1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 DONDIA M. L.,1 Case No. 2:20-cv-06497-AFM 12 Plaintiff, MEMORANDUM OPINION AND 13 v. ORDER AFFIRMING DECISION 14 KILOLO KIJAKAZI, Acting OF THE COMMISSIONER Commissioner of Social Security, 15

Defendant. 16 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying her application for supplemental security income. In accordance with the 20 case management order, the parties have filed briefs addressing the merits of the 21 disputed issues. The matter is now ready for decision. 22 BACKGROUND 23 In December 2017, Plaintiff filed an application for supplemental security 24 income, alleging disability beginning May 1, 2015. (Administrative Record (“AR”) 25 150-157.) Plaintiff’s application was denied. (AR 84-94.) On May 6, 2019, Plaintiff 26

27 1 Plaintiff’s name has been partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 28 Management of the Judicial Conference of the United States. 1 appeared with counsel at a hearing conducted before an Administrative Law Judge (“ALJ”). At the hearing, Plaintiff and a vocational expert (“VE”) testified. (AR 52- 2 76.) 3 On May 21, 2019, the ALJ issued a decision finding that Plaintiff suffered 4 from the following medically severe impairments: disorders of the back and obesity. 5 (AR 42.) After determining that Plaintiff’s impairments did not meet or equal a listed 6 impairment, the ALJ then assessed Plaintiff’s residual functional capacity (“RFC”). 7 The ALJ found that Plaintiff had the RFC to perform sedentary work with the 8 following restrictions: Plaintiff can lift and carry ten pounds frequently and twenty 9 pounds occasionally with unlimited pushing and pulling with the same weight 10 restrictions; she can stand and walk for two hours and sit for six hours; she can 11 frequently balance and occasionally climb stairs and ramps, stoop, kneel, crouch and 12 crawl; can never climb ladders, ropes or scaffolds; and she should avoid concentrated 13 exposure to hazards such as machinery and heights. (AR 43.) Relying on the 14 testimony of the VE, the ALJ concluded that Plaintiff was able to perform jobs 15 existing in significant numbers in the national economy, including assembler, table 16 work, and document preparer. (AR 47.) Accordingly, the ALJ determined that 17 Plaintiff was not disabled from August 21, 2017 (the date of Plaintiff’s application) 18 through the date of his decision. (AR 48.) The Appeals Council denied review (AR 19 1-7), rendering the ALJ’s decision the final decision of the Commissioner. 20 DISPUTED ISSUES 21 1. Whether Plaintiff is entitled to a remand based upon the unconstitutional 22 removal procedure in effect during the tenure of Andrew Saul. 23 2. Whether the ALJ provided legally sufficient reasons for rejecting 24 Plaintiff’s subjective complaints. 25 STANDARD OF REVIEW 26 Under

(g), this Court reviews the Commissioner’s decision to 27 determine whether the Commissioner’s findings are supported by substantial 28 1 evidence and whether the proper legal standards were applied. See Treichler v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2014). Substantial 2 evidence means “more than a mere scintilla” but less than a preponderance. See 3 Richardson v. Perales,

(1971); Lingenfelter v. Astrue,

1028, 1035 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 5 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 6 U.S. at 401. In the social security context, the substantial evidence threshold is “not 7 high.” Biestek v. Berryhill,

(2019). This Court must review the 8 record as a whole, weighing both the evidence that supports and the evidence that 9 detracts from the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where 10 evidence is susceptible of more than one rational interpretation, the Commissioner’s 11 decision must be upheld. See Orn v. Astrue,

(9th Cir. 2007). 12 DISCUSSION 13 I. Plaintiff’s Constitutional Challenge 14 After filing her brief in support of her complaint, Plaintiff filed a Notice of 15 New Authority (ECF 25) and a Supplemental Brief (ECF 28) challenging the 16 constitutionality of the ALJ’s decision. Plaintiff contends that

(a)(3) 17 which limits the President’s authority to remove the Commissioner of Social Security 18 without good cause violates separation of powers. See Seila Law LLC v. CFPB, 140

