Stephens v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

ASHEVILLE DIVISION

1:20-cv-00320-WCM

IAN PAUL STEPHENS, )

)

Plaintiff, )

) MEMORANDUM OPINION

v. ) AND ORDER

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, )

)

Defendant. )

_______________________________ )

This matter is before the Court on the following motions:

(1) Plaintiff’s Motion for Summary Judgment (Doc. 16).

(2) Plaintiff’s Motion to Remand (Doc. 18).

(3) Defendant’s Motion for Summary Judgment (Doc. 21).1

I. Procedural Background

Plaintiff Ian Paul Stephens (“Plaintiff”) filed applications for disability

insurance benefits and supplemental security income, alleging disability

beginning on January 30, 2007. Transcript of the Administrative Record

(“AR”) 210-215; 216-225. He subsequently amended his disability onset date to

August 24, 2017. AR 39.

1 The parties have consented to the disposition of this case by a United States

Magistrate Judge. Docs. 13 & 14.

On December 16, 2019, following an administrative hearing at which

Plaintiff appeared and testified, an Administrative Law Judge (“ALJ”) issued

an unfavorable decision. AR 12-33. That decision is the Commissioner’s final

decision for purposes of this action.

II. The ALJ’s Decision

The ALJ found that Plaintiff had the severe impairment of “spine

disorder.” AR 17. After determining that Plaintiff’s impairment did not meet

or medically equal one of the listed impairments, the ALJ found that Plaintiff

had the residual functional capacity (“RFC”):

to perform light work…. In particular, the claimant

can lift or carry up to 20 pounds occasionally and 10

pounds frequently. He can only stand or walk for

approximately 4 hours of an 8-hour workday and sit

for approximately 6 hours of an 8-hour workday with

normal breaks. He can frequently push/pull with the

lower extremities. He is limited to occasional climbing

of ramps and stairs, never climbing ladders, ropes or

scaffolds, occasional stooping, kneeling, crouching and

crawling and no concentrated exposure to hazards

such as unprotected heights or dangerous moving

machinery.

AR 20.

Applying this RFC, the ALJ found that Plaintiff had the ability to

perform certain jobs that exist in significant numbers in the national economy

such that Plaintiff was not disabled during the relevant period. AR 26-27.

III. Plaintiff’s Allegations of Error

Plaintiff contends that the ALJ erred in his consideration of certain

opinion evidence, and when evaluating Plaintiff’s subjective complaints and

the testimony of the vocational expert (“VE”). In his Motion to Remand,

Plaintiff also contends that this matter should be remanded because 42 U.S.C.

§ 902(a)(3) is unconstitutional.

IV. Standard of Review

A claimant has the burden of proving that he or she suffers from a

disability, which is defined as a medically determinable physical or mental

impairment lasting at least 12 months that prevents the claimant from

engaging in substantial gainful activity. 20 C.F.R. §§ 404.1505; 416.905. The

regulations require the Commissioner to evaluate each claim for benefits using

a five-step sequential analysis. 20 C.F.R. §§ 404.1520; 416.920. The burden

rests on the claimant through the first four steps to prove disability. Monroe

v. Colvin, 826 F.3d 176, 179 (4th Cir. 2016). If the claimant is successful at

these steps, then the burden shifts to the Commissioner to prove at step five

that the claimant can perform other work. Mascio v. Colvin, 780 F.3d 632, 635

(4th Cir. 2015); Monroe, 826 F.3d at 180.

Under 42 U.S.C. § 405(g), judicial review of a final decision of the

Commissioner denying disability benefits is limited to whether substantial

evidence exists in the record as a whole to support the Commissioner’s

findings, and whether the Commissioner’s final decision applies the proper

legal standards. Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). When a

federal district court reviews the Commissioner’s decision, it does not “re-weigh

conflicting evidence, make credibility determinations, or substitute [its]

judgment for that of the [Commissioner].” Craig v. Chater, 76 F.3d 585, 589

(4th Cir. 1996). Accordingly, the issue before the Court is not whether Plaintiff

is disabled but, rather, whether the Commissioner’s decision that he is not

disabled is supported by substantial evidence in the record and based on the

correct application of the law. Id.

