1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Chelsea Mckinney, No. CV-21-00114-PHX-GMS
10 Plaintiff, ORDER
11 v.
12 Commissioner of Social Security Administration, 13 Defendant. 14 15 16 At issue is the denial of Plaintiff Chelsea Mckinney’s Application for Social 17 Security Disability Insurance (“SSDI”) benefits by the Social Security Administration 18 (“SSA”) The Court has reviewed the briefs and Administrative Record (“AR”) (Doc. 11), 19 and it affirms the Administrative Law Judge’s (“ALJ”) decision (AR at 13-23) for the 20 reasons addressed herein. 21 I. Background 22 Plaintiff filed her Application for SSDI benefits on February 7, 2018, alleging a 23 disability beginning on August 31, 2017. (AR 13). Plaintiff’s Application was initially 24 denied on August 27, 2018, and upon reconsideration on January 11, 2019. (Id.) A hearing 25 was held before ALJ Michael A. Lehr on June 25, 2020. (Id. at 29-54). Plaintiff was 33 26 years old at the time of the hearing. (Id. at 38). Plaintiff’s Application was denied in a 27 decision by the ALJ on July 9, 2020. (Id. at 23). Thereafter, the Appeals Council denied 28 Plaintiff’s Request for Review of the ALJ’s decision and this appeal followed. (Doc. 1). 1 After considering the medical evidence and opinions, the ALJ evaluated Plaintiff’s 2 disability claim based on the severe impairments of degenerative disc disease of the lumbar 3 spine status post surgeries. (AR 15). While the ALJ noted that Plaintiff’s severe 4 impairments limited her ability to perform basic work activities, the ALJ determined that 5 Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work with a 6 number of limitations and thus was not disabled. (Id. at 17). 7 Plaintiff argues that the ALJ erred in finding not persuasive the opinion of her 8 treating physician, Dr. John Ehteshami, M.D., and in failing to give clear and convincing 9 reasons to discount her subjective symptom testimony. (Doc. 12). Plaintiff also briefly 10 argues that the ALJ’s decision is constitutionally defective because the SSA’s structure of 11 allowing its Commissioner to serve longer than a presidential term of office “violates 12 separation of powers.” (Doc. 12 at 19). The Court has reviewed the medical record and 13 will discuss the pertinent evidence in addressing the issues raised by the parties. 14 II. Legal Standards 15 An ALJ’s factual findings “shall be conclusive if supported by substantial 16 evidence.” Biestek v. Berryhill, 139 S. Ct. 1148, 1153 (2019). The Court may set aside 17 the Commissioner’s disability determination only if it is not supported by substantial 18 evidence or is based on legal error. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). 19 Substantial evidence is relevant evidence that a reasonable person might accept as adequate 20 to support a conclusion considering the record as a whole. Id. Generally, “[w]here the 21 evidence is susceptible to more than one rational interpretation, one of which supports the 22 ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 23 954 (9th Cir. 2002) (citations omitted). Whether the Commissioner’s decision is supported 24 by substantial evidence “is a highly deferential standard of review.” Valentine v. Comm’r 25 of Soc. Sec., 574 F.3d 685, 690 (9th Cir. 2009). In determining whether to reverse an ALJ’s 26 decision, the district court reviews only those issues raised by the movant. See Lewis v. 27 Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). 28 To determine whether a claimant is disabled for purposes of the Act, the ALJ 1 follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears the burden of 2 proof on the first four steps, but the burden shifts to the Commissioner at step five. Tackett 3 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). At the first step, the ALJ determines whether 4 the claimant is presently engaging in substantial gainful activity. 20 C.F.R. 5 §404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant has a “severe” 6 medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii). At 7 step three, the ALJ considers whether the claimant’s impairment or combination of 8 impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P 9 of 20 C.F.R. Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the claimant is automatically 10 found to be disabled. Id. At step four, the ALJ assesses the claimant’s RFC and determines 11 whether the claimant is still capable of performing past relevant work. 20 C.F.R. 12 § 404.1520(a)(4)(iv). If not, the ALJ proceeds to the fifth and final step, where she 13 determines whether the claimant can perform any other work in the national economy 14 based on the claimant’s RFC, age, education, and work experience. 20 C.F.R. 15 § 404.1520(a)(4)(v). If not, the claimant is disabled. Id. 16 III. Analysis 17 Plaintiff argues that the ALJ erred in finding not persuasive the opinion of Dr. 18 Ehteshami, and in failing to give clear and convincing reasons to discount her subjective 19 symptom testimony. (Doc. 12). Plaintiff also argues that the ALJ’s opinion is 20 “constitutionally defective.” (Id.) The Commissioner argues that the ALJ’s opinion is free 21 of harmful error and must be affirmed. (Doc. 18). The Court will consider the issues in 22 turn. 23 A. The ALJ did not err in his consideration of Dr. Ehteshami’s opinion. 24 Dr. Ehteshami, Plaintiff’s treating orthopedic surgeon, completed a medical source 25 statement in the form of a check-box questionnaire on July 29, 2019. (AR 731-33). 26 Therein, Dr. Ehteshami opined that Plaintiff’s symptoms caused an extreme limitation in 27 the ability to walk, but that she did not require a hand-held device to assist with ambulation. 28 (Id.) He opined that Plaintiff experienced pain “constantly,” and that she could sit, stand, 1 and walk for a total of one hour each in an eight-hour workday. (Id.) Dr. Ehteshami also 2 opined that Plaintiff could frequently use fine motor skills of both her right and left hand. 3 He concluded that Plaintiff would miss more than four days of work per month as a result 4 of her impairments. (Id.) 5 The ALJ found this opinion to be not persuasive, finding it to be inconsistent and 6 unsupported by the record. (AR 21). Specifically, the ALJ mentioned that it was a check- 7 box style questionnaire with no explanations or references to the medical record, and that 8 it was generally not consistent with Plaintiff’s MRIs and X-rays. (Id.) Moreover, the ALJ 9 took issue with the opinion that Plaintiff had an extreme limitation in the ability to walk 10 because many exams noted that Plaintiff ambulated normally and Plaintiff herself denied 11 having difficulty ambulating. (Id.) Plaintiff argues that these were not sufficient reasons 12 for finding Dr. Ehteshami’s opinion to be not persuasive, and that it was error for the ALJ 13 to reject the opinion because it was a check-box questionnaire. (Doc. 12 at 6). 14 As Plaintiff applied for disability benefits after March 27, 2017, the new set of 15 regulations for evaluating evidence from medical providers applies to this case. See 20 16 C.F.R. § 416.920c. These regulations eliminate the previous hierarchy of medical 17 opinions, and the ALJ is not allowed to defer to or give specific weight to any medical 18 opinions. The new regulations for considering physician opinions states as follows: 19 We will not defer or give any specific evidentiary weight, including 20 controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources . . . The most important 21 factors we consider when we evaluate the persuasiveness of medical opinions 22 and prior administrative medical findings are supportability (paragraph (c)(1) of this section) and consistency (paragraph (c)(2) of this section). We will 23 articulate how we considered the medical opinions and prior administrative 24 medical findings in your claim according to paragraph (b) of this section. 20 C.F.R. § 416.920c.1 25 The regulations define “medical opinion” as “a statement from a medical source 26
