HUTCHENS v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RONNIE HUTCHENS, )

)

Plaintiff, )

)

v. ) 1:20CV1124

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Ronnie Hutchens, brought this action pursuant to

the Social Security Act (the “Act”) to obtain judicial review of a

final decision of Defendant, the Acting Commissioner of Social

Security, denying Plaintiff’s claim for Supplemental Security

Income (“SSI”). (Docket Entry 1.) Defendant has filed the

certified administrative record (Docket Entry 10 (cited herein as

“Tr. __”)), and both parties have moved for judgment (Docket

Entries 14, 16; see also Docket Entry 15 (Plaintiff’s Memorandum);

Docket Entry 17 (Defendant’s Memorandum); Docket Entry 21

(Plaintiff’s Reply)). For the reasons that follow, the Court

should enter judgment for Defendant.

1 President Joseph R. Biden, Jr., appointed Kilolo Kijakazi as the Acting

Commissioner of Social Security on July 9, 2021. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted for

Andrew M. Saul as the Defendant in this suit. Neither the Court nor the parties

need take any further action to continue this suit by reason of the last sentence

of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).

I. PROCEDURAL HISTORY

Plaintiff applied for SSI (Tr. 346-54), alleging a disability

onset date of January 1, 2015 (see Tr. 346). Upon denial of that

application initially (Tr. 117-29, 169-72), and on reconsideration

(Tr. 130-43, 180-89), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 190-92). Plaintiff, his

attorney, and a vocational expert (“VE”) attended the hearing.

(Tr. 81-116.)2 The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 144-57.) The Appeals

Council thereafter granted Plaintiff’s request for review (Tr. 163-

68, 288-89, 474-77), and remanded the matter 1) for a new hearing

before a Constitutionally-appointed ALJ, and 2) for evaluation of

opinion evidence from the state agency medical consultant, the

consultative medical examiner, Plaintiff’s fiancée, and Plaintiff’s

employer (see Tr. 165-67).

A different ALJ convened a new hearing, attended by Plaintiff,

his attorney, and a VE. (Tr. 42-79). Following that hearing, the

ALJ issued a ruling deeming Plaintiff not disabled (Tr. 12-34).3

The Appeals Council later denied Plaintiff’s request for review

2 At the conclusion of Plaintiff’s testimony, the ALJ declined to call the

VE to testify. (See Tr. 113.)

3 The ALJ mistakenly described Plaintiff’s alleged onset date as January

1, 2014 (Tr. 15); however, that typographical error lacks material consequence,

as eligibility for SSI begins in the month following a claimant’s application

date, see 20 C.F.R. § 416.335, and the ALJ’s non-disability ruling covered the

time period from Plaintiff’s application date on August 20, 2015, to April 10,

2020, the date of the ALJ’s decision (see Tr. 34).

2

(Tr. 1-6, 342-45, 497-98), thereby making the ALJ’s ruling the

Commissioner’s final decision for purposes of judicial review.

In rendering that disability determination, the ALJ made the

following findings, later adopted by the Commissioner:

1. [Plaintiff] has not engaged in substantial gainful

activity since August 20, 2015, the application

date.

. . .

2. [Plaintiff] has the following severe impairments:

diabetes mellitus, type 1, with diabetic

neuropathy; obesity; residual effects of a fracture

of the left ankle, residual effects of a fracture

of the left little finger, and depressive disorder.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically

equals the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P,

Appendix 1.

. . .

4. . . . [Plaintiff] has the residual functional

capacity to perform a range of sedentary work

. . . . Specifically, he can frequently lift and

carry 10 pounds, can sit 6 out of 8 hours, stand

and walk 2 out of 8 hours, can have occasional use

of left and right foot controls, no limit with hand

controls, no limit in his ability to reach overhead

right and left, no limit in his ability to reach in

all directions both right and left, no limit in his

ability to handle, has no limit in his ability to

finger with the right hand and can frequently

finger with the left, and has no limit in ability

to feel both right and left. He can frequently

engage in balancing, and stooping, can occasionally

kneel, crouch, crawl, and climb stairs and ramps,

but cannot climb ropes, ladders, or scaffolds. He

can never be exposed to unprotected heights but can

have occasional exposure to moving machinery, no

3

limit in operating a motor vehicle, nor any limit

in his exposure to extreme weather, extreme cold or

heat, vibration, loud noise, or to fumes, odors,

gases, poor ventilation, or other pulmonary

irritants. He is able to perform simple, routine,

repetitive tasks, and whose [sic] time off task can

be compensated with his ability to perform simple,

routine, repetitive tasks.

. . .

5. [Plaintiff] is unable to perform any past relevant

work.

. . .

9. Considering [Plaintiff]’s age, education, work

experience, and residual functional capacity, there

are jobs that exist in significant numbers in the

national economy that [he] can perform.

. . .

10. [Plaintiff] has not been under a disability, as

defined in the . . . Act, since August 20, 2015,

the date the application was filed.

(Tr. 17-34 (bold font and internal parenthetical citations

omitted).)

II. DISCUSSION

Federal law “authorizes judicial review of the Social Security

Commissioner’s denial of social security benefits.” Hines v.

Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, “the scope of

[the Court’s] review of [such a] decision . . . is extremely

limited.” Frady v. Harris, 646 F.2d 143, 144 (4th Cir. 1981).

Plaintiff has not established entitlement to relief under the

extremely limited review standard.

4

A. Standard of Review

“[C]ourts are not to try [a Social Security] case de novo.”

Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Instead, “a

reviewing court must uphold the factual findings of the ALJ

[underlying the denial of benefits] if they are supported by

substantial evidence and were reached through application of the

correct legal standard.” Hines, 453 F.3d at 561 (internal brackets

and quotation marks omitted).

“Substantial evidence means ‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’”

Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (quoting

Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of

more than a mere scintilla of evidence but may be somewhat less

than a preponderance.” Mastro v. Apfel, 270 F.3d 171, 176 (4th

Cir. 2001) (brackets and internal quotation marks omitted). “If

there is evidence to justify a refusal to direct a verdict were the

case before a jury, then there is substantial evidence.” Hunter,

993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the [C]ourt should not

undertake to re-weigh conflicting evidence, make credibility

determinations, or substitute its judgment for that of the [ALJ, as

adopted by the Commissioner].” Mastro, 270 F.3d at 176 (internal

brackets and quotation marks omitted). “Where conflicting evidence

allows reasonable minds to differ as to whether a claimant is

5

disabled, the responsibility for that decision falls on the

[Commissioner] (or the ALJ).” Id. at 179 (internal quotation marks

omitted). “The issue before [the Court], therefore, is not whether

[the claimant] is disabled, but whether the ALJ’s finding that [the

claimant] is not disabled is supported by substantial evidence and

was reached based upon a correct application of the relevant law.”

Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996).

When confronting that issue, the Court must take note that

“[a] claimant for disability benefits bears the burden of proving

a disability,” Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981),

and that, in this context, “disability” means the “‘inability to

engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be

expected to result in death or which has lasted or can be expected

to last for a continuous period of not less than 12 months,’” id.

(quoting 42 U.S.C. § 423(d)(1)(A)).4 “To regularize the

adjudicative process, the Social Security Administration [(‘SSA’)]

has . . . promulgated . . . detailed regulations incorporating

longstanding medical-vocational evaluation policies that take into

account a claimant’s age, education, and work experience in

4 The Act “comprises two disability benefits programs. The Disability

Insurance Benefits Program provides benefits to disabled persons who have

contributed to the program while employed. [SSI] . . provides benefits to

indigent disabled persons. The statutory definitions and the regulations . . .

for determining disability governing these two programs are, in all aspects

relevant here, substantively identical.” Craig, 76 F.3d at 589 n.1 (internal

citations omitted).

6

addition to [the claimant’s] medical condition.” Id. “These

regulations establish a ‘sequential evaluation process’ to

determine whether a claimant is disabled.” Id. (internal citations

omitted).

This sequential evaluation process (“SEP”) has up to five

steps: “The claimant (1) must not be engaged in ‘substantial

gainful activity,’ i.e., currently working; and (2) must have a

‘severe’ impairment that (3) meets or exceeds the ‘listings’ of

specified impairments, or is otherwise incapacitating to the extent

that the claimant does not possess the residual functional capacity

[(‘RFC’)] to (4) perform [the claimant’s] past work or (5) any

other work.” Albright v. Commissioner of Soc. Sec. Admin., 174

F.3d 473, 475 n.2 (4th Cir. 1999).5 A finding adverse to the

claimant at any of several points in the SEP forecloses an award

and ends the inquiry. For example, “[t]he first step determines

whether the claimant is engaged in ‘substantial gainful activity.’

If the claimant is working, benefits are denied. The second step

determines if the claimant is ‘severely’ disabled. If not,

benefits are denied.” Bennett v. Sullivan, 917 F.2d 157, 159 (4th

Cir. 1990).

On the other hand, if a claimant carries his or her burden at

each of the first three steps, “the claimant is disabled.” Mastro,

5 “Through the fourth step, the burden of production and proof is on the

claimant. If the claimant reaches step five, the burden shifts to the

[government] . . . .” Hunter, 993 F.2d at 35 (internal citations omitted).

7

270 F.3d at 177. Alternatively, if a claimant clears steps one and

two, but falters at step three, i.e., “[i]f a claimant’s impairment

is not sufficiently severe to equal or exceed a listed impairment,

the ALJ must assess the claimant’s [RFC].” Id. at 179.6 Step four

then requires the ALJ to assess whether, based on that RFC, the

claimant can “perform past relevant work”; if so, the claimant

does not qualify as disabled. See id. at 179-80. However, if the

claimant establishes an inability to return to prior work, the

analysis proceeds to the fifth step, whereupon the ALJ must decide

“whether the claimant is able to perform other work considering

both [the claimant’s RFC] and [the claimant’s] vocational

capabilities (age, education, and past work experience) to adjust

to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the

government cannot carry its “evidentiary burden of proving that

[the claimant] remains able to work other jobs available in the

community,” the claimant qualifies as disabled. Hines, 453 F.3d at

567.7

6 “RFC is a measurement of the most a claimant can do despite [the

claimant’s] limitations.” Hines, 453 F.3d at 562 (noting that administrative

regulations require RFC to reflect claimant’s “ability to do sustained work-

related physical and mental activities in a work setting on a regular and

continuing basis . . . [which] means 8 hours a day, for 5 days a week, or an

equivalent work schedule” (internal emphasis and quotation marks omitted)). The

RFC includes both a “physical exertional or strength limitation” that assesses

the claimant’s “ability to do sedentary, light, medium, heavy, or very heavy

work,” as well as “nonexertional limitations (mental, sensory, or skin

impairments).” Hall, 658 F.2d at 265. “RFC is to be determined by the ALJ only

after [the ALJ] considers all relevant evidence of a claimant’s impairments and

any related symptoms (e.g., pain).” Hines, 453 F.3d at 562-63.

7 A claimant thus can qualify as disabled via two paths through the SEP.

The first path requires resolution of the questions at steps one, two, and three

(continued...)

8

B. Assignments of Error

Plaintiff asserts that the Court should overturn the ALJ’s

finding of no disability on these grounds:

1) “[t]he ALJ’s decision violates Mascio v. Colvin[, 780 F.3d

632 (4th Cir. 2015)]” (Docket Entry 15 at 4 (bold font omitted));

and

2) “[t]he structure of SSA is constitutionally invalid” (id.

at 7 (bold font omitted); see also Docket Entry 21 at 1-17);

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 17 at 6-24.)

1. Mascio

In Plaintiff’s first assignment of error, he maintains that

“[t]he ALJ’s decision violates Mascio” (Docket Entry 15 at 4 (bold

font omitted)), in that “the ALJ found that [Plaintiff] ha[d] a

moderate limitation with regards to concentrating, persisting or

maintaining pace [(‘CPP’)]” (id. (citing Tr. 23)), but “did not

account for [Plaintiff’s] limitations in CPP by restricting him to

. . Simple, routine, repetitive tasks [(‘SRRTs’)]” in the RFC

(id. at 5 (referencing Tr. 24)). According to Plaintiff, Mascio

held that “*‘an ALJ does not account for a claimant’s limitations in

7(...continued)

in the claimant’s favor, whereas, on the second path, the claimant must prevail

at steps one, two, four, and five. Some short-hand judicial characterizations

of the SEP appear to gloss over the fact that an adverse finding against a

claimant on step three does not terminate the analysis. See, ¢.g., Hunter, 993

F.2d at 35 (“If the ALJ finds that a claimant has not satisfied any step of the

process, review does not proceed to the next step.”).