V. Discussion

A. Consideration of Katie Martin’s Opinion

For applications filed on or after March 27, 2017, such as Plaintiff’s, the

Administration has changed how adjudicators assess medical opinions and

prior administrative medical findings. See 82 Fed. Reg. 5844-01; 20 C.F.R. §

404.1520c(a)); 20 C.F.R. § 416.920c(a).2 Specifically, an ALJ is now required to

consider and articulate how persuasive he or she finds each medical opinion or

2 Prior administrative medical findings include state agency consultant findings

regarding the severity of a claimant’s symptoms, whether a claimant’s impairments

meet or medically equal a listing, and a claimant’s residual functional capacity. See

20 C.F.R. §§ 404.1513(a)(5); 416.913(a)(5). A “medical opinion” is a statement from a

medical source about what a claimant can still do despite his or her impairments and

whether the claimant has limitations in his or her ability to perform the physical,

mental, or other demands of work. See 20 C.F.R. §§ 404.1513(a)(2); 416.913(a)(2).

prior administrative medical finding to be. 20 C.F.R. §§ 404.1520c(a));

416.920c(a). In that regard, the regulations list numerous factors that are

considered, as appropriate, with “supportability” and “consistency” being the

most important. See 20 C.F.R. §§ 404.1520c(a) & (c); 416.920c(a) & (c).

“Supportability is an internal check that references objective medical evidence

and supporting explanations that come from the source itself. Consistency is

an external check that references evidence from other medical and nonmedical

sources.” Bright v. Saul, No. 1:19CV504, 2020 WL 4483008, at *2 (M.D.N.C.

Aug. 4, 2020).

Here, Plaintiff argues that the ALJ improperly rejected the opinion of

Katie Martin, a licensed professional counselor. In a November 1, 2019 Mental

Capacity Questionnaire, Ms. Martin indicated that Plaintiff had mild

limitations in understanding, remembering, or applying information and in

interacting with others; moderate limitations in concentrating, persisting, or

maintaining pace and in “adaption;” would require unscheduled breaks; and

would miss more than four days of work per month. AR 1111-1118.

The ALJ did not find Ms. Martin’s opinion to be persuasive. AR 25. In

support of that conclusion, the ALJ explained that the opinion was not

supported by treatment notes indicating that Plaintiff’s “conditions improved

with medications and that his memory, attention and concentration were

generally intact.” AR at 25; see also AR 18 (citing AR 766-767; 1060; 1063;

1068-1069 (medical records reflecting Plaintiff was fully oriented and alert;

exhibited logical speech; normal mood, affect, insight, and judgment; intact

memory, attention, and concentration; and reported in August 2019 that his

medications “helped with mood some”)); AR 22 (citing AR 699 (medical record

reflecting Plaintiff has no impairment in memory, attention span, ability to

concentrate or mood); AR 857-860 (Plaintiff reported spinal cord stimulator

removes his leg pain, and that medications improved his back pain some); AR

1101 (“patient has been managing his pain well on oxycodone”)).

Additionally, the ALJ noted that Ms. Martin’s opinion was in “check-box”

form and relied heavily on Plaintiff’s self-reported symptoms. AR 25. While a

conclusory, stand-alone “check box” form is not favored, such a form may

constitute some evidence of a claimant’s functional limitations if it is

appropriately supported by other evidence in the record. See Williams v.

Colvin, No. 1:14cv18-MOC-DLH, 2015 WL 1000321, at *7 (W.D.N.C. March 6,

2015); Thomas v. Berryhill, No. 4:16cv15-D, 2017 WL 1047253, at *7 (E.D.N.C.

Feb. 15, 2017) (check box or fill in the blank forms are weak evidence unless

supported by medical records). Here, as discussed above, the ALJ explained

why the check-box form was not supported by Plaintiff’s treatment records.

Finally, the ALJ explained that Ms. Martin’s opinion was inconsistent

with Plaintiff’s “very conservative mental heath treatment and his daily

activities, including his ability to care for himself, care for his children, cook,

clean, and drive.” AR 25; see also AR 18-19 (discussing Plaintiff’s minimal

mental health treatment and reported daily activities); AR 23-24 (discussing

AR 1083, 1011, 1087 (records reflecting that Plaintiff cares for his children and

helps get them ready for school and with homework, that he takes them to the

park most afternoons, prepares meals, can go shopping, and can do some light

household chores, reported getting metal in his eye while working with metal,

and reported that he was doing more around the house to help when his wife

was pregnant)).

