1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 KELLY JEAN O’LEARY, Case No.: 2:21-cv-00889-CSD
4 Plaintiff Order
5 v. Re: ECF Nos. 16, 19
6 KILOLO KIJAKAZI, Acting Commissioner of Social 7 Security Administration,
8 Defendant
9 10 Before the court is Plaintiff's Motion for Reversal and Remand. (ECF No. 16.) The 11 Commissioner filed a Cross-Motion to Affirm and Response to Plaintiff's motion. (ECF Nos. 19, 12 20.) Plaintiff filed a reply. (ECF No. 21.) 13 For the reasons set forth below, Plaintiff’s motion is granted, the Acting Commissioner’s 14 motion is denied, and this matter should be remanded for further proceedings consistent with this 15 Order. 16 I. BACKGROUND 17 In 2018, Plaintiff completed an application for disability insurance benefits (DIB) under 18 Title II of the Social Security Act, alleging disability beginning December 22, 2017. 19 (Administrative Record (AR) 219-220, 65.)1 The applications were denied initially and on 20 reconsideration. (AR 121, 139, 144-147, 156-160.) 21 22
23 1 Plaintiff and the Acting Commissioner refer to a date of January 24, 2018, but the pages they cite in the AR state that the application was completed on April 11, 2018. 1 Plaintiff requested a hearing before an administrative law judge (ALJ). (AR 161-162.) 2 ALJ Norman Bennett held a hearing on August 21, 2020. (AR 80-104.) Plaintiff, who was 3 represented by counsel, appeared and testified on her own behalf at the hearing. Testimony was 4 also taken from a vocational expert (VE). On September 29, 2020, the ALJ issued a decision
5 finding Plaintiff not disabled. (AR 62-74.) Plaintiff requested review, and the Appeals Council 6 denied the request, making the ALJ's decision the final decision of the Commissioner. (AR 2-4.) 7 Plaintiff then commenced this action for judicial review under 42 U.S.C. § 405(g). 8 Plaintiff argues: (1) the ALJ substituted his lay judgment for that of the medical sources in the 9 record in finding Plaintiff can perform work at the medium level; (2) the ALJ failed to account 10 for Plaintiff’s limitations in concentration, persistence and pace in the residual functional 11 capacity finding; (3) the ALJ failed to provide specific functional limitations relevant to 12 Plaintiff’s admittedly severe migraine headaches; and (4) remand is required because the ALJ’s 13 and Appeals Council’s power to adjudicate this case was derived from a single agency 14 commissioner who was removable by the President for cause, which violates the separation of
15 powers. 16 The Acting Commissioner, on the other hand, argues: (1) the ALJ’s RFC assessment is 17 supported by substantial evidence; (2) the ALJ properly evaluated the prior administrative 18 medical findings under the new framework; and (3) Plaintiff’s separation of powers argument 19 does not entitle her to rehearing of her disability claim. 20 II. STANDARDS 21 A. Five-Step Evaluation of Disability 22 Under the Social Security Act, "disability" is the inability to engage "in any substantial 23 gainful activity by reason of any medically determinable physical or mental impairment which 1 can be expected to result in death or which has lasted or can be expected to last for a continuous 2 period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A claimant is disabled if his or 3 her physical or mental impairment(s) are so severe as to preclude the claimant from doing not 4 only his or her previous work but also, any other work which exists in the national economy,
5 considering his age, education and work experience. 42 U.S.C. § 1382c(a)(3)(B). 6 The Commissioner has established a five-step sequential process for determining whether 7 a person is disabled. 20 C.F.R. §404.1520 and § 416.920; see also Bowen v. Yuckert, 482 U.S. 8 137, 140-41 (1987). In the first step, the Commissioner determines whether the claimant is 9 engaged in "substantial gainful activity"; if so, a finding of nondisability is made and the claim is 10 denied. 20 C.F.R. § 404.152(a)(4)(i), (b); § 416.920(a)(4)(i); Yuckert, 482 U.S. at 140. If the 11 claimant is not engaged in substantial gainful activity, the Commissioner proceeds to step two. 12 The second step requires the Commissioner to determine whether the claimant's 13 impairment or combination of impairments are "severe." 20 C.F.R. § 404.1520(a)(4)(ii), (c) and 14 § 416.920(a)(4)(ii), (c); Yuckert, 482 U.S. at 140-41. An impairment is severe if it significantly
