BROWN v. KIJAKAZI

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

CINDY LOU BROWN, )

)

Plaintiff, )

)

v. ) 1:20CV1035

)

KILOLO KIJAKAZI, )

Acting Commissioner of Social )

Security, )

)

Defendant.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Plaintiff, Cindy Lou Brown, 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 Disability Insurance

Benefits (“DIB”). (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 13, 16; see also Docket Entry 14 (Plaintiff’s Memorandum);

Docket Entry 17 (Defendant’s Memorandum); Docket Entry 19

(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 DIB (Tr. 144-52), alleging a disability

onset date of October 9, 2009 (see Tr. 146). Upon denial of that

application initially (Tr. 46-55, 69-72) and on reconsideration

(Tr. 56-68, 77-84), Plaintiff requested a hearing de novo before an

Administrative Law Judge (“ALJ”) (Tr. 85-86). Plaintiff, her

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

(Tr. 25-45.) The ALJ subsequently ruled that Plaintiff did not

qualify as disabled under the Act. (Tr. 9-19.) The Appeals

Council thereafter denied Plaintiff’s request for review (Tr. 1-6,

141-43), 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] last met the insured status requirements

of the . . . Act on September 30, 2014.

2. [Plaintiff] did not engage in substantial gainful

activity during the period from her alleged onset date of

October 9, 2009 through her date last insured of

September 30, 2014.

. . .

3. Through the date last insured, [Plaintiff] had the

following medically determinable impairments: Back and

Neck Pain, Arthritis of the Hands, Psoriasis, Depression,

and Alleged Borderline Intellectual Functioning.

4. Through the date last insured, [Plaintiff] did not

have an impairment or combination of impairments that

significantly limited the ability to perform basic work-

related activities for 12 consecutive months; therefore,

2

[Plaintiff] did not have a severe impairment or

combination of impairments.

. . .

5. [Plaintiff] was not under a disability, as defined

in the . . . Act, at any time from October 9, 2009,

through September 30, 2014, the date last insured.

(Tr. 14-18 (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.

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,

the Court “must uphold the factual findings of the ALJ 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

3

U.S. 389, 401 (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

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

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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)).2 “To regularize the

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

has . . . 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.

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

to (4) perform [the claimant’s] past work or (5) any other work.”

Albright v. Commissioner of the Soc. Sec. Admin., 174 F.3d 473, 475

2 The Act “comprises two disability benefits programs. [DIB] provides benefits

to disabled persons who have contributed to the program while employed. The

Supplemental Security Income Program 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

n.2 (4th Cir. 1999).3 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,

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 residual functional capacity

(‘RFC’).” Id. at 179.4 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

3 “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

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

4 “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.

6

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 Commissioner 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 567.5

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 erred by finding that Plaintiff’s intellectual

impairment did not constitute a severe impairment” (Docket Entry 14

at 4 (bold font and single-spacing omitted); see also Docket Entry

19 at 1-2);

2) “[t]he ALJ erred in finding that Plaintiff’s cervical and

lumbar [degenerative disc disease (‘DDD’)] did not constitute

severe impairments” (Docket Entry 14 at 8 (bold font and single-

spacing omitted)); and

5 A claimant thus can establish disability 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.”).

7

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

(id. at 13 (bold font omitted).

Defendant contends otherwise and seeks affirmance of the ALJ’s

decision. (Docket Entry 17 at 5-24.)

1. Intellectual Disability

Plaintiff’s first issue on review argues that “[t]he ALJ erred

by finding that Plaintiff’s intellectual impairment did not

constitute a severe impairment.” (Docket Entry 14 at 4 (bold font

and single-spacing omitted); see also Docket Entry 19 at 1-2).) In

particular, Plaintiff deems “not persuasive” the ALJ’s three bases

for finding Plaintiff’s intellectual disability non-severe: 1) “she

did not have treatment for her low intelligence in the relevant

time period [] from 2009 to 2014,” 2) she “had a good employment

history as a sander and in housekeeping from 1975 through 2009,”

and 3) “her doctors [treating other conditions] did not note that

she was intellectually impaired.” (Docket Entry 14 at 4 (citing

Tr. 17-18).) Plaintiff further points out that “[t]he threshold

for qualifying as a severe impairment is quite low – she need only

show that the impairment more than minimally interferes with her

ability to work and . . . [Plaintiff] testified to trouble

reading . . . and trouble with performing math.” (Id. at 7

(referencing Tr. 39).) According to Plaintiff, “objective support

for her testimony [exists] in the record,” including “school

records show[ing] poor performance in school, special education

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classes, [and] that she did not go past the seventh grade and has

an IQ in the [mild mental retardation] range at 67.” (Id. (citing

171-74).) In Plaintiff’s view, “[s]uch evidence is the best for

demonstrating a considerable lifelong intellectual impairment.”

(Id. (citing Leftwich v. Colvin, No. 1:13CV414, 2016 WL 126753, at

*6 (M.D.N.C. Jan. 11, 2016), recommendation adopted, slip op.

(M.D.N.C. Feb. 2, 2016) (Schroeder, J.), Holtsclaw v. Astrue, No.

1:10CV199, 2011 WL 6935499, at *4 (W.D.N.C. Dec. 30, 2011)

(unpublished), and Dixon v. Astrue, No. 7:08CV218, 2009 WL 4545262,

at *3 (E.D.N.C. Dec. 4, 2009)).) Those contentions lack merit.

