Bruce v. Commissioner of the Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

KENNETH M. BRUCE, ) Case No. 1:21-cv-35

)

Plaintiff, )

) MAGISTRATE JUDGE

v. ) THOMAS M. PARKER

)

COMMISSIONER OF )

SOCIAL SECURITY, ) MEMORANDUM OPINION AND

) ORDER1

Defendant. )

Plaintiff, Kenneth M. Bruce, seeks judicial review of the final decision of the

Commissioner of Social Security, denying his application for disability insurance benefits

(“DIB”) under Title II of the Social Security Act. Bruce challenges the Administrative Law

Judge’s (“ALJ”) negative findings, contending that: (i) the ALJ erred in determining that he did

not have a medically determinable impairment of multiple sclerosis; and (ii) the ALJ

misevaluated the opinion evidence and reached a residual functional capacity (“RFC”)

determination that did not accurately portray his functional limitations. Bruce additionally

challenges as a violation of the principle of separation of powers the structure of the Social

Security Administration (“SSA”), because under 42 U.S.C. § 902(a)(3), the Commissioner does

not serve at the will of the president.

1 This matter is before me pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), and the parties consented to my

jurisdiction under 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73. ECF Doc. 14.

Because the ALJ applied proper legal standards and reached a decision supported by

substantial evidence in determining that Bruce did not have a medically determinable impairment

of multiple sclerosis; and because any gaps in the ALJ’s analysis of the opinion evidence were

harmless; and because Bruce lacks standing to raise his constitutional challenge, the

Commissioner’s final decision denying Bruce’s application for DIB must be affirmed.

I. Procedural History

Bruce applied for DIB on September 27, 2012. (Tr. 159).2 Bruce alleged that he became

disabled on May 31, 2012, due to: 1. enlarged heart; 2. enlarged prostate; 3. slipped discs in his

back/neck; 4. high blood pressure; 5. anxiety; and 6. depression. (Tr. 159, 188). The SSA

denied Bruce’s application initially and upon reconsideration. (Tr. 76-102). ALJ Frederick

Andreas heard Bruce’s case on January 27, 2015 and denied his application in a May 1, 2015

decision. (Tr. 11-24, 29-74). On July 25, 2016, the Appeals Council declined further review.

(Tr. 1-3).

On September 19, 2016, Bruce filed a complaint to obtain judicial review. CM/ECF for

the N.D. Ohio, No. 1:16-cv-2320, doc. 1. On February 8, 2017, the court remanded Bruce’s case

to the Commissioner for further proceedings pursuant to the parties’ joint stipulation to remand.

(Tr. 492-93). And on September 18, 2017, the Appeals Council remanded the case back to an

ALJ for further proceedings. (Tr. 496-99).

On February 27, 2018, the ALJ held a second hearing on Bruce’s case and denied his

claim in an August 22, 2018 decision. (Tr. 444-91, 504-19). On January 25, 2020, the Appeals

Council accepted review and remanded Bruce’s case back to a different ALJ for further

administrative proceedings. (Tr. 526-29).

2 The administrative transcript appears in ECF Doc. 12.

On August 13, 2020, ALJ Traci Hixson held a third hearing on Bruce’s case and denied

his claim in a September 10, 2020 decision. (Tr. 366-82, 390-443). In doing so, the ALJ

determined at Step Two of the sequential evaluation process that Bruce had the severe

impairments of asbestosis, obesity, and social phobia. (Tr. 369). At Step Four, the ALJ

determined that Bruce had the RFC to perform work at the medium exertion level, except:

[Bruce] can occasionally climb ramps and stairs, but not climb ladders, ropes, or

scaffolds, he would not be exposed to extreme temperatures, humidity,

concentrated pulmonary irritants, or unprotected heights, he can perform simple

routine tasks with simple short instructions and make simple decisions that do not

require advanced planning, he would have occasional workplace changes, no fast

pace production quotas, and occasional and superficial interaction with

coworkers, supervisors, [and the] public, with superficial referring to the ability to

ask and answer simple questions, give and follow simple direction, understand

and incorporate simple correction or criticism, and he would require a 10 minute

break every two hours.

(Tr. 372).

Based on vocational expert testimony that a hypothetical individual with Bruce’s age,

experience, and RFC could work such available occupations as hand packager, cleaner, and linen

room attendant, the ALJ determined that Bruce was not disabled. (Tr. 379-81). Bruce did not

seek Appeals Council review, rendering the ALJ’s decision the final decision of the

Commissioner. See 20 C.F.R. § 416.1484(d) (stating that the ALJ’s decision on remand

becomes the final decision of the Commissioner if the claimant does not file exceptions

disagreeing with the ALJ’s decision). On January 7, 2021, Bruce filed a complaint to obtain

judicial review. ECF Doc. 1.

