Heller v. Commissioner of Social Security Administration

• Court: District Court, D. Arizona
• Decided: April 6, 2023
• Docket: 2:21-cv-00857
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Joseph George Heller, No. CV-21-00857-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff challenges the denial of his application for disability insurance benefits 16 under Title II of the Social Security Act. For the following reasons, the ALJ’s decision is 17 affirmed. 18 I. THE SEQUENTIAL EVALUATION PROCESS AND JUDICIAL REVIEW 19 To determine whether a claimant is disabled for purposes of the Act, the ALJ 20 follows a five-step process. E.g., 20 C.F.R. § 404.1520(a)(4). The claimant bears the 21 burden of proof at the first four steps, but the burden shifts to the Commissioner at step 22 five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ 23 determines whether the claimant is engaging in substantial, gainful work activity. 20 C.F.R. 24 § 404.1520(a)(4)(i). If the claimant is engaged in substantial, gainful work, he is not 25 disabled. Id. If he is not so engaged, the analysis proceeds to step two. Id. At step two, the 26 ALJ determines whether the claimant has a “severe” medically determinable physical or 27 mental impairment. § 404.1520(a)(4)(ii). If he does not, he is not disabled. Id. If he does, 28 the analysis proceeds to step three. Id. At step three, the ALJ considers whether the 1 claimant’s impairment or combination of impairments meets or is medically equivalent to 2 an impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Part 404. 3 § 404.1520(a)(4)(iii). If so, the claimant is disabled. Id. If not, the ALJ assesses the 4 claimant’s residual functional capacity (“RFC”) and proceeds to step four, where he 5 determines whether the claimant is still capable of performing his past relevant work. 6 § 404.1520(a)(4)(iv). If the claimant can perform his past relevant work, he is not disabled. 7 Id. If he cannot, the analysis proceeds to the fifth and final step, where the ALJ determines 8 if the claimant can perform any other work in the national economy based on his RFC, age, 9 education, and work experience. § 404.1520(a)(4)(v). If the claimant cannot, he is disabled. 10 Id. 11 This Court may set aside the Commissioner’s disability determination only if the 12 determination is not supported by substantial evidence or is based on legal error. Orn v. 13 Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is more than a mere 14 scintilla but less than a preponderance . . . It is such relevant evidence as a reasonable mind 15 might accept as adequate to support a conclusion.” Id. (quotations and citations omitted). 16 In determining whether substantial evidence supports a decision, the court must consider 17 the entire record and may not affirm simply by isolating a “specific quantum of supporting 18 evidence.” Id. As a general rule, “[w]here the evidence is susceptible to more than one 19 rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 20 must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations 21 omitted). 22 II. PROCEDURAL HISTORY 23 Plaintiff filed an application for Title II disability benefits on May 17, 2019 alleging 24 disability beginning April 1, 2019. (AR. at 228.) The agency denied Plaintiff’s claim at the 25 initial and reconsideration phases of administrative review (AR. at 135-43, 145-53), and 26 Plaintiff timely requested a hearing before an ALJ (AR. at 154-55). ALJ Paul Isherwood 27 presided over a telephonic hearing on November 30, 2020, at which Plaintiff and vocational 28 expert (“VE”) Sugi Komarov testified. (AR. at 46-73.) ALJ Isherwood found Plaintiff not 1 disabled in a written decision dated January 8, 2021. (AR. at 13-28.) Plaintiff appealed 2 (AR. at 219-22), and the Social Security Appeals Council denied review in a letter dated 3 March 12, 2021 (AR. at 1-3). Plaintiff filed the complaint initiating this civil action on May 4 13, 2021. (Doc. 1.) 5 In the unfavorable decision, the ALJ found Plaintiff had not engaged in 6 disqualifying substantial, gainful work activity, and that he suffered from severe 7 impairments including degenerative disc disease and osteoarthritis of the knees. (AR. at 8 16-18.) While Plaintiff received treatment for anxiety, depression, and posttraumatic stress 9 disorder, the ALJ concluded these impairments were not severe. (AR. at 16-18.) The ALJ 10 found Plaintiff’s impairments did not meet and were not medically equivalent to any listed 11 impairment at step three, and that Plaintiff retained the ability to perform “the full range of 12 light work” without additional limitations. (AR. at 18-19.) The ALJ found Plaintiff capable 13 of performing past relevant work at step four. (AR. at 22.) 