, 515 U.S. at 182-83)).

The Supreme Court did not define the limits of timeliness in Lucia, but found that the

challenge to the appointment of an ALJ for the Securities and Exchange Commission

was timely because it had first been raised to the Commission during the administrative

appeal. Id. The Second Circuit recently construed Lucia’s timeliness requirement to

hold that a litigant before the SEC must raise an Appointments Clause objection to an

ALJ during the administrative proceedings or forfeit the right to pursue that issue at the

district court level. Gonnella, 954 F.3d at 544. A similar standard should be, and

typically has been, applied in the context of Social Security proceedings. See

Demoranville v. Saul, No. 3:18-CV-1930, 2019 WL 6712056, at *1 (D. Conn. Dec. 10,

2019) (“Social Security claimants are entitled to a Lucia rehearing, only if they raised

8 This finding is also consistent with my previous decision, Kevin F. v. Comm’r of Soc.

Sec., No. 5:18-CV-1454 (ATB), 2020 WL 247323 (N.D.N.Y. Jan. 16, 2020). Although it

preceded Cirko, my decision considered Bizarre and the minority of district court cases that had

excused a plaintiff’s failure to exhaust with regard to the Appointments Clause in SSA

proceedings. Kevin F., 2020 WL 247323, at *5-6.

Johnson v. Berryhill, No. 3:17-CV-165, 2019 WL 1430242, at *14 (D. Conn. Mar. 29,

2019) (citing cases)).

Although the SSA statutes and regulations do not include an express exhaustion

requirement, the regulations do impose certain requirements on claimants appearing at

the administrative level, including the requirement that any objections to the ALJ who

will conduct the hearing “must” be raised “at your earliest opportunity.” 20 C.F.R.

404.940. Plaintiff was represented by counsel before the ALJ and before the Appeals

Council, and had an opportunity to raise any concerns with respect to the Appointments

Clause at the administrative level. (T. 45). The administrative hearing was conducted

on April 9, 2018; the ALJ’s decision was issued on May 10, 2018; on June 1, 2018,

plaintiff’s attorney was granted a 25-day extension to submit further information to the

Appeals Council (T. 7-8); and the decision of the Appeals Council was not issued until

March 7, 2019. Freytag was decided in 1991 and Ryder was decided in 1995–both well

before the administrative hearing in this case–and Lucia was argued on April 23, 2018

and decided on June 21, 2018–while plaintiff’s counsel still had time to supplement his

submission to the Appeals Council.9 Kevin F. v. Comm’r of Soc. Sec., No.

9 The letter from the Appeals Council said that, after June 26, 2018, it would not allow

more time to send information “except for very good reason.” (T. 7). Presumably, a recent and

relevant ruling of the Supreme Court would have constituted “very good reason” for plaintiff’s

attorney to raise the Appointments Clause issue before the Appeals Council made its ruling in

2019, even if counsel did not immediately learn of the issuance of the Lucia decision.

counsel could have raised the Appointments Clause argument before the agency because

the key precedents on which Lucia relied were decided well before any administrative

proceedings, and the decision in Lucia itself was issued before the Appeals Council

ruled).

Requiring exhaustion at the administrative level prevents a represented party from

withholding an objection for strategic reasons. Bonilla-Bukhari, quoting other cases,

further explains the benefit of requiring a timely administrative challenge under the

Appointments Clause:

Ryder’s rule that relief is due for “timely” challenges was created as an

incentive “to raise Appointments Clause challenges with respect to

questionable judicial appointments.” Ryder, 515 U.S. at 182-83 . . . .

Regularly permitting unsuccessful claimants to raise Appointments Clause

challenges for the first time on judicial review, especially when the

arguments underlying those challenges were available at the administrative

level, 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.” Freytag, 501 U.S. at 895 . . .

(Scalia, J., concurring in part and concurring in the judgment).

Bonilla-Bukhari, 357 F. Supp. 3d at 351-52 (quoting Abbington v. Berryhill, No.

1:17-CV-552, 2018 WL 6571208, at *7 (S.D. Ala. Dec. 13, 2018)).

