GILMORE v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

FRANKIE RENEE GILMORE, )

)

Plaintiff, )

)

v. ) 1:21CV420

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Frankie Renee Gilmore, 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 9 (cited herein as

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

Entries 13, 18; see also Docket Entry 14 (Plaintiff’s Memorandum);

Docket Entry 19 (Defendant’s Memorandum); Docket Entry 20

(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. 245-50), alleging a disability

onset date of April 12, 2018 (see Tr. 245).2 Upon denial of that

application initially (Tr. 102-20, 144-48), and on reconsideration

(Tr. 121-39, 152-61), Plaintiff requested a hearing de novo before

an Administrative Law Judge (“ALJ”) (Tr. 162-64). Plaintiff, her

non-attorney representative, and a vocational expert (“VE”)

attended the hearing. (Tr. 35-78.) The ALJ subsequently ruled

that Plaintiff did not qualify as disabled under the Act. (Tr. 7-

24.) The Appeals Council denied Plaintiff’s request for review

(Tr. 1-6, 242-44), 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 April 12, 2018, the application date.

. . .

2. [Plaintiff] has the following severe impairments:

degenerative disc disease of the cervical spine and

degenerative disc disease of the lumbar spine.

. . .

3. [Plaintiff] does not have an impairment or

combination of impairments that meets or medically equals

2 Plaintiff previously applied for Disability Insurance Benefits (“DIB”)

in July 2014 and, after denials at the initial and reconsideration levels (see

Tr. 82, 103, 122), an ALJ denied that claim on November 23, 2016 (Tr. 79-91).

Following the Appeals Council’s denial of Plaintiff’s request for review (Tr. 96-

101), she did not seek further review of that final decision by the Commissioner

(see Tr. 103, 122).

2

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 light work . . . except she can sit

and be on her feet (whether standing, walking, or some

combination thereof) for 30 minutes at a time, then must

be able to alternate position for up to 30 minutes,

resulting in four hours each of sitting and standing

and/or walking. She can occasionally climb, balance,

stoop, kneel, crouch, and crawl. She can occasionally

work around unprotected heights, moving mechanical parts,

dust, odors, fumes and other pulmonary irritants, and

extreme heat. She can occasionally operate a motor

vehicle (within the sitting limitations defined herein).

. . .

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 [she] can perform.

. . .

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

defined in the . . . Act, since April 12, 2018, the date

the application was filed.

(Tr. 12-24 (bold font, internal parenthetical citations, and

footnote 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

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[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.

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

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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

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)).3 “To regularize the

3 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).

5

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

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).4 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,

4 “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).

6

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,

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 179.5 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

5 “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.

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

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

567.6

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 failed to properly evaluate Plaintiff’s

limitations due to pain in the RFC” (Docket Entry 14 at 3 (bold

font omitted); see also Docket Entry 20 at 1-4); and

2) “[t]he structure of the SSA is constitutionally invalid”

(Docket Entry 14 at 14 (bold font omitted)).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (See Docket Entry 19 at 11-30.)

1. Evaluation of Pain

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

“[t]he ALJ failed to properly evaluate Plaintiff’s limitations due

to pain in the RFC.” (Docket Entry 14 at 3 (bold font omitted);

see also Docket Entry 20 at 1-4.) More specifically, Plaintiff

contends that, despite her testimony regarding the impact of her

pain on her ability to function (Docket Entry 14 at 3-4 (detailing

6 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

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, e.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.”).

8

such testimony (citing Tr. 46, 48-50, 52-56, 59-64))) and evidence

which “support[ed] that [Plaintiff] suffer[ed] from a condition

reasonably likely to cause the pain of which she testified” (id. at

7; see also id. at 7-12 (describing such evidence (citing Tr. 386,

459-62, 464-65, 472, 474, 574, 576, 658, 678-79, 686, 690-91, 700-

01, 706, 717-19, 724, 727-28, 732-33, 737, 750, 757, 760-62, 764-

65, 774, 777, 783, 789, 792-93, 798-802, 818-19, 878, 880, 928-31,

936, 948, 958-59, 1007-08, 1051, 1064, 1099, 1108, 1127, 1129-31,

1188, 1282, 1335, 1356, 1408, 1558-59))), the ALJ improperly relied

on normal neurological findings on examination to discount

Plaintiff’s subjective reports of pain (see id. at 5; see also id.

(“The ALJ cannot balance [Plaintiff’s] severe, disabling pain

against her mild to moderate neurological deficits to find her ‘not

disabled’ – it does not work that way. That [Plaintiff]’s strength

and reflexes were sometimes normal ha[d] no bearing on her

limitations from pain.”)).