15 limits the claimant's physical or mental ability to do basic work activities. Id. If the claimant has 16 an impairment(s) that is severe, the Commissioner proceeds to step three. 17 In the third step, the Commissioner looks at a number of specific impairments listed in 18 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listed Impairments) and determines whether the 19 claimant's impairment(s) meets or is the equivalent of one of the Listed Impairments. 20 C.F.R. 20 § 404.1520(a)(4)(iii), (d) and § 416.920(a)(4)(iii), (d). The Commissioner presumes the Listed 21 Impairments are severe enough to preclude any gainful activity, regardless of age, education or 22 work experience. 20 C.F.R. § 404.1525(a), § 416.925(a). If the claimant's impairment meets or 23 equals one of the Listed Impairments, and is of sufficient duration, the claimant is conclusively 1 presumed disabled. 20 C.F.R. § 404.1520(a)(4)(iii), (d), § 416.920(a)(4)(iii), (d). If the claimant's 2 impairment is severe, but does not meet or equal one of the Listed Impairments, the 3 Commissioner proceeds to step four. Yuckert, 482 U.S. at 141. 4 At step four, the Commissioner determines whether the claimant can still perform "past
5 relevant work." 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f) and § 416.920(a)(4)(iv), (e), (f). Past 6 relevant work is that which a claimant performed in the last 15 years, which lasted long enough 7 for him or her to learn to do it, and was substantial gainful activity. 20 C.F.R. § 404.1565(a) and 8 § 416.920(a). 9 In making this determination, the Commissioner assesses the claimant's residual 10 functional capacity (RFC) and the physical and mental demands of the work previously 11 performed. See id.; 20 C.F.R. § 404.1520(a)(4)(v), § 416.920(a)(4)(v); see also Berry v. Astrue, 12 622 F.3d 1228, 1231 (9th Cir. 2010). RFC is what the claimant can still do despite his or her 13 limitations. 20 C.F.R. § 404.1545 and § 416.945. In determining the RFC, the Commissioner 14 must assess all evidence, including the claimant's and others' descriptions of the limitation(s),
15 and medical reports, to determine what capacity the claimant has for work despite his or her 16 impairments. 20 C.F.R. § 404.1545(a)(3) and 416.945(a)(3). 17 A claimant can return to previous work if he or she can perform the work as he or she 18 actually performed it, i.e., if he or she can perform the "actual functional demands and job duties 19 of a particular past relevant job," or as generally performed, i.e., "[t]he functional demands and 20 job duties of the [past] occupation as generally required by employers throughout the national 21 economy." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (internal quotation marks and 22 citation omitted). If the claimant can still do past relevant work, then he or she is not disabled. 23 20 C.F.R. § 404.1520(f) and § 416.920(f); see also Berry, 62 F.3d at 131. 1 If, however, the claimant cannot perform past relevant work, the burden shifts to the 2 Commissioner to establish at step five that the claimant can perform other work available in the 3 national economy. 20 C.F.R. §§ 404.1520(e), 416.920(e); see also Yuckert, 482 U.S. at 141-42, 4 144. This means "work which exists in significant numbers either in the region where such
5 individual lives or in several regions of the country." Gutierrez v. Comm'r of Soc. Sec. Admin., 6 740 F.3d 519, 528 (9th Cir. 2014). The Commissioner must also consider the claimant's RFC, 7 age, education, and past work experience to determine whether the claimant can do other work. 8 Yuckert, 482 U.S. at 141-42. The Commissioner may meet this burden either through the 9 testimony of a VE or by reference to the Grids.2 Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 10 1999). 11 If the Commissioner establishes at step five that the claimant can do other work which 12 exists in the national economy, then he or she is not disabled. 20 C.F.R. § 404.1566(b), 13 § 416.966(b). Conversely, if the Commissioner determines the claimant is unable to adjust to any 14 other work, the claimant will be found disabled. 20 C.F.R. § 404.1520(g), § 416.920(g); see also
15 Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010); Valentine v. 16 Comm'r of Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). 17 B. Judicial Review & Substantial Evidence 18 The court must affirm the ALJ's determination if it is based on proper legal standards and 19 the findings are supported by substantial evidence in the record. Gutierrez, 740 F.3d at 522 20 (citing 42 U.S.C. § 405(g)). "Substantial evidence is 'more than a mere scintilla but less than a 21
2 "[The grids are matrices of the four factors identified by Congress—physical ability, age, 22 education, and work experience—and set forth rules that identify whether jobs requiring specific combinations of these factors exist in significant numbers in the national economy." Lockwood v. 23 Comm'r of Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010) (internal quotation marks and citation omitted). 1 preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion." Id. at 523-24 (quoting Hill v. Astrue, 698 F.3d 1153, 1159 (9th Cir. 3 2012)). 4 To determine whether substantial evidence exists, the court must look at the record as a