27 1 Other factors that may be considered by the ALJ in addition to supportability and consistency include the provider’s relationship with the claimant, the length of the 28 treatment relationship, frequency of examinations, purpose and extent of the treatment relationship, and the specialization of the provider. 20 C.F.R. § 416.920c. 1 about what you can still do despite your impairment(s) and whether you have one or more 2 impairment-related limitations or restrictions.” 20 C.F.R. § 416.913(a)(2). All “other 3 medical evidence” that an ALJ considers as part of the Administrative Record is defined 4 as “evidence from a medical source that is not objective medical evidence or a medical 5 opinion, including judgments about the nature and severity of your impairments, your 6 medical history, clinical findings, diagnosis, treatment prescribed with response, or 7 prognosis.” 20 C.F.R. § 416.913(a)(3). 8 Recently, the Ninth Circuit confirmed that the “recent changes to the Social Security 9 Administration’s regulations displace our longstanding case law requiring an ALJ to 10 provide ‘specific and legitimate’ reasons for rejecting an examining doctor’s opinion.” 11 Woods v. Kijakazi, 32 F.4th 785, 787 (9th Cir. 2022). Thus, “the former hierarchy of 12 medical opinions—in which we assign presumptive weight based on the extent of the 13 doctor's relationship with the claimant—no longer applies. Now, an ALJ’s decision, 14 including the decision to discredit any medical opinion, must simply be supported by 15 substantial evidence.” Id. With that said, “[e]ven under the new regulations, an ALJ cannot 16 reject an examining or treating doctor’s opinion as unsupported or inconsistent without 17 providing an explanation supported by substantial evidence. The agency must articulate 18 how persuasive it finds all of the medical opinions from each doctor or other source and 19 explain how it considered the supportability and consistency factors in reaching these 20 findings.” Id. at 792. 21 As to the ALJ’s first basis for finding Dr. Ehteshami’s opinion not well-supported 22 by the record, the ALJ stated that no signs or laboratory findings were cited in support of 23 the limitations assessed. (AR 21). As an initial matter, there is nothing incorrect about this 24 statement. A review of this opinion confirms the accuracy of the ALJ’s statement that no 25 objective clinical findings were cited in support of the conclusions reached. (Id. at 731- 26 33). Plaintiff argues that medical providers are not required to provide clinical findings 27 when filing out assessments such as here. (Doc. 12 at 6). Plaintiff also cites to a number 28 of medical records not cited by the ALJ that Plaintiff feels supports Dr. Ehteshami’s 1 opinion, including one where he states, “I want her to use a walker at this point.” (AR 2 568). However, Dr. Ehteshami’s questionnaire stated that Plaintiff does not require the use 3 of an assistive device for walking, so these arguments do not support Plaintiff’s position, 4 but rather support the ALJ’s conclusions that the questionnaire was not consistent with the 5 medical record. (Id. at 732). Nevertheless, the Court generally agrees that check-box forms 6 are by their nature seeking general information, and therefore, they do not ask the provider 7 to cite to medical records. Because this was but a single reason mentioned in the ALJ’s 8 opinion, the Court finds any error here harmless. See Jennings v. Saul, 804 F. App’x 458, 9 461 (9th Cir. 2020). 10 Next, the ALJ’s concluded that Dr. Ehteshami’s opinion that Plaintiff was extremely 11 limited in the ability to walk was not supported by the record. (AR 21). Plaintiff argues 12 that this finding was an inaccurate reflection of the evidence. (Doc. 12 at 7-8). In support 13 of his finding, the ALJ cited to a number of records. First, the ALJ cited to a May 14, 2018, 14 record where it was reported that Plaintiff had “no trouble ambulating,” and denied foot 15 slap. (AR 21, citing 877). That record also states that Plaintiff had no new trauma “other 16 than lifting her kids and throwing them around despite being told not to do any heavy 17 lifting.” (Id.) One cited record did note that Plaintiff was using a walker. (Id. at 378). 