Consistent with that approach, the SSA regulations anticipate that all disputed

issues, including constitutional issues be raised at the administrative level. See e.g. 20

C.F.R. § 404.933(a)(2), (3) (a claimant should submit, in a written request to the ALJ,

statement of additional evidence to be submitted”); § 404.924(d) (providing for an

expedited appeals process when a claimant alleges that “the only factor preventing a

favorable determination or decision is a provision in the law that you believe is

unconstitutional.”). While the issue in the instant case is not a provision “in the law,”

clearly, the SSA foresees that constitutional challenges may be made to the agency.10

Even if the individual ALJ was unable correct the constitutional defect on her

own, other administrative relief may have been available to plaintiff if the issue had

been timely raised. For example, the Commissioner could have appointed another ALJ

to hear the matter, or the Appeals Council could have vacated the improperly appointed

ALJ’s decision. See Gagliardi v. Soc. Sec. Admin., No. 18-CV-62106, 2020 WL

966595, at *4 (S.D. Fla. Feb. 28, 2020). Indeed, the Commissioner published a Social

10 The Third Circuit panel in Cirko acknowledged that the Supreme Court in Sims v. Apfel

did not address the question of whether issue exhaustion before an SSA ALJ, as opposed to an

AAJ, should be required. Cirko, 948 F.3d at 115 (citing Sims, 530 U.S. at 107). The Cirko panel

also recognized that the concurring opinion of Justice O’Connor in Sims, which joined only parts

of the plurality opinion, controlled the precedential impact of that decision. Cirko, 948 F.3d at

155 n.4. Justice O’Connor concluded that a claimant should not be required to explicitly raise

particular issues before the SSA Appeals Council, in order to be able to pursue those issues

before a district court, primarily because the SSA regulations and procedures affirmatively

suggested that specific issues need not be raised before the Appeals Council. 530 U.S. at 113.

She did not join Part II-B of the plurality opinion, which focused on the non-adversarial nature

of Social Security proceedings as a second reasons for not requiring issue exhaustion before the

Appeals Council. As noted above, the SSA regulations, while not having an explicit exhaustion

requirement, require the claimant to raise all disputed issues before the ALJ and to raise any

objection to the assigned ALJ at the claimant’s “earliest opportunity.” So, I respectfully disagree

with the Cirko panel that the Sims precedent supports not requiring issue exhaustion before the

ALJ generally and before the ALJ or the Appeals Council with respect to the issue of the

disqualification of the assigned ALJ.

Lucia, effective March 15, 2019. See SSR 19-1p, 84 Fed. Reg. 9582-02, 9583 (Mar. 15,

2019). SSR 19-1 provides that, if a claimant has raised a “timely” challenge to the

ALJ’s appointment by presenting the claim to either the ALJ or to the Appeals Council,

the agency would provide for additional administrative review of the claim as required

by Lucia. Id.

Notwithstanding the reasoning of the Third Circuit panel in Cirko, this court finds

that the Commissioner and the public have a very strong interest in having

Appointments Clause issues raised by counsel during the administrative process. As

explained in SSR-19, the SSA “receive[s] millions of applications for benefits each

year,” and the SSA “must make decisions efficiently in order to ensure that the system

continues to work and serve the American people.” The SSA “employ[s] more ALJs

than all other Federal agencies combined,” issues “hundreds of thousands of decisions

each year,” and the impact of Lucia “has the potential to significantly affect” the SSA’s

hearings and appeals process. Id. Even the Third Circuit, in downplaying the impact of

its Cirko decision, recognized that allowing plaintiffs to raise an Appointments Clause

argument for the first time in federal court had the potential to impact hundreds of cases

now pending in the district courts. See Cirko, 948 F.3d at 159.

Moreover, while the Supreme Court has long recognized the interest in

administrative litigants in the proper appointment of inferior officers under the

purpose other than securing the tactical advantage of having a second “bite at the apple”

after an unfavorable administrative decision. Plaintiff is seeking to have a second

hearing before a different ALJ, who, like ALJ Hoffman (who presided at plaintiff’s

initial hearing) and all of the other SSA ALJs, was not properly appointed at the time of

his hearing, but is now, based on the Acting Commissioner’s post hoc ratification of the

appointment of all of the agency’s ALJs and AAJs. The petitioner in Lucia objected to

having his rehearing, on remand, before another SEC ALJ whose prior, invalid

appointment, had been remedied by subsequent ratification by the SEC. Lucia, 138 S.