“At step 2 of the [SEP], [the ALJ] determine[s] whether an

individual has a severe medically determinable physical or mental

impairment or combination of impairments that has lasted or can be

expected to last for a continuous period of at least 12 months or

end in death.” Social Security Ruling 16-3p, Titles II & XVI:

Evaluation of Symptoms in Disability Claims, 2017 WL 5180304, at

*11 (Oct. 25, 2017) (“SSR 16-3p”). An impairment fails to qualify

as “severe” if it constitutes “only a slight abnormality . . .

which would have no more than a minimal effect on an individual’s

ability . . . to perform basic work activities.” Social Security

Ruling 85–28, Titles II and XVI: Medical Impairments that Are Not

Severe, 1985 WL 56856, at *3 (1985) (“SSR 85–28”). Applicable

regulations further identify mental “basic work activities” as

including “[u]nderstanding, carrying out, and remembering simple

9

instructions,” “[u]se of judgment,” “[r]esponding appropriately to

supervision, coworkers and usual work situations,” and “[d]ealing

with changes in a routine work setting.” 20 C.F.R. § 404.1522(b).

Plaintiff bears the burden of proving severity at step two.

Hunter, 993 F.2d at 35; see also Kirby v. Astrue, 500 F.3d 705, 708

(8th Cir. 2007) (“Severity is not an onerous requirement for the

claimant to meet, but it is also not a toothless standard . . . .”

(internal citation omitted)).

The ALJ provided the following analysis supporting her step-

two finding that Plaintiff’s “Alleged Borderline Intellectual

Functioning” rated as non-severe (Tr. 14 (bold font omitted)):

[Plaintiff] testified at the hearing that she . . . had

problems reading and writing, and her husband helped with

grocery shopping and financial matters. [Plaintiff]

stated that she completed only the 7th grade.

After considering the evidence of record, the [ALJ] finds

that [Plaintiff]’s medically determinable impairments

could have reasonably been expected to produce a few of

the alleged symptoms; however, [Plaintiff]’s statements

concerning the intensity, persistence and limiting

effects of th[o]se symptoms [we]re not entirely

consistent for the reasons explained in th[e ALJ’s]

decision.

. . .

Because [Plaintiff] had medically determinable mental

impairments, the [ALJ] has considered the four broad

functional areas, set out in the disability regulations

for evaluating mental disorders . . . .

The first functional area is understanding, remembering

or applying information. In this area, [Plaintiff] had

mild limitation. The next functional area is interacting

with others. In this area, [Plaintiff] had mild

limitation. The third functional area is concentrating,

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persisting or maintaining pace. In this area,

[Plaintiff] had mild limitation. The fourth functional

area is adapting or managing oneself. In this area,

[Plaintiff] had mild limitation.

[Plaintiff]’s attorney cited psychological testing while

[Plaintiff] was a child as evidence of an intellectual

disability. [Plaintiff] underwent a Stanford-Binet test

at age 7, and in 1966 was reported to have an IQ of only

67; and she was in special education from 1965 to 1975,

from ages 7-17. However, there is no additional evidence

in the record of a cognitive or intellectual disorder in

any of the medical records from 2011 to 2019.

[Plaintiff] had a good employment history of semi-skilled

work from 1975 to 2009, over a 30-year time period; and

the [ALJ] observed no significant evidence during the

hearing of any limited mental functioning.

There is no significant evidence in the record through

the end of 2014, or significantly thereafter, of any

severe problems with attention and concentration, mental

focus, cognitive adequacy, dealing with others or

interacting with others in the work setting, no problems

with social functioning, and no significant difficulties

functioning independently and adapting to changed

circumstances.

. . .

Because [Plaintiff]’s medically determinable mental

impairments caused no more than “mild” limitation in any

of the functional areas; and, the evidence does not

otherwise indicate that there is more than minimal

limitation in [Plaintiff]’s ability to do basic work

activities, they were non-severe . . . .

(Tr. 16-18 (internal parenthetical citations and underscoring

omitted).) For the reasons described more fully below, Plaintiff’s

challenges to the ALJ’s rationale miss the mark.

Plaintiff first objects to the ALJ’s “f[inding] that

[Plaintiff’s] low intelligence did not affect her ability to work

because she did not have treatment for her low intelligence in the

11

relevant time period [] from 2009 to 2014” (Docket Entry 14 at 4

(citing Tr. 17-18)), because “there is no treatment for [mild

mental retardation/intellectual disability,]” and the

Commissioner’s “‘regulation expressly define[s] mental retardation

as denoting a lifelong condition’” (id. at 6 (quoting Luckey v.

U.S. Dep’t of Health & Human Servs., 890 F.2d 666, 668 (4th Cir.

1999))).6 Plaintiff’s argument fails, because the ALJ offered her

observation that Plaintiff “[a]pparently . . . did not require any

type of mental health treatment by a psychiatrist, therapist, or

social worker” in the context of evaluating Plaintiff’s “complaints

of depression” and not her alleged intellectual disability. (Tr.

18 (emphasis added).)