18 However, three other records cited by the ALJ noted normal gait and station and 5/5 19 strength in both lower extremities, with the exception of 4/5 strength in the right foot. (Id., 20 citing 379, 386, 407). A review of the records cited by the ALJ supports the ALJ’s 21 conclusion that Dr. Ehteshami’s opinion of severe impairments in the ability to walk were 22 not supported and were not consistent with the evidence from other medical sources and 23 nonmedical sources. See 20 C.F.R. 404.1520c(c)(2). Therefore, the ALJ did not err in 24 relying on these medical records in determining whether Dr. Ehteshami’s opinion was 25 supported by the record. Regardless of whether Plaintiff views the evidence of record in a 26 different light, the Court must defer to the ALJ where his interpretation of the evidence is 27 rational. See Thomas, 278 F.3d at 954 (“Where the evidence is susceptible to more than 28 one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion 1 must be upheld.”). The ALJ did not err in his discussion of this opinion. 2 Lastly, the ALJ referred to Dr. Ehteshami’s opinion that Plaintiff could only sit, 3 stand, or walk one hour each in an eight-hour day, stating that this necessarily meant that 4 Plaintiff would need to lie down or recline the remaining five hours and finding this to be 5 unsupported by the record. (AR 21). Plaintiff argues that the Dr. Ehteshami’s opinion was 6 based on an “eight-hour workday” rather than “an 8-hour day” as referred to by the ALJ 7 and that “[t]his distinction is important.” (Doc. 12 at 7). The Court is unsure how the 8 distinction that Plaintiff raises impacts the findings of the ALJ, but the Court need not reach 9 the issue. Given the determination that the ALJ gave proper reasons to finding this opinion 10 not-persuasive, it is unnecessary to decide whether the ALJ’s other proffered reasons for 11 discrediting this opinion were also valid. Cf. Carmickle v. Comm’r of Soc. Sec. Admin., 12 533 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there remains substantial evidence 13 supporting the ALJ’s conclusions on . . . credibility and the error does not negate the 14 validity of the ALJ’s ultimate conclusion, such is deemed harmless and does not warrant 15 reversal.”) (internal quotation marks omitted); see also Magnotti v. Comm’r of Soc. Sec. 16 Admin., 2021 WL 4025959, *4 (D. Ariz. 2021) (citing cases). 17 B. The ALJ provided specific, clear, and convincing reasons supported by 18 substantial evidence for discounting Plaintiff’s symptom testimony. 19 Plaintiff testified that she had constant pain in her legs, arms, and back. (AR 40- 20 41). She testified that she could only sit for 20 to 30 minutes before the pain was 21 intolerable. (Id.) In order to alleviate back pain, she changed positions multiple times per 22 day, from sitting to standing and standing to sitting. (Id. at 42). She testified that laying 23 down was not comfortable and she had to be supported with multiple pillows. (Id.) She 24 testified that she could drive for about an hour to an hour and a half before she had to take 25 a fifteen minute break. (Id. at 48). Plaintiff’s attorney noted that Dr. Ehteshami 26 recommended Plaintiff use a walker in August 2016. (Id. at 42-43). Plaintiff responded 27 that she used the walker “quite a bit” at first, but then tried to not rely on the walker in 28 order to strengthen her body. (Id.) Plaintiff testified that she could prepare meals and 1 perform daily activities but that she required the assistance of her husband and children. 2 (Id. at 44-45). She testified that she could go boating with her family, but if they hit bumps 3 in the water, she experienced pain the following day. (Id. at 47-48). Plaintiff argues that 4 her impairments preclude all employment. (Doc. 12). The ALJ found that she had the 5 RFC to perform sedentary work. (AR 17). 6 Plaintiff argues that the ALJ did not provide specific, clear, and convincing reasons 7 supported by substantial evidence in the record to discredit her symptom testimony, but 8 rather “cherry-picked and mischaracterized” pieces of the record. (Doc. 12 at 18). Plaintiff 9 argues that the ALJ “implies that [her] purported lack of work ethic is the cause for her 10 inability to work” and that this was in error. (Id. at 12). Plaintiff also argues it was error 11 for the ALJ to rely on inconsistencies in the record with regard to her use or non-use of a 12 walker and on whether Plaintiff was benefitting from her medications and treatments. (Id. 13 at 16-17). Lastly, Plaintiff argues the ALJ erred in determining that her activities of daily 14 living were inconsistent with her symptom testimony. (Id. at 17-18). 