14 III. DISCUSSION 15 Plaintiff presents four issues on appeal: (1) whether the ALJ erred by failing to 16 account in the RFC for the “mild” limitations he assigned using the psychiatric review 17 technique (“PRT”) at step two; (2) whether the ALJ erred by failing to evaluate the 18 functional impact of Plaintiff’s obesity; (3) whether the ALJ cited sufficient reasons for 19 rejecting Plaintiff’s need for a cane; and (4) whether the Commissioner’s for-cause removal 20 protection under the Act violates the U.S. Constitution and necessitates remand. (Pl. Br. at 21 1-2.) The Court finds reversible error on issue (2) and remands for further proceedings.1 22 A. The ALJ Did Not Err by Omitting Mental Health Limitations from the 23 RFC. 24 At step two, the ALJ must evaluate the severity of medically-determinable mental 25 impairments using a “special technique” whereby he considers all the relevant evidence 26 and “rate[s] the degree of [the claimant’s] functional limitation” in “four broad functional 27 areas”: understanding, remembering, and applying information; interacting with others; 28 1 Plaintiff makes no argument that remand for payment of benefits is warranted here. 1 concentrating, persisting, or maintaining pace; and adapting or managing himself. 20 2 C.F.R. §§ 404.1520a(a), (b)(2), (c)(3). These categories are known as the “Paragraph B 3 Criteria.” § Pt. 404, Subpt. P, App. 1, 12.00(E). To apply the technique, the ALJ must 4 “consider all relevant and available clinical signs and laboratory findings, the effects of 5 [the claimant’s] symptoms, and how [his] functioning may be affected by factors . . .[,]” 6 and then employ a five-point scale, ranging from no limitation to extreme limitation, 7 reflecting the severity of limitation in each category. §§ 404.1520a(c)(1), (c)(4). When the 8 ALJ rates all four degrees of limitation as no greater than “none” or “mild,” he “will 9 generally conclude that [the claimant’s] impairment(s) is not severe, unless the evidence 10 otherwise indicates that there is more than a minimal limitation in [his] ability to do basic 11 work activities[.]” § 404.1520a(d)(1). Importantly, however, the Paragraph B limitations 12 “are not an RFC assessment[,]” which is more detailed. Social Security Ruling (“SSR”) 13 96-8P, 1996 WL 374184 at *4 (S.S.A. July 2, 1996). In assessing RFC, the ALJ must 14 consider “all the relevant evidence in [the claimant’s] case record[,]” 20 C.F.R. § 15 404.1545(a)(1), and issue “a function-by-function assessment based upon all of the relevant 16 evidence of an individual’s ability to do work-related activities.” SSR 96-8P, 1996 WL 17 374184 at *3. 18 In the decision, the ALJ concluded “[Plaintiff’s] . . . anxiety, depression and 19 posttraumatic stress disorder (PTSD), considered singly and in combination, do not cause 20 more than minimal limitation in the [Plaintiff’s] ability to perform basic mental work 21 activities and are therefore nonsevere.” (AR. at 16.) In reaching this conclusion, the ALJ 22 considered the evidence of Plaintiff’s mental health impairments using the “Paragraph B” 23 criteria, and concluded Plaintiff suffers, at most, only mild limitation in each of the four 24 categories. (AR. at 16-18.) The ALJ included no corresponding limitations in the RFC. 25 (AR. at 19.) Plaintiff argues the ALJ erred by failing to account for these limitations in the 26 RFC. (Pl. Br. at 4-12.) 27 The ALJ was not required to account for the mild limitations he assigned using the 28 psychiatric review technique; he must only consider Plaintiff’s non-severe mental 1 impairments and any mild limitations he assigned when determining the RFC. See Solomon 2 v. Comm’r of Soc. Sec. Admin., 376 F. Supp. 3d 1012, 1021-22 (D. Ariz. 2019) (holding 3 that the ALJ errs when assigning mild limitations using the PRT, but then failing to 4 consider those limitations when evaluating the RFC); Sylvester H. v. Kijakazi, No. 5:20- 5 CV-02503-SP, 2022 WL 4466717, at *7-8 (C.D. Cal. Sept. 26, 2022) (collecting cases). 