5 whole, considering both evidence that supports and undermines the ALJ's decision. Gutierrez, 6 740 F.3d at 524 (citing Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001)). The court "'may 7 not affirm simply by isolating a specific quantum of supporting evidence.'" Garrison v. Colvin, 8 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th 9 Cir. 2007)). "'The ALJ is responsible for determining credibility, resolving conflicts in medical 10 testimony, and for resolving ambiguities.'" Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 11 (9th Cir. 1995)). "If the evidence can reasonably support either affirming or reversing, 'the 12 reviewing court may not substitute its judgment' for that of the Commissioner." Gutierrez, 740 13 F.3d at 524 (quoting Reddick v. Chater, 157 F.3d 715, 720-21 (9th Cir. 1996)). That being said, 14 "a decision supported by substantial evidence will still be set aside if the ALJ did not apply
15 proper legal standards." Id. (citing Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th 16 Cir. 2009); Benton v. Barnhart, 331 F.3d 1030, 1035 (9th Cir. 2003)). In addition, the court will 17 "review only the reasons provided by the ALJ in the disability determination and may not affirm 18 the ALJ on a ground upon which he did not rely." Garrison, 759 F.3d at 1010 (citing Connett v. 19 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 20 21 22 23 1 III. DISCUSSION 2 A. ALJ's Findings in this Case 3 At step one, the ALJ found Plaintiff met the insured status requirements through 4 September 30, 2019, and had not engaged in substantial gainful activity since the alleged onset
5 date of December 22, 2017. (AR 67.) 6 At step two, the ALJ concluded Plaintiff had the following severe impairments: 7 degenerative disc disease of the cervical spine; migraine headaches; status post multiple strokes 8 resulting in memory loss; traumatic brain injury; seizures; and post-traumatic stress disorder 9 (PTSD). (AR 67.) 10 At step three, the ALJ determined Plaintiff did not have an impairment or combination of 11 impairments that met or medically equaled the severity of one of the Listed Impairments. 12 (AR 67.) 13 At step four, the ALJ assessed Plaintiff as having the RFC to perform medium work, 14 except she could engage in no more than occasional postural activities; she could not work at
15 heights or around dangerous moving machinery; she was limited to simple, repetitive tasks with 16 reasoning level 1-2; and she could have occasional contact with supervisors, co-workers and the 17 general public. (AR 69.) 18 The ALJ then concluded Plaintiff did not have any past relevant work. (AR 72.) 19 At step five, the ALJ determined, considering Plaintiff's age, education, work experience 20 and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff 21 could perform, including: laundry worker; hand packager; and cleaner. (AR 73.) As a result, the 22 ALJ found Plaintiff not disabled at any time from the alleged onset date of December 22, 2017, 23 through September 30, 2019, the date last insured. (AR 73.) 1 B. RFC for Medium Work 2 On September 12, 2018, R. Kirby Reed, M.D., completed a disability examination report 3 for Plaintiff and filled out a consultative examination medical source statement. (AR 567-573.) 4 Dr. Reed opined Plaintiff could occasionally lift/carry 30 pounds and frequently lift/carry 15
5 pounds. She could sit/stand/walk for 6 hours in an eight-hour workday. She needs to alternate 6 between sitting and standing. She could frequently climb ramps and stairs, and balance. She 7 could occasionally climb ladders/scaffolds, stoop/bend, kneel, crouch/squat and crawl. She 8 should be restricted regarding heights. (AR 571-572.) 9 On September 18, 2018, Gurpreet Chahal, M.D., opined that Plaintiff could occasionally 10 lift/carry 20 pounds, and could frequently lift/carry 10 pounds. She could sit/stand/walk for about 11 six hours in an eight-hour workday. She could frequently climb ramps/stairs, balance, stoop, 12 kneel, crouch, and crawl. She could never climb ladders/ropes/scaffolds. She should avoid 13 concentrated exposure to hazards such as machinery and heights. (AR 116-117.) 14 On September 22, 2018, Helen C. Patterson, Ph.D., opined that Plaintiff could perform a
15 limited range of light work secondary to her history of traumatic brain injury. (AR 113.) 16 On January 24, 2019, R. Dwyer, M.D., adopted the same limitations as Dr. Chahal. (AR 17 133-135.) On January 24, 2019, Anna M. Franco, Psy.D., affirmed Dr. Patterson’s initial 18 determination of the RFC for light work. (AR 130.) 19 The ALJ said that while the assessed postural and environmental limitations were 20 generally consistent with Plaintiff’s traumatic brain injury residual effects, her full motor 21 strength and minimal sensory or neurological deficits suggest that she is capable of the medium 22 exertional level of work with the limitations outlined in the RFC. (AR 72.) 23 1 Medium work “involves lifting no more than 50 pounds at a time with frequent lifting or 2 carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). “Being able to do 3 frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being 4 able to lift up to 50 pounds at a time.” SSR 83-10, 1983 WL 31251, at *6 (Jan. 1, 1983).