, 2197 (2020) (holding that a for-cause restriction of the President’s 20 executive power to remove the CFPB’s single director violated the separation of 21 powers doctrine). She argues that the unconstitutional removal provision rendered 22 Andrew Saul’s tenure as Commissioner (from June 17, 2019 to July 11, 2021), 23 unconstitutional and “tainted” the “any delegation of authority that flows from this 24 position is tainted in the same way the improper appoint of ALJs tainted the 25 administrative proceedings in Lucia [v. SEC,

(2018)].” (ECF 28 at 26 6.) As a result, Plaintiff argues that she is entitled to a de novo hearing. (ECF 28.) 27 28 1 The Commissioner concedes that § 902(a)(3) violates the separation of powers to the extent it is construed as limiting the President’s authority to remove the 2 Commissioner without cause. (ECF 32 at 3-4.) Nevertheless, the Commissioner 3 argues that Plaintiff is not entitled to a remand because she has failed to show any 4 connection between the unconstitutional removal clause and ALJ Gunn’s decision 5 denying her benefits. The Commissioner also argues that the Court should deny 6 Plaintiff’s request for a new hearing based upon other legal and prudential 7 considerations. (ECF 32 at 4-16.) For the following reasons, the Court agrees with 8 the Commissioner. 9 Plaintiff’s reliance on Lucia v. SEC,

(2018), is misplaced. In 10 Lucia, the Supreme Court held that ALJs of the Securities and Exchange Commission 11 are Officers of the United States and must be constitutionally appointed. Lucia, 138 12 S. Ct. at 2055. The Court concluded that the “appropriate” remedy for an adjudication 13 tainted with an appointments violation is a new “hearing before a properly appointed” 14 official. Lucia,

(citing Ryder v. United States,

, 182- 15 183 (1995)). Unlike Lucia, however, Plaintiff does not rely on an allegedly 16 unconstitutional appointment. To the contrary, she essentially concedes that ALJ 17 Gunn was properly appointed by Acting Commissioner Berryhill at the time she 18 decided Plaintiff’s disability claim. (See ECF 28 at 2, 6.)2 Therefore, there is no 19 Appointments Clause violation. See Rivera-Herrera v. Kijakazi,

, 20 at *6 (E.D. Cal. Nov. 22, 2021) (“the ALJ who adjudicated Plaintiff's claim on 21 September 18, 2019 was properly appointed pursuant to former Acting 22 Commissioner Berryhill’s July 16, 2018 ratification of ALJ appointments. As such, 23 24 2 On July 16, 2018, responding to the decision in Lucia, the acting Commissioner of the SSA — 25 Nancy Berryhill — ratified the appointments of ALJs and administrative appeals judges (who were previously appointed by lower-level staff, rather than the Commissioner herself) to address any 26 prospective Appointments Clause concerns. See Rivera-Herrera v. Kijakazi,

, at 27 *5 (E.D. Cal. Nov. 22, 2021); SSR 19-1p,

, 9583 (2019). Plaintiff does not allege that Acting Commissioner Berryhill’s authority was tainted by the unconstitutional removal 28 provision. 1 there is no Appointments Clause violation.”); Lisa Y. v. Comm’r of Soc. Sec.,

, at *5 (W.D. Wash. Nov. 8, 2021) (same); Marrs v. Comm’r of Soc. 2 Sec.,

, at *4 (N.D. Tex. Oct. 5, 2021) (same). 3 Notwithstanding her attempt to characterize it otherwise, Plaintiff’s claim is 4 based upon an allegedly unconstitutional removal provision, and therefore, the 5 controlling law is set forth in Collins v. Yellen,