Plaintiff argues that the ALJ failed to provide “an accurate and logical

bridge” between the evidence and his conclusions, and that the ALJ “simply

disagree[d]” with Ms. Martin’s opinions. See Doc. 17 at 7 & 8. However, as

discussed above, the ALJ explained the basis for his finding that Ms. Martin’s

opinion was not persuasive and provided substantial evidence to support that

conclusion. See Petty v. Saul, No. 1:19-cv-00012-FDW, 2020 WL 1441436, at

*4 (W.D.N.C. March 20, 2020) (“The ALJ considered Dr. Ocloo’s opinion in light

of the rest of the record and decided it warranted ‘some’ weight. The ALJ

provided substantial evidence for her weight determination; therefore, the

Court will not disturb the ALJ’s decision”).

B. Plaintiff’s Subjective Complaints

Plaintiff also argues that the ALJ erred in rejecting his testimony

regarding the extent of his pain, use of a cane, need to change positions

frequently, and need to lay on the couch for two to three hours a day. See Doc.

17 at 9-11.

In evaluating the intensity, persistence and limiting effects of an

individual’s symptoms, an ALJ is to consider factors such as the individual’s

medical history, treatment history, and daily activities. SSR 16-3p; Titles II

and XVI: Evaluation of Symptoms in Disability Claims, 2016 WL 1119029

(Mar. 16, 2016) (citing 20 C.F.R. §§ 404.1529(c), 416.929(c)).

Here, the ALJ discussed Plaintiff’s daily activities as well as medical

records, including those regarding Plaintiff’s mental health, surgeries, ongoing

complaints of pain, and antalgic gait. See AR 21-22 (citing, for example, AR

469, 491, 609 (regarding Plaintiff’s discectomies and the placement of spinal

cord stimulator); AR 857-860 & 622 (reflecting antalgic gait)). The ALJ also

pointed to other records reflecting that Plaintiff exhibited full strength in his

lower and upper extremities and reported improvement with the stimulator

and medications. AR 21-22 (citing, for example, AR 794-795; 696; 699

(treatment records reflecting full strength; normal gait)).

Additionally, the ALJ stated that Plaintiff had not attempted “other

forms of conservative treatment such as chiropractic care or recent physical

therapy” and that Plaintiff did not appear to require “inpatient admissions or

frequent emergency care for stabilization of back pain.” AR 23. The ALJ

explained that use of a cane was “not documented in the record and does not

appear to be prescribed by his medical providers.” AR 23.

Under these circumstances, the undersigned is not left to guess at the

foundations for the ALJ’s conclusions and finds that the ALJ explained his

determination regarding Plaintiff’s subjective complaints adequately. See

Brown v. Commissioner Social Security Administration, 873 F.3d 251, 269 (4th

Cir. 2017) (“the ALJ must build an accurate and logical bridge from the

evidence to his conclusion that [the claimant’s] testimony was not credible”)

(internal quotations and citations omitted).

C. Hypothetical Posed to the VE

A “hypothetical question is unimpeachable if it ‘adequately reflect[s]’ a

residual functional capacity for which the ALJ had sufficient evidence.” Fisher

v. Barnhart, 181 Fed. Appx. 359, 364 (4th Cir. 2006) (unpublished) (citing

Johnson v. Barnhart, 434 F.3d 650, 659 (4th Cir. 2005) (alterations in original).

Here, the hypothetical upon which the ALJ relied is consistent with the

limitations set forth in Plaintiff’s RFC.

Plaintiff, however, contends that additional limitations should have been

recognized. Specifically, Plaintiff asserts that the ALJ should have relied on

the VE’s testimony that an individual who (1) “could not sit, stand, and or walk

in some combination for a total of eight hours a day…with the remaining time

spent laying down or reclined with feet elevated,” (2) would be off task 20% of

the time due to pain or the need for unscheduled breaks, or (3) “would have

three or more absences a month” would be precluded from employment. See

AR 62. These proposed limitations appear to be based on Plaintiff’s testimony

regarding his subjective complaints and the limitations set forth in Ms.