II. Evidence

A. Personal, Educational, and Vocational Evidence

Bruce was born on August 17, 1960. (Tr. 159). He was 51 years old on the alleged onset

date and 53 years old on the date last insured. (Tr. 368). Bruce had a 9th grade education and no

specialized training. (Tr. 189). He had past work as a furnace repairer and janitor, which the

ALJ determined he was unable to perform. (Tr. 189, 379, 396).

B. Relevant Medical Evidence

1. Physical Impairments

On July 19, 2012, Bruce visited Craig Recko, MD, to establish care. (Tr. 232). Bruce

reported chest pain and dyspnea on exertion. Id. Bruce reported that the month before, he spit

up blood and had an episode of vertigo with nystagmus and a “buzzing” feeling in his head. Id.

And Bruce reported a history of enlarged heart, asbestos exposure, enlarged prostate,

hemoptysis, tobacco use, and hypertension. Id. On physical examination, Bruce had

unremarkable results. (Tr. 234). Bruce was diagnosed with: (i) unspecified chest pain;

(ii) dyspnea on exertion; (iii) hemoptysis; (iv) shortness of breath; (v) groin pain; (vi) dizziness;

(vii) vertigo; (viii) hypertension; (ix) tobacco abuse; and (x) asbestos exposure. (Tr. 234-35).

Dr. Recko stated that although Bruce had a “very concerning presentation/constellation of

symptoms,” Bruce was not ill appearing and had a normal EKG. (Tr. 235). Dr. Recko

prescribed medication and an inhaler and ordered blood and x-ray testing. (Tr. 234-35); see (Tr.

248) (x-ray results).

On February 7, 2013, Bruce visited Khalid Darr, MD, for a consultative examination.

(Tr. 260-63). Bruce reported as his chief complaints cervical pain, lower back pain, and

shortness of breath. (Tr. 260). On physical examination, Bruce had unremarkable results except

for his self-reports of shortness of breath after walking half a block or climbing five steps; neck

stiffness and pain and headache following a workplace injury in 1983; and lower back stiffness

and radiating pain following a workplace injury in 1990. (Tr. 260-62). Dr. Darr diagnosed

Bruce with probable chronic obstructive pulmonary disease (“COPD”) and “remote history of

cervical and lumbar spine injuries with no residual physical findings.” (Tr. 263).

On November 26, 2013, Bruce began receiving treatment at the Lorain County Free

Clinic, Inc. (Tr. 314). Bruce reported burning and numbness in his feet, as well as back pain.

Id. On physical examination, Bruce had unremarkable results. (Tr. 315). On December 3, 2013,

Bruce underwent x-ray examination of his chest, which gave unremarkable results. (Tr. 293).

On December 20, 2013, Bruce returned to the clinic, reporting hypertension and “pins &

needles.” (Tr. 318). On physical examination, Bruce had unremarkable results. Id. He was

diagnosed with hypertension, peripheral neuropathy, and hyperlipidemia. Id.

Bruce’s date last insured (and therefore the end of the period under adjudication) was

December 31, 2013. (Tr. 368). All of the following medical records deal with the period after

his date last insured, but may be relevant to the extent they contain evidence of Bruce’s

functional limitations prior to December 31, 2013.

On March 28, 2014, Bruce reported to the attending physician assistance at the clinic

weakness, fatigue, chest pain, and imbalance. (Tr. 317). On physical examination, Bruce had a

tremor and positive Romberg sign test. Id. Bruce was diagnosed with hyperlipidemia, motor

weakness, and cough. Id. The attending physician assistant referred Bruce to a neurologist and

for an MRI exam. Id.

On April 9, 2014, Bruce underwent MRI examination of his brain, the results of which

showed “nonspecific white matter flair changes, not in characteristic orientation for

demyelinating disease, which nonetheless remains in the differential along with sequela of

microvascular disease as most common etiologies.” (Tr. 298).

On April 23, 2014, Bruce reported to the attending nurse practitioner at the clinic

confusion, balance problems, and peripheral neuropathy. (Tr. 316). On physical examination,

he coughed frequently. Id.

On June 14, 2014, Bruce visited John Escolas, DO, to establish care. (Tr. 303). Bruce

reported coughing, fatigue, headaches, and neck pain. Id. On physical examination, Bruce had

unremarkable results. (Tr. 305). Dr. Escolas referred Bruce to a gastroenterologist. Id.

On September 16, 2014, Bruce visited Dr. Escolas to review the results of recent stress

and colonoscopy tests. (Tr. 306). He also reported that over a month earlier he had experienced

coughing, headaches, vertigo, visual change, and weakness. Id. On physical examination, Bruce

had unremarkable results. (Tr. 308).