(2021). See Decker 6 Coal Co. v. Pehringer,

, 1137 (9th Cir. 2021) (“Collins is controlling 7 with respect to the remedy for any unconstitutionality in the removal provisions.”). 8 In Collins, the plaintiffs sought a judicial declaration invalidating prior actions by the 9 FHFA directors, who possessed removal protection and thus headed an 10 unconstitutionally structured agency. Collins, 141 S. Ct. at 1787 (contending that 11 FHFA actions were “adopted and implemented by officers who lacked constitutional 12 authority and that their actions were therefore void ab initio”). The Supreme Court 13 found such relief unwarranted. Id. at 1788. Rather, a plaintiff must demonstrate that 14 the unconstitutional provision actually caused him or her harm. Id. at 1788-1789. The 15 Court refused to invalidate the prior agency actions in their entirety, explaining: 16 All the officers who headed the FHFA during the time in question were 17 properly appointed. Although the statute unconstitutionally limited the 18 President’s authority to remove the confirmed Directors, there was no 19 constitutional defect in the statutorily prescribed method of appointment 20 to that office. As a result, there is no reason to regard any of the actions 21 taken by the FHFA ... as void. 22 Id. at 1787 (emphasis in original). Accordingly, a claimant seeking relief must show 23 that an unconstitutional removal restriction actually caused her harm. See Collins, 24 141 S. Ct. at 1787-1789 & n.24 (an unconstitutional removal restriction “does not 25 mean that actions taken by such an officer are void ab initio and must be undone”); 26 Decker Coal Co., 8 F.4th at 1137 (“Here, the ALJ lawfully exercised power that he 27 possessed by virtue of his appointment, which the Secretary ratified before the ALJ 28 1 adjudicated the claim. Absent a showing of harm, we refuse to unwind the decisions below.”). 2 Plaintiff identifies no particular harm suffered by virtue of her claim being 3 adjudicated during Commissioner Saul’s tenure by an ALJ who was otherwise 4 properly appointed. She has failed to show any connection between the 5 unconstitutional removal clause and ALJ Gunn’s decision denying her benefits. 6 Further, nothing in the record supports the conclusion that the disability decision in 7 Plaintiff’s case is in anyway traceable to Commissioner Saul. Accordingly, Plaintiff 8 is not entitled to a new hearing. See Rivera-Herrera,

, at *8; 9 Lisa Y.,

, at *8 (“Reversal is not mandated under Seila Law or 10 Collins because § 902(a)(3)’s removal clause is severable, and because there is no 11 possibility § 902(a)(3)’s removal clause harmed Plaintiff.”); Catherine J.S.W. v. 12 Comm’r of Soc. Sec.,

, at *8 (W.D. Wash. Nov. 12, 2021) (same); 13 Amanda B. v. Comm’r, Soc. Sec. Admin.,

, at *9 (D. Or. Oct. 26, 14 2021) (“Because Plaintiff offers nothing that traces the decision by the ALJ in her 15 case to any alleged injurious conduct by the SSA Commissioner, she has not 16 demonstrated traceability and her constitutional violation claim fails for lack of 17 standing.”); see also Decker Coal, 8 F.4th at 1136-1138 (plaintiff not entitled to new 18 hearing based upon allegedly unconstitutional removal provision where the plaintiff 19 failed to show make any showing of a nexus between the allegedly unconstitutional 20 removal provisions and the ALJ’s decision). 21 II. The ALJ’s Analysis of Plaintiff’s Subjective Complaints 22 Plaintiff contends that the ALJ erred in discounting her testimony regarding 23 her subjective symptoms and limitations. (ECF 20 at 4-16.) The Commissioner 24 argues that the ALJ provided numerous legally sufficient reasons for his credibility 25 determination. (ECF 32 at 16-19.) 26 27 28 1 A. Plaintiff’s Subjective Complaints Plaintiff claimed that she is unable to work full time because of lower back 2 pain and because her medications make her drowsy. (AR 59, 62, 169.) Plaintiff 3 testified that she suffers from low back pain all the time, and it affects her legs. (AR 4 59-60; see AR 191 (Plaintiff’s Exertion Quest Report).) Plaintiff takes Norco for her 5 back pain and receives shots every four months. She participates in physical therapy 6 in the pool once or twice a week. (AR 60-61.) She stated that she had not undergone 7 surgery because her doctors told her it would paralyze her and they do not “want to 8 go that route.” (AR 61-62.) 9 According to Plaintiff, she stands only to cook dinner for her children, and she 10 needs to sit down every five minutes. (AR 63, 193.) She can sit for ten to fifteen 11 minutes, and when she sits she leans forward on a table to take pressure off her back. 12 Plaintiff frequently lays down during the day. (AR 63-64.) Plaintiff estimated that 13 she could walk four or five blocks (or half a mile), then she will need to sit down and 14 rest for 30 minutes. (AR 67-68.) She said that her doctor told her that she cannot lift 15 more than ten pounds. (AR 68, 70.) 16 Plaintiff has six children – ages 17, 12, 9, 8, 7, and 2 years old. She testified 17 that her children help her with groceries, housework, and cleaning. According to her 18 testimony, Plaintiff sleeps eight hours during the day. Her two-year old child stays 19 home with her during the day and sleeps along with Plaintiff. (AR 64-66, 69, 189.) 20 Plaintiff also testified that she would sometimes babysit kids in her home, recycle, 21 donate plasma, or do hair. (AR 57.) 22 B. Relevant Law 23 Where, as here, a claimant has presented objective medical evidence of an 24 underlying impairment that could reasonably be expected to produce pain or other 25 symptoms, and the ALJ has not made an affirmative finding of malingering, an ALJ 26 must provide specific, clear, and convincing reasons before rejecting a claimant’s 27 testimony about the severity of her symptoms. Lambert v. Saul,