6 “[T]he adjudicator must consider limitations and restrictions imposed by all of an 7 individual's impairments, even those that are not severe.” Buck v. Berryhill, 869 F.3d 1040, 8 1049 (9th Cir. 2017) (quotations and citations omitted). The ALJ’s hypothetical questions 9 to the VE must also include “all of the claimant’s functional limitations, both physical and 10 mental supported by the record.” Thomas, 278 F.3d at 956 (quotations and citations 11 omitted); Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); (“It is[ ]proper for an 12 ALJ to limit a hypothetical to those impairments that are supported by substantial evidence 13 in the record.”) 14 Here, at the RFC phase, the ALJ noted in his discussion of the psychological 15 examiner’s report that Plaintiff’s “mood and affect were reported as normal, average, 16 pleasant, positive and euthymic in his treatment records[.]” (AR. at 21.) The ALJ cited over 17 30 treatment visits in support. (AR. at 21.) He also stated that Plaintiff’s “mental status 18 examinations generally show normal concentration and attention[,]” and that Plaintiff 19 reported his concentration had improved. (AR. at 21.) Elsewhere, without citing to the 20 record, the ALJ asserted that Plaintiff’s “mental status appears mostly normal[,]” and that 21 his “psychotropic medications were helping with no side effects.” (AR. at 21.) Referring 22 back to the PRT, the ALJ also stated he “ha[d] determined that the [Plaintiff] ha[d] mild 23 limitations in all four of the broad areas of mental functioning, which is consistent with the 24 overall objective medical evidence and takes the [Plaintiff’s] Function Report . . . into 25 consideration.” (AR. at 21.) 26 Substantial evidence corroborates the ALJ’s decision. Consistent with the ALJ’s 27 conclusions, Plaintiff routinely exhibited normal concentration, attention, mood, or affect, 28 among other normal mental status findings. (AR. at 639, 644-45, 652-53, 657-58, 1011, 1 1020, 1035.)2 It is clear from the decision that the ALJ considered Plaintiff’s mild PRT 2 limitations in his RFC discussion, and that the ALJ’s conclusions regarding those 3 limitations, or the lack thereof, were supported by substantial evidence. As such, the ALJ’s 4 omission of mental health limitations from the RFC does not constitute legal error. 5 B. Obesity Was Not Evident From The Record, Thus No Evaluation of Obesity 6 was Required in the RFC. 7 Plaintiff, who was represented by counsel, never asserted to the ALJ that his obesity 8 was a cause of his disability, under the appendices or otherwise. “Mr. Heller alleged 9 disability beginning April 1, 2019, due to post-traumatic stress disorder (PTSD), pre- 10 emphysema, crushed vertebrae, anxiety, depression, knee issues, back pain, irritable bowel 11 syndrome, sleep apnea, and chronic pain.” (Doc. 16 at 3.) Thus, at least as it pertains to 12 his assertion that he is qualified under the appendices by virtue of his obesity, he is not 13 entitled to claim error on that basis now. Burch v. Barnhart, 400 F.3d 676, 684 (9th Cir. 14 2005), (holding that “[a]n ALJ is not required to discuss the combined effects of a 15 claimant’s impairments or compare them to any listing in an equivalency determination, 16 unless the claimant presents evidence in an effort to establish equivalence[.]” In any event 17 the BMI levels that he now asserts for the first time on appeal, would not qualify him under 18 any listing in and of themselves, nor do they suggest a severe impairment. 19 The only question left as it pertains to Plaintiff’s obesity, then, is whether the ALJ 20 erred in failing to consider the Plaintiff’s obesity in the RFC analysis, and how that may 21 have affected the claimant’s other impairments. The touchstone of any such analysis would 22 be the extent to which the existence of obesity would have been evident from the record 23 with no help provided by Mr. Heller. As a general rule, it is the Plaintiff’s obligation to 24 prove his disability and to provide evidence that substantiates it. An ALJ need not evaluate 25 evidence about conditions that the claimant does not identify as giving rise to an 26 impairment for which there is no evidence. 20 C.F.R. § 404.1512(a) (2017) (In general, 27 you have to prove to us that you are . . . disabled. . . . We will consider only impairment(s)