[CPP] by restricting the hypothetical question to simple, routine

tasks or unskilled work,’” because “‘the ability to perform simple

tasks differs from the ability to stay on task[, and o]nly the

latter limitation would account for a claimant’s limitation in

[CPP] .’” (Id. (quoting Mascio, 780 F.3d at 638) (some internal

quotation marks omitted).) Plaintiff concedes that a moderate

deficit in CPP “may not automatically require an RFC that imposes

additional limitations,” but points out that “the district courts,

including this [Court], have repeatedly held that the ALJ must at

least provide a sufficient explanation in the decision to allow the

court to determine why no limitations as to [CPP] were included in

the RFC.” (Id. (citing Scruggs v. Colvin, No. 3:14CV466, 2015 WL

2250890, at *5 (W.D.N.C. May 13, 2015) (unpublished), Reinhardt v.

Colvin, No. 3:14CV488, 2015 WL 1756480, at *3 (W.D.N.C. Apr. 17,

2015) (unpublished), Raynor v. Colvin, No. 5:14CV271, 2015 WL

1548996, at *2 (E.D.N.C. Apr. 7, 2015) (unpublished), and Salmon v.

Colvin, No. 1:12CV1209, 2015 WL 1526020, at *3 (M.D.N.C. Apr. 2,

2015) (unpublished) (Biggs, J.)).) For the reasons that follow,

those assertions entitle Plaintiff to no relief.

The Fourth Circuit has indeed held that “the ability to

perform simple tasks differs from the ability to stay on task,” and

that “[o]nly the latter limitation would account for a claimant’s

limitation in [CPP],” Mascio, 780 F.3d at 638. However, as the

Fourth Circuit recently affirmed, Mascio held “that an ALJ cannot

10

summarily ‘account for a claimant’s limitations in [CPP] by

restricting the hypothetical question to simple, routine tasks or

unskilled work,’ . . . [b]ut did not impose a categorical rule that

requires an ALJ to always include moderate limitations in [CPP] as

a specific limitation in the RFC.” Shinaberry v. Saul, 952 F.3d

113, 121 (4th Cir. 2020) (emphasis added). As a neighboring

district court has explained:

Mascio does not broadly dictate that a claimant’s

moderate impairment in [CPP] always translates into a

limitation in the RFC. Rather, Mascio underscores the

ALJ’s duty to adequately review the evidence and explain

the decision . . . . An ALJ may account for a claimant’s

limitation with [CPP] by restricting the claimant to

simple, routine, unskilled work where the record supports

this conclusion, either through physician testimony,

medical source statements, consultative examinations, or

other evidence that is sufficiently evident to the

reviewing court.

Jones v. Colvin, No. 7:14CV273, 2015 WL 5056784, at *10-12 (W.D.

Va. Aug. 20, 2015) (magistrate judge’s recommendation adopted by

district judge) (unpublished) (emphasis added). Here, the ALJ’s

decision provides a sufficient explanation as to why the RFC’s

restrictions to SRRTs (Tr. 24) adequately accounted for Plaintiff’s

moderate deficit in CPP.

First, the ALJ pointed out at step three of the SEP that

Plaintiff remained able to engage in a variety of activities that

demonstrated an ability to persist at simple tasks, such as drive,

shop in stores, perform household chores, use[] his phone to do

online shopping, watch TV, play video games, and manage his own

11

finances. (See Tr. 23-24.) In the ALJ’s later discussion of the

medical evidence, he observed that “[t]here [we]re [] indications

[] in the record that [Plaintiff] continued to perform jobs with

unrecorded earnings[ which] suggest[ed] a level of continuing

functional capacity inconsistent with [Plaintiff]’s statements of

. . . mental limitations associated with his conditions during his

hearing testimonies.” (Tr. 32 (citing Tr. 528, 578).)

Second, the ALJ’s discussion of the opinion evidence supports

his conclusion that, despite moderate limitation in CPP (see Tr.

23), Plaintiff remained capable of performing SRRTs (see Tr. 24).

In that regard, the ALJ accorded “partial weight” to the opinion of

consultative psychological examiner Dr. Chad C. Ritterspach (Tr.

30, 32) that Plaintiff’s “ability to sustain attention to perform

simple repetitive tasks appear[ed] mildly impaired” (Tr. 565

(emphasis added)).8 Consistent with the ALJ’s assignment of

partial weight to Dr. Ritterspach’s opinion, found Plaintiff

moderately limited in CPP (see Tr. 23),9 but ultimately concluded

that Plaintiff’s “time off task c[ould] be compensated with his

ability to perform [SRRTs]” (Tr. 24). The ALJ’s evaluation and

8 The ALJ explained that he accorded “partial weight” to Dr. Ritterspach’s

opinion because he 1) “use[d] vague terms rather than identifying specific

functional limitations associated with [Plaintiff]’s mental impairments,” and 2)

did not offer “a prognosis concerning the effect [ Plaintiff] receiving mental

health treatment would have on his mental functioning.” (Tr. 30.)

9 In finding Plaintiff moderately limited in CPP, the ALJ gave the benefit

of the doubt to Plaintiff’s statement “that his concentration ‘can be a problem’”

(Tr. 23 (citing Tr. 565)), as well as the report of Plaintiff’s fiancée that

Plaintiff’s “fluctuating blood sugar levels c[ould] affect his ability to pay

attention and concentrate” (id. (citing Tr. 411)).

12

weighing of Dr. Ritterspach’s above-quoted opinion thus sufficed

under Mascio to explain the ALJ’s conclusion that, despite moderate

limitation in CPP (see Tr. 23), Plaintiff remained capable of

performing SRRTs (see Tr. 24). See Sizemore v. Berryhill, 878 F.3d

72, 80-81 (4th Cir. 2017) (rejecting the plaintiff’s argument under

Mascio where ALJ relied on opinions of consultative examiner and

state agency psychological consultant that, notwithstanding

moderate deficit in CPP, the plaintiff could sustain attention

sufficiently to perform SRRTs).

Third, the ALJ made the following observations regarding the

medical evidence of record:

° a primary care treatment note in January of 2015

“showing minimal symptoms and complaints,

[Plaintiff]’s readiness to work, and the gap in

treatment following thl[at] appointment [wa]s

inconsistent with [Plaintiff]’s allegations of

debilitating and disabling symptoms existing at

th[at] time” (Tr. 26; see also Tr. 504-06);

° a follow-up visit in September 2016 “noted

[Plaintiff]’s complaints about having difficulty

sleeping, but denying experiencing anxiety,

depression, feeling confused, delusions, or either

compulsive or impulsive behaviors” (Tr. 27; see

also Tr. 532-34);

subsequent appointments in April and October 2019

recorded intact judgment and insight as well as

normal mood and affect (Tr. 29; see also Tr. 581,

588-89); and

° at an office visit in January 2020, Plaintiff

“reported that he ‘fe[lt] stable without new

complaints’” (Tr. 30; see also Tr. 642), and

displayed intact judgment and insight as well as

normal mood, thoughts, and affect (see Tr. 31; see

also Tr. 644).