, 1277 28 1 (9th Cir. 2020); Trevizo v. Berryhill,

(9th Cir. 2017). “General findings [regarding a claimant’s credibility] are insufficient; rather, the ALJ must 2 identify what testimony is not credible and what evidence undermines the claimant’s 3 complaints.” Burrell v. Colvin,

(9th Cir. 2014) (quoting Lester 4 v. Chater,

(9th Cir. 1995)). The ALJ’s findings “must be sufficiently 5 specific to allow a reviewing court to conclude the adjudicator rejected the claimant’s 6 testimony on permissible grounds and did not arbitrarily discredit a claimant’s 7 testimony regarding pain.” Brown-Hunter v. Colvin,

(9th Cir. 8 2015) (quoting Bunnell v. Sullivan,

(9th Cir. 1991)) (en banc). 9 Factors an ALJ may consider include conflicts between the claimant’s 10 testimony and the claimant’s conduct – such as daily activities, work record, or an 11 unexplained failure to pursue or follow treatment – as well as ordinary techniques of 12 credibility evaluation, such as internal contradictions in the claimant’s statements and 13 testimony. See Ghanim v. Colvin,

(9th Cir. 2014). In addition, 14 lack of medical evidence is a factor that the ALJ can consider in making a credibility 15 assessment. Burch v. Barnhart,

(9th Cir. 2005). 16 C. Analysis 17 The ALJ summarized Plaintiff’s subjective allegations and found that her 18 “statements regarding the intensity, persistence and limiting effects of [her] 19 symptoms are not entirely consistent with the medical evidence and other evidence 20 in the record.” (AR 44.) The ALJ provided the following reasons in support of this 21 determination. 22 Lack of Support by Medical Evidence 23 “Although lack of medical evidence cannot form the sole basis for discounting 24 pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” 25 Burch,