Ct. at 2055 n.6. While not ruling on the objection, the majority implicitly recognized

the limitations of such a remedy, noting: “The Commission has not suggested that it

intends to assign Lucia’s case on remand to an ALJ whose claim to authority rests on

the ratification order.” In this case, given the invalid appointment of all of the SSA’s

ALJs and AAJs, there is no alternative to a new hearing before an ALJ whose

appointment was affected by the same issues as ALJ Hoffman. Thus, this court

respectfully disagrees with the Cirko panel in how it weighed the respective interests of

the Social Security Administration and the plaintiff in deciding whether to require issue

exhaustion in the particular context of disability appeals before that agency.

Based on the analysis above, this court concludes that this is not one of the “rare

cases” described by Freytag where a court should excuse plaintiff’s failure to raise an

not entitled to remand based upon an alleged violation of the Appointments Clause.

This court will now consider whether the ALJ’s determination was supported by

substantial evidence.

VII. RFC/WEIGHING EVIDENCE

A. Legal Standards

1. RFC

RFC is “what [the] individual can still do despite his or her limitations.

Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work

activities in an ordinary work setting on a regular and continuing basis. . . .” A “regular

and continuing basis” means eight hours a day, for five days a week, or an equivalent

work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL 252970, at *2

(N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)

(quoting SSR 96–8p, 1996 WL 374184, at *2)); Babcock v. Berryhill, No. 5:17-CV-

00580 (BKS), 2018 WL 4347795, at *12-13 (N.D.N.Y. Sept. 12, 2018); Tankisi v.

Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013); Stephens v. Colvin, 200 F.

Supp. 3d 349, 361 (N.D.N.Y. 2016).

In rendering an RFC determination, the ALJ must consider objective medical

facts, diagnoses, and medical opinions based on such facts, as well as a plaintiff’s

subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R. §§

(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)); Kirah D. v.

Berryhill, No. 3:18-CV-0110 (CFH), 2019 WL 587459, at *8 (N.D.N.Y. Feb 13, 2019);

Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). An ALJ must specify the functions

plaintiff is capable of performing, and may not simply make conclusory statements

regarding a plaintiff’s capacities. Roat v. Barnhart, 717 F. Supp. 2d 241, 267 (N.D.N.Y.

2010); Martone v. Apfel, 70 F. Supp. 2d at 150 (citing Ferraris v. Heckler, 728 F.2d

582, 588 (2d Cir. 1984); LaPorta v. Bowen, 737 F. Supp. at 183, Stephens v. Colvin, 200

F. Supp. 3d 349, 361 (N.D.N.Y. 2016); Whittaker v. Comm’r of Soc. Sec., 307 F. Supp.

2d 430, 440 (N.D.N.Y. 2004). The RFC assessment must also include a narrative

discussion, describing how the evidence supports the ALJ’s conclusions, citing specific

medical facts, and non-medical evidence. Natashia R. v. Berryhill, No. 3:17-CV-01266

(TWD), 2019 WL 1260049, at *11 (N.D.N.Y. Mar. 19, 2019) (citing SSR 96-8p, 1996

WL 374184, at *7).

2. Weighing Evidence/Treating Physician

In making a determination, the ALJ weighs all the evidence of record and

carefully considers medical source opinions about any issue. SSR 96-5p, 1996 WL

374183, at *2-3 (1996). Under 20 C.F.R. §§ 404.1527(e) and 416.927(e), some issues

are not “medical issues,” but are “administrative findings.” The responsibility for

determining these issues belongs to the Commissioner. See SSR 96-5p, 1996 WL

listed impairment; the plaintiff’s RFC; how the vocational factors apply; and whether

the plaintiff is “disabled” under the Act. Id.

In evaluating medical opinions on issues that are reserved to the Commissioner,

the ALJ must apply the factors listed in 20 C.F.R. §§ 404.1527(d) and 416.927(d). The

ALJ must clearly state the legal rules that he applies and the weight that he accords the

evidence considered. Drysdale v. Colvin, No. 14-CV-722, 2015 WL 3776382, at *2

(S.D.N.Y. June 16, 2015) (citing Rivera v. Astrue, No. 10 Civ. 4324, 2012 WL

3614323, at *8 (E.D.N.Y. Aug. 21, 2012) (citation omitted)).