Plaintiff next contests the ALJ’s reliance on Plaintiff’s

“good employment history as a sander and in housekeeping from 1975

through 2009” to support the non-severity finding. (Docket Entry

14 at 4 (citing Tr. 17-18).) In that regard, Plaintiff notes that

“a severe impairment, by definition[,] does not keep someone from

working in and of itself” (id. at 5 (citing 20 C.F.R. § 404.1520)),

and that “individuals with an IQ of 55 through 70 . . . ‘can

usually live successfully in their community, either independently

or in supervised settings’” (id. (quoting American Psychiatric

6 The regulations in effect since the time Plaintiff filed her claim on January

30, 2017 (see Tr. 144-52), no longer define mental retardation as a lifelong

condition. See 20 C.F.R. Pt. 404, Subpt. P, App’x 1, § 12.00B.4 (versions

effective since Jan. 17, 2017).

12

Ass’n, Diagnostic & Statistical Manual of Mental Disorders 43 (4th

ed. rev. 2000))). Plaintiff additionally points out that “the

regulations ‘assume many, if not most, mildly mentally retarded

individuals will be able to work[ and, t]herefore, the fact that a

claimant has a history of continuous employment in the past is

irrelevant to whether she has subsequently become disabled due to

the development of additional severe impairments.’” (Id. (quoting

Shaw _v. Astrue, No. 4:08CV132, 2009 WL 2486932, at *7 (E.D.N.C.

Aug. 13, 2009) (unpublished) (ellipses and some brackets omitted),

and citing, inter alia, Leftwich, 2016 WL 126753, at *7).)

According to Plaintiff, “[s]uch is the case here where [she] worked

for many years in mentally undemanding manual labor jobs, but upon

developing additional physical impairments from her cervical and

lumbar DDD, was no longer able to persist.” (Id. at 6 (citing Tr.

36-38) .)

Plaintiff’s argument glosses over a significant fact which

distinguishes the instant case from Leftwich and Shaw - those cases

both evaluated an ALJ’s determination that the claimant’s

intellectual disability did not meet or equal the requirements of

Listing 12.05C, see Leftwich, 2016 WL 126753, at *7; Shaw, 2009 WL

2486932, at *6-7, which Listing no longer existed at the time

Plaintiff filed her claim on January 30, 2017 (see Tr. 144-52), see

Trotter v. Saul, No. 2:20CV1760, 2022 WL 1129647, at *11 (N.D. Ala.

Apr. 15, 2022) (unpublished) (noting that “Listing 12.05 changed on

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January 17, 2017,” that “{a]mended Listing 12.05 simplified the

four sets of criteria[, i.e., subsections (A), (B), (C), and (D),]

into two alternate criteria in subsections 12.05(A) and (B),” and

that “the [SSA] stated the amended rules ‘w[ould] apply .. . to

new applications filed on or after the effective date of the

rules’” (quoting Dames v. Commissioner of Soc. Sec., 743 Fed. Appx.

370, 372 (11th Cir. 2018), in turn quoting “Revised Medical

Criteria for Evaluating Mental Disorders,” 81 Fed. Reg. 66,137,

66,138 (Sept. 26, 2016)).

Prior to that amendment, Listing 12.05C required “[a] valid

verbal, performance, or full scale 10 of 60 through 70 and a

physical or other mental impairment imposing an additional and

Significant work-related limitation of function.” 20 C.F.R. Pt.

404, Subpt. P, App’x 1, § 12.05C (emphasis added) (version

effective until Jan. 16, 2017). Thus, in the setting of Listing

12.05C, a claimant’s development of an additional impairment

imposing significant functional limitations rendered the claimant’s

prior work history less relevant to the determination of whether

the claimant demonstrated the required adaptive deficits. see

Leftwich, 2016 WL 126753, at *7; Shaw, 2009 WL 2486932, at *6-7;

see also Luckey, 890 F.2d at 669 (holding that the Commissioner

“may not rely upon previous work history to prove non-disability

where the [Listing] 12.05C criteria are met” (emphasis added)).

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Outside of the context of Listing 12.05C, courts have

countenanced an ALJ’s consideration of a claimant’s work history in

evaluating the claimant’s intellectual disability. See, e.g.,

Walterman v. Colvin, No. 15CV3860, 2016 WL 8199313, at *6 (D. Minn.

June 24, 2016) (unpublished) (“Most importantly, despite his

borderline intellectual functioning, [the plaintiff] has a strong

work history, maintaining one job as a laborer in a meat packing

facility for ten years . . . . This fact supported the ALJ’s

conclusion that [the plaintiff]’s impairments d[id] not cause more

than mild limitations in any of the relevant functional areas.”);

Frye v. Astrue, No. 1:12CV1533, 2014 WL 3509985, at *8 (M.D. Pa.

July 15, 2014) (unpublished) (affirming ALJ’s decision “that [the

plaintiff]’s mental limitations were not a severe impairment,”

where “the ALJ explained that [the plaintiff]’s own work history,

such as forklift operation, was inconsistent with a conclusion of

mild mental retardation and incapability of competitive

employment”).

Plaintiff additionally faults the ALJ for observing that

Plaintiff’s “doctors [treating other conditions] did not note that

she was intellectually impaired.” (Docket Entry 14 at 4 (citing

Tr. 17-18).) The ALJ here did state, as one part of his severity

analysis that, beyond Plaintiff’s school records, “no additional

evidence [existed] in the record of a cognitive or intellectual

disorder in any of the medical records from 2011 to 2019.” (Tr.