5 The description of medium work clearly conflicts with the medical opinions that Plaintiff 6 could perform a range of light work (i.e., that she could only frequently lift/carry up to 10 7 pounds). 8 Plaintiff argues that the SSA’s consultative and state agency reviewing medical sources 9 agreed Plaintiff could perform no more than a limited range of light work. Plaintiff contends that 10 the ALJ had no legal authority to reject all of these opinions based on his lay review of the 11 medical data, and “played doctor” in concluding that Plaintiff’s motor strength and minimal 12 sensory and neurological deficits showed a capacity for medium work. 13 The Acting Commissioner asserts that the new regulatory framework for evaluating 14 medical opinions and other medical evidence applies in this case because the application for
15 benefits was filed after March 27, 2017. The Acting Commissioner argues that the ALJ properly 16 considered the supportability and consistency in assessing whether the prior administrative 17 findings were persuasive. 18 The ALJ must assess all the evidence, including the claimant's and others' descriptions of 19 the limitations, and medical reports, to determine what capacity the claimant has for work despite 20 his or her impairments. 20 C.F.R. § 404.1545(a)(3) and 416.945(a)(3). “[T]he ALJ is 21 responsible for translating and incorporating clinical findings into a succinct RFC.” Rounds v. 22 Comm’r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015) (citing Stubbs-Danielson v. 23 Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008)). 1 While the ALJ is responsible for determining the RFC, the RFC must be supported by 2 substantial evidence. “The ALJ must set out in the record his reasoning and the evidentiary 3 support for his interpretation of the medical evidence.” Tackett v. Apfel, 180 F.3d 1094, 1102 4 (9th Cir. 1999) (citation omitted). Moreover, “the ALJ must use ‘some medical evidence of the
5 claimant’s ability to function in the workplace’ in order to make a proper RFC assessment; ‘[t]he 6 ALJ may not simply draw his own inferences about [the claimant’s] functional ability from 7 medical reports.’” Koch v. Kijakazi, 4 F.4th 656, 667 (8th Cir. 2021) (quoting Combs v. 8 Berryhill, 878 F.3d 642, 646 (8th Cir. 2017), and citing Hutsell v. Massanari, 259 F.3d 707, 712 9 (8th Cir. 2001)); see also POMS § DI 24510.001(A)(1) (“The RFC assessment: is based 10 primarily on medical evidence”). 11 Courts have held that when the ALJ disregards (or in this case, finds unpersuasive) the 12 medical opinions in the record and instead relies on his own judgment in determining a 13 claimant’s RFC, the ALJ’s decision is unsupported by substantial evidence. See Rosado v. Sec’y 14 of Health & Human Servs., 807 F.2d 292, 293 (1st Cir. 1986); Jakubiak v. Berryhill, 337
15 F.Supp.3d 80 (D. Mass. 2018); Maniscalo v. Colvin, 167 F.Supp.3d 207, 217-18 (D. Mass. Mar. 16 3, 2016); Beyene v. Astrue, 739 F.Supp.2d 77, 83 (D. Mass. 2010). 17 Generally, a lay person is not qualified to interpret raw medical data to determine a 18 claimant’s RFC unless the impairments are so mild that they pose no significant functional 19 limitations. Manso-Pizarro v. Sec’y of Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996); 20 Rosado, 807 F.2d at 293-94; Jakubiak, 337 F.Supp.3d at 85 (citation omitted); Maniscalo, 167 21 F.Supp.3d at 218-19; Beyene, 739 F.Supp.2d at 83 (citation omitted). 22 Here, the ALJ found the medical opinions regarding Plaintiff’s level of work to be 23 unpersuasive. The ALJ said that those opinions were generally consistent with the residual 1 effects of her traumatic brain injury, but determined that her full motor strength and minimal 2 sensory or neurological deficits suggest that she is capable of the medium exertional level of 3 work. In finding all of these opinions to be unpersuasive, the ALJ apparently relied only on 4 Plaintiff’s medical records and possibly Plaintiff’s own testimony in assessing the RFC. When
5 the “medical findings in the record merely diagnose [the] claimant’s exertional impairments and 6 do not relate those diagnoses to specific residual functional capabilities…[the] bare medical 7 findings are unintelligible to a lay person in terms of residual functional capacity.” Rosado, 807 8 F.2d 293. 9 Plaintiff’s impairments were not so mild that they did not pose any significant functional 10 limitations, and it was improper for the ALJ to draw his own conclusions regarding Plaintiff’s 11 ability to perform medium work without the support of a medical assessment. Therefore, the 12 RFC is not supported by substantial evidence and this matter must be remanded to obtain further 13 evidence on this issue. 14 C. Moderate Limitations in Concentration, Persistence or Pace