A treating source’s opinion on the nature and severity of a claimant’s impairments

is entitled to controlling weight where it is “well-supported by medically acceptable

clinical and laboratory diagnostic techniques” and “not inconsistent with the other

substantial evidence” of the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). This is

known as the “treating physician rule.” If an ALJ decides not to give the treating

source’s records controlling weight, then he must explicitly consider four factors: “(1)

the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical

evidence supporting the opinion; (3) the consistency of the opinion with the remaining

medical evidence; and (4) whether the physician is a specialist.” Estrella v. Berryhill,

925 F.3d 90, 95-96 (2d Cir. 2019) (quoting Burgess v. Astrue, 537 F. 3d 117, 120 (2d

Cir. 2008)). Should an ALJ assign less than controlling weight to a treating physician’s

Estrella, 925 F.3d at 96. It is impossible to conclude that the error is harmless unless a

“searching review of the record . . . assures us that the substance of the treating

physician rule was not traversed.” Id.

B. Application

As noted above, the ALJ found that plaintiff could perform the full range of light

work. (T. 23). Plaintiff argues that the ALJ did not properly weigh the medical

evidence regarding plaintiff’s physical impairments, particularly the evidence regarding

plaintiff’s difficulty using her hands. (Pl.’s Br. at 19-20). This court disagrees, and

concludes that the ALJ’s RFC assessment of plaintiff’s physical impairments was

supported by substantial evidence.

For example, the ALJ considered the multiple medical opinions provided by

plaintiff’s treating gastroenterologist, Dr. Sara Mitchell. (T. 29-30). The ALJ assigned

“some weight” to Dr. Mitchell’s March 29, 2016 opinion that plaintiff would “continue

to need restriction for bending and heavy lifting due to [a] chronic medical condition.”

(T. 29, 1383). However, she assigned “no weight” to Dr. Mitchell’s subsequent, more

restrictive opinions dated June 21, 2016, November 19, 2016, and January 23, 2018 due

to a lack of support in the record evidence. (T. 29-30, 559-62, 1384).

The ALJ identified several reasons for discounting these treating source opinions.

First, the restrictions were based on “diagnoses outside of Dr. Mitchell’s area of

disorders,” and a need for a three-day work week due to plaintiff’s reported back pain.

(T. 29-30, 1384). These restrictions were also inconsistent with Dr. Mitchell’s own

notes, related to plaintiff’s digestive impairments, that described “mild” or

“intermittent” symptoms following treatment. (T. 31, 500, 542, 551, 559). The ALJ

also noted that the manipulative and postural limitations described by Dr. Mitchell were

not supported by the examination notes from other medical sources who were more

involved in the treatment of plaintiff’s back and joint pain, and were inconsistent with

the consultative examiner’s reports. (T. 551-52, 563, 614, 617).

The ALJ provided similar reasons for assigning “no weight” to the opinions of

two other treating sources–Dr. David J. Murphy, Jr., and Physician’s Assistant (“PA”)

Robert C. Richman. (T. 30, 565-66, 1385). On September 25, 2017, Dr. Murphy,

plaintiff’s orthopedic surgeon, opined that plaintiff could only lift, push, and pull

between five to ten pounds bilaterally due to numbness and pain in her hands. (T. 566).

On December 7, 2017, PA Richman opined that plaintiff could push, pull or lift no more

than five pounds, and could not perform any repetitive hand motions. (T. 1385). He

also opined that plaintiff could not bend or stoop. (Id.) The ALJ discounted these

opinions because they were inconsistent with the results of physical examinations that

plaintiff’s carpal tunnel syndrome was mild, and that her abilities had improved

following surgery. (T. 30, 565). The ALJ also cited treatment notes that characterized

or within normal limits. (T. 31-32, 447, 457, 630-31, 1154).

The ALJ assigned “some,” but less than great weight to the treating source

opinions of Dr. Raymond Alcuri and PA Carla Vavala. (T. 29, 557-58, 1154). On June

20, 2016, PA Vavala opined that plaintiff’s mild back pain would not cause her to be

off-task for extended periods of time, and would not otherwise interfere with her ability

to work an ordinary work day. (T. 557). In September 1, 2016 treatment notes, Dr.