13

That evidence further explains why the ALJ’s limitation to SRRTs

sufficiently accounts for Plaintiff’s moderate limitation in CPP.

Put simply, Plaintiff’s first issue on review falls short.

2. Constitutionality of SSA

In Plaintiff’s second and final assignment of error, he

contends that “[t]he structure of SSA is constitutionally invalid.”

(Docket Entry 15 at 7 (bold font omitted); see also Docket Entry 21

at 1-17.) In particular, Plaintiff asserts that “[t]he United

States Supreme Court has held that it is unconstitutional for an

executive agency to be led by a single individual who serves for a

longer term than the President and who can only be removed from his

position for cause.” (Docket Entry 15 at 7 (citing Seila Law LLC

v. Consumer Fin. Prot. Bureau, 591 U.S. , , 140 S. Ct. 2183,

2197 (2020)).) According to Plaintiff, the “constitutionally

invalid structure of the [Consumer Financial Protection Bureau

(‘CFPB’)] is identical to that of the SSA,” in that “[t]he

Commissioner of SSA is the singular head of the [SSA], serves for

a six-year term, and cannot be removed by the President except for

cause (‘neglect of duty or malfeasance in office’).” (Id. at 8

(citing 42 U.S.C. § 902(a)(3)).) Plaintiff further maintains that

“[t]he ALJ’s delegation of authority in this case came from [then-

Commissioner] Andrew Saul and is therefore constitutionally

defective” (id. (citing Hearings, Appeals, and Litigation Law

Manual (HALLEX) § I-2-0-2(A))), as well as that “the ALJ decided

14

this case under regulations promulgated by [Commissioner] Saul when

[he] had no constitutional authority to issue those rules” (id.).

Those arguments ultimately fail as a matter of law.

As an initial matter, the Acting Commissioner concedes that

“the [SSA] provision that limits the President’s authority to

remove the Presidentially-appointed, Senate-confirmed Commissioner

of Social Security without good cause, 42 U.S.C. § 902(a)(3),

violates the separation of powers . . . to the extent it is

construed as limiting the President’s authority to remove the

Commissioner without cause.” (Docket Entry 17 at 6-7 (citing

Office of Legal Counsel, U.S. Dep’t of Justice, Constitutionality

of the Commissioner of Social Security’s Tenure Protections, 2021

WL 2981542 (July 8, 2021) (“OLC Op”).) However, the Acting

Commissioner notes that, “even where an unconstitutional statutory

removal restriction exists, a plaintiff seeking relief on that

basis must show that the restriction actually caused him harm.”

(Id. at 7 (citing Collins v. Yellen, U.S. , - , 141 S.

Ct. 1761, 1787-89 (2021)).) According to the Acting Commissioner,

“Plaintiff cannot show the required nexus [under Collins] between

Section 902(a)(3)’s removal restriction and the denial of his

benefits claim” (id. at 8 (bold font, capitalization, and single-

spacing omitted)), because 1) “[t]he deciding ALJ served under a

ratification of his appointment by an Acting Commissioner not

subject to tenure protection” (id. at 9 (bold font, capitalization,

15

and single-spacing omitted)), and 2) “Plaintiff cannot show that

the Commissioner’s statutory tenure protection affected the

deciding ALJ’s determination of [Plaintiff’s] claim” (id. at 11

(bold font, capitalization, and single-spacing omitted)). For the

reasons that follow, both of the Acting Commissioner’s arguments

have merit.

a. Acting Commissioner Removable at Will

The Acting Commissioner offers the following argument

regarding the President’s power to remove an Acting Commissioner of

the SSA at will:

The ALJ who adjudicated Plaintiff’s claim on April 10,

20[2]0, held office under an appointment legally ratified

in July 2018 by then-Acting Commissioner [Nancy]

Berryhill. For her part, Ms. Berryhill had been

designated to serve as Acting Commissioner in April 2018,

upon former President Trump’s nomination of Andrew Saul

to serve as Commissioner.[FN*] In her Acting capacity, she

enjoyed no statutory tenure protection. See 42 U.S.C.

§ 902(b)(4); Collins, 141 S. Ct. at 1783 (“[W]e generally

presume that the President holds the power to remove at

will executive officers and that a statute must contain

“plain language to take [that power] away.”); see also

United States v. Eaton, 169 U.S. 331, 343 (1898) (holding

that where a “subordinate officer is charged with the

performance of the duty of the superior for a limited

time, and under special and temporary conditions, he is

not thereby transformed into the superior and permanent

official”); accord Collins, 141 S. Ct. at 1782 (FHFA

Acting Director removable at will because relevant

“subsection does not include any removal restriction.

Nor does it crossreference the earlier restriction on the

removal of a confirmed Director.”).[FN**] Thus, Ms.

Berryhill was removable at will, and her ratification of

the deciding ALJ’s appointment accordingly severed any

conceivable nexus between Section 902(a)(3)’s tenure

protection for a confirmed Commissioner and any alleged

harm to Plaintiff.

16

[FN*] Under the Federal Vacancies Reform Act (FRVA), 5

U.S.C. § 3346(a)(1), even if Ms. Berryhill’s initial

eligibility to serve as Acting Commissioner previously

expired, then-President Trump nominated Andrew Saul for

Commissioner in April 2018, such that Ms. Berryhill once

again was eligible to serve as Acting Commissioner. The

FVRA “incorporates a spring-back provision, which permits

the acting officer to begin performing the functions and

duties of the vacant office again upon the submissions of

a nomination, even if the 210-day period expired before

that nomination was submitted.” 23 O.L.C 60, 68 (1999),

1999 WL 1262050, at *8. That provision establishes a new

period of acting service following a first or second

nomination for the office. See 5 U.S.C. § 3346(a)(2),

(b). Ms. Berryhill’s eligibility following Mr. Saul’s

nomination was, therefore, valid — and it remained in

force on July 16, 2018, the date [Acting Commissioner]

Berryhill ratified the appointments of the [SSA]’s ALJs,

including the ALJ who later adjudicated Plaintiff’s

claim. See Social Security Ruling [] 19-1p[, Titles II

and XVI: Effect of the Decision in Lucia v. Securities

and Exchange Commission (SEC) on Cases Pending at the

Appeals Council, 2019 WL 1324866 (Mar. 15, 2019)].