15 An ALJ must evaluate whether the claimant has presented objective medical 16 evidence of an impairment “which could reasonably be expected to produce the pain or 17 symptoms alleged.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035–36 (9th Cir. 2007) 18 (quoting Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc) (internal citations 19 omitted)). In evaluating a claimant’s pain testimony after a claimant produces objective 20 medical evidence of an underlying impairment, “an ALJ may not reject a claimant’s 21 subjective complaints based solely on a lack of medical evidence to fully corroborate the 22 alleged severity of pain.” Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). However, 23 the ALJ may “reject the claimant’s testimony about the severity of [the] symptoms” 24 provided that the ALJ also explains her decision “by providing specific, clear, and 25 convincing reasons for doing so.” Brown-Hunter v. Colvin, 806 F.3d 487, 488–89 (9th Cir. 26 2015). “Throughout the five-step evaluation, the ALJ is responsible for determining 27 credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Ford 28 v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020). 1 Here, the ALJ discussed numerous treatment records to support his decision and 2 cited to specific records to support his findings more thoroughly than is often seen in these 3 decisions. (AR 17-21). The ALJ found that the record was not entirely consistent with the 4 Plaintiff’s allegations of disabling symptoms. (Id. at 18). Plaintiff first argues that it was 5 error for the ALJ to find that her “lack of work ethic” was the cause for her inability to 6 work. (Doc. 12 at 12). The ALJ noted that Plaintiff reported to a treating provider in 7 September 2017 that she “quit her job due to poor pay and dysfunctional environment.” 8 (Id. at 18, citing 375). Plaintiff has not shown how it was harmful error for the ALJ to cite 9 to Plaintiff’s own statements to a medical provider. Moreover, the ALJ does not state that 10 Plaintiff has a “lack of work ethic” as Plaintiff argues in her Brief. Rather, the ALJ 11 discusses Plaintiff’s earning records and employment history during the relevant time 12 frame and cites to Plaintiff’s own statements about her reasons for leaving a previous job. 13 The Court finds no error here. 14 Next, the ALJ discussed Plaintiff’s September 2016 post-operative imaging which 15 showed stable hardware and only mild-to-moderate stenosis. (Id. at 18, citing 724-26). 16 Subsequent imaging performed in June of 2017 was also discussed, which confirmed that 17 Plaintiff’s back was “unchanged” from the previous imaging and confirmed that there was 18 no more than mild-to-moderate narrowing. (Id., citing 892-93). The ALJ discussed that 19 in May of 2018, Plaintiff’s orthopedic surgeon noted that Plaintiff had been “good for about 20 a year” after surgery but that in recent months she was struggling with pain. (Id., citing 21 680). However, the ALJ discussed imaging of the lumbar spine which was generally 22 consistent with earlier imaging and providers noted that the area was observed “without 23 obvious complication.” (Id. at 680, 889-91). The ALJ also discussed records stating that 24 there was no significant central canal narrowing and neural foraminal narrowing was mild, 25 which providers reported “actually reflects improvement over earlier studies.” (Id., citing 26 890). Next the ALJ discussed updated bending X-rays ordered by Plaintiff’s orthopedic 27 surgeon to “determine whether her spondylolistheses at L4-5 had gotten worse,” but those 28 results were completely normal. (Id., citing 680, 887). The ALJ also discussed, among 1 other findings, that Plaintiff had normal deep tendon reflexes, normal neurologic signs, and 2 no difficulty walking. (Id., citing 877-79). Contrary