On October 7, 2014, Bruce reported to Dr. Escola a new episode of chest pain,

congestion, coughing, headaches, joint pain, neck pain, rhinorrhea, sinus pain, sneezing, sore

throat, swollen glands, and wheezing. (Tr. 311). On physical exam, Bruce had unremarkable

results. (Tr. 312). Dr. Escola diagnosed Bruce with acute pharyngitis, sinusitis, fatigue, tobacco

use, and COPD. Id.

On February 13, 2015, Bruce and his wife visited Dhruv R. Patel, MD, for a neurological

consultation upon Dr. Escolas’s referral. (Tr. 337). Bruce’s wife reported that Bruce had

tremors which began around 2011, memory loss, and “mini blackout episodes” with no recall of

what transpired before the blackout. Id. Bruce also reported a loss of balance, back pain, and

numbness in his legs. (Tr. 337-38). On physical examination, Bruce had unremarkable results

except: (i) “a very subtle head tremor”; (ii) a “mild tremor on the right hand which is only

notable on posture”; (iii) mild ataxia; and (iv) no reflexes in the lower extremities. (Tr. 339-40).

Bruce underwent EMG examination, the results of which showed:

Cerebrovascular disease with small ischemic changes. Truly this may represent

demyelination as seen in multiple sclerosis. MRI of the brain was reviewed.

There appears to be some corpus callosum flair in the sagittal views as well as

multiple white matter disease. Our clinical suspicion would, therefore, point

towards demyelination as seen in multiple sclerosis. These findings appear to be

of chronic nature and … may have been there for a few years. His history also

appears to be of at least five years duration.

***

The memory changes are likely related to his underlying insomnia and depression,

though, these are not uncommonly seen in demyelination as seen in multiple

sclerosis.

(Tr. 340-41). Dr. Patel stated, however, that additional testing was necessary to complete a

diagnosis. (Tr. 341). Dr. Patel diagnosed Bruce with essential and other specified forms of

tremor, syncope and collapse, and disturbance of the skin. (Tr. 340).

On April 3, 2015, Bruce underwent MRI examination of his brain, which Dr. Patel

confirmed showed demyelination as seen in multiple sclerosis, which “likely may have been

present for many years.” (Tr. 783-84).

2. Mental Impairments

During the period under adjudication, Bruce had a history of depression but there were no

treatment notes reflecting treatment specifically for mental health. (Tr. 243, 272).

C. Relevant Opinion Evidence

Bruce challenges only the ALJ’s evaluation of the opinion evidence concerning his

mental health impairments; thus, the court does not summarize the opinion evidence concerning

his physical impairments.

1. Consultative Examiner, Ronald G. Smith, PhD

On February 11, 2013, Bruce visited Ronald G. Smith, PhD, for a psychological

evaluation. (Tr. 269). Bruce reported that he spent most of his time by himself and did not like

crowds. (Tr. 272). Bruce stated that when faced with crowds he became “too nervous,” “can’t

remember stuff,” and could hardly speak. Id. And Bruce reported that he suffered from anxiety

attacks, which were usually triggered by having to speak with others in a crowd. (Tr. 272-73).

Bruce also reported memory problems after being hit on the head with a steel boom in 1982. (Tr.

273). Upon examination, Bruce was able to recall his age and birthdate and the names of current

and recent presidents; count backward from 20 to 1 in 27 seconds; say the alphabet in 29

seconds; count from 1 to 40 by threes in 34 seconds; and remember as many as four digits

forward and three digits backward. Id.

Dr. Smith diagnosed Bruce with social phobia and assessed a Global Assessment of

Functioning score of 55. (Tr. 274-75). Dr. Smith opined that Bruce had no limitations with

understanding, remembering, or carrying out instructions. (Tr. 275). Dr. Smith opined that

although Bruce “would probably be capable of maintaining adequate attention … his

concentration and persistence may suffer at times due to anxiety in relation to having to deal with

other people on the job.” Id. Dr. Smith opined that Bruce could effectively deal with

supervisors but “may have” difficulty dealing coworkers. Id. Lastly, Dr. Smith opined that

Smith “may have some difficulty dealing effectively with interpersonal work pressures due to his

social anxiety.” (Tr. 276).

2. State Agency Consultants

On February 19, 2013, Caroline Lewin, PhD, evaluated Bruce’s mental capacity based on

a review of the medical record. (Tr. 80, 84-86). Dr. Lewin evaluated Bruce’s mental RFC,

finding that Bruce was moderately limited in his ability to understand and remember detailed

instructions, such that he could complete simple one- to two-step tasks. (Tr. 84). Dr. Lewin

found that Bruce was moderately limited in his ability to carry out detailed instructions and

maintain attention and concentration, such that he could “complete tasks that do not involve

extended periods of attention, concentration or more than daily planning.” (Tr. 84-85).