[FN**] The [] Act describes the “Commissioner of Social

Security” as an individual “appointed by the President”

and confirmed by the Senate. 42 U.S.C. § 902(a). The

Commissioner is appointed to a term of six years, and

“[a]n individual serving in the office of Commissioner

may be removed from office” only for cause. 42 U.S.C.

§902(a)(3). In a separate subsection, the statute

addresses the “Deputy Commissioner of Social Security,”

who enjoys no removal protection, and is deemed the

“Acting Commissioner” during the “absence or disability

of the Commissioner . . . unless the President designates

another officer of the Government as Acting

Commissioner.” 42 U.S.C. § 902(b)(2), (4)[; c]ompare, 42

U.S.C. § 902(c)(1) (providing that the Chief Actuary is

removable only for cause). In the absence of plain

statutory text providing tenure to an Acting Commissioner

— which would be “a singular anomaly in all of

administrative law,” Rop v. Fed. Hous. Fin. Agency, 485

F. Supp. 3d 900, 938 (W.D. Mich. 2020) — a person serving

temporarily in an Acting capacity is removable at will.

See Collins, 141 S. Ct. at 1783 (“[W]e generally presume

that the President holds the power to remove at will

executive officers and that a statute must contain ‘plain

language to take [that power] away.’”); accord Swan v.

17

Clinton, 100 F.3d 973, 987 (D.C. Cir. 1996) (holding

removal protection did not apply to “holdover” officials

since “if the President cannot remove holdover officials

. . . then holdover members could conceivably remain in

office for substantial, indeed unlimited, periods of

time”).

(Docket Entry 17 at 9-11.)

In response, Plaintiff contends that his “argument has nothing

whatsoever to do with who appointed the ALJ or the Appeals Council

judges in this case,” as his argument “is not an Appointments

Clause challenge,” but rather “an entirely distinct one which

contests . . . the delegation of authority under which [the ALJs

and Appeals Council judges] adjudicated . . . this case.” (Docket

Entry 21 at 6-7.) According to Plaintiff, “[w]holly apart from all

of the foregoing, every court which has thus far ruled upon the

issue has indicated that even the Acting Commissioner . . . enjoyed

removal protection under the statute for the time period of their

temporary appointment.” (Id. at 7 (citing Sylvia A. v. Kijakazi,

No. 5:21CV76, 2021 WL 4692293, at *3 (N.D. Tex. Sept. 13, 2021)

(unpublished), recommendation adopted, 2021 WL 4622528 (N.D. Tex.

Oct. 7, 2021) (unpublished), Albert v. Kijakazi, No. 1:21CV4, 2021

WL 3424268, at *3 (D. Alaska Aug. 5, 2021) (unpublished), Tafoya v.

Kijakazi, No. 21CV871, 2021 WL 3269640, at *5 (D. Colo. July 29,

2021) (unpublished), and Dante v. Saul, Civ. No. 20-702, 2021 WL

2936576, at *5 (D.N.M. July 13, 2021) (unpublished)).)

The statutory language of Section 902 belies Plaintiff’s

position for three reasons. To begin, comparison of the language

18

in the portion of Section 902 authorizing the Commissioner with the

portion authorizing the Deputy Commissioner (who serves as Acting

Commissioner in the Commissioner’s absence, disability, or vacancy)

supports the Acting Commissioner’s position that the President can

remove an Acting Commissioner at will. The applicable portion of

that statute provides as follows:

(a) Commissioner of Social Security

(1) There shall be . . . a Commissioner of Social

Security . . . who shall be appointed by the President,

by and with the advice and consent of the Senate.

. . .

(3) The Commissioner shall be appointed for a term of 6

years . . . . An individual serving in the office of

Commissioner may be removed from office only pursuant to

a finding by the President of neglect of duty or

malfeasance in office.

. . .

(b) Deputy Commissioner of Social Security

(1) There shall be . . . a Deputy Commissioner of Social

Security . . . who shall be appointed by the President,

by and with the advice and consent of the Senate.

(2) The Deputy Commissioner shall be appointed for a term

of 6 years . . . . In any case in which a successor does

not take office at the end of a Deputy Commissioner’s

term of office, such Deputy Commissioner may continue in

office until the entry upon office of such a successor.

A Deputy Commissioner appointed to a term of office after

the commencement of such term may serve under such

appointment only for the remainder of such term.

. . .

(4) The Deputy Commissioner shall perform such duties and

exercise such powers as the Commissioner shall from time

to time assign or delegate. The Deputy Commissioner

19

shall be Acting Commissioner of the Administration during

the absence or disability of the Commissioner and, unless

the President designates another officer of the

Government as Acting Commissioner, in the event of a

vacancy in the office of the Commissioner.

42 U.S.C. § 902 (emphasis added). Thus, although the portion of

Section 902 governing the Commissioner includes an express removal

for cause provision, see 42 U.S.C. § 902(a) (3), the corresponding

provision in the portion of Section 902 involving the Deputy

Commissioner lacks any such language, see 42 U.S.C. § 902(b) (2).

Notably, the Supreme Court has cautioned that a statute must

expressly place limits on the President’s authority to remove

executive agency heads at will. See Collins, U.S. at, 141

S. Ct. at 1783 (“[W]le generally presume that the President holds

the power to remove at will executive officers and that a statute

must contain plain language to take [that power] away.”).

Second, the removal provision explicitly applies only to “[a]n

individual serving in the office of Commissioner,” 42 U.S.C.

902(a) (3) (emphasis added). Thus, by its very terms, Section

902(a) (3)’s removal provision does not apply to an individual

serving in the office of the Acting Commissioner.

Third, Section 902(b) (4) expressly accords the President the

power to “designate[] another officer of the Government as Acting

Commissioner” other than the Deputy Commissioner in the event of a

vacancy in the office of Commissioner. 42 U.S.C. § 902 (b) (4)

(emphasis added). That broad authority to designate any other

20

“officer of the Government” as Acting Commissioner during a vacancy

further supports the view that the removal restriction applicable

to the office of Commissioner does not apply in the same manner to

the office of Acting Commissioner.

Moreover, the cases upon which Plaintiff relies as holding

that Acting Commissioners enjoy removal protection (see Docket

Entry 21 at 7 (citing Sylvia, Albert, Tafoya, and Dante)), all

addressed that matter in the procedural posture of a motion to

dismiss for lack of standing, see Sylvia A., 2021 WL 4692293, at

*3; Albert, 2021 WL 3424268, at *3; Tafoya, 2021 WL 3269640, at *5;

Dante,2021 WL 2936576, at *5. Those courts found, at the threshold

stage of a standing-based motion to dismiss, that Section

(3)’s language “[a]n individual serving in the office of

Commissioner” could encompass the Acting Commissioner in the

removal for cause provision. Id.