; see Batson v. Comm’r of Soc. Sec. Admin.,

, 26 1197 (9th Cir. 2004) (lack of objective medical evidence to support claimant’s 27 subjective complaints constitutes substantial evidence in support of an ALJ’s adverse 28 1 credibility determination). Here, the ALJ found that Plaintiff’s back impairment resulted in numerous functional limitations, but the medical evidence did not support 2 the severity of Plaintiff’s allegations. (AR 45.) In reaching her conclusion, the ALJ 3 discussed and summarized the medical evidence as follows. 4 The ALJ began by noting that the record reflected complaints of chronic low 5 back pain, as well as complaints of difficulty performing activities of daily living, 6 lifting objects, and bending forward. (AR 45, citing AR 386-387, 391.) She further 7 noted the results of an MRI performed in August 2013 (prior to the relevant period), 8 which showed mild disc desiccation at the L5-S1 level with trace posterior disc bulge. 9 Plaintiff’s subarticular recesses, neural foramina and central canal were normal. (AR 10 286-287.) 11 Next, the ALJ cited positive clinical findings during physical examinations – 12 namely, spasms on the bilateral paraspinal muscles at L1, L2, L3, L4, L5 and S1, 13 slight to moderate reduced range of motion, and an antalgic gait. (AR 301, 387, 402, 14 407, 411-412, 417, 422, 432, 436.) To treat her back pain, Plaintiff received a series 15 of bilateral lumbar facet joint injections, including March, June and October 2017; 16 February, June and October 2018; and February 2019. (AR 302-303, 313-314, 318- 17 319, 324-325, 347-348, 403-404, 408-409, 415-416.) Plaintiff also attended physical 18 and aquatic therapy. (AR 449-452.) On the other hand, the ALJ also noted that the 19 same physical examinations revealed negative straight leg raises and normal muscle 20 tone in Plaintiff’s lower extremities. (AR 301, 402, 407, 417, 426-427, 437, 446.) In 21 October 2017, Plaintiff reported that her bilateral lumbar injection improved her pain 22 by 80%, and the relief lasted for eleven weeks. (AR 299.) Plaintiff indicated that her 23 activities of daily living were “better” and denied side effects from her current 24 medications. (AR 300.) In February 2018, Plaintiff reported a 70% pain reduction 25 from her previous injection and said that she was “able to do more, interact more, 26 and have more restful nights.” (AR 430.) In October 2018, Plaintiff again reported 27 an 80% improvement in pain following her June 2018 injection. She also said that 28 1 her functioning had improved 70%. Plaintiff was participating in “an active home exercise program” and said that she was benefitting from it. (AR 405, 439-440.) In 2 February 2019, Plaintiff reported a 70% improvement in pain after the October 2018 3 injections and said that the relief lasted for more than 12 weeks. She also indicated 4 that her functioning had improved 60% and she was able to do more, interact more, 5 and have more restful nights. (AR 400, 409.) 6 Finally, Plaintiff’s BMI ranged from 45 to 51, and her condition was 7 compounded by her extreme obesity. (See AR 301, 242, 401.) 8 Considering the evidence, the ALJ limited Plaintiff to sedentary work with 9 additional postural and environmental limitations, but discounted Plaintiff’s 10 testimony that she suffered from greater restrictions. As set forth above, the objective 11 medical evidence revealed only muscle spasm, slight to moderate restriction in range 12 of motion, and gait abnormalities. Thus, the ALJ’s finding that the medical record 13 did not support Plaintiff’s allegations of disabling limitations is supported by 14 substantial evidence. In light of the medical record set forth in detail above, the ALJ 15 properly relied upon the absence of objective medical support as a factor in deciding 16 to discount Plaintiff’s subjective complaints. See Burch,

. 17 Effectiveness of Treatment 18 The effectiveness of treatment is a relevant factor in determining the severity 19 of a claimant’s symptoms.

(c)(3), 416.929(c)(3). Accordingly, 20 substantial evidence of effective treatment may provide a specific, clear, and 21 convincing reason to discount a claimant’s subjective symptom testimony. See also 22 Tommasetti v. Astrue,

(9th Cir. 2008); Warre v. Comm’r 23 of Soc. Sec. Admin.,

(9th Cir. 2006). 24 As set forth above, Plaintiff consistently reported that injections reduced her 25 pain by 70% to 80% and that pain relief lasted approximately three months. The ALJ 26 properly relied upon this evidence to conclude that Plaintiff’s subjective allegations 27 of disabling pain were not fully credible. See Hazelton v. Saul,

, 28 1 454 (9th Cir. 2020) (ALJ properly discounted plaintiff’s subjective complaints where the record “contain[ed] multiple records indicating that [plaintiff’s] symptoms were 2 alleviated through medications and injections” and “[o]ne medical record indicates 3 [plaintiff] even reported 80% relief following lumbar injections”); Thomas D. v. 4 Kijakazi,