Additionally, Plaintiff faults the ALJ for “assign[ing] a

random value to the number of minutes . . . [Plaintiff] c[ould] be

expected to stand, walk or sit at one time,” and contends that

“[t]he ALJ’s finding that [Plaintiff] could stand, sit and walk for

30 minutes at a time before needing to change positions ha[d] no

basis in the testimony or the medical opinion evidence.” (Id. at

13.) Plaintiff deems the ALJ’s failure to properly evaluate her

pain “[s]ignificant[]” (id.), noting that, “even if [the ALJ] found

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[Plaintiff] capable of the more appropriate RFC for sedentary

exertion work (though she is not even capable of this), given her

inability to perform her [past relevant work], her lack of

transferable skills to a sedentary setting per the VE (see [Tr.]

74-75) and her being over 50 years old throughout the relevant time

period, a finding of ‘disabled’ would be directed by [Rule 201.10

of the Medical Vocational Guidelines]” (id. at 13-14 (citing 20

C.F.R. Pt. 404, Subpt. P, App’x 2, § 201.10)). For the reasons

that follow, those assertions entitle Plaintiff to no relief.

a. Over-Reliance on Objective Medical Evidence

Plaintiff first challenges the ALJ’s “balanc[ing of

Plaintiff’s] severe, disabling pain against her mild to moderate

neurological deficits to find her ‘not disabled,’” because

Plaintiff maintains that her “[sometimes normal] strength and

reflexes . . . ha[d] no bearing on her limitations from pain.”

(Docket Entry 14 at 5; see also Docket Entry 20 at 1-4.) According

to Plaintiff, “[t]he [United States Court of Appeals for the]

Fourth Circuit has repeatedly chided the SSA for relying on such

negative [neurological] findings to discount limitations stemming

from pain as opposed to weakness where an individual has shown by

objective evidence a condition which can reasonably cause that

pain.” (Docket Entry 14 at 5.) Plaintiff notes that the Fourth

Circuit has recognized that “pain in itself can be disabling” (id.

(citing Myers v. Califano, 611 F.2d 980, 983 (4th Cir. 1980); see

10

also Docket Entry 20 at 2-3 (citing and quoting Walker v. Bowen,

889 F.2d 47, 49 (4th Cir. 1989), for same proposition)), as well as

that, once a claimant has “‘met [her] threshold obligation of

showing by objective medical evidence a condition reasonably likely

to cause the pain claimed, [a claimant] is entitled to rely

exclusively on subjective evidence to prove the second part of the

test, i.e., that [her] pain is so continuous and/or so severe as to

prevent [her] from working a full eight hour day’” (Docket Entry 14

at 5-6 (quoting Hines, 453 F.3d at 565)). In Plaintiff’s view,

that “principle was reiterated in Arakas, where the [Fourth

Circuit] noted that ‘the ALJ effectively required objective

evidence by placing undue emphasis on [the plaintiff]’s normal

clinical and laboratory results.’” (Id. at 6 (quoting Arakas, 983

F.3d at 97).) Plaintiff further objects to the ALJ’s alleged

observation that Plaintiff’s “straight leg raise [] tests for nerve

root pain were usually negative” (id. (citing Tr. 22)), because she

“was administered a[ straight leg raise] test on five different

occasions and four out of those five were positive” (id. (citing

Tr. 462, 718-19, 724, 728, 760)).

Social Security Ruling 16-3p, Titles II and XVI: Evaluation of

Symptoms in Disability Claims, 2017 WL 5180304 (Oct. 25, 2017)

(“SSR 16-30”}, consistent with the Commissioner’s regulations,

adopts a two-part test for evaluating a claimant’s statements about

symptoms. See SSR 16-3p, 2017 WL 5180304, at *3; see also 20

11

C.F.R. § 416.929. First, the ALJ “must consider whether there is

an underlying medically determinable physical or mental

impairment(s) that could reasonably be expected to produce an

individual’s symptoms, such as pain.” SSR 16-3p, 2017 WL 5180304,

at *3. A claimant must provide “objective medical evidence from an

acceptable medical source to establish the existence of a medically

determinable impairment that could reasonably be expected to

produce [the] alleged symptoms.” Id. Objective medical evidence

consists of medical signs (“anatomical, physiological, or

psychological abnormalities established by medically acceptable

clinical diagnostic techniques”) and laboratory findings “shown by

the use of medically acceptable laboratory diagnostic techniques.”

Id.

Upon satisfaction of part one by the claimant, the analysis

proceeds to part two, which requires an assessment of the intensity

and persistence of the claimant’s symptoms, as well as the extent

to which those symptoms affect his or her ability to work. See id.

at *4. In making that determination, the ALJ must “examine the

entire case record, including the objective medical evidence; an

individual’s statements about the intensity, persistence, and

limiting effects of symptoms; statements and other information

provided by medical sources and other persons; and any other

relevant evidence in the individual’s case record.” Id. Where

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relevant, the ALJ will also consider the following factors in

assessing the extent of the claimant’s symptoms at part two:

1. Daily activities;

2. The location, duration, frequency, and intensity of

pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of

any medication an individual takes or has taken to

alleviate pain or other symptoms;

5. Treatment, other than medication, an individual

receives or has received for relief of pain or other

symptoms;

6. Any measures other than treatment an individual uses

or has used to relieve pain or other symptoms (e.g.,

lying flat on his or her back, standing for 15 to 20

minutes every hour, or sleeping on a board); and

7. Any other factors concerning an individual’s

functional limitations and restrictions due to pain or

other symptoms.