Alcuri described plaintiff’s lumber spine MRI results as normal. His recommended

course of treatment for plaintiff’s back pain was home exercise, participation in

behavioral health classes, and quitting smoking. (T. 1154).

Dr. Kalyani Ganesh, who performed consultative examinations of plaintiff on

May 30, 2014 and April 22, 2016, reached similar conclusions as Dr. Alcuri and PA

Vavala. (T. 550-53, 1379-82). During the May 2014 examination, plaintiff

demonstrated full flexion, extension, lateral flexion bilaterally, and full rotary

movement bilaterally in the cervical and lumbar spine, as well as full range of motion in

the shoulders, elbows, forearms, and wrists bilaterally. (T. 1381). She had intact hand

and finger dexterity, full strength in the upper and lower extremities, and full grip

strength. (Id.) Based on this examination, Dr. Ganesh opined that plaintiff had “mild to

minimal” limitations in lifting, carrying, pushing, or pulling, but no limitations with

regard to sitting, standing, and walking. (Id.). Plaintiff’s April 22, 2016 consultative

flexion in the lumbar spine. (T. 552). Dr. Ganesh did not identify any lifting or other

physical restrictions in her 2016 consultative examination report. (T. 553). In assessing

a claimant’s RFC, an ALJ is entitled to rely on opinions from medical consultants

because they are qualified experts in the field of social security disability. 20 C.F.R. §

404.1527(e); see, e.g., Cobb v. Comm’r of Soc. Sec., No. 5:13-CV-0591 (LEK/TWD),

2014 WL 4437566, at *6 (N.D.N.Y. Sept. 9, 2014) (“[T]he report of a consultative

examiner may constitute substantial evidence to support an ALJ’s decision.” (quoting

Mongeur v. Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)); Heaman v. Berryhill, 765 F.

App’x 498, 500 (2d Cir. 2019) (rejecting plaintiff’s argument that the ALJ’s RFC

determination was not supported by substantial evidence because the ALJ relied on the

opinions of the consultative examiner and the medical expert, which contradicted the

opinions of treating sources, but were otherwise supported by the record).

It is within the purview of the ALJ to review all the evidence before him, resolve

evidentiary conflicts, and make a determination consistent with the evidence as a whole,

which the ALJ did here. See, e.g., Bliss v. Colvin, 13-CV-1086 (GLS/CFH), 2015 WL

457643, at *7 (N.D.N.Y., Feb. 3, 2015) (“It is the ALJ’s sole responsibility to weigh all

medical evidence and resolve material conflicts where sufficient evidence provides for

such.”) (citing, inter alia, Micheli v. Astrue, 501 F. App’x 26, 29 (2d Cir.2012).

Although the ALJ described the consultative reports as generally supportive of

with regard to lifting and carrying. This decision to discount specific portions of the

consultative opinion was within her discretion. See Walker v. Colvin, No. 3:15-CV-465

(CFH), 2016 WL 4768806, at *10 (N.D.N.Y. Sept. 13, 2016) (“[A]n ALJ may properly

‘credit those portions of a consultative examiner’s opinion which the ALJ finds

supported by substantial evidence of record and reject portions which are not so

supported.’ This is true even where the ALJ relies on a consultative examiner’s

examination findings, but rejects the consultative examiner’s medical source statement .

. . .”).

VIII. Evaluation of Symptoms

A. Legal Standards

In evaluating a plaintiff’s RFC for work in the national economy, the ALJ must

take the plaintiff’s reports of pain and other symptoms into account. Genier v. Astrue,

606 F.3d 46, 49 (2d Cir. 2010). The ALJ must “‘carefully consider’” all the evidence

presented by claimants regarding their symptoms, which fall into seven relevant factors

including ‘daily activities’ and the ‘location, duration, frequency, and intensity of [their]

pain or other symptoms.’” Del Carmen Fernandez v. Berryhill, No. 18-CV-326, 2019

WL 667743, at *9 (S.D.N.Y. Feb. 19, 2019) (citing 20 C.F.R. § 404.1529(c)(3); Social

Security Ruling (SSR) 16-3p, Titles II and XVI: Evaluation of Symptoms in Disability

Claims, 81 FR 14166-01 at 14169-70, 2016 WL 1020935 (Mar. 16, 2016)).

regulatory policy” because the regulations themselves do not use that term. SSR 16-3p,

81 FR at 14167. Instead, symptom evaluation tracks the language of the regulations.11

The evaluation of symptoms involves a two-step process. First, the ALJ must

determine, based upon the objective medical evidence, whether the medical impairments

“could reasonably be expected to produce the pain or other symptoms alleged . . . .” 20

C.F.R. §§ 404.1529(a), (b); 416.929(a), (b).