In contrast, cases addressing the merits of Seila Law/Collins

claims have found that Section 902(a)(3) does not limit the

authority of the President to remove an Acting Commissioner, and

that then-Acting Commissioner Berryhill’s appointment of the

deciding ALJ precluded any possible link between Section

902 (a) (3)’s unconstitutional removal provision and any alleged harm

to the plaintiff. See Standifird v. Kijakazi, No. 20CV1630, 2021

WL 5634177, at *4 (S.D. Cal. Dec. 1, 2021) (unpublished)

(recommendation) (“Because an Acting Commissioner does not have the

21

same removal restriction as the Commissioner and because [the] ALJ

[] was properly appointed, [the p]Jlaintiff’s argument is not

persuasive ... .”); Alice T. v. Kijakazi, No. 8:21CV14, 2021 WL

5302141, at *18 (D. Neb. Nov. 15, 2021) (unpublished) (“[T]he ALJ’s

decision in this case was issued on July 17, 2019, one month after

[then-Commissioner Andrew] Saul took office. The ALJ who decided

[the p]laintiff’s case was appointed by then-Acting Commissioner

[Nancy] Berryhill, who could be removed from that office at the

President’s discretion.”); Lisa Y. v. Commissioner of Soc.

Sec., __ F. Supp. 3d __, __, Civ. No. C21-5207, 2021 WL 5177363,

at *5 n.1 (W.D. Wash. Nov. 8, 2021) (“[The Commissioner] correctly

contends [that Nancy] Berryhill, as Acting Commissioner, was

properly appointed and not subject to § 902’s removal clause.”);

Boger v. Kijakazi, No. 1:20CV331, 2021 WL 5023141, at *3 (W.D.N.C.

Oct. 28, 2021) (unpublished) (“Indeed, [the pllaintiff’s

constitutional ‘removal restriction’ argument is likely not even

applicable to this case because [the] ALJ [in question] was

appointed by an Acting Commissioner of Social Security who could be

removed from that office at the President’s discretion.” (citing 42

U.S.C. § 902(b) (4), Collins, U.S. at, 141 S. Ct. at 1783,

and Eaton, 169 U.S. at 343)).

This Court, addressing Plaintiff’s Seila Law/Collins challenge

on its merits, should follow Standifird, Alice T., Lisa Y., and

Boger, and find that, because then-Acting Commissioner Nancy

22

Berryhill appointed the ALJ who issued the decision denying

Plaintiff’s claims, and the President may remove Acting

Commissioners at will, the unconstitutional removal provision in

Section 903(a)(3) did not impact the ALJ’s decision, and

Plaintiff’s challenge under Seila Law/Collins thus fails.

b. Impact on ALJ’s Decision

Next, the Acting Commissioner maintains that, even if Acting

Commissioners remained subject to Section 903(a)(3)’s removal for

cause provision, Plaintiff’s Seila Law/Collins argument would still

fall short, because he failed to demonstrate any actual harm

arising from Section 902(a)(3)’s unconstitutional removal

provision. (See Docket Entry 17 at 11.) In that regard, the

Acting Commissioner asserts that:

[U]nlike Appointments Clause defects, where the presiding

official does not enjoy proper authority to occupy the

office, see Lucia v. SEC, 138 S. Ct. 2044 (2018), agency

action is not per se invalid simply because it can be

traced back to an official subject to an unconstitutional

removal protection. Rather, under Collins, where an

agency official is properly appointed, there can be no

claim that he “exercise[d] . . . power that he did not

lawfully possess.” Collins, 141 S. Ct. at 1788; see also

id. at 1788 n.23 (“the unlawfulness of a removal

provision does not strip an official of the power to

undertake the other responsibilities of his office”).

Thus, “there is no reason to regard any of the actions

taken” by officials with tenure protection during this

period “as void.” Id. at 1787 (emphasis added); see also

id. at 1793 (Thomas, J., concurring) (where officials

were properly appointed, there is “no barrier to them

exercising power”).

Collins teaches, therefore, that actions taken by

properly appointed officials — which include both the ALJ

who presided over Plaintiff’s claim (whose appointment

23

was ratified by an Acting Commissioner without tenure

protections) and the Commissioner who occupied the office

when the ALJ issued the decision (appointed by the

President with advice and consent of the Senate) — are

not void. The properly appointed ALJ had full authority

to make decisions on benefits claims and the properly

appointed Commissioner had full authority to carry out

the responsibilities of his office, including

promulgating regulations.

Relief is available in removal challenges only where the

alleged injuries are caused by officials subject to the

challenged removal restrictions, and where those

restrictions themselves “inflicted compensable harm” upon

plaintiffs. Id. at 1789. . . . To obtain a rehearing on

separation of powers grounds, in other words, Plaintiff

must show that Section 902(a)(3)’s removal restriction

somehow caused the denial of his benefits claim.

(Docket Entry 17 at 12-13 (internal brackets and stray period

omitted).)

Plaintiff counters that argument by urging that, although

“Collins did not involve a government actor’s exercise of power

that the government actor did not lawfully possess[, s]ee id., at

1788[,] . . . neither the ALJ nor the Appeals Council here had a

lawful delegation of authority under which to adjudicate and decide

this disability claim.” (Docket Entry 21 at 8.) According to

Plaintiff, “[t]hat harm from the constitutional violation should be

presumed here without the need for strict causation is supported by

other cases in addition to Collins” (id.), and points the Court to

cases “decided in the Appointments Clause context” (id.) holding

“that when structural constitutional claims involving separation of

powers are concerned, an individual need not show direct prejudice

24

to their disability claim and instead such harm is presumed” (id.

at 8-9 (citing Carr v. Saul, U.S. , - , 141 S. Ct.

1352, 1356-62 (2021), Probst v. Saul, 980 F.3d 1015, 1023 (4th Cir.

2020), and Landry v. Fed. Deposit Ins. Co., 204 F.3d 1125, 1131

(D.C. Cir. 2000)}).