Id. at *7-8. The ALJ cannot “disregard an individual’s statements

about the intensity, persistence, and limiting effects of symptoms

solely because the objective medical evidence does not substantiate

the degree of impairment-related symptoms alleged by the

individual.” Id. at *5 (emphasis added).

In this case, the ALJ found, at part one of the subjective

symptom analysis, that Plaintiff’s “medically determinable

impairments could reasonably be expected to cause the alleged

symptoms,” but then determined, at part two, that Plaintiff’s

“statements concerning the intensity, persistence and limiting

13

effects of [her] symptoms [we]re not entirely consistent with the

medical evidence and other evidence in the record for the reasons

explained in th[e ALJ’s] decision.” (Tr. 18.) The ALJ further

supported that finding with the following analysis:

After a careful review of the medical evidence and

[Plaintiff]’s testimony, the [ALJ] finds [Plaintiff]’s

allegations only partially consistent with the medical

evidence of record. Although imaging has showed some

progressive worsening of lumbar spine and cervical spine,

objective signs at examinations have generally remained

stable, with some intermittent findings of tenderness to

palpation and sporadic reports of mild subjective sensory

deficits. Straight leg raising was only positive in

December 2018 and January and November 2019, and gait has

consistently been normal. Strength and reflexes have

consistently been intact. Treatment has be[en] routine

and conservative with medication refills and some

injections. Considering the fact that medical records do

not always show the precise details of visits and

examinations and that subjective feelings of pain and

weakness may not be fully explored and[/]or evident on

examination, the [ALJ] has given [Plaintiff]’s testimony

some weight in balancing the subjective reports with the

imaging and objective examination. Therefore, she should

be able to perform light work, so long as she has the

ability to alternate position every 30 minutes; only

occasionally perform postural movements; only

occasionally work around unprotected heights, moving,

mechanical parts; dust, odors, fumes, and other pulmonary

irritants; and extreme heat; and only occasionally

operate a motor vehicle (within the sitting limitations

defined herein).

(Tr. 22 (emphasis added).) For the reasons more fully explained

below, neither of Plaintiff’s challenges to that analysis carry the

day.

To begin, Plaintiff overstates the reach of Arakas. That case

holds only “that ALJs may not rely on objective medical evidence

(or the lack thereof) — even as just one of multiple factors — to

14

discount a claimant’s subjective complaints regarding symptoms of

fibromyalgia or some other disease that does not produce such

evidence.” Arakas, 983 F.3d at 97 (emphasis added). Here,

Plaintiff has readily admitted that objective evidence such as

“radiographs” documents her lumbar and cervical degenerative disc

disease. (Docket Entry 14 at 5 (citing Tr. 878-80).) Thus, unlike

fibromyalgia, lumbar and cervical degenerative disc disease does

not constitute a “disease that does not produce [objective medical]

evidence,” Arakas, 983 F.3d at 97.’

In addition, although Arakas “reiterate[d] the long-standing

law in [the Fourth C]ircuit that disability claimants are entitled

to rely exclusively on subjective evidence to prove the severity,

persistence, and limiting effects of their symptoms,” Arakas, 983

F.3d at 98, long-standing cases containing the substance of that

holding, such as Craig and Hines (among others), clarify that,

“La]lthough a claimant’s allegations about her pain may not be

discredited solely because they are not substantiated by objective

evidence of the pain itself or its severity, they need not be

7 Plaintiff’s reliance on Walker likewise does not aid her cause. (See

Docket Entry 20 at 2-3.) Although that case involved a claimant who suffered

from, among other impairments, diabetic neuropathy and degenerative joint

disease, see Walker, 889 F.2ds at 48, i.e., “conditions which can [] produce

objective findings with respect to sensation and strength on [physical

examination]s” (Docket Entry 20 at 2), the Fourth Circuit in Walker did not hold

that the ALJ erred by considering objective evidence in evaluating the intensity,

persistence, and limiting effects of the plaintiff’s symptoms, see id. at 49.

Rather, the Fourth Circuit found that the plaintiff’s pain constituted a non-

exertional impairment that rendered erroneous the ALJ’s reliance on the Medical-

Vocational Guidelines to direct a conclusion of not disabled, id., circumstances

absent here.