Martin’s opinion. As discussed above, though, the ALJ explained and

appropriately supported his decision not to include such limitations in

Plaintiff’s RFC.

D. Plaintiff’s Constitutional Challenge3

42 U.S.C. § 902(a)(3) provides that the “[a]n individual serving in the

office of Commissioner [of the Social Security Administration] may be removed

from office only pursuant to a finding by the President of neglect of duty or

malfeasance in office.” Plaintiff argues that this removal provision is

unconstitutional, and therefore his case should be remanded for a hearing

before a new ALJ. Doc. 19 at 1.

Plaintiff relies on Collins v. Yellen, 141 S.Ct. 1761, 210 L.Ed.2d 432

(2021) and Seila Law, LLC v. Consumer Financial Protection Bureau, 140 S.Ct.

3 In his Motion to Remand, Plaintiff additionally asks the Court to “stay this

proceeding for a period of 30 days, to provide an opportunity for Counsel for the

Defendant to receive instructions from the new senior management of the Agency, as

to how the Agency determines it needs to proceed.” Doc. 18 at 2. Plaintiff did not file

a separate motion with supporting authorities seeking such a stay, and in any event

the Commissioner has filed a substantive response to the Motion to Remand and

Plaintiff has replied. Docs. 23 & 24.

2183, 207 L.Ed.2d 494 (2020), in which the United States Supreme Court found

that statutory tenure protection provisions violated separation of powers

principles. See Collins, 141 S.Ct. at 1783 (“for cause” restriction on the

President’s power to remove the Director of the Federal Housing Finance

Agency, as set forth in the Housing and Economic Recovery Act of 2008

(Recovery Act), 122 Stat. 2654, 12 U.S.C. § 4501 et seq., violates the separation

of powers); Seila Law, 140 S.Ct. at 2197 (Congress could not limit the

President’s power to remove the Director of the Consumer Financial Protection

Bureau to instances of “inefficiency, neglect, or malfeasance”).

In response to these decisions, the Office of Legal Counsel issued a

Memorandum Opinion for the Deputy Counsel to the President which

concluded that the President may remove the Commissioner of Social Security

at will and that the statutory removal restriction in 42 U.S.C. § 902(a)(3) is

unenforceable. See 2021 WL 2981542 (O.L.C.); see also Doc. 19-1.

Here, the Commissioner agrees 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.” Doc. 23 at 1. The parties

disagree, however, as to how § 902(a)(3) should effect the ALJ’s decision in this

matter.

As one court in this district recently explained:

In Collins v. Yellen, 141 S. Ct. 1761 (2021), the

Supreme Court recently held that where an

unconstitutional statutory removal restriction exists,

a plaintiff seeking relief on that basis must show that

the restriction caused his alleged harm. The Collins

Court reasoned that the relevant agency officials were

“properly appointed” pursuant to a statute that

exhibited “no constitutional defect in the ... method of

appointment” and that “the unlawfulness of [a]

removal provision” does not strip [an official] of the

power to undertake the other responsibilities of his

office[.]” The Court continued that “there is no reason

to regard any of the actions taken” by the agency

during this period “as void.” Id. at 1787, 1788 n.23.

Osborne v. Kijakazi, 5:21-cv-9-MOC, 2021 WL

5890668, at *3 (W.N.D.C. Dec. 13, 2021).

Here, Plaintiff seems to argue that he has been harmed by § 902(a)(3)

because the changes to how adjudicators assess medical opinions and prior

administrative medical findings for applications such as Plaintiff’s can be

traced back to “the improperly appointed and now removed Commissioner.”

Doc. 24 at 1.4

However, Plaintiff has not explained – even if this matter were to be

remanded to a new ALJ – why that ALJ would be compelled to apply the rules

for analyzing opinion evidence that governed the review of applications

submitted prior to March 27, 2017. Relatedly, even if the “treating physician

4 Presumably, Plaintiff believes that his claim would have been resolved in his favor

under the “treating physician rule” which was in effect for applications filed prior to

March 27, 2017. See also Doc. 17 at 7-8 (Plaintiff’s brief in support of his Motion for

Summary Judgment arguing that the ALJ erred in failing to assign controlling

weight to the opinion of his treating mental health counselor, Ms. Martin).

rule” were applied, it is not clear why the outcome would be different here

because the ALJ did consider whether Ms. Martin’s opinions were consistent

with her own and other treatment records. See Lewis v. Berryhill, 858 F.3d

858, 867 (4th Cir. 2017) (under previous regulations, an ALJ was “required to

give ‘controlling weight’ to opinions proffered by a claimant’s treating

physicians so long as the opinion is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the claimant’s] case record”) (quoting 20 C.F.R.