15

17.) The lack of an intellectual disability diagnosis in

Plaintiff’s treatment records (standing alone) does not provide

much support for the ALJ’s non-severity finding because, as

Plaintiff argues, “ALJs cannot cite to a dearth of references to

mental issues in physical treatment records in support of arguing

that an individual does not have a [severe] mental disorder

[because] th[o]se doctors are generally not looking . . . or

testing [for mental impairments]” (Docket Entry 14 at 6 (citing

Wilder v. Chater, 64 F.3d 335, 337 (7th Cir. 1995))). The ALJ,

however, also noted that the medical providers treating Plaintiff’s

other impairments (including depression) did not record any “severe

problems with attention and concentration, mental focus, cognitive

adequacy, [or] dealing with others” (Tr. 18) which, at least to the

extent that those providers treated Plaintiff’s depression, held

some relevance as to the impact of her alleged intellectual

disability on her ability to function in those areas. Furthermore,

as explained in more detail below, the ALJ here also relied on

other, more probative grounds for finding Plaintiff’s alleged

intellectual disability non-severe.

In addition to (properly) considering Plaintiff’s long

employment history in semi-skilled jobs, the ALJ also discounted

Plaintiff’s IQ score of 67 on the Stanford-Binet Intelligence Scale

administered in June 1966 when Plaintiff was seven years old. (Tr.

17 (referencing Tr. 174).) The Commissioner’s internal policies

16

make clear that, because “IQ scores stabilize after age 16 and are

generally considered current after that time,” IQ test scores

obtained from age 7 to age 16 remain valid for only two years.

Program Operations Manual System (“POMS”) § DI 24583.055. Thus,

Plaintiff’s IQ score on the Stanford-Binet in June 1966 remained a

valid indication of her intellectual functioning only through June

1968, and the ALJ did not err in discounting the score. Although

Plaintiff notes that the POMS section in question also states that

“‘IQ scores that are not current may still provide useful

information about whether a person’s intellectual disorder began

during the developmental period’” (Docket Entry 19 at 1 (quoting

POMS § DI 24583.055)), the ALJ did not find that Plaintiff’s 1966

IQ score merited no weight (see Tr. 17); rather, the ALJ

acknowledged that score, but found other evidence of Plaintiff’s

functioning more probative of the non-severity of her intellectual

impairment (see Tr. 17-18).

Moreover, the ALJ found the state agency psychological

consultants’ opinions that Plaintiff’s mental impairments rated as

non-severe (see Tr. 49-50, 62-63) “generally persuasive” as

“consistent with the majority of the evidence of record” (Tr. 18).

Significantly, the consultants noted as follows with regard to

Plaintiff’s 1966 IQ score:

At age 7, [Plaintiff] produced a Stanford Binet IQ of 67

and was in special education from age 7 to 17. She left

school early. This IQ must have been an underestimate,

considering [Plaintiff]’s work roles and normal exam

17

presentations [regarding psychiatric findings].

[Plaintiff] worked cleaning offices 2014-2105 and as an

inspector/packer in furniture manufacturing 1994-2009.

She earned [substantial gainful activity] and filed a

[DIB] claim based on her own past work. She may have had

a slow start developmentally or may have had unrecognized

[learning disability]. Educational misclassifications in

the 1960s are not uncommon.

(Tr. 50 (emphasis added); see also Tr. 62-63.) The ALJ’s crediting

of those opinions provides further support for her non-severity

finding regarding Plaintiff’s alleged intellectual disability.

In light of the foregoing analysis, Plaintiff’s first

assignment of error falls short.7

2. Cervical and Lumbar DDD

Plaintiff’s second assignment of error maintains that “[t]he

ALJ erred in finding that Plaintiff’s cervical and lumbar DDD did

not constitute severe impairments.” (Docket Entry 14 at 8 (bold

font and single-spacing omitted).) In that regard, Plaintiff

contends that, “where an individual complains of pain and other

symptoms of a condition before the [date last insured (‘DLI’)]

expires and testing later confirms an objective source for that

pain, the ALJ needs to give retrospective consideration to that

evidence.” (Id. (citing Bird v. Commissioner of Soc. Sec. Admin.,

699 F.3d 337, 340-41 (4th Cir. 2012), and Booker v. Berryhill, No.

7 Consistent with that conclusion, Plaintiff did not claim any kind of

intellectual disability as an impairment that limited her ability to work on her

Disability Report. See Walterman, 2016 WL 8199313, at *7 (finding no error in

ALJ’s determination that the plaintiff’s borderline intellectual functioning

rated as non-severe, where the plaintiff’s “cognitive impairments were not even

listed in [his] current application for disability benefits”).

18

3:16CV299, 2017 WL 2676497, at *6 (W.D.N.C. June 21, 2017)

(unpublished)).) According to Plaintiff, “[w]hile the ALJ

portray[ed consultative medical examiner] Dr. [George] Osei-Bonsu’s

2012 evaluation as an outlier with no other evidence of

considerable difficulties until [Plaintiff]’s lumbar surgery in

2019, the record is more nuanced with complaints predating the DLI

in 2014 and continuing from 2015 onward.” (Id. at 10; see also id.

at 10-12 (detailing evidence Plaintiff believes reflects complaints

of DDD-related symptoms before and after DLI (citing Tr. 252-54,

256-57, 259, 262, 266, 274-75, 284-92, 311, 324, 344, 456, 499,

652-53, 800, 802, 861-63, 894, 1188)).) In Plaintiff’s view, “[i]t

is not her fault, especially as a low IQ individual (who may not

advocate for herself as strongly as others), that despite

complaining to her doctors for many years of neck, arm, back and

leg pain and numbness that her providers did not order MRIs to

investigate the cause of these symptoms until 2018.” (Id. at 12.)