28 2 Plaintiff presented with a “blunted” mood and affect in April 2019, but with other normal findings. (AR. at 652-53.) 1 you say you have or about which we receive evidence.”) 2 But, when obesity is evident from the record, an ALJ does have the obligation to 3 consider the obesity in an RFC on the ALJ’s own initiative. In Celaya v, Halter, 332 F.3d 4 1177 (9th Cir. 2003) Celaya’s symptoms included diabetes, hypertension and headaches 5 that implicitly included obesity. She had a very high body mass index (BMI) of over 44 6 that exceeded the level of 40 that would categorize her as “extremely obese,” and fell just 7 short of the listing criterion for obesity that existed under the SSI regulations at the time. 8 The Court thus found that “[t]he ALJ’s exclusion of obesity from his analysis is error in 9 that he was addressing an illiterate unrepresented claimant who very likely never knew that 10 she could assert obesity as a partial basis for her disability.” Id. at 1183. Because, in 11 combination with Celaya’s existing diabetes and hypertension, “it was clear from the 12 record that Celaya’s obesity was at least close to the listing criterion, and was a condition 13 that could exacerbate her reported illnesses,” her obesity was implicit in her diagnosis and 14 it was error for the ALJ not to consider obesity when it considered the Plaintiff’s RFC. Id. 15 at 1182. 16 There are no such facts here, however. As stated, Heller who was represented by 17 counsel, failed to allege that obesity impacted his ability to work (AR 135). He did not 18 make such an assertion in any of his application materials (AR 252-259, 297-301, 323- 19 327); in any reports submitted in support of his application (AR 263-270, 271-79, 290-92, 20 303-310, 312-20); his request for reconsideration after the agency initially denied his claim 21 (AR 144); or in his request for a hearing before an ALJ (AR 154-55). Nor does he argue 22 facts that would demonstrate that Plaintiff’s obesity was or might have been a contributing 23 factor in his disability. 24 In his appellate briefing, Heller does note that at the start of his hearing in this matter 25 his lawyer did summarize the various symptoms for which Mr. Heller had received 26 treatment at the VA since his previous application for disability. Among a number of such 27 symptoms Mr. Heller’s attorney mentioned obesity. And at the very start of the hearing, 28 Mr. Heller’s attorney did ask him: 1 Q. How tall are you? 2 A. Five-nine 3 A. Five nine. And what’s your current weight? A. Two twenty-six. 4 Q. Two twenty-six. Okay. Have you noticed any changes in your weight—drastic 5 changes since April 2019? A. I gained approximately 12, 15 pounds. 6 Q. Okay. Fifteen pounds 7 A.R. at 54-55. 8 He did nothing more with that information. What he does do for the first time on 9 appeal, is assert that when he first applied for disability benefits – apparently sometime in 10 early 2019-- he reported a weight and height that shows a BMI of 30--which is the threshold 11 between overweight and obesity on the BMI scale. He then asserts that because he reported 12 gaining fifteen pounds over the next year, his height and weight as reported by him in 13 December of 2019 would have given him a BMI of 35.1, in March of 2020 a BMI of 34, 14 and at the hearing in November 2020 a BMI of 33. He thus asserts that the agency was on 15 notice of his obesity, and that the ALJ was bound to consider the impact of his obesity on 16 his physical functioning despite his failure to ever identify any records that indicate that 17 obesity would be a possible contributor to impairments for him. 18 What this argument overlooks is that a BMI of 30 or higher does not of itself 19 establish obesity. The Social Security Administration’s ruling governing the evaluation of 20 obesity sets forth requirements for accepting BMI’s in general, and further sets forth the 21 lack of direct correlation between BMIs and obesity. Although an ALJ considers a BMI 22 in evaluating whether obesity exists, “[h]ealth care practitioners diagnose obesity based on 23 a person’s medical history, physical examinations, and body mass index (BMI).” SSR19- 24 2(1). “Although there is often a correlation between BMI and excess body fat, this is not 25 always the case. Someone who has a BMI of 30 or above may not have an MDI of obesity 26 if a large percentage of the person’s weight is from muscle.” SSR19-2(3) (2019). If a 27 person’s BMI is within the normal range, he or she may still have obesity if his or her waist 28 measurement is high.” Id. Thus, the ALJ will not calculate BMI based merely on a person’s 1 self-reported height and weight,” SSR 19-2P, as Heller provides here. Before making an 2 obesity determination, and as an initial step in evaluating a BMI to determine whether it 3 reflects the existence of obesity and whether it provides any potential for functional 4 impairment, an ALJ is required to evaluate a BMI “based on the medical evidence in the 5 case record.” “When deciding whether a person has an MDI of obesity, we consider the 6 person’s weight over time. We consider the person to have an MDI of obesity as long as 7 his or her weight, measured waist size, or BMI shows a consistent pattern of obesity.” 