15

accepted to the extent they are inconsistent with the available

evidence, including objective evidence of the underlying

impairment, and the extent to which that impairment can reasonably

be expected to cause the pain the claimant alleges she suffers,”

Craig, 76 F.3d at 595 (emphasis added); see also Hines, 453 F.3d at

565 n.3 (quoting Craig, 76 F.3d at 595).

In other words, under the appropriate circumstances, an ALJ

may choose to rely exclusively on a claimant’s subjective symptom

reports to find disabling symptoms; however, Arakas does not compel

ALJs to consider only subjective evidence, as such a requirement

would conflict with the Act itself and its implementing

regulations, which plainly require ALJs to consider a variety of

factors, including objective medical evidence, in evaluating the

intensity, persistence, and limiting effects of symptoms. See 42

U.S.C. § 423(d) (5) (A) (“Objective medical evidence of pain...

established by medically acceptable clinical or laboratory

techniques (for example, deteriorating nerve or muscle tissue) must

be considered in reaching a conclusion as to whether [an]

individual is under a disability.” (emphasis added)); 20 C.F.R.

§ 404.1529(c) (directing ALJs to assess a claimant’s medical

history, medical signs and laboratory findings, daily activities,

testimony about nature and location of pain, medication and other

treatment used to alleviate pain, along with medical opinions from

examining and non-examining sources); see also SSR 16-3p, 2017 WL

16

5180304, at *5 (“[O]bjective medical evidence is a useful indicator

to help make reasonable conclusions about the intensity and

persistence of symptoms[ because] . . . [t]he intensity,

persistence, and limiting effects of many symptoms can be

clinically observed and recorded in the medical evidence. ... A

report of minimal or negative findings or inconsistencies in the

objective medical evidence is one of the many factors [an ALJ] must

consider in evaluating the intensity, persistence, and limiting

effects of a[ claimant]’s symptoms.” (emphasis added)).

Here, in compliance with Arakas, Hines, and Craig, the ALJ

considered the objective medical evidence as one part of her

evaluation of the intensity, persistence, and limiting effects of

Plaintiff’s symptoms. The ALJ additionally considered the opinion

evidence of record (see Tr. 21-22) and, in particular, deemed the

opinions from the state agency medical consultants that Plaintiff

could perform a wide range of medium work (see Tr. 115, 133-34)

“not persuasive” because the imaging evidence and Plaintiff’s

testimony warranted greater limitations (Tr. 22). Consistent with

that finding, the ALJ also found “not persuasive” (Tr. 21) the

prior ALJ’s determination that Plaintiff could perform nearly a

full range of medium work (see Tr. 87). The ALJ additionally

commented on the type and effectiveness of Plaintiff’s treatment,

noting that Plaintiff’s treatment for her degenerative disc disease

had remained “routine and conservative” (id.; see also Tr. 19), and

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that “signs and symptoms from [Plaintiff]’s spinal impairments

ha[d] remained stable with continued conservative treatment,

including Tizanadine [sic], naproxen, [and] gabapentin” (Tr. 20).

Moreover, Plaintiff’s contention that the ALJ erred by

“balanc[ing Plaintiff’s] severe, disabling pain against her mild to

moderate neurological deficits to find her ‘not disabled’” (Docket

Entry 14 at 5) fares no better. That contention glosses over the

fact that, in addition to pain, Plaintiff consistently alleged

numbness, tingling, and weakness in her upper and lower

extremities. (See Tr. 17 (ALJ’s acknowledgment of Plaintiff’s

reports that “her pinched nerves cause[d] unbearable pain[

which] . . . travel[ed] down her arms, worse on the left,

non-dominant arm, causing numbness and tingling” and that “she

drop[ped] things and wa]s unable to open things due to weakness in

her hands”); see also Tr. 62-63, 374, 394, 472, 574, 773-74, 780,

789, 1514, 1558 (Plaintiff’s reports of numbness, tingling, and

weakness).) Accordingly, the ALJ did not err by relying on normal

(or mild) findings regarding Plaintiff’s strength, reflexes, and

sensation, because such findings hold direct relevance to the

evaluation of the intensity, persistence, and limiting effects of

Plaintiff’s alleged numbness, tingling, and weakness.

Plaintiff additionally challenges the ALJ’s purported remark

that Plaintiff’s “straight leg raise [] tests for nerve root pain

were usually negative” (Docket Entry 14 at 6 (citing Tr. 22)),

18

because she “was administered a[ straight leg raise] test on five

different occasions and four out of those five were positive” (id.

(citing Tr. 462, 718-19, 724, 728, 760)). That challenge misses

the mark, because the ALJ did not characterize Plaintiff’s straight

leg raise tests as “usually negative”; rather, the ALJ noted,

accurately, that the only positive straight leg raise tests of

record occurred in “December 2018 and January and November 2019.”

(Tr. 22.)