Plaintiff’s arguments miss the mark.

In terms of a physical impairment, Plaintiff bears the burden

at step two of producing evidence that such an impairment causes

“more than a minimal effect on [her] ability . . . to perform

[physical] basic work activities,” SSR 85-28, 1985 WL 56856, at *3,

which include “walking, standing, sitting, lifting, pushing,

pulling, reaching, carrying, [and] handling,” 20 C.F.R.

§ 404.1522(b)(1). In making that showing, “[m]edical evaluations

19

made after a claimant’s insured status has expired are not

automatically barred from consideration and may be relevant to

prove a disability arising before the claimant’s DLI.” Bird, 699

F.3d at 340. Indeed, Bird holds that “post-DLI medical evidence

generally is admissible . . . in such instances in which that

evidence permits an inference of linkage with the claimant’s

pre-DLI condition,” id. at 341 (emphasis added) (citing Moore v.

Finch, 418 F.2d 1224, 1226 (4th Cir. 1969)), such as when medical

evaluations post-dating a claimant’s DLI “reflect[ed] . ..a

possible earlier and progressive degeneration,” Moore, 418 F.2d at

1226 (emphasis added). “By contrast, linkage is not present where

the post-DLI evidence does not provide information regarding the

claimant’s pre-DLI functional limitations.” David H. v. Saul, No.

4:20CV3, 2021 WL 1232674, at *10 (W.D. Va. Apr. 1, 2021)

(unpublished) (emphasis added) (citing Parker v. Berryhill, 733 F.

App’ 684, 687 (4th Cir. 2018)).

The ALJ provided the following analysis to support her finding

that Plaintiff’s “Back and Neck Pain” qualified as non-severe (Tr.

14 (bold font omitted)):

In terms of [Plaintiff]’s physical impairments, the

record does show complaints of back, neck, shoulder, and

leg pain prior to the [DLI]. However, there does not

appear to be any significant x-ray evidence in the record

of degenerative disk or joint disease. The only evidence

of any problems with gait or ambulation was during the

consultative examination in 2012; but all other evidence

prior to the end of 2014 did not show any significant

difficulties with standing, walking, or with lifting or

carrying objects.

20

The [ALJ] concedes that [Plaintiff] did have some medical

treatment for diagnosed impairments prior to September

30, 2014; but the overwhelming weight of the medical

evidence shows that these impairments did not cause any

significant limitations in standing, walking, or sitting,

or with the use of the upper extremities for lifting and

carrying objects.

(Tr. 17 (internal parenthetical citations omitted).) Plaintiff’s

attempt to invoke Bird as a basis for challenging the ALJ’s step

two finding that Plaintiff’s “Back and Neck Pain” rated as non-

severe (Tr. 14 (bold font omitted)) fails on two grounds.

First, unlike in Bird, where the claimant submitted no medical

records pre-dating his DLI, see Bird, 699 F.3d at 339, the record

here demonstrates that Plaintiff had consistent medical treatment

from April 9, 2013, through her DLI of September 30, 2014, for a

variety of medical conditions, including hypertension (see Tr. 277-

78, 280-81, 283-84, 286-87, 289), depression (see Tr. 274-75, 277-

78, 280-81, 283-84), arthritis in her hands (see Tr. 274-75, 283),

abdominal cellulitis (see Tr. 277-78), dizziness (see Tr. 280, 283,

286, 288, 290-91), inner ear pain (see Tr. 290-91), and psoriasis

(see Tr. 278). Significantly, in none of those treatment visits

did Plaintiff complain of (or receive treatment for) neck or back

pain (see Tr. 274-91) and, on April 9, 2013, the provider noted

full range of motion in Plaintiff’s neck, normal tone and strength,

normal sensation, and intact deep tendon reflexes (see Tr. 291).

Plaintiff’s consultative examination with Dr. Osei-Bonsu on

May 24, 2012, ordered in the context of her 2012 application for

21

DIB (see Tr. 47, 57), also would not have compelled the ALJ to find

Plaintiff’s back and neck impairments severe prior to the DLI.

(See Tr. 828-31.) At that examination, Plaintiff “state[d that]

the main symptoms affecting functionality [we]re ‘neck pain that

radiat[ed] to [the] left arm and low back pain that [went] into

[her] left leg[.’]” (Tr. 828 (parentheses omitted) .) Dr. Osei-

Bonsu noted spinous and paraspinal tenderness in Plaintiff’s

cervical and lumbar spines (see Tr. 829-30) with an antalgic gait

(see Tr. 830) and reduced range of motion (see Tr. 831), but

recorded no spasm (see Tr. 829-30), a negative straight leg raise

test (see Tr. 830), 4-5/5 muscle strength (see id.), and only

“slightly weak” grip strength (id.). Although Plaintiff appeared

“unsteady” standing on her heels and performing a tandem walk, as

well as “exhibited mild difficulty getting up from [a] sitting to

[a] standing position,” Dr. Osei-Bonsu noted that Plaintiff could

“raise [her] arms overhead” and did not need a handheld assistive

device, diagnosed only “[l]low back pain” and “[c]lervicalgia,” and

opined that Plaintiff could “sit, stand, and walk on levelled [sic]

terrain in [the] exam room without support.” (Id.) Furthermore,

as the ALJ’s discussion of the evidence makes clear, no medical

records exist from 2009 and 2010 (see Tr. 15-16), and the closest

medical treatment Plaintiff received prior to the consultative

examination was “an emergency room visit . . . for urinary blood”

on March 24, 2011 (Tr. 15 (citing Tr. 817)). Moreover, the next

22

treatment of record after the consultative examination took place

nearly a year later, when Plaintiff sought care at Cornerstone

Health Care for dizziness and inner ear pain on April 9, 2013 (see

Tr. 290-91), and thereafter followed-up for management of her

“hypertension and depression” (Tr. 16 (emphasis added) (citing Tr.