8 Plaintiff merely sets forth his BMI on his self-reported height and weight from 9 various records and applications. This does not make the existence of obesity evident in 10 Mr. Heller and does not even provide an acceptable method for evaluating BMI. Plaintiff’s 11 BMI and other ailments were not nearly as obviously related to obesity as was Celaya’s 12 (Celaya’s BMI was above 44 with a diagnosis of diabetes mellitus, hypertension and 13 headaches making her obesity diagnosis “implicit” according to the Court). Perhaps more 14 to the point, especially because Heller is represented, there is, on appeal, no argument that 15 obesity is evident in the medical records. See. e.g. Burch, 400 F.3d t 678 (noting that it 16 was error for an ALJ not to consider obesity in the RFC when it was evident from the 17 record, the Plaintiff testified about being overweight at hearing, and her medical records 18 discussed her obesity and recommended a medically supervised weight loss program to 19 treat it.). 20 We live in a society in which many people may have a BMI above 30 but are not 21 functionally impaired in any way by it. The existence in the record of a medical file 22 showing a BMI above 30 without more, does not, in and of itself, make the existence of 23 obesity evident or create an obligation in an ALJ to account for obesity sua sponte in 24 assessing the claimant’s RFC. This is especially true when a Plaintiff’s claims concerning 25 his disability do not mention obesity, and when the Plaintiff points to no medical records 26 that would make it evident that obesity affects the claimant’s ability to function. To hold 27 otherwise would drastically and needlessly increase the obligation of ALJs to sua sponte 28 inspect case files to search for elevated BMI’s (which they might have to calculate for 1 themselves) without any indication that a high BMI necessarily indicated obesity (or 2 perhaps that a low BMI precluded it,), or that it had any effect on Plaintiff’s other 3 impairments. This is simply unworkable, and serves no purpose other than to increase the 4 obligations of overburdened ALJ’s and provide a represented Plaintiff an unmerited second 5 bite at the apple. There was no error in these circumstances. 6 C. The ALJ Did Not Err by Omitting from the RFC Plaintiff’s Need for a 7 Cane. 8 Under new regulations pertaining to the consideration of opinion evidence, ALJs 9 “will not defer or give any specific evidentiary weight, including controlling weight, to any 10 medical opinion(s) . . . including those from [the claimant’s] medical sources.” 20 C.F.R. 11 § 404.1520c(a). ALJs must instead articulate how persuasive they find each medical 12 opinion by addressing the supportability and consistency of each. § 404.1520c(b)(2). “The 13 more relevant the objective medical evidence and supporting explanations presented by a 14 medical source are to support his or her medical opinion(s) . . . the more persuasive the 15 medical opinions . . . will be. § 404.1520c(c)(1). “The more consistent a medical opinion(s) 16 . . . is with the evidence from other medical sources and nonmedical sources in the claim, 17 the more persuasive the medical opinion(s) . . . will be.” § 404.1520c(c)(2). In Woods v. 18 Kijakazi, the Ninth Circuit held these regulations to be “clearly irreconcilable with our 19 caselaw according special deference to the opinions of treating and examining physicians 20 on account of their relationship with the claimant.” 32 F.4th 785, 792 (9th Cir. 2022) 21 (citations omitted). Instead of providing “clear and convincing” or “specific and 22 legitimate” reasons to reject a given opinion, “an ALJ’s decision, including the decision to 23 discredit any medical opinion, must simply be supported by substantial evidence.” Id. at 24 787. Now, in considering medical opinion evidence, “[t]he agency must ‘articulate ... how 25 persuasive’ it finds ‘all of the medical opinions’ from each doctor or other source, . . . and 26 ‘explain how [it] considered the supportability and consistency factors’ in reaching these 27 findings[.]” Id. at 792 (citing §§ 404.1520c(b), (b)(2)). If the ALJ relies upon a given 28 doctor’s opinion, the ALJ must incorporate the limitations that doctor assigned into the 1 RFC. Van Sickle v. Astrue, 385 F. App’x 739, 741 n.1 (9th Cir. 2010) (unpublished) (citing 2 Magallanes, 881 F.2d at 756, for the proposition that “[if] the ALJ accepted the doctors’ 3 findings, the ALJ was required to include them in his RFC.”) Here, the ALJ found 4 persuasive the prior administrative medical findings of “D. Swena, M.D.” and “partially 5 persuasive” the opinion of consultative examiner Christine Joy, PA, each of whom opined 6 Plaintiff’s cane was medically necessary (AR. at 22, 105, 524), but the ALJ did not 7 incorporate this need into the RFC. Plaintiff argues this was error. 