In short, Plaintiff has not shown that the ALJ improperly

considered objective medical evidence in evaluating Plaintiff’s

subjective reports of pain and other symptoms.

b. Explanation for Sit/Stand Option

Next, Plaintiff faults the ALJ for “assign[ing] a random value

to the number of minutes . . . [Plaintiff] c[ould] be expected to

stand, walk or sit at one time,” and contends that “[t]he ALJ’s

finding that [Plaintiff] could stand, sit and walk for 30 minutes

at a time before needing to change positions ha[d] no basis in the

testimony or the medical opinion evidence.” (Docket Entry 14 at

13.) In Plaintiff’s view, “‘the ALJ must build an accurate and

logical bridge from the evidence to h[er] conclusion that

[Plaintiff]’s testimony was not credible,’” (id. (quoting Brown v.

Commissioner of Soc. Sec. Admin., 873 F.3d 251, 269 (4th Cir.

2017), and citing Kenedy v. Saul, 781 F. App’x 184, 187 (4th Cir.

2019))), and maintains that “[t]he ALJ never explain[ed] how the

19

evidence demonstrate[d] that [Plaintiff] c[ould stand, walk, or

sit] for 30 minutes at a time (or lift up to 20 pounds) as opposed

to the only 15 minute intervals and less than 10 pounds of lifting

which [she] testified she was capable of performing” (id.). In

support of that argument, Plaintiff again points to her testimony

(see id. at 3-4 (citing Tr. 46, 48-50, 52-56, 59-64)) and record

evidence (see id. at 7-12 (citing Tr. 386, 459-62, 464-65, 472,

474, 574, 576, 658, 678-79, 686, 690-91, 700-01, 706, 717-19, 724,

727-28, 732-33, 737, 750, 757, 760-62, 764-65, 774, 777, 783, 789,

792-93, 798-802, 818-19, 878, 880, 928-31, 936, 948, 958-59, 1007-

08, 1051, 1064, 1099, 1108, 1127, 1129-31, 1188, 1282, 1335, 1356,

1408, 1558-59)) that she believes should have compelled the ALJ to

adopt greater exertional limitations in the RFC. (See id. at 13.)

As the Court can trace the path of the ALJ’s reasoning regarding

the exertional limitations in the RFC, Plaintiff’s arguments fall

short.

Although Plaintiff correctly observes that the ALJ’s RFC

precisely mirrored neither Plaintiff’s “testimony [n]or the medical

opinion evidence” (id.), the ALJ labored under no requirement to

fashion an RFC that exactly matched Plaintiff’s testimony or the

opinion evidence. As well-explained by a neighboring district

court:

[The plaintiff]’s argument that the ALJ’s RFC assessment

must be supported by the opinion of a medical expert is

unavailing. The United States Court of Appeals for the

Fourth Circuit and this [c]ourt have recognized that the

20

RFC assessment is an administrative finding rather than

a medical finding. Felton–Miller v. Astrue, 459 F. App’x

226, 230–21 (4th Cir. 2011) (stating that RFC “is an

administrative assessment made by the Commissioner based

on all the relevant evidence in the case record”) (citing

20 C.F.R. §§ 404.1546(c), 416.946(c)); Youkers v. Colvin,

No. 3:12–9651, 2014 WL 906484, at *10 (S.D.W. Va. Mar. 7,

2014). Accordingly, an ALJ is not required to obtain an

expert medical opinion as to a claimant’s RFC.

Felton–Miller, 459 F. App’x at 230–31; Hucks v. Colvin,

No. 2:12–cv–76, 2013 WL 1810658, at *9 (N.D.W. Va. Apr.

3, 2013), report and recommendation adopted by 2013 WL

1810656 (N.D.W. Va. Apr. 29, 2013); see also Chapo v.

Astrue, 682 F.3d 1285, 1288 (10th Cir. 2012) (“[T]here is

no requirement in the regulations for a direct

correspondence between an RFC finding and a specific

medical opinion on the functional capacity in

question.”); Sullivan v. Comm’r of Soc. Sec., No.

2:13–cv–1460–KJN, 2014 WL 6685075, at *4 (E.D. Cal. Nov.

25, 2014) (“It is the ALJ’s responsibility to formulate

an RFC that is based on the record as a whole, and thus

the RFC need not exactly match the opinion or findings of

any particular medical source.”); Mitchell v. Comm’r of

Soc. Sec., No. SAG–12–3332, 2013 WL 5182801, at *1 (D.

Md. Sept. 12, 2013) (“An ALJ need not parrot a single

medical opinion, or even assign ‘great weight’ to any

opinions, in determining an RFC.”); Thomas v. Colvin, No.

12–227–N, 2013 WL 1218920, at *8 (S.D. Ala. Mar. 25,

2013) (recognizing that RFC determination need not be

supported by specific medical opinion); Town v. Astrue,

No 3:12cv105, 2012 WL 6150836, at *4 (N.D. Ind. Dec. 10,

2012) (“The determination of an individual’s RFC need not

be based on a medical opinion because it is a

determination reserved to the ALJ as fact-finder for the

Commissioner.”). Instead, an ALJ must consider all

relevant evidence in the record, including the opinions

of medical sources, and arrive at a determination of a

claimant’s RFC that is supported by substantial evidence.