271, 272-73, 280-81)) where examinations remained “essentially

normal in all body systems” (id. (emphasis added)).

Under such circumstances, the ALJ had a sufficient pre-DLI

record on which to base her non-severity finding, which renders

Bird inapplicable. See David H., 2021 WL 1232674, at *11 (finding

no error under Bird where “pre-DLI evidence faill[ed] to reflect any

significant functional limitations caused by the [plaintiff’s

rheumatoid arthritis]” and “repeatedly not[ed] normal exam findings

and occasional symptoms that resolved with treatment”); Tolbert v.

Colvin, No. 1:15CV437, 2016 WL 6956629, at *4 (M.D.N.C. Nov. 28,

2016) (unpublished) (Osteen, C.J.) (“Bird has [] repeatedly been

found inapplicable where there was meaningful evidence of the

claimant’s disability or lack of disability during the DIB coverage

period.” (internal quotation marks omitted)); Graham v. Colvin, No.

5:12CV174, 2015 WL 114277, at *5 (W.D.N.C. Jan. 8, 2015)

(unpublished) (noting that case did not involve “complete lack of

a [pre-DLI] medical record as present in Bird,” that “medical

record establishe[d] that [the plaintiff] regularly went to the

doctor for treatment,” and that “[t]he completeness of her medical

23

record demonstrate[d] that she did not complain of tremors until

after her DLI because that was when they had manifested or

progressed to a degree where they would have interfered with her

ability to work”); Haila v. Colvin, No. 5:13CV377, 2014 WL 2475749,

at *15 (N.D. Fla. June 3, 2014) (unpublished) (“Unlike the facts in

Bird, there was sufficient medical evidence prior to the [DLI] for

the ALJ to determine whether [the p]laintiff was disabled and the

evidence after her [DLI] did not establish she was disabled prior

to this date.”).°

Second, unlike in Bird, the post-DLI evidence here “does not

provide information regarding the claimant’s pre-DLI functional

limitations,” and thus fails to provide the required “linkage” to

Plaintiff’s pre-DLI condition, David H., 2021 WL 1232674, at *10.

In Bird, the court found linkage of the plaintiff’s “final

condition... with his earlier symotoms,” id. at 341, because the

post-DLI records “summarized evidence that [the plaintiff] suffered

from severe symptoms of PTSD before .. . his DLI,” id., “indicated

® Plaintiff’s suggestion that the lack of MRI evidence prior to the DLI resulted

from her “low IQ” and inability to “advocate for herself as strongly as others”

fails as wholly speculative. (See Docket Entry 14 at 12.) As discussed above,

Plaintiff worked in semi-skilled jobs for over 20 years (see Tr. 42, 191),

pursued regular medical care and obtained diagnostic imaging when warranted (see

Tr. 274-91, 807-26), and filed two separate applications for DIB (see Tr. 47,

57), pursuing the instant claim to the fifth level of review in this Court.

Those facts undermine Plaintiff’s implication that her “low I0” prevented her

from obtaining MRIs of her cervical and lumbar spine prior to the DLI.

Furthermore, as the discussion of the pre-DLI evidence above makes clear,

Plaintiff did not, prior to the DLI, “complain[] to her doctors for many years

of neck, arm, back and leg pain and numbness” (Docket Entry 14 at 12), and the

absence of such complaints more plausibly explains why providers did not order

spinal MRIs prior to Plaintiff’s DLI.

24

that [his] symptoms of PTSD had been ongoing since his [pre-DLTI]

return from military service,” id., and explained the impact of the

plaintiff’s PTSD on his ability to maintain employment and social

relationships prior to the DLI, see id. at 342.

In contrast, none of the post-DLI evidence relied on by

Plaintiff “provide[s] information regarding [her] pre-DLI

functional limitations,” David H., 2021 WL 1232674, at *10. (See

Docket Entry 14 at 10-12 (citing Tr. 252-54, 256-57, 259, 262, 266,

274-75, 284-92, 311, 324, 344, 456, 499, 652-53, 800, 802, 861-63,

894, 1188).) Some of that evidence does not reflect treatment for

neck, arm, back, or leg pain at all (see Tr. 254, 262, 266, & 311

(treatment for bradycardia and dizziness)), and other evidence

attributes Plaintiff’s complaints to causes other than spinal

degeneration (see Tr. 252-53 (treatment on 7/21/15 for “back pain

and painful breathing” after a fall), 256-57 (Plaintiff’s primary

care physician’s 4/24/15 opinion that Plaintiff’s leg pain

represented “claudication” caused by “peripheral artery disease”

warranting prescription of blood thinner Pletal as well as

Meloxicam for hip and knee joint pain (emphasis added))), and/or

reflects the recent onset of symptoms rather than an ongoing,

chronic condition (see Tr. 256-57 (complaints on 4/24/15 of

“bilateral hip pain that radiate[d] down to her legs[ that ]

started about one month [prior]”), 259 (reports on 4/15/15 of “leg

25

weakness since th[at] morning” and “pain in hips and legs [for] 2

months” (emphasis added)).