8 But the ALJ independently provides reasons rejecting the medical necessity of 9 Plaintiff’s cane (AR. at 20), and the ALJ’s conclusion is supported by substantial evidence. 10 As the ALJ noted, Plaintiff often exhibited a normal gait during treatment visits (AR. at 11 423, 569, 837, 914), and ambulated without a cane at times (AR. at 837, 1063). Defendant 12 is correct that the ALJ need not accept the entire opinion of a particular physician. See 13 Magallanes, 881 F.2d at 753 (“It is not necessary to agree with everything an expert witness 14 says in order to hold that his testimony contains substantial evidence.”) (quotations and 15 citations omitted). 16 Even assuming the ALJ erred, however, any such error is harmless as the VE 17 testified Plaintiff could perform the Funeral Director job even with “a cane for all 18 ambulation.” (AR. at 70-71.) Plaintiff never addresses this and does not otherwise allege 19 any other errors in the vocational testimony. (Pl. Br. at 15-21, Reply at 3-4). Consequently, 20 the ALJ did not err. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054-56 (9th Cir. 21 2006) (explaining harmless error in Social Security disability cases). 22 D. Plaintiff’s Separation-of-Powers Claim Does Not Warrant Remand. 23 Plaintiff’s separation of powers argument is without merit. The Act “provides that 24 the Commissioner of Social Security ‘may be removed from office only pursuant to a 25 finding by the President of neglect of duty or malfeasance in office.’” Kaufmann v. 26 Kijakazi, 32 F.4th 843, 847 (9th Cir. 2022) (citations omitted). In Kaufmann, the Ninth 27 Circuit held this provision to be unconstitutional, as it infringed upon the President’s power 28 to remove executive officers. Id. at 847-49. The Court further held that this provision was || severable from the remaining provisions of the Act capable of “fully independent 2|| function[,]” Jd. at 849, and that to succeed on a separation-of-powers challenge, the 3 || claimant must show how he was harmed by the unconstitutional removal provision. □□□ at 4|| 849-50. Plaintiff has made no such showing here. 5 Plaintiff argues that, due to the Commissioner’s supposedly unconstitutional 6|| delegation of authority to Appeals Council officers, Plaintiff “did not receive the 7 || constitutionally valid adjudication process [or determination] from SSA’s Appeals Council 8 || to which he was entitled[,]” (Reply at 6.) The argument rests on the proposition that the 9 || Commissioner “had no constitutionally valid authority to delegate to these Appeals Council 10 || judges because President Biden would have fired him absent the unconstitutional statutory 11 |} removal provision in this case.” (Reply at 7.) But Plaintiff does not explain how the 12 || President’s removal of the Commissioner before Plaintiff's Appeals Council determination 13 || would have changed the result here. Kaufmann, 32 F.4th at 849-50 (holding that, as here 14]| “nothing in the record suggests any link whatsoever between the removal provision and 15} Claimant’s case.”) Plaintiff believes the “constitutionally invalid” Appeals Council process constitutes a separate injury unto itself, but the fact of the Commissioner’s unconstitutional 17 || tenure protection does not deprive him of the authority to carry out the duties of the office, 18 || as opposed to a successful challenge under the Appointments Clause. Kaufmann, 32 F.4th at 849. Plaintiff has made clear his challenge does not implicate the Appointments Clause. || (Reply at 5) (“This issue is not an Appointments Clause challenge... .”) Thus, □□□□□□□□□□□ argument in this respect, lacks merit. See Kaufmann, 32 F Ath at 849. 22 IT IS THEREFORE ORDERED affirming the January 8, 2021 decision of the 23 || Administrative Law Judge and directing the Clerk to enter final judgment consistent with 24 || this Order and to close this case. 25 Dated this 6th day of April, 2023. 26 - 27 A Whacrsay Sooo) 28 Chief United States District Judge

-12-