Fruit v. Colvin, No. 2:14CV7643, 2015 WL 1021309, at *22 (S.D.W.

Va. Mar. 9, 2015) (unpublished) (footnotes, emphasis, and stray

period omitted).

Here, the ALJ’s decision reveals that she found neither

Plaintiff’s testimony nor the medium-RFC opinions from the prior

21

ALJ and the state agency medical consultants fully persuasive and

instead struck a balance between those two opposing viewpoints.

More specifically, the ALJ acknowledged Plaintiff’s testimony that

she could “stand in one place for 15 minutes and walk for 15

minutes[ and] . . . that she ha[d] to change positions from sitting

to standing” (Tr. 17; see also Tr. 59-60), as well as that she

could not “carry a gallon of milk, even using both hands” (Tr. 17;

see also Tr. 52), but found that “[Plaintiff]’s statements

concerning the intensity, persistence and limiting effects of [her]

symptoms [we]re not entirely consistent with the medical evidence

and other evidence in the record” (Tr. 18 (emphasis added)). The

ALJ also found “not persuasive” the opinions of the state agency

medical consultants (Tr. 22 (emphasis added)), who found that

Plaintiff remained capable of a wide range of medium work,

including lifting amounts ranging from 20 to 50 pounds and sitting,

standing, and walking for up to six hours with no limits on how

long Plaintiff could maintain those exertional activities at one

time (see Tr. 115, 133-34). In so doing, the ALJ expressly noted

that the imaging evidence and Plaintiff’s testimony warranted

greater limitations. (Tr. 22.)8 Thus, the ALJ’s light-exertion

RFC, which contains limitations to no more than 20 pounds of

lifting and to no more than 30 minutes of sitting or

8 As discussed above, the ALJ also deemed “not persuasive” (Tr. 21) the

prior ALJ’s determination that Plaintiff remained capable of performing a nearly

full range of medium work (see Tr. 87).

22

standing/walking at one time and for a total of four hours each in

an eight-hour work day (see Tr. 16), clearly constitutes a

reasonable compromise between the medium-RFC opinions of the prior

ALJ and the state agency medical consultants and Plaintiff’s

alleged less-than-sedentary limitations. See Hays v. Sullivan, 907

F.2d 1453, 1456 (4th Cir. 1990) (“Ultimately, it is the duty of the

[ALJ] reviewing a case, and not the responsibility of the courts,

to make findings of fact and to resolve conflicts in the evidence.”

(citing King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979))).

Moreover, the ALJ’s discussion of the objective evidence

further explains the RFC’s exertional limitations. In that regard,

the ALJ made the following observations:

• “[a]t a July 2018 physical consultative examination

with William Gartlan, D.O., [Plaintiff] reported

constant neck and back pain, but she was in no

acute distress[ and, u]pon examination, she had

tenderness to palpation of the bilateral cervical,

trapezius, gluteal, supraspinatus, and knee tender

points and generalized bilateral lower

paravertebral lumbar tenderness[, but g]ait was

normal and reciprocal, without the need for an

assistive device[, s]trength and grip strength were

5/5 throughout, [] manipulative abilities were

intact[, r]ange of motion was normal throughout, []

straight leg raising was negative bilaterally[,

Plaintiff] had normal ability to walk on toe and

heels, tandem walk, and squat[, and s]ensation and

reflexes were intact” (Tr. 19 (internal

parenthetical citation omitted) (citing Tr. 458-

63));

• at emergency room visits in August and September

2018, Plaintiff had “normal range of motion, full

strength, and normal sensation” (id. (citing Tr.

472-74, 574-76));

23

• at multiple office visits in late 2018 and early

2019, “objective findings were normal . . .,

including no swelling or edema, 5/5 strength in all

extremities, intact sensation and reflexes . . .,

and normal gait” (id. (citing Tr. 706, 711, 732,

738, 742));

• “[a]t neurology visits from April 2019 through

January 2020 most examinations were unremarkable”

(id. (citing Tr. 749-806)), and “document[ed]

normal objective findings, including no swelling or

edema, 5/5 strength in all extremities, intact

sensation and reflexes . . ., and normal gait” and,

although Plaintiff “continued to report symptoms,

[she] was generally in no apparent distress” (Tr.

19-20 (citing Tr. 755-56, 758, 770-71, 781, 790-91,

805)); and

• from January to August 2020, “signs and symptoms

from [Plaintiff]’s spinal impairments have remained

stable with continued conservative treatment,

including Tizanadine [sic], naproxen, gabapentin”

(Tr. 20 (citing Tr. 1049-1573)).