The remainder of that evidence does reflect Plaintiff’s

complaints of neck, arm, back, or leg symptoms, but does not

provide any information about her functional limitations prior to

the DLI. (See Tr. 324 (9/29/16 reports of “tingling in both hands

and legs” and joint pain in left elbow and right hip but reflecting

negative straight leg raise test, intact pulses, and normal range

of motion), 344 (6/5/17 office note documenting complaint of pain

and numbness in buttocks, hips, and legs), 455-56 (10/23/18 MRI of

lumbar spine showing multilevel disc bulges, facet arthropathy,

spinal stenosis, foraminal stenosis, and disc protrusion with mass

effect on right Sl nerve root), 499 (12/12-12/13/18 record of

Plaintiff’s anterior cervical discectomy), 652-53 (4/4-4/5/19

record of Plaintiff’s lumbar fusion surgery), 800 (12/11/17 reports

of pain in right hip and leg and numbness and tingling in both

legs), 802 (4/16/18 complaints of pain and numbness in both legs

from hips to ankles), 861-63 (11/15/18 report of “bilateral neck

and arm pain, numbness, and weakness for [greater than] six months

getting worse” and buttock pain for “over 12 months” with normal

strength but decreased sensation and positive Hoffmann’s sign

(emphasis added)), 893-94 (11/15/18 cervical spine MRI reflecting

“multilevel degenerative changes . . . worst at C4-C5 and C5-C6

where there is moderate central spinal canal stenosis” as well as

26

severe neuroforaminal stenosis and uncovertebral hypertrophy at C5-

C6), 1188 (3/8/19 report of successful post-operative recovery from

cervical surgery but ongoing complaints of back and leg pain

warranting lumbar fusion)).)

In light of the lack of linkage between that post-DLI evidence

and Plaintiff’s pre-DLI condition, the ALJ did not err under Bird

by declining to find Plaintiff’s cervical and lumbar DDD severe

impairments based on the post-DLI evidence. See Armstrong v.

Colvin, No. 1:14CV346, 2015 WL 6738723, at *6 (M.D.N.C. Nov. 4,

2015) (unpublished) (“[A]lthough [the p]laintiff complained of pain

in both knees and a[n ] orthopedist diagnosed mild degenerative

joint disease in both of [the p]laintiff’s knees [one year] prior

to his [DLI], the orthopedist noted full range of motion in both

knees and no effusion, and recommended no surgery and only

medication management for any resultant symptoms[, and ] the record

lacks any evidence that [the p]laintiff suffered from a meniscal

tear in his left knee until the [] MRI [two years after his DLI].

Because nothing in the record links [the p]laintiff’s meniscal tear

[] to a pre-[DLI] left knee impairment, the ALJ did not err [under

Bird].”), recommendation adopted, slip op. (M.D.N.C. Dec. 4, 2015)

(Tilley, S.J.); Graham, 2015 WL 114277, at *4 (finding ALJ did not

err by refusing retrospective consideration of post-DLI evidence of

the plaintiff’s tremors, where the plaintiff “did not complain of

tremors until after her DLI, the record contained “no meaningful

27

corroboration [that the tremors existed pre-DLI] aside from her own

statement that she quit work . . . due in part to her tremors,” and

“[n]one of [her] physicians offered a retrospective diagnosis or

opined that her tremors existed prior to her DLI”); Greifenstein v.

Colvin, No. 2:13CV81, 2014 WL 198720, at *4 (E.D. Va. Jan. 15,

2014) (unpublished) (noting that “pre-DLI evidence weigh[ed]

against a finding of linkage [to the plaintiff’s post-DLI

condition,]” where “the [p]laintiff’s treating physician during

th[e pre-DLI] period . . . repeatedly documented less than severe

symptoms”).

In sum, Plaintiff’s second assignment of error falls short.

3. Constitutionality of SSA

In Plaintiff’s third and final assignment of error, she

contends that “[t]he structure of the SSA is constitutionally

invalid.” (Docket Entry 14 at 13 (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 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],

28

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 he did not have the authority to hear or decide the case

given the delegation of authority from [then-]Commissioner [Saul]

who had no constitutional authority to head the [SSA].” (Id.)

Those arguments ultimately fail as a matter of law.

As an initial matter, 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 17 at 7 (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

unconstitutional statutory removal restriction exists, a plaintiff

seeking relief on that basis must show that the restriction

29

actually caused her harm.” (Id. (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 1) “the ALJ who issued the final decision denying

Plaintiff’s claims was not appointed by a Commissioner subject to

Section 902(a)(3)’s removal restriction[, but r]ather, the ALJ had

her appointment ratified by an Acting Commissioner of Social

Security – whom the President could have removed from that role at

will, at any time”, and 2) Plaintiff cannot “show that Section

902(a)(3)’s removal restriction caused the denial of her benefits

claim.” (Id. at 8 (emphasis supplied by Commissioner).) For the

reasons that follow, the Commissioner’s argument has 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 December 26,

2019 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

30

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 cross-

reference 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.