, at *4 (C.D. Cal. July 15, 2021) (ALJ properly relied on 5 evidence of improvement with treatment to discount plaintiff’s subjective complaints 6 where records showed that the plaintiff’s back care responded to lumbar facet 7 injections); Vetrano v. Berryhill,

, at *10 (C.D. Cal. Mar. 5, 2019) 8 (ALJ properly relied on evidence that plaintiff’s pain improved with medications, 9 injections, and acupuncture to discount plaintiff’s subjective complaints). 10 Daily Activities 11 Inconsistency between a claimant’s alleged symptoms and her daily activities 12 may be a clear and convincing reason to find a claimant less credible. See Ghanim, 13

; Tommasetti,

. Daily activities are relevant when 14 evaluating subjective symptom allegations, even when those activities do not indicate 15 an ability to do work in a job. See Molina v. Astrue,

(9th Cir. 16 2012) (a claimant’s activities may undercut a claimant’s subjective symptom 17 testimony when inconsistent with “claims of a totally debilitating impairment”). 18 Therefore, although a claimant’s performance of household duties may not directly 19 correspond to specific work tasks, they may still provide a basis for discounting 20 subjective symptoms if the daily activities reveal more functionality than alleged. See 21 Valentine v. Comm’r Soc. Sec. Admin.,

(9th Cir. 2009). At the 22 same time, the Ninth Circuit has “repeatedly warned that ALJs must be especially 23 cautious in concluding that daily activities are inconsistent with testimony about pain, 24 because impairments that would unquestionably preclude work and all the pressures 25 of a workplace environment will often be consistent with doing more than merely 26 resting in bed all day.” Garrison v. Colvin,

(9th Cir. 2014); see 27 Vertigan v. Halter,

(9th Cir. 2001) (“the mere fact a [claimant] 28 1 has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to 2 her overall disability.”). 3 The ALJ here found Plaintiff’s description of her daily activities to be 4 inconsistent with her allegations of disabling limitations. The ALJ noted that Plaintiff 5 was able to do chores, care for her minor children (including full-time care of her 6 two-year old), prepare meals, go to the store, and take public transportation. (AR 45; 7 see AR 55-71, 188-193.) “Activities such as childcare, may support an ALJ’s 8 decision when it can be determined that they are performed for a substantial part of 9 the day.” See Bridget A. A. v. Saul,

, at *5 (C.D. Cal. June 25, 10 2021) (citing Rollins v. Massanari,

(9th Cir. 2001) (the ability to 11 care for children may undermine complaints of severe limitations). Plaintiff’s ability 12 to care for her two-year old child is not consistent with her allegations of extreme 13 limitations such as the inability to lift more than ten pounds or stand for more than 14 five minutes. See, e.g., Khan v. Saul,

, 346 (9th Cir. 2021) (in 15 discounting plaintiff’s subjective allegations, the ALJ properly relied on the 16 plaintiff’s “statements regarding her activities of daily life which included caring for 17 minor children and maintaining a household”); Rollins,

(holding 18 taking care of children and maintaining a household to be a clear and convincing 19 reason to discredit symptom testimony). Thus, the ALJ’s reliance on Plaintiff’s daily 20 activities is arguably proper. 21 Plaintiff contends that the ALJ erred because she failed to explain which 22 activity she found inconsistent with which of Plaintiff’s allegations. (ECF 20 at 15.) 23 However, because the ALJ provided other legally sufficient reasons supporting her 24 determination to partially discredit Plaintiff’s testimony, even if the ALJ erred in 25 reliance on Plaintiff’s daily activities, any error in this regard was harmless. See 26 Carmickle v. Comm’r, Soc. Sec. Admin.,

(9th Cir. 2008). 27 28 1 ORDER 2 IT IS THEREFORE ORDERED that Judgment be entered affirming the 3 || decision of the Commissioner of Social Security and dismissing this action with 4 || prejudice. 5 6 || DATED: 1/5/2022 4 Ye & . 7 a, 8 □ 5 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13