Such normal findings support the ALJ’s decision to find Plaintiff’s

testimony regarding her exertional abilities not fully consistent

with the evidence and to adopt lesser exertional limitations in the

RFC.

Furthermore, by pointing to record evidence Plaintiff believes

supports greater limitations on her exertional abilities (see

Docket Entry 14 at 3-4 (citing Tr. 46, 48-50, 52-56, 59-64); see

also id. at 7-12 (citing Tr. 386, 459-62, 464-65, 472, 474, 574,

576, 658, 678-79, 686, 690-91, 700-01, 706, 717-19, 724, 727-28,

732-33, 737, 750, 757, 760-62, 764-65, 774, 777, 783, 789, 792-93,

798-802, 818-19, 878, 880, 928-31, 936, 948, 958-59, 1007-08, 1051,

1064, 1099, 1108, 1127, 1129-31, 1188, 1282, 1335, 1356, 1408,

24

1558-59)), she misinterprets this Court’s standard of review. The

Court must determine whether substantial evidence, i.e., “more than

a mere scintilla of evidence but . . . somewhat less than a

preponderance,” Mastro, 270 F.3d at 176 (brackets and internal

quotation marks omitted), supported the ALJ’s findings regarding

Plaintiff’s exertional abilities, and not whether other record

evidence weighed against those findings, see Lanier v. Colvin, No.

CV414-004, 2015 WL 3622619, at *1 (S.D. Ga. June 9, 2015)

(unpublished) (“The fact that [the p]laintiff disagrees with the

ALJ’s decision, or that there is other evidence in the record that

weighs against the ALJ’s decision, does not mean that the decision

is unsupported by substantial evidence.”).

In sum, Plaintiff’s first issue on review fails as a matter of

law.

2. Constitutionality of SSA

Lastly, Plaintiff contends that “[t]he structure of the SSA is

constitutionally invalid.” (Docket Entry 14 at 14 (bold font

omitted).) Specifically, 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 can only be removed from his

position for cause.” (Id. (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

25

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. (quoting 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 this case under regulations promulgated by

[then-Commissioner] Saul when [he] had no constitutional authority

to issue those rules” (id.). In Plaintiff’s view, “the ALJ’s

decision must [] be vacated because she did not have the authority

to decide the case given the delegation of authority from [then-

]Commissioner [Saul] who had no constitutional authority to head

the [SSA].” (Id. at 15.)

In response, the Commissioner concedes “that 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 19 at 11 (citing U.S.

Dep’t of Justice (“DOJ”), Office of Legal Counsel,

“Constitutionality of the Commissioner of Social Security’s Tenure

Protection,” 2021 WL 2981542 (July 8, 2021) (“2021 OLC Op”)).)

However, the Commissioner notes that, “even where an

26

unconstitutional statutory removal restriction exists, a plaintiff

seeking relief on that basis must show that the restriction

actually caused her harm.” (Id. at 12 (citing Collins v. Yellen,

___ U.S. ___, ___-___, 141 S. Ct. 1761, 1787-89 (2021)).)

According to the Commissioner, Plaintiff’s separation of powers

argument fails because she cannot “show the required nexus between

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

benefits claim.” (Id. (bold font and single-spacing omitted).) In

that regard, the 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, [585 U.S. ___,] 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. Collins, 141 S.

Ct. at 1788. The [Supreme] Court emphasized that “the

unlawfulness of [a] removal provision” — the alleged

constitutional defect both in Collins and here — “does

not strip [an official] of the power to undertake the

other responsibilities of his office.” Id. at 1788 n.23.

“As a result,” the [Supreme] Court held, “there is no

reason to regard any of the actions taken” by the agency

during this period “as void.” Id. at 1787 (emphasis

added).

Collins teaches, therefore, that regardless of the

constitutionality of the removal restriction in 42 U.S.C.

§ 902(a)(3), a Senate-confirmed Commissioner subject to

that removal restriction has full authority to carry out

the responsibilities of his office, including

promulgating regulations and delegating authority

pursuant to the [] Act. . . .

[R]elief 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,

27

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

restriction somehow caused the denial of her benefits

claim.

(Docket Entry 19 at 13-14 (stray space omitted).)

Although Plaintiff did not address those arguments by the

Commissioner in Plaintiff’s Reply (see Docket Entry 20 at 1-4), she

did, in her principal brief, preemptively address arguments she

anticipated the Commissioner would raise (see Docket Entry 14 at

15-19). In that regard, Plaintiff contends that she can establish

the required nexus between the removal provision at issue and the

denial of her SSI claim as follows:

[T]he Commissioner’s past representations of the Collins

case have largely consisted of a patchwork of

concurrences which do not have the force of law. The

actual holding was much narrower, and the [Supreme] Court

observed that harm could not be presumed in that case

because it did not involve government actors exercising

authority they did not lawfully possess. See Collins,

141 S. Ct. at 1788. By contrast, . . . this case

involves an ALJ and Appeals Judge acting without a valid

delegation of authority - thus as was the case in Lucia

and Carr, harm is presumed. See Lucia, 585 U.S. [at ___-

___], 138 S. Ct. at 2053-55; see generally Carr[ v. Saul,

___ U.S. ___,] 141 S. Ct. 1352[ (2021)].

Regardless, [Plaintiff] was harmed by receiving

unfavorable decisions from the ALJ and Appeals Council

without constitutionally valid hearings and adjudication

processes. See [Tr.] 1, 7.