Unlike Appointments Clause cases, where courts have found the

very authority under which a government official has acted

unconstitutional, see, e.g., Carr, U.S. at , 141 S. Ct. at

1356-62; Probst, 980 F.3d at 1023, the unconstitutional removal

provision at issue here did not impact then-Commissioner Saul’s

ability to carry out the duties of his office. As another court

recently explained:

[The p]laintiff’s argument is similar to arguments the

plaintiffs raised and the [United States Supreme] Court

rejected in Seila Law and Collins. First, like the

plaintiffs in Seila Law, [the [p]laintiff here argues

§ 902 (a) (3)’s removal provision automatically renders all

agency action unconstitutional. The [Supreme] Court in

Seila Law rejected such an argument[,] observing one

section of a statute may violate the Constitution without

rendering the entire act void. Seila Law, 140 S. Ct. at

2209. The [Supreme] Court stated the removal limitation

of the CFPB Director is the only defect and removal of

the defect removes the constitutional violation. The

[Supreme] Court concluded the removal limitation was

severable because the CFPB is capable of functioning

independently of the infirm removal clause. Id. [] (“The

provisions of the Dodd-Frank Act bearing on the CFPB’s

structure and duties remain fully operative without the

offending tenure restriction. Those provisions are

capable of functioning independently, and there is

nothing in the text or history of the Dodd-Frank Act that

demonstrates Congress would have preferred no CFPB toa

CFPB supervised by the President.”}; see also [id.] at

2245.

25

The Supreme Court in Collins also rejected the argument

an invalid removal provision rendered the FHFA’s actions

void from the outset. The Supreme Court stated there was

“no reason to hold that the third amendment [to the

agreement between the FHFA and the Department of

Treasury] must be completely undone.” Collins, [141 S.

Ct.] at 1788. The Collins Court further stated

“[Ta]lthough the statute unconstitutionally limited the

President’s authority to remove the confirmed Directors,

there was no constitutional defect in the statutorily

prescribed method of appointment to that office. As a

result, there is no reason to regard any of the actions

taken by the FHFA [challenged on appeal] as void.” [Id.]

at 1787. Accordingly, the argument the SSA’s actions

here are either void ab initio or became void at some

later point due to § 902(a) (3)’s removal clause is not

supported by either Seila Law or Collins.

Lisa Y., F. Supp. 3d at , 2021 WL 5177363, at *6-7 (internal

footnote, citation, and stray parenthesis and period omitted); see

also Robinson v. Kijakazi, No. 1:20CV358, 2021 WL 4998397, at *3

(W.D.N.C. Oct. 27, 2021) (unpublished) ([The p]llaintiff .. .

offers no evidence to show that there is a nexus between the

unconstitutional removal restriction and the denial of his

application for disability benefits[ and ] simply argues that all

actions taken by the Commissioner are void due to the

unconstitutional removal provision. However, Collins expressly

rejects this view.” (internal citation omitted)).

Notably, cases to the contrary addressed the much less onerous

issue of whether the plaintiff had standing to assert his or her

Seila Law/Collins-based claim and did not reach the merits of the

matter. See Dixie C. v. Kijakazi, No. 3:21CV764, 2021 WL 4822838,

26

at *6 (N.D. Tex. Sept. 20, 2021) (unpublished) (“[B]lecause [the

pllaintiff has established both traceability and redressability for

the purposes of standing, the [c]ourt has standing to hear [the

pllaintiff’s constitutional claim.” (emphasis added) □□

recommendation adopted, 2021 WL 4820764 (N.D. Tex. Oct. 15, 2021)

(unpublished); Sylvia A., 2021 WL 4692293, at *4 (“The [c]lourt

finds that [the p]laintiff’s separation-of-powers claim is both

traceable and redressable such that she has standing to pursue it.

Thus, all of [the p]laintiff’s claims should proceed to briefing on

the merits.” (emphasis added)); Albert, 2021 WL 3424268, at *5

(“Because [the] plaintiff has standing to bring his constitutional

claim, [the Commissioner]’s motion to dismiss is denied.” (emphasis

added)); Tafoya, 2021 WL 3269640, at *3 (“While ultimately, the

righteousness vel non of [the plaintiff’s] arguments on the merits

may gain [her] little, if anything, the question presently before

[the court] is one of standing, and thus does not implicate the

merits.” (footnote omitted) (emphasis added)).*°

10 Cases exist to the contrary on the standing issue. See Helms v.

Commissioner of Soc. Sec., No. 3:20CV589, 2021 WL 5710096, at *3 (W.D.N.C. Dec.

1, 2021) (unpublished) (“The [cJourt finds that it is implausible that the

Commissioner’s protection from removal from office, whether constitutional or

not, could have affected [the] ALJ[ ]’s decision or any other aspect of the

administrative litigation in a material way. Because [the p]Jlaintiff has not

shown that she was in any way injured by the removal protection provision, she

does not have standing to litigate its constitutionality.”); Catherine J.S.W. v.

Commissioner of Soc. Sec., No. 3:20CV5602, 2021 WL 5276522, at *8 (W.D. Wash.

Nov. 12, 2021) (unpublished) (“Because [the p]jlaintiff has not shown any

compensable harm fairly traceable to the actions of former Commissioner [Andrew]

Saul, . . . the [pJlaintiff’s situation is distinguishable from the plaintiff’s

claims in Collins; [the p]laintiff has failed to establish standing . .. .”);

Amanda B. v. Commissioner, Social Security Administration, No. 3:20CV434, 2021

(continued...)

27

Indeed, in two such cases, the courts expressed doubt that the

plaintiffs’ Collins-based claims could succeed on the merits:

The outcome of Collins is even less auspicious for [the]

plaintiff’s substantive claim. The [Supreme] Court there

rejected the appellant’s argument that the actions of the

Director of the FHFA of which appellant complained were

void:

All the officers who headed the FHFA during

the time in question were properly appointed.

Although the statute unconstitutionally

limited the President’s authority to remove

the confirmed Directors, there was no

constitutional defect in the statutorily

prescribed method of appointment to that

office.

Collins, 141 S. Ct. at 1787 (emphases in original).

Accordingly, “the unlawfulness of the removal provision

does not strip the Director of the power to undertake the

other responsibilities of his office,” including

implementing the provision of which the appellant

complained. Id. at 1788 n.23. It thus may well be that,

even if the removal provisions of the [] Act are

unconstitutional, the [SSA]’s ALJs still had authority to

issue disability determinations.

Tafoya,2021 WL 3269640, at *3 n.6; see also Dante, 2021 WL 2936576,

at *5 (“Th[e] rationale [in Collins] appears to undermine [the

pllaintiff’s position that the Commissioner acted outside his

constitutional authority when he delegated authority to the ALJ to

decide [the p]Jlaintiff’s disability claim. But, curiously, the

10(,,. continued)

WL 4993944, at *9 (D. Or. Oct. 26, 2021) (unpublished) (“[The pjllaintiff...

does not allege the SSA Commissioner took any action that is in any way related

to the ALJ’s decision or the decision by the Appeals Council.”); Brinkman v.