§ 404.1527(c)(2)) (alterations in original)).

Additionally, to the extent Plaintiff is arguing that the exercise of the

Commissioner’s rulemaking authority was invalid due to 42 U.S.C. § 902(a)(3),

this argument has been rejected. See Collins, 141 S.Ct. 1761, 1788 n. 23

(“Settled precedent also confirms that the unlawfulness of the removal

provision does not strip the Director of the power to undertake the other

responsibilities of his office”). Likewise, while Plaintiff contends that remand

is an appropriate remedy where a defect in the ALJ’s appointment exists, see

Doc. 19 at 2-3, this argument confuses potential problems concerning the

process by which an official is appointed with potential problems regarding the

manner by which the official may subsequently be removed. See Lucia v. SEC,

138 S.Ct. 2044 (2018); Hutchens v. Kijakazi, No. 1:20CV1124, 2021 WL

5834409, at *11 (M.D.N.C. Dec. 9, 2021), recommendation adopted (M.D.N.C.

Jan. 5, 2022) (“Unlike Appointments Clause cases, where courts have found

the very authority under which a government official has acted

unconstitutional…the unconstitutional removal provision at issue here did not

impact then-Commissioner Saul’s ability to carry out the duties of his office”)

(internal citations omitted); Lisa Y. v. Commissioner of Social Security, No.

C21-5207-BAT, ---F.Supp.3d.---, 2021 WL 5177363 at *7 (W.D. Wash. Nov. 8,

2021) (explaining that the Supreme Court in Collins rejected the argument

that an invalid removal provision rendered the agency’s actions void from the

outset).

Finally, “the examples provided by the Supreme Court in Collins of

situations in which a plaintiff was actually harmed by an unconstitutional

removal protection provision suggest that the bar is quite high.” Helms v.

Commissioner of Social Security, No. 3:20-cv-589-MOC, 2021 WL 5710096, at

*2 (W.D.N.C. Dec. 1, 2021); see also Brand v. Kijakazi, No. 2:20-cv-02219-NJK,

---F.Supp.3d---, 2021 WL 5868131, at *6 (D. Nev. Dec. 10, 2021) (rejecting

plaintiff’s argument that President Biden’s statements regarding Saul’s firing

evidenced a “strong possibility” of harm as “too conclusory, speculative, and

attenuated”). Here, Plaintiff has not established he was actually harmed by 42

U.S.C. § 902(a)(3). See Helms, 2021 WL 5710096, at *3 (“The Court finds that

it is implausible that the Commissioner’s protection from removal from office,

whether constitutional or not, could have affected ALJ Goodson’s decision or

any other aspect of the administrative litigation in a material way”); Shelton

v. Kijakazi, No. 1:21CV43-GCM, 2022 WL 130981, at *3 (W.D.N.C. Jan. 13,

2022) (“Plaintiff herein offers no evidence to demonstrate a nexus between

Section 902(a)(3)’s removal restriction and the denial of his benefits claim”).®

VI. Conclusion

For the reasons stated above,

(1) Plaintiff's Motion for Summary Judgment (Doc. 16) is DENIED.

(2) Plaintiff's Motion to Remand (Doc. 18) is DENIED.

(3) Defendant’s Motion for Summary Judgment (Doc. 21) is GRANTED, and

this case is DISMISSED. The Clerk of Court is respectfully directed to

enter a separate judgment in accordance with this Order, thereby closing

the case.

Signed: March 3, 2022

Cas J

W. Carleton Metcalf py

United States Magistrate Judge + AM J

5 Considering the authorities discussed herein, the undersigned does not reach the

Commissioner’s remaining constitutional arguments. See Doc. 23 at 10-17.

15