15 At step three, the ALJ found that Plaintiff had moderate limitation with respect to 16 concentrating, persisting and maintaining pace. (AR 69.) In the RFC, the ALJ did not mention 17 concentration, persistence or pace, but instead found Plaintiff was limited to simple, repetitive 18 tasks with reasoning level 1-2, and should only have occasional contact with supervisors, co- 19 workers and the general public. (AR 69.) The ALJ noted: “Yet her mini-mental status 20 examinations with neurologists and treating professionals were high, such as 27/30 in January 21 2018, 30/30 in September 2018, 30/30 in October 2018, 29/30 in January 2019, 30/30 in May 22 2019, and 29/30 in September 2019.” (AR 69.) 23 1 Plaintiff asserts that despite finding Plaintiff was moderately limited in concentration, 2 persistence and pace, the ALJ failed to include any mental limitations related to concentration, 3 persistence and pace. Plaintiff argues that the limitation to “simple repetitive tasks with 4 reasoning level 1-2” relates to the ability to understand, remember and apply information, but not
5 the ability to concentrate, persist or maintain pace. 6 The Acting Commissioner argues that the ALJ accounted for Plaintiff’s moderate 7 limitation in concentration, persistence in pace, when he limited her to simple, repetitive tasks in 8 a low stress work setting, involving only occasional interaction with the public, coworkers and 9 supervisors, and explained that her mini mental status examinations were high. The Acting 10 Commissioner also points to the ALJ’s statement that a July 2019 psychological discharge 11 summary indicated that Plaintiff received 18 treatments of biofeedback therapy with a 90% 12 improvement rating in managing accident-related psychological symptoms, and she had a good 13 prognosis and no other residual accident-related psychological issues. 14 The ALJ admits Plaintiff is moderately limited in concentration, persistence and pace, but
15 the ALJ’s RFC (AR 69), and the hypothetical posed to the VE (AR 99) do not include a 16 limitation on concentration, persistence or pace. The question is whether the limitations in the 17 RFC to simple, repetitive tasks and occasional contact with supervisors, co-workers and the 18 general public adequately account for Plaintiff’s moderate limitations in concentration, 19 persistence and pace. 20 In Stubbs-Danielson v. Astrue, 539 F.3d 1169 (9th Cir. 2008), the ALJ’s RFC said that 21 the plaintiff could perform simple, routine, repetitive sedentary work, with no interaction with 22 the public. 539 F.3d at 1173. The plaintiff argued that the RFC did not include the limitations on 23 pace and other mental limitations identified by the doctors in her case. Id. In that case, Dr. 1 McCollum noted that the plaintiff had a slow pace in a mental RFC assessment, and said she was 2 moderately limited in her ability to perform at a consistent pace without an unreasonable number 3 and length of rest periods. A state agency doctor, Dr. Eather, also identified Plaintiff as having a 4 slow pace and several other moderate mental limitations, but concluded that the plaintiff could
5 still carry out simple tasks. Id. The Ninth Circuit concluded that “[t]he ALJ translated Stubbs- 6 Danielson’s condition, including the pace and mental limitations, into the only concrete 7 restrictions available to him—Dr. Eather’s recommended restriction to ‘simple tasks.’” Id. at 8 1174. The court found Dr. Eather’s assessment was consistent with Dr. McCollum’s, which 9 concluded that Stubbs-Danielson was not significantly limited in the ability to carry out short, 10 simple instructions. Id. 11 The court held, in line with the Eighth and Sixth Circuits, that “an ALJ’s assessment of a 12 claimant adequately captures restrictions related to concentration, persistence or pace where the 13 assessment is consistent with restrictions identified in the medical testimony.” Id. (citing Howard 14 v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001); Smith v. Halter, 307 F.3d 377, 379 (6th Cir.