[FN*] Under the Federal Vacancies Reform Act (FVRA), 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 submission[]

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

31

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.

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 (stray quotation mark and italics

omitted).)9

The statutory language of Section 902 supports the

Commissioner’s position for three reasons. To begin, comparison of

the language 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.

9 Plaintiff did not address those arguments by the Commissioner in her Reply.

(See Docket Entry 19.)

32

(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.

(bob) 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

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

33

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]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.” (internal

quotation marks omitted)).

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

“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, 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

34

deciding ALJ precluded any possible link between Section

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

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

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

(“Because an Acting Commissioner does not have the same removal

restriction as the Commissioner and because [the] ALJ [] was

properly appointed, [the p]laintiff’s argument is not persuasive

. . . .”), recommendation adopted, 2022 WL 970741 (S.D. Cal. Mar.

31, 2022) (unpublished); 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 p]laintiff’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

35

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)); see also Fish v. Kijakazi, No.

5:21cev182, 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).

Thus, because then-Acting Commissioner Nancy Berryhill

appointed the ALJ who issued the decision denying Plaintiff’s

claims, and the President may remove Acting Commissioners at will,

Plaintiff’s challenge under Seila Law/Collins fails.

b. Impact on ALJ’s Decision

Next, the 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 she did not demonstrate any actual harm arising

from Section □□□ □□□ (3)’s unconstitutional removal provision. (See

Docket Entry 17 at 12.) 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 she “exercise[d] . . . power that [she] did

36

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) (explaining that

where officials were properly appointed, there is “no

barrier to them exercising power”).

Collins teaches, therefore, that actions taken by

properly appointed officials are not void. Regardless of

the restrictions on removal, the properly appointed

Commissioner had full authority to carry out the

responsibilities of his office, including promulgating

regulations and delegating authority under the ([]

Act. ...

[RJelief 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 her benefits

claim.

(Docket Entry 17 at 13-14 (stray space and some internal bracketed

material omitted) .)?*°

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

Plaintiff did not address those contentions by the Commissioner in her Reply.

(See Docket Entry 19.)

37

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.

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.

38

Lisa Y., SF. Supp. 3dat——_, 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]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 (Ath Cir. Nov. 9, 2021).

Some decisions have allowed claims of the sort raised here to

proceed in the face of standing challenges. See Dixie C. v.

Kijakazi, No. 3:21CV764, 2021 WL 4822838, at *6 (N.D. Tex. Sept.

20, 2021) (unpublished) (“[Blecause [the p]laintiff has established

both traceability and redressability for the purposes of standing,

the [c]lourt has standing to hear [the p]Jlaintiff’s constitutional

claim.” (emphasis added)), recommendation adopted, 2021 WL 4820764

(N.D. Tex. Oct. 15, 2021) (unpublished); Sylvia A. v. Kijakazi, No.

5:2lcev76, 2021 WL 4692293, at *4 (N.D. Tex. Sept. 13, 2021)

(unpublished) (“The [c]ourt finds that [the pljlaintiff’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

39

added)), recommendation adopted, 2021 WL 4622528 (N.D. Tex. Oct. 7,

2021) (unpublished); Albert v. Kijakazi, No. 1:21CV4, 2021 WL

3424268, at *5 (D. Alaska Aug. 5, 2021) (unpublished) (“Because

[the] plaintiff has standing to bring his constitutional claim,

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

added)); Tafoya v. Kijakazi, 551 F. Supp. 3d 1054, 1059 (D. Colo.

2021) (“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)).*!

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 [c]ourt 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]laintiff 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]laintiff has not shown any compensable harm fairly

traceable to the actions of former Commissioner [Andrew] Saul, . . . the

[p]laintiff’s situation is distinguishable from the plaintiff’s claims in

Collins; [the p]Jlaintiff has failed to establish standing . .. .”); Amanda B.

v. Commissioner, Soc. Sec. Admin., No. 3:20CV434, 2021 WL 4993944, at *9 (D. Or.

Oct. 26, 2021) (unpublished) (“[The pjlaintiff . . . 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.”), appeal filed, No. 21-36014 (9th Cir. Dec.

9, 2021); Brinkman v. Kijakazi, No. 2:21CV528, 2021 WL 4462897, at *2 (D. Nev.

Sept. 29, 2021) (unpublished) (“Because [the p]Jlaintiff 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.”); see also Drye v.

Kijakazi, No. 1:21CV135, 2022 WL 1446672, at *7 & n.l (W.D.N.C. May 6, 2022)

(unpublished) (rejecting “remand based on [separation of powers] constitutional

argument” because “[the p]llaintiff lacks standing” and observing that “many

[courts] have repeatedly rejected Social Security plaintiffs’ claims that ALJ’s

decisions are constitutionally defective based on a separation of powers

argument” (citing cases)).

40

However, even courts among that number have 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, 551 F. Supp. 3d at 1059 n.6; see also Dante v. Saul, Civ.

No. 20-702, 2021 WL 2936576, at *5 (D.N.M. July 13, 2021)

(unpublished) (“Th[e] rationale [in Collins] appears to undermine

[the p]laintiff’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

[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

41

added)). In sum, 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.

Simply put, Plaintiff’s third assignment of error does not

entitle her to relief.

III. CONCLUSION

Plaintiff has not established errors warranting 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 16)

be granted, and that this action be dismissed with prejudice.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

June 21, 2022

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