23-1036 Nersten v. O’Malley, Comm’r of Soc. Sec.

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals for the Second Circuit, 2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of 3 New York, on the 6th day of May, two thousand twenty-four. 4 5 PRESENT: 6 GUIDO CALABRESI, 7 BARRINGTON D. PARKER, 8 MICHAEL H. PARK, 9 Circuit Judges. 10 _____________________________________ 11 12 Keith J. Nersten, 13 14 Plaintiff-Appellant, 15 16 v. 23-1036 17 18 Martin O’Malley, Commissioner of Social 19 Security, 20 21 Defendant-Appellee.* 22 _____________________________________ 23 24 FOR PLAINTIFF-APPELLANT: DANIEL A. OSBORN, Osborn Law, P.C., New 25 York, NY. 26 27 FOR DEFENDANT-APPELLEE: OONA PETERSON, Special Assistant United 28 States Attorney (Charles J. Kawas, Acting 29 Associate General Counsel, on the brief), 30 Social Security Administration, Baltimore,

* The Clerk of Court is respectfully directed to amend the caption accordingly. 1 MD, for Breon Peace, United States Attorney 2 for the Eastern District of New York, 3 Brooklyn, NY. 4

5 Appeal from a judgment of the United States District Court for the Eastern District of New

6 York (Kovner, J.).

7 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

8 DECREED that the judgment of the district court is AFFIRMED.

9 Keith J. Nersten initially applied for Social Security Disability Insurance on June 22, 2011,

10 about a year and a half after he was injured. He was first denied benefits on September 16, 2011.

11 He filed a request for a hearing before an Administrative Law Judge (“ALJ”), which he received

12 in December 2012. After several years of proceedings not relevant to this appeal, Nersten had

13 another hearing before a different ALJ in January 2017. The ALJ found Nersten not disabled,

14 but the Appeals Council vacated that decision on the merits and remanded for further proceedings

15 in February 2018. Nersten had a new hearing before the same ALJ in March 2019, and the ALJ

16 again denied him benefits. Nersten appealed again to the Appeals Council, which did not

17 respond. He then sued the Commissioner of Social Security in the Eastern District of New York.

18 Nersten now appeals the district court’s May 10, 2023 order granting the Commissioner’s motion

19 for judgment on the pleadings. We assume the parties’ familiarity with the underlying facts,

20 procedural history of the case, and issues on appeal.

21 Nersten first argues that the ALJ erred in determining that his post-traumatic stress disorder

22 (“PTSD”) is non-severe and by failing to account for his PTSD when assessing his residual

23 functional capacity under

.

2 1 “In reviewing an appeal from the denial of disability benefits, we focus on the

2 administrative ruling rather than the district court’s opinion to determine whether the ALJ’s

3 decision was supported by substantial evidence.” Colgan v. Kijakazi,

, 359 (2d Cir.

4 2022) (cleaned up). “We conduct a plenary review of the administrative record to determine if

5 there is substantial evidence, considering the record as a whole, to support the Commissioner’s

6 decision and if the correct legal standards have been applied.” Schillo v. Kijakazi,

,

7 74 (2d Cir. 2022) (quoting Estrella v. Berryhill,

(2d Cir. 2019)); see also 42 U.S.C.

8 § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by

9 substantial evidence, shall be conclusive[.]”). Substantial evidence is “such relevant evidence as

10 a reasonable mind might accept as adequate to support a conclusion.” Rucker v. Kijakazi, 48

, 91 (2d Cir. 2022) (quoting Burgess v. Astrue,

(2d Cir. 2008)). “If

12 evidence is susceptible to more than one rational interpretation, the Commissioner’s conclusion

13 must be upheld.” Schillo,

(quoting McIntyre v. Colvin,

(2d Cir.

14 2014)).

15 Substantial evidence supports the ALJ’s determination that Nersten’s PTSD presented no

16 limitations to his work activities during the relevant period. Nersten filed a function report with

17 his application for benefits that reported no mental limitations. And a consulting psychologist,

18 David Lefkowitz, submitted a report stating that Nersten had no restrictions on his work-related

19 activities other than “moderate” “hygiene issues.” Administrative Record, Nersten v. Saul,

20 Comm’r of Soc. Sec., No. 19-cv-05695-RPK (E.D.N.Y. Jan. 6, 2020), ECF No. 9 (“R.”) at 1487.

21 Substantial evidence also supports the ALJ’s decision to accord the parts of Lefkowitz’s report

22 that were more favorable to Nersten “little weight” because those opinions were at odds with

3 1 Lefkowitz’s “essentially normal mental status examination.” Id. at 410. And substantial

2 evidence supports these decisions with or without Joseph Carver’s expert opinion, which Nersten

3 argues was based on an incomplete record.

4 Next, the record does not support Nersten’s claim that the ALJ failed to consider his PTSD

5 in assessing his residual functional capacity. The ALJ stated that his “residual functional capacity

6 assessment reflects the degree of limitation the undersigned has found in the . . . mental function

7 analysis.” Id. Nersten’s PTSD did not impact the residual functional capacity assessment

8 because the ALJ determined that it created no relevant workplace limitations for Nersten, not

9 because the ALJ failed to consider it.

10 Finally, Nersten argues that the 2019 decision violated the Appointments Clause of the

11 U.S. Constitution on the theory that the ALJ’s appointment was invalid at the time of the 2017

12 decision. Nersten failed to preserve this argument below because he did not raise it until after

13 the district court had rendered a decision on his motion. See, e.g., Freeman v. HSBC Holdings

14 PLC,

(2d Cir. 2023) (“As a general rule, we will not consider an argument on

15 appeal that was raised for the first time below in a motion for reconsideration.” (internal quotation

16 marks omitted)). We thus review this argument for plain error. See United States v. Donzinger,

17

, 302–03 (2d Cir. 2022) (applying plain error review to an Appointments Clause

18 challenge that appellant did not raise below).

19 To satisfy the plain-error standard, Nersten must show that any error was “clear or obvious”

20 or that “the ruling was contrary to law that was clearly established by the time of the appeal.”

21 at 303 (internal quotation marks omitted). But we have never held that a decision issued by a

22 properly appointed ALJ necessarily violates the Appointments Clause whenever that ALJ issued

4 1 a prior decision in the same case before receiving a proper appointment. Indeed, the courts of

2 appeals are split on this very issue. Compare Cody v. Kijakazi,

, 961–63 (9th Cir.

3 2022), and Brooks v. Kijakazi,

, 741–44 (4th Cir. 2023), with Raper v. Comm’r of Soc.

4 Sec.,

, 1269–73 (11th Cir. 2024). Nersten thus cannot show plain error.

5 We have considered the remainder of Nersten’s arguments and find them to be without

6 merit. For the foregoing reasons, we AFFIRM the judgment of the district court.

7 FOR THE COURT: 8 Catherine O’Hagan Wolfe, Clerk of Court 9

5