to Plaintiff’s arguments here, these 3 are all valid reasons supported by substantial evidence in the record and the Court finds no 4 error here. 5 Plaintiff also argues that the ALJ erred when finding that Plaintiff’s pain was 6 controlled by medications. (Doc. 12 at 16-17). The ALJ found that Plaintiff took a number 7 of medications that were useful and she reported no side effects but acknowledged that 8 “she did experience pain.” (AR 20, citing 404). Plaintiff argues that it was error for the 9 ALJ to solely rely on a medical record where Plaintiff’s pain had decreased from a 9 out 10 of 10 in severity to 7 out of 10. (Doc. 12 at 17). Plaintiff also argues that she never stated 11 that the medication was “useful” as the ALJ describes but concedes that the “reduction of 12 a pain level from 9 to 7 could be characterized as ‘useful.’” (Id.) Moreover, Plaintiff 13 argues that while the ALJ cites to a medical record that states that Plaintiff did not have 14 any side effects that she reported in a different record that she experienced weight gain. 15 (Id.) Plaintiff has not established that any of the ALJ’s findings here were not based on 16 substantial evidence in the record. The Court finds no error here. 17 As to Plaintiff’s activities of daily living, the ALJ noted that she went shopping, 18 drove a car, picked her children up from school, did light household chores such as washing 19 the dishes and doing laundry, cooked, socialized with friends, and went to the movies and 20 out to eat. (Id. at 20, citing 183, 610). Plaintiff does not take issue with the ALJ’s listing 21 of her activities, other than to argue that these activities do not necessarily show a 22 consistency to sustain full time employment. (Doc. 12 at 18). While Plaintiff is correct 23 that a claimant is not required to be completely incapacitated in order to be found disabled, 24 it is also true that an ALJ may consider the Plaintiff’s daily activities to determine whether 25 they are “inconsistent with the alleged symptoms.” See Brown-Hunter, 806 F.3d at 488– 26 89. The ALJ did so here. Therefore, the Court finds no error in the discussion of Plaintiff’s 27 daily activities. 28 The ALJ also noted that Plaintiff played with her children and cited to an emergency 1 room visit where Plaintiff sustained an injury playing with her children after “throwing 2 them around despite being told not to do any heavy lifting.” (Id., citing 877). Plaintiff 3 argues that rather than being inconsistent with her allegations of disabling limitations, this 4 event is consistent with her allegations, as the lifting and throwing of her children resulted 5 in a trip to the emergency room. (Doc. 12 at 17). The Court disagrees and finds that it is 6 noteworthy that Plaintiff was able to pick up and throw her children based on the disabling 7 limitations she alleged. Therefore, it was not error for the ALJ to mention this event 8 contained in the medical record. See Ford v. Saul, 950 F.3d 1141, 1149 (9th Cir. 2020) 9 (“ALJ is responsible for determining credibility, resolving conflicts in medical testimony, 10 and for resolving ambiguities”). 11 The ALJ set forth multiple specific reasons supported by substantial evidence for 12 discounting some of Plaintiff’s subjective symptom statements. Based on the above, the 13 ALJ concluded that Plaintiff’s statements concerning the intensity, persistence, and 14 limiting effects of her symptoms were not consistent with the medical evidence. The ALJ 15 properly concluded that the examinations in the medical record and Plaintiff’s own 16 testimony about her activities of daily living did not support her claims of disabling 17 limitations, and therefore, properly found that her subjective symptom testimony was not 18 entirely persuasive. See Thomas, 278 F.3d at 954 (“[w]here the evidence is susceptible to 19 more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s 20 conclusion must be upheld”); see also Batson v. Comm’r of Soc. Sec., 359 F.3d 1190, 1190 21 (9th Cir. 2004) (“the Commissioner’s findings are upheld if supported by inferences 22 reasonably drawn from the record.”). The Court finds that the ALJ provided specific, clear, 23 and convincing reasons for discounting Plaintiff’s symptom testimony. See Brown-Hunter, 24 806 F.3d at 488–89. The ALJ did not err here. 25 C. Plaintiff’s Constitutional Deficiency Argument is Without Merit. 