If so, at the second step, the ALJ must consider “‘the extent to which [the

claimant’s] alleged functional limitations and restrictions due to pain or other symptoms

can reasonably be accepted as consistent with the [objective medical evidence] and

other evidence to decide how [the claimant’s] symptoms affect [her] ability to work.’”

Barry v. Colvin, 606 F. App’x 621, 623 (2d Cir. 2015) (citing inter alia 20 C.F.R. §

404.1529(a); Genier v. Astrue, 606 F.3d at 49) (alterations in original).12

If the objective medical evidence does not substantiate the claimant’s symptoms,

the ALJ must consider the other evidence. Cichocki v. Astrue, 534 F. App’x 71, 76 (2d

Cir. 2013) (citing superceded SSR 96-7p). The ALJ must assess the claimant’s

11 The standard for evaluating subjective symptoms has not changed in the regulations. Rather,

the term “credibility” is no longer used, and SSR 16-3p makes it clear that the evaluation of the

claimant’s symptoms is not “an evaluation of the claimant’s character.” 81 FR at 14167. The court

will remain consistent with the terms as used by the Commissioner.

12 The court in Barry also cited SSR 96–7p, 1996 WL 374186, at *2 (July 2, 1996) which was

superceded by SSR 16-3p. As stated above, the factors considered are the same under both rulings.

The 2016 ruling has removed the emphasis on “credibility.”

related factors: (1) claimant’s daily activities; (2) location, duration, frequency, and

intensity of claimant’s symptoms; (3) precipitating and aggravating factors; (4) type,

dosage, effectiveness, and side effects of any medication taken to relieve symptoms; (5)

other treatment received to relieve symptoms; (6) any measures taken by the claimant to

relieve symptoms; and (7) any other factors concerning claimant’s functional limitations

and restrictions due to symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3).

The ALJ must provide specific reasons for the determination. Cichocki v. Astrue,

534 F. App’x at 76. However, the failure to specifically reference a particular relevant

factor does not undermine the ALJ’s assessment as long as there is substantial evidence

supporting the determination. Id. See also Del Carmen Fernandez v. Berryhill, 2019

WL 667743 at *11 (citing Rousey v. Comm’r of Soc. Sec., 285 F. Supp. 3d 723, 744

(S.D.N.Y. 2018)). “[R]emand is not required where ‘the evidence of record allows the

court to glean the rationale of an ALJ’s decision.’” Cichocki v. Astrue, 534 F. App’x at

76 (quoting Mongeur v. Heckler, 722 F.2d at 1040).

B. Application

Plaintiff argues that the ALJ failed to properly consider her subjective complaints

because her assessment was based upon “an insufficiently-developed analysis of

activities of daily living” that failed to account for changes in plaintiff’s condition.

However, the ALJ’s decision demonstrates consideration of plaintiff’s symptoms in

testimony, and statements made to her health care professionals regarding her symptoms

and activities, with attention given to both physical and mental limitations.13 (T. 31-32).

In particular, the ALJ reviewed the evidence related to plaintiff’s hands, wrists, and

arms, and found no limitations on plaintiff’s ability to reach, handle, finger, feel, and

use her upper extremities, beyond the lifting limitations associated with light work. (T.

31).

A review of the evidence of record supports the ALJ’s findings. Plaintiff’s

allegations that her pain significantly limited her ability to lift, reach, handle, and

imposed significant postural limitations are inconsistent with treatment notes indicating

that “there was no reason” why her pain would interfere with her ability to work. (T.

1154). The ALJ also considered plaintiff’s statements regarding her daily activities,

which included climbing stairs, driving, caring for children and pets, shopping, cooking,

and cleaning on a regular basis. (T. 30-31, 51-55, 213-216). See, e.g., Herrington v.

