# BROWN v. KIJAKAZI

> District Court, M.D. North Carolina · June 21, 2022

URL: https://www.frixlaw.com/law-library/cases/10254212

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** June 21, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10254212

## How later opinions describe it (automated extraction)

- 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”
- 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)
- 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”

## Opinion text

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
4
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
8
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,
10
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

13

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)).

14

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

42

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254212. Public record. Not legal advice.