26 Plaintiff briefly argues she was deprived of a valid adjudicatory process because the 27 provision of the Social Security Act pertaining to the Commissioner’s removal for cause 28 (i.e., “neglect of duty or malfeasance in office”), 42 U.S.C. § 902(a)(3), is unconstitutional 1 under the separation of powers doctrine. (Doc. 12 at 19-21). Because the ALJ derived his 2 power from the Commissioner—who, Plaintiff contends, had no Constitutional authority— 3 Plaintiff believes she was deprived of a “valid administrative adjudicatory process.” (Id.) 4 In support, Plaintiff cites Seila Law, LLC, v. CFPB, where the Supreme Court decided the 5 question of whether the Dodd-Frank Act conferred unconstitutional removal protection to 6 the Director of the Consumer Financial Protection Bureau (“CFPB”). 140 S. Ct. 2183, 7 2191-95 (2020). There, the Supreme Court held the for-cause restrictions on the 8 President’s ability to remove the Director infringed on the President’s power under Article 9 II to remove executive officers at will. Id. at 2197. After concluding that the offending 10 provision was severable from the remainder of the statute, the Court remanded for a factual 11 determination of whether the challenged act had been ratified by an Acting Director who 12 was unprotected from the unconstitutional for-cause removal restriction. Id. at 2210-11, 13 2224. 14 Plaintiff argues, “[t]his case should be remanded for a de novo hearing before a new 15 ALJ who does not suffer from the unconstitutional taint of having previously heard and 16 decided this case when the ALJ had no lawful authority to do so.” (Doc. 12 at 22). In 17 response, the Commissioner relies on Collins v. Yellen—a post-Seila Supreme Court 18 decision—for the proposition there is no nexus between the allegedly unconstitutional 19 removal provision in the Act and the denial of Plaintiff’s benefits claim. (Doc. 18 at 16). 20 The constitutionality of the Commissioner’s removal provision notwithstanding, 21 Defendant argues Plaintiff cannot show that the removal restriction actually caused her 22 harm, which, the Defendant contends, is required under Collins. (Id.) Defendant further 23 argues that this particular ALJ’s appointment was ratified by an Acting Commissioner not 24 entitled to statutory tenure protection under the Act and, consequently, that there is no 25 separation of powers concern in this case. (Id.) Defendant lastly argues that any 26 constitutional violation is harmless error under the De Facto Officer Doctrine, the Rule of 27 Necessity, and other broad prudential considerations. (Id. at 16-17). 28 Plaintiff does not respond to any of the Commissioner’s arguments on this topic in 1 her Reply. (Doc. 19). In fact, Plaintiff does not mention this issue at all in her Reply. 2 Nonetheless, the Court will consider the merits of the argument. 3 In Collins, the Supreme Court considered a shareholder suit challenging the 4 constitutionality of certain acts undertaken by the Federal Housing Finance Agency 5 (“FHFA”) as conservator for two federally-chartered mortgage financing companies in the 6 wake of the 2008 housing crisis. Collins v. Yellen, 141 S. Ct. 1761, 1770-76 (2021). The 7 Supreme Court held that while the challenged Act’s for-cause removal provision insulated 8 the FHFA’s Director from at-will termination by the President in violation of Article II, 9 “there was no constitutional defect in the statutorily prescribed method of appointment to 10 that office. As a result, there is no reason to regard any of the actions taken by the FHFA 11 in relation to the [challenged act] as void.” Id. at 1787. The Supreme Court distinguished 12 the facts of Collins from those of Lucia, which “involved a Government actor’s exercise 13 of power that the actor did not lawfully possess.” Id. at 1788 (internal citations omitted). 