15 2001)). 16 In Howard, the plaintiff also argued that the ALJ erred in failing to capture the limitations 17 in concentration, persistence or pace by adopting an RFC that the claimant could engage in 18 simple, routine, repetitive work. The Eighth Circuit rejected this claim because the state 19 psychologist had concluded that despite deficiencies in pace, the claimant still could perform 20 simple, repetitive, routine tasks. Id. 21 Here, Mark Short, Psy. D., conducted a psychological evaluation of Plaintiff. He found 22 that Plaintiff’s attention and concentration were “fair.” (AR 578, 579.) He opined that she could 23 probably understand and remember some simple but not detailed instructions and could carry out 1 simple and most detailed tasks without special supervision. He further opined that she would 2 probably be able to sustain attention and concentration for most complex, detailed as well as 3 simple tasks without special supervision. He said that she would have significant difficulty 4 interacting with others, and in responding appropriately to work pressure in coordination with
5 and in close proximity to others. (AR 580.) 6 Similar to Stubbs-Danielson and Howard, Dr. Short recognized Plaintiff’s deficiencies in 7 concentration and attention, but nevertheless found she could understand, remember and carry 8 out simple tasks, and could sustain attention and concentration for most complex and detailed, as 9 well as simple tasks. The ALJ translated Plaintiff’s condition, including her deficiencies 10 concentration, persistence and pace, into the concrete restrictions from Dr. Short’s assessment. 11 Therefore, the court finds that the ALJ’s RFC adequately captures the restrictions related to 12 concentration, persistence or pace, and the ALJ did not err in this regard. 13 D. Limitations Regarding Plaintiff’s Migraine Headaches 14 Plaintiff argues that it is undisputed Plaintiff suffers from severe headaches, but the
15 ALJ’s RFC finding did not account for this severe condition, such as providing for breaks, rest 16 periods or stress avoidance. 17 The Acting Commissioner argues that Plaintiff testified that Fioricet helps a lot with her 18 migraines (AR 93), and she consistently scored high on her mini mental health status exams. The 19 Acting Commissioner further contends that Plaintiff has not proven she has greater limitations in 20 this regard than were assessed. 21 The court agrees with the Acting Commissioner that Plaintiff does not point to any 22 medical evidence that supports greater limitations than were assessed. Specifically, she does not 23 cite medical evidence in the record indicating that she required the additional limitations she 1 suggests. As such, the court finds the ALJ did not err in failing to include additional limitations 2 related to Plaintiff’s migraine headaches. 3 E. Separation of Powers 4 Plaintiff argues that under Seila Law v. CFPB, 140 S.Ct. 2183 (2020), the provision for a
5 single head of the SSA who is removable by the President for cause violates the separation of 6 powers. Plaintiff contends that Commissioner Saul’s removal provision violated the Constitution, 7 and therefore, Saul’s delegation of authority to the ALJ and Appeals Council in this case is also 8 constitutionally defective. In addition, Plaintiff contends that the ALJ decided this case under 9 regulations promulgated by Commissioner Saul when he had no authority to issue those rules. As 10 a result, Plaintiff asks the court to remand this matter for a de novo hearing. 11 The Commissioner of SSA is appointed for a term of six years (longer than the term of 12 the President) and may be removed from office by the President for cause (“neglect of duty or 13 malfeasance in office”). 42 U.S.C. § 902(a)(3). 14 The court takes judicial notice of the fact that Andrew Saul held the office of Social
15 Security Commissioner from June 17, 2019, until July 9, 2021, during which time the ALJ issued 16 his decision in this matter and the Appeals Council denied review.3 17 “The Constitution provides for separate legislative, executive, and judicial branches.” 18 Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1130 (9th Cir. 2021) (citing U.S Const. arts. I, II, 19 III.) Executive power is vested in the President. Id. (citing U.S. Const. art. II, § 1, cl. 1). The 20 Constitution does not contain an explicit clause regarding the President’s power to remove 21 officers of the United States, but the Supreme Court held in Myers v. United States, 272 U.S. 52, 22 62 (1926), that the President has inherent, exclusive power to do so. 23
3 https://www.ssa.gov/history/commissioners.html, last visited March 17, 2022; 1 In Seila Law LLC v. CFPB, 140 S.Ct. 2183 (2020), the Supreme Court held that the 2 Consumer Financial Protection Bureau’s (CFPB) provision for leadership by a single individual 3 who is only removable for cause violates the separation of powers because the President has the 4 power to remove an agency head at-will. 140 S.Ct. at 2197.