Kijakazi, No. 2:21CV528, 2021 WL 4462897, at *2 (D. Nev. Sept. 29, 2021)

(unpublished) (“Because [the p]laintiff offers nothing that traces the decision

by the ALJ . . . to any alleged injurious conduct by the SSA Commissioner, [the

plaintiff] has not demonstrated traceability and her constitutional violation

claim fails for lack of standing.”).

28

[Supreme] Court’s analysis in Collins also supports a finding that

[the p]laintiff has standing to assert a constitutional claim under

this now-questionable theory.” (italics omitted, underscoring

added)). Thus, cases decided in the standing context do not

provide a basis for the Court to find actual harm to Plaintiff

arising from Section 902(a)(3)’s removal provision.

Plaintiff next argues “that President Biden wished to

terminate Commissioner Saul immediately upon assuming the

Presidency” (Docket Entry 21 at 11 (citing OLC Op. at *1)), and

notes that “[t]he day after the [Department of Justice] issued [the

OLD Op.] in the wake of Collins confirming that Mr. Saul could be

removed from office by the President, President Biden immediately

did so” (id. (citing Tafoya, 2021 WL 3269640 at *3)). Plaintiff

additionally quotes from a White House statement regarding the

dismissal of Commissioner Saul, indicating that Commissioner Saul

“‘undermined and politicized Social Security disability benefits’”

and “‘reduced due process protections for benefits appeals

hearings.’” (Id. (citing https://federalnewsnetwork.com/people/

2021/07/biden-fires-saul-as-ssa-commissioner).) Plaintiff thus

argues that “President Biden’s concerns about [Commissioner] Saul’s

policy actions went to the very fundamentals of the entire

disability adjudication process,” but that the unconstitutional

removal provision prevented President Biden from removing

Commissioner Saul. (Id. at 12.)

29

That argument misses the mark. Another district court

addressed and rejected such an argument:

In her reply brief, [the pllaintiff argues

“[Commissioner] Saul’s actions, under constitutional

authority or not, have caused specific harm by

undermining, politicizing and reducing due process

protections to [the p]laintiff’s claims.” This argument

that there is a possibility § 902(a)(3) harmed [the

pllaintiff fails to recognize the significant difference

between the agency action in Collins and the SSA action

here.

In Collins, the Directors of the FHFA adopted an

amendment (the “Third Amendment”) to certain financial

agreements that “materially changed the nature of the

agreements” and resulted in the companies in which [the]

plaintiffs were shareholders transferring to the U.S.

Treasury “at least $124 billion dollars more than the

companies would have had to pay” under the prior form of

the agreements. Id. at 1774. The plaintiffs in Collins

thus had an identifiable basis to contend that[,] but for

the unconstitutional removal provision, the President may

have removed and appointed a different Director who would

have disapproved of the adoption (or implementation) of

the Third Amendment. See id. at 1789.

In contrast, there is nothing showing the Commissioner or

the SSA implemented new and relevant agency action that

may have turned upon the President’s inability to remove

the Commissioner. [The p]laintiff has not identified any

new regulations, agency policies or directives

Commissioner Saul installed that may have affected her

claims. [The p]laintiff thus fails to show how or why

§ 902(a) (3) [’s] removal clause possibly harmed her.

Lisa Y., F. Supp. 3d at , 2021 WL 5177363, at *7 (internal

citation omitted); see also id. at *8 (“[A] conclusory allegation

that due process was denied is not sufficient to raise a colorable

constitutional claim.” (citing Hoye v. Sullivan, 985 F.2d 990, 992

(9th Cir. 1992)); Shaun A. v. Commissioner of Soc. Sec., Civ. No.

30

C21-5003, 2021 WL 5446878, at *5 (W.D. Wash. Nov. 22, 2021)

(unpublished) (“[The p]laintiff’s reference to an unnamed White

House official’s justification for Commissioner Saul’s removal

[does not] indicate that [the p]laintiff was harmed. . . . .

Although a representative of the President suggested that

Commissioner Saul was removed from office in part because he had

undermined, politicized, and ‘reduced due process protections for

benefits appeals hearings,’ this statement does not establish the

existence of a due process violation and [the p]laintiff has failed

to identify one.”). Similarly, Plaintiff here has not pointed the

Court to any “new regulations, agency policies or directives

Commissioner Saul installed that may have affected h[is] claims,”

Lisa Y., F. Supp. 3d at , 2021 WL 5177363, at *7. (See

Docket Entries 15, 21.)

Plaintiff’s argument that the unconstitutional removal

provision prevented President Biden from removing Commissioner Saul

earlier fails for an additional reason, as well-explicated by

another district court:

Plaintiff contends former Commissioner Saul’s

“unconstitutional removal protection, which clearly

impeded President Biden in removing [him] prior to the

Supreme Court’s resolution of Collins [] tainted the

[SSA]’s resolution of [the plaintiff’s] case.” One

obvious fallacy with this argument is that President

Biden did not take office until January 20, 2021 — more

than two months after the Appeals Council denied review

of the ALJ’s decision — and there is no evidence that Mr.

Biden’s predecessor ever sought to remove his own

appointee from office. There is no causal connection

31

between the allegedly unconstitutional removal protection

and the ALJ’s adverse decision.

Alice T., 2021 WL 5302141, at *18; see also Alice F. v.

Commissioner of Soc. Sec., Civ. No. C21-5028, 2021 WL 5564429, at

*3 (W.D. Wash. Nov. 29, 2021) (unpublished) (noting that the

plaintiff “challenges decisions that all occurred during

Commissioner Saul’s tenure,” but that “President Trump appointed

Commissioner Saul, and [the p]laintiff presents nothing showing he

was possibly harmed by § 902 because President Trump desired or

directed a result that differs from the Commissioner’s final

decision but was stymied by § 902.”). Likewise, in this case, the

Appeals Council denied Plaintiff’s request for review of the ALJ’s

decision on October 14, 2020 (see Tr. 1), over three months before

President Biden took office, and thus Plaintiff cannot show any

causal link between Section 902(a)(3)’s unconstitutional removal

provision and the ALJ’s denial decision in his case.

In short, Plaintiff’s constitutional claim based on Seila Law

and Collins lacks merit.

III. CONCLUSION

Plaintiff has not established grounds for relief.

IT IS THEREFORE RECOMMENDED that the Commissioner’s decision

finding no disability be affirmed, that Plaintiff’s Motion for

Judgment on the Pleadings (Docket Entry 14) be denied, that

32

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 16)

be granted, and that judgment be entered dismissing this action.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

December 9, 2021

33