14 The Court found no basis to conclude “that any head of the FHFA lacked the authority to 15 carry out the functions of the office.” Id. at 1788. 16 As the Collins Court’s discussion of Lucia makes clear, the ALJ’s decision is only 17 per se unconstitutional in this context if he lacked the authority to make it, that being if he 18 was not properly appointed. Id. at 1788; see also Lucia, 138 S. Ct. at 2055 (“This Court 19 has also held that the appropriate remedy for an adjudication tainted with an appointments 20 violation is a new hearing before a properly appointed official.”) (internal citations 21 omitted). Unconstitutional for-cause removal challenges alone, however, will not 22 automatically serve to invalidate the ALJ’s decision. See Collins, 141 S.Ct. at 1788-89. 23 There must be a nexus “between the purported harm and the challenged removal 24 restriction.” Thomas E. v. Comm’r of Soc. Sec., 2021 WL 5415241, at *5. (W.D. Wash. 25 Nov. 19, 2021) (citing Collins, 141 S. Ct. at 1781-83, 1789)). The unconstitutional 26 provision must have caused “compensable harm” to the movant. See Collins, 141 S. Ct. at 27 1789. 28 Here, Plaintiff asserts that the ALJ had no lawful authority, but Plaintiff does not 1 adequately explain how this ALJ’s appointment was in any way unconstitutional. (Doc. 2 12 at 19-21). As explained in Collins, an unconstitutional removal provision does not 3 automatically invalidate a Commissioner’s action when there is no challenge to that 4 individual’s appointment. Collins, 141 at 1788-89. Consequently, Lucia is distinct from 5 the present case insofar as Lucia involved an Appointments Clause challenge, and an 6 automatic remand under Lucia is unwarranted here. 7 Moreover, Defendant asserts that the appointment of the ALJ in question was 8 ratified by then-Acting Commissioner Nancy Berryhill, as referenced in Social Security 9 Ruling (“SSR”) 19-1p. SSR 19-1p, 2019 WL 1324866, at *2 (Mar. 15, 2019). As the 10 Supreme Court noted in Collins, “[w]hen a statute does not limit the President’s power to 11 remove an agency head, we generally presume that the officer serves at the President’s 12 pleasure.” Collins, 141 S. Ct. at 1782 (citing Shurtleff v. U.S., 189 U.S. 311, 316 (1903)). 13 The applicable statute here does not explicitly limit the President’s ability to remove an 14 Acting Commissioner. 42 U.S.C. § 902(b)(4). Because Ms. Berryhill, an Acting 15 Commissioner, ratified the ALJ’s appointment, Plaintiff’s unfavorable decision did not 16 suffer from the alleged constitutional defect. The Court concludes, consistent with the 17 holdings of other district courts, that the Social Security Act’s for-cause removal provision 18 did not apply to Ms. Berryhill, and thus there was no harm to Plaintiff. Thomas E. v. 19 Comm’r of Soc. Sec., 2021 WL 5415241, at *5 (W.D. Wash. Nov. 19, 2021); Alice T. v. 20 Kijakazi, 2021 WL 5302141, at *18 (D. Neb. Nov. 15, 2021); Boger v. Kijakazi, 2021 WL 21 5023141, at *3 n. 4 (W.D.N.C. Oct. 28, 2021). 22 Moreover, even assuming the ratification of the ALJ appointment did not occur, 23 Plaintiff fails to establish a sufficient nexus between the constitutionally defective removal 24 provision and any harm that she suffered personally. Therefore, Plaintiff has not 25 established a basis for a de novo hearing of her case. 26 IV. Conclusion 27 The Court finds that substantial evidence supports the ALJ’s nondisability 28 determination. The ALJ properly considered the medical opinion testimony and properly || discounted Plaintiff's symptom testimony by providing specific, clear, and convincing || reasons supported by substantial evidence. Moreover, the decision was not constitutionally 3 || defective. Therefore, the Court finds that the ALJ did not err in his decision, which is 4|| based on substantial evidence. See Orn, 495 F.3d at 630. 5 Accordingly, 6 IT IS HEREBY ORDERED that the decision of the ALJ is affirmed. The Clerk 7\| of Court is directed to enter judgment accordingly and dismiss this action. 8 Dated this 12th day of July, 2022. ° Wars ) 10 A Whacrsay Sooo) 11 Chief United states District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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