Berryhill, No. 3:18-CV-315, 2019 WL 1091385, at *7 (D. Conn. Mar. 8, 2019)

(activities of daily living, including childcare, are an appropriate factor for an ALJ to

consider when assessing claimant’s claimed symptoms and limitations) (collecting

cases); Tricarico v. Colvin, 681 F. App’x 98, 101 (2d Cir. 2017) (affirming an ALJ’s

13 Plaintiff alleged that she suffered from mental impairments including depression,

attention-deficit disorder, and obsessive compulsive disorder, and the ALJ considered those

allegations at step two and as part of her RFC analysis. (T. 20-21, 25). Plaintiff has not directly

challenged those portions of the ALJ’s decision.

physician based on the opinion of a consultative examiner that plaintiff could perform

sedentary work with additional limitations, and the evidence that plaintiff was capable

of various activities of daily living, including childcare).

The ALJ also noted record evidence that plaintiff’s hand pain improved following

surgery, and that her treating sources opted for a conservative treatment that included

intermittent physical therapy and use of a splint on her wrist. (T. 31, 565-66, 619, 1246-

47) With regard to back pain, the ALJ cited evidence that regular cortisone injections

allowed plaintiff to sit, stand, and walk for longer periods of time without pain. (T. 24,

1093). The ALJ undertook a similar analysis with regard to the impact of plaintiff’s

digestive issues, and noted that plaintiff’s complaints “improved with modification of

her diet, vitamin supplements, and use of various combinations of oral medications.” (T.

23).

During her hearing, plaintiff testified that she was frequently allowed to lean or

support herself against a metal “slab” or counter for the duration of her shift due to pain,

despite it being against the formal workplace rules. (T. 54-55). In her decision, the ALJ

commented on the lack of any disciplinary action arising from this continuous violation

of workplace policy. (T. 26). Plaintiff contends this showed the ALJ “searching for an

inconsistency to use to bolster her decision.” (Pl.’s Br. at 24). This court disagrees, and

concludes that the ALJ raised a legitimate inquiry into the frequency of plaintiff’s need

for a job that required plaintiff to be near the front counter, in view of customers. (T.

54).

Plaintiff also objects to the ALJ’s conclusion that plaintiff’s continued use of

tobacco, despite repeated warnings from her physicians to quit, suggested that her

digestive symptoms were not as severe as she alleged. (T. 24, 546, 551). Cases have

found that there are numerous reasons why an individual may continue smoking or other

addictive behavior despite the health risks, thus making it an “unreliable” basis to assess

credibility. See Goff v. Astrue, 993 F. Supp. 2d 114, 128 (N.D.N.Y. 2012). However,

the ALJ’s reliance here was minimal, and harmless error in light of the numerous other

factors that the ALJ considered in reference to plaintiff’s digestive and other

impairments. (T. 23-24, 27).

It is the province of the ALJ to resolve genuine conflicts in the record. Veino,

312 F.3d at 588. However, the Commissioner need not “reconcile explicitly every shred

of medical testimony.” Galiotti v. Astrue, 266 F. App’x 66, 67 (2d Cir. 2008) (citing

Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)). Here, the ALJ resolved conflicts

between the objective medical record, medical opinion evidence, and plaintiff’s

testimony by assigning the greatest weight to that evidence that she deemed most

consistent with plaintiff’s overall treatment record and activities. In doing so, the ALJ

appropriately evaluated the conflicting medical evidence, and made an RFC finding that

was consistent with the overall record. See Matta v. Astrue, 508 F. App’x. 53, 56 (2d

Cir. 2013) (although ALJ’s conclusion did not perfectly correspond with any of the

opinions of medical sources, ALJ was entitled to weigh all of the evidence available to

make an RFC finding that was consistent with the record as a whole). In light of the

ALJ’s analysis of plaintiff's medical history, the relevant medical opinions, and

plaintiff's activities of daily living, this court concludes that her RFC determination was

supported by substantial evidence, as summarized above.

WHEREFORE, based on the findings above, it is

ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiffs

complaint is DISMISSED, and it is

ORDERED, that judgment be entered for the DEFENDANT.

Dated: April 29, 2020 | melo) Baten

Andrew T. Baxter

U.S. Magistrate Judge

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