(Docket Entry 14 at 17 (some spacing in citations altered).)

In contrast to 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; Lucia, 585 U.S. at ___, 138 S. Ct. 2053-55; Probst

28

v. Saul, 980 F.3d 1015, 1023 (4th Cir. 2020), the unconstitutional

removal provision at issue here did not impact then-Commissioner

Saul’s ability to carry out the duties of his office. Contrary to

Plaintiff’s above-quoted assertion (see Docket Entry 14 at 17), the

core holding of the majority opinion in Collins (as well as in

Seila Law) rejects Plaintiff’s view of presumed harm from the

unconstitutional removal provision, as recently well-explicated by

another court:

[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]llaintiff 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.

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.

29

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. Asa

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. v. Commissioner of Soc. Sec., 570 F. Supp. 3d 993, 1002-03

(W.D. Wash. 2021) (internal footnote, Citation, and stray

parenthesis and period omitted); see also Fish v. Kijakazi, No.

5:21lev182, 2022 WL 1504887, at *6 (N.D.W. Va. Apr. 26, 2022)

(unpublished) (“Courts across the country have uniformly concluded

that the allegedly unconstitutional nature of 42 U.S.C. § (3)

does not require remand.” (citing cases)), recommendation adopted,

2022 WL 1498115 (N.D.W. Va. May 11, 2022) (unpublished); Robinson

v. Kijakazi, No. 1:20CV358, 2021 WL 4998397, at *3 (W.D.N.C. Oct.

27, 2021) (unpublished) ([The p]laintiff . . . 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)), appeal filed, No. 21-2258 (4th Cir.

Nov. 9, 2021).

30

Plaintiff next maintains that she can demonstrate harm arising

from the unconstitutionality of Section 902(a)(3), because

“President Biden wished to terminate [then-]Commissioner Saul

immediately upon assuming the Presidency” (Docket Entry 14 at 17)

and, “[t]he day after DOJ issued its Memorandum Opinion in the wake

of Collins confirming that [then-Commissioner] Saul could be

removed from office by the President, President Biden immediately

did so” (id. at 18 (citing Tafoya v. Kijakazi, 551 F. Supp. 3d

1054, 1058 (D. Colo. 2021))). According to Plaintiff, “[t]he White

House’s official statement on removing [then-Commissioner] Saul

from office confirms that President Biden had wished to fire [then-

]Commissioner Saul from the time of the President’s inauguration

[for] . . . ‘undermin[ing] and politiciz[ing] Social Security

disability benefits, terminat[ing] the agency’s telework policy

that was utilized by up to 25 percent of the agency’s workforce,

not repair[ing] SSA’s relationships with relevant Federal employee

unions including in the context of COVID-19 workplace safety

planning, reduc[ing] due process protections for benefits appeals

hearings, and tak[ing] other actions that run contrary to the

mission of the agency and the President’s policy agenda.’” (Id.

(quoting https://federalnewsnetwork.com/people/2021/07/biden-fires-

saul-as-ssa-commissioner).) Plaintiff points out that “the

majority indicated in Collins that[, in] a situation where ‘the

President had made a public statement expressing displeasure with

31

actions taken by a Director and had asserted that he would remove

the Director if the statute did not stand in the way, the statutory

provision would clearly cause harm.” (Id. (quoting Collins, 141 S.

Ct. at 1789).) Accordingly, Plaintiff asserts that, “regardless of

whether harm is presumed in this case, Collins dictates that

Plaintiff has met her burden of demonstrating harm.” (Id.) That

argument lacks merit.

Another district court recently addressed and rejected such

an argument:

In her reply brief, [the p]laintiff argues “[then-

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

p]laintiff 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 [then-

]Commissioner Saul installed that may have affected her

32

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

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

Lisa Y., 570 F. Supp. 3d at 1003 (internal citation omitted); see

also id. at 1004 (“[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. 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 her claims,” Lisa Y., 570 F. Supp.

3d at 1003. (See Docket Entries 14, 20.)

Simply put, Plaintiff’s second and final assignment of error

entitles her to no relief.

33

III. CONCLUSION

Plaintiff has not established grounds for reversal or remand.

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 13) be denied, that

Defendant’s Motion for Judgment on the Pleadings (Docket Entry 18)

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

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

July 21, 2022

34