5 The Supreme Court subsequently held in Collins v. Yellin, that the Federal Housing 6 Finance Agency’s (FHFA) structure, which also has a single director whom the President can 7 remove only for cause, violates the separation of powers. Collins, 141 S.Ct. 1761, 1783 (2021). 8 While Seila seemed to draw a distinction regarding the unconstitutionality of removal restrictions 9 for single-head independent agencies that wield “significant executive power,” Collins appears to 10 have abandoned that distinction. 11 On July 8, 2021, the Justice Department’s Office of Legal Counsel (OLC) issued an 12 opinion that a similar removal restriction for the SSA Commissioner violates the separation of 13 powers in light of Seila and Collins. It concluded the President may remove the SSA 14 Commissioner at will, notwithstanding the statutory removal limitation. “The Constitutionality of
15 the Commissioner of Social Security’s Tenure Protection,” 45 Op. O.L.C. ___, slip op. (July 8, 16 2021).4 17 Acting Commissioner Kijakazi agrees that 42 U.S.C. § 902(a)(3)’s removal restriction 18 on the SSA Commissioner violates the separation of powers, but argues that, without more, this 19 does not justify setting aside an unfavorable SSA disability benefits determination. 20 The court agrees with the parties that 42 U.S.C. § 902(a)(3)’s removal restriction violates 21 the separation of powers under Collins and Seila. The court must now turn to Plaintiff’s 22
4 See 23 https://www.justice.gov/olc/file/1410736/download#:~:text=In%20that%20decision%2C%20the %20Court,5491(c)(3), last visited March 17, 2022. 1 requested remedy: reversal and remand for a new hearing and decision. See Seila, 140 S.Ct. at 2 2207 (“Having concluded that the CFPB’s leadership by a single independent Director violates 3 the separation of powers, we now turn to the appropriate remedy.”).5 4 Plaintiff argues that the Commissioner delegates authority to the ALJ and Appeals
5 Council, and their actions denying Plaintiff’s claim for disability benefits were completed within 6 the unconstitutional tenure of Commissioner Saul. Plaintiff contends that because of the 7 unconstitutional removal provision, Saul had no authority to delegate to the ALJ or Appeals 8 Council in this case. 9 The plaintiff shareholders in Collins similarly sought an order setting aside the third 10 amendment that was at issue in that case, asserting that it “was adopted and implemented by 11 officers who lacked constitutional authority and that their actions were therefore void ab initio.” 12 Collins, 141 S.Ct. at 1787. 13 Collins concluded that there was “no reason to regard any of the actions taken by the 14 FHFA in relation to the third amendment as void” because “[a]ll the officers who headed the
15 FHFA during the time in question were properly appointed.” Collins, 141 S.Ct. at 1787 16 (emphasis original). While “the statute unconstitutionally limited the President’s authority to 17 remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed 18 method of appointment to that office.” Id. 19 20
21 5 Plaintiff does not argue that the entirety of the legislation governing SSA is unconstitutional. Under Seila, it appears the unconstitutional removal restriction is severable from the remainder 22 of the provisions. See Seila, 140 S.Ct. at 2209-2211. The OLC opinion likewise concludes that the removal restriction does not affect the validity of the remainder of the provisions. “The 23 Constitutionality of the Commissioner of Social Security’s Tenure Protection,” 45 Op. O.L.C. ___, slip op. (July 8, 2021) (citing Seila, 140 S.Ct. at 221). 1 Plaintiff also briefly mentions Lucia v. SEC, 138 S.Ct. 2044 (2018). In Lucia, the plaintiff 2 challenged an administrative proceeding of the Securities and Exchange Commission (SEC) 3 before an ALJ on grounds the ALJ was unconstitutionally appointed in violation of the 4 Appointments Clause. The Supreme Court agreed. The ALJ had been appointed by SEC staff
5 members, but the Appointments Clause required that ALJs had to be appointed by the President, 6 a court of law, or the head of a department. Luca, 138 S.Ct. at 2050-52. The appropriate remedy 7 in that case was a new hearing before a properly appointed ALJ. Id. at 2055. 8 This case is distinguishable from Lucia. Here, like Collins, but unlike Lucia, while the 9 statute at issue may unconstitutionally limit the President’s power to remove the Commissioner, 10 there is no asserted defect in the Commissioner’s appointment, and thus, “no reason to regard 11 any of the actions taken by the [SSA in relation to Plaintiff’s disability determination] as void.” 12 Collins, 141 S.Ct. at 1787. As the Court pointed out in Collins, Lucia involved an “exercise of 13 power that the [Government] actor did not lawfully possess,” Collins, 141 S.Ct. at 1788 14 (citations omitted), but that is not the case here.
15 Like Collins, the court similarly finds that the existence of the unconstitutional removal 16 provision alone does not justify the remedy Plaintiff seeks here. See Decker, 8F.4th at 1137 17 (noting that Collins is “controlling with respect to the remedy for any unconstitutional provision 18 in the removal provisions” and the Supreme Court found undoing the agency action on the basis 19 of the unconstitutional removal provision was unwarranted). 20 While the Supreme Court found there was no reason for the third amendment to be 21 completely undone in Collins, it acknowledged “[t]hat does not necessarily mean … that the 22 shareholders have no entitlement to retrospective relief.” Id. “[I]t is still possible for an 23 unconstitutional provision to inflict compensable harm. And the possibility that the 1 unconstitutional restriction on the President’s power to remove a Director of the FHFA could 2 have such an effect cannot be ruled out.” Id. The court gave two examples of when this might be 3 the case: 4 Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court 5 decision holding that he did not have ‘cause’ for removal. Or suppose that the President had made a public statement expressing 6 displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the 7 way. In those situations, the statutory provision would clearly cause harm. 8 Id. at 1789. 9 The Court remanded for the lower court to resolve whether the “unconstitutional removal 10 provision inflicted harm” Id. 11 In Decker, the Ninth Circuit subsequently confirmed that “the key … is demonstrating 12 that the unconstitutional provision actually caused the plaintiff harm.” Decker, 8 F.4th at 1137 13 (citing Collins, 141 S.Ct. at 1788-89). The Ninth Circuit concluded that “[a]bsent a showing of 14 harm, we refuse to unwind the decisions below.” Id. 15 In her reply brief, Plaintiff argues she was harmed in that she did not receive the 16 constitutionally valid adjudicative process she was entitled before the ALJ and the Appeals 17 Council, who received their delegation of authority from Commissioner Saul. Plaintiff further 18 argues that President Biden would have fired Commissioner Saul absent the unconstitutional 19 statutory removal provision, pointing out that President Biden terminated Commissioner Saul the 20 day after the OLC opinion was issued. Plaintiff also points to a statement from the White House 21 regarding Commissioner Saul, stating: 22 Since taking office, Commissioner Saul has undermined and 23 politicized Social Security disability benefits, terminated the agency’s telework policy that was utilized by up to 25 percent of the agency’s workforce, not repaired SSA’s relationships with 1 relevant Federal employee unions including in the context of COVID-19 workplace safety planning, reduced due process 2 protections for benefits appeals hearings, and taken other actions that run contrary to the mission of the agency and the President’s 3 policy agenda. 4 (ECF No. 21 at 8, citing https://federalnewsnetwork.com/people/2021/07/biden-fires-saul-as-ssa- 5 commissioner.) 6 The news article Plaintiff cites attributes this statement to an unidentified White House 7 official, and not directly to the President. Plaintiff acknowledges that these facts do not 8 irrefutably confirm that President Biden wanted to remove Commissioner Saul from office 9 immediately. Nor has Plaintiff presented concrete evidence that the President expressed his 10 displeasure with Saul, or that the President said he would remove Saul if the statute did not stand 11 in his way. Plaintiff has not cited a lower court case that blocked the President’s removal of Saul. 12 Moreover, Plaintiff does not identify a particular due process violation that had an effect on her 13 disability determination. 14 In sum, the court finds Plaintiff’s proffer of harm is simply too tenuous, and there is no 15 basis for remand and a new hearing based on Plaintiff’s separation of powers argument. In light 16 of this conclusion, the court need not reach the Acting Commissioner’s remaining arguments on 17 this issue. 18 19 20 21 22 23 /// /// 1 IV. CONCLUSION 2 Plaintiff's motion for reversal and/or remand (ECF No. 16) is GRANTED insofar as the court concludes the ALJ erred in disregarding all of the medical opinions that Plaintiff can perform a range of light work and drawing his own conclusions that Plaintiff could perform medium work without the support of a medical assessment. 6 The Commissioner’s cross-motion (ECF No. 19) is DENIED; 7 This matter is REMANDED for further proceedings consistent with this Order 8 The Clerk shall enter JUDGMENT accordingly. 9 10 IT IS HEREBY ORDERED. 1] 12 13}| Dated: March 18, 2022 CS oy Craig S. Denney 15 United States Magistrate Judge 16 17 18 19 20 21 22 23