Dr. Lewin found that Bruce was moderately limited in his ability to accept instructions and

accept criticism, such that he “should not be required to influence others to follow instructions,

demands or handle criticism.” (Tr. 85). Lastly, Dr. Lewin found that Bruce had moderate

limitations responding to changes, such that he could “complete tasks where there is no more

than occasional change; and when change occurs it can be explained in simple terms.” Id. On

June 2, 2013, Roseann Umana, PhD, concurred with Dr. Lewin’s findings. (Tr. 94-95, 98-100).

D. Relevant Testimonial Evidence

Because the issues Bruce raises in this action do not implicate his testimony, it is

unnecessary to summarize the entirety of his testimony at the various ALJ hearings. However, at

the February 27, 2018 hearing, the ALJ noted the medical records indicating “a slight head

tremor and a mild hand tremor” and asked Bruce if he was having those issues prior to December

of 2013. (Tr. 478). Bruce stated he’d been having them “quite a while before that,” but was

afraid to tell anyone at work because they “always like to get rid of everybody so if they would.”

Id. The ALJ asked Bruce if he was able to do the job while he had the tremor, and Bruce stated,

“Yeah, I was still able to do it. But it just kept getting worse.” Id.

At the February 27, 2018 hearing, the ALJ also asked vocational expert (“VE”) Eric

Dennison to assume a hypothetical person with Bruce’s age, education, and work experience,

but, in relevant part, limited to: (i) medium work; (ii) completing tasks that did not involve

extended periods of attention, concentration, and more than daily planning; (iii) completing tasks

where there was no more than occasional change, with changes explained in simple terms and

job duties; (iv) interacting superficially with others, meaning no arbitration, negotiation, conflict

resolution, management, supervision, or responsibility over the welfare of others; and

(v) handling occasional criticism. (Tr. 481, 484). The VE testified that such an individual could

perform work as linen room attendant, marker, and tumbler. (Tr. 486-87).

At the August 13, 2020 hearing, the ALJ asked VE Deborah Lee to assume a hypothetical

person with Bruce’s age, education, and work experience but, in relevant part, limited to:

(i) medium work; (ii) performing simple, routine tasks with simple, short instructions, meaning

decisions that did not require advances planning; (iii) occasional workplaces changes; (iv) no

fast-paced production quotas; (v) occasional and superficial interaction with coworkers,

supervisors, and the public, with superficial referring to the ability to ask and answer simple

questions, give and follow simple direction, and understand and incorporate simple correction or

criticism. (Tr. 419-20). The VE testified the hypothetical individual could perform work as a

hand packager, cleaner, and linen room attendant. (Tr. 421). The VE testified her answer would

not change if the hypothetical were limited to 10-minute breaks every two hours. Id. If reduced

to no interaction with the public and no tandem work, the VE testified the individual could work

as an inspector hand packager, cleaner, and marker. (Tr. 423-24).

The VE testified that the Dictionary of Occupational Titles (“DOT”) defined reasoning

level one as requiring one- or two-step instruction, but the DOT was silent with respect to one- or

two-step tasks. (Tr. 437-39). The VE testified that it was difficult to say with certainty what

counted as a one-step or two-step task because a task can be comprised of elements, which

themselves could be described as separate tasks. (Tr. 437-38, 440-41). She testified, however,

that folding clothes or packaging boxes could be described as one task, even if the task could be

subdivided. (Tr. 438).

III. Law & Analysis

A. Standard of Review

The court reviews the Commissioner’s final decision to determine whether it was

supported by substantial evidence and whether proper legal standards were applied. 42 U.S.C.

§ 405(g); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Under this

standard, the court cannot decide the facts anew, evaluate credibility, or re-weigh the evidence.

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). And, even if a preponderance

of the evidence supports the claimant’s position, the Commissioner’s decision still cannot be

overturned “‘so long as substantial evidence also supports the conclusion reached by the ALJ.’”

O’Brien v. Comm’r of Soc. Sec., 819 F. App’x 409, 416 (6th Cir. 2020) (quoting Jones, 336 F.3d

at 477); see also Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (Substantial evidence “means

– and means only – ‘such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’”). But, even if substantial evidence supported the ALJ’s decision, the

court will not uphold that decision when the Commissioner failed to apply proper legal

standards, unless the legal error was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746

(6th Cir. 2006) (“[A] decision . . . will not be upheld [when] the SSA fails to follow its own

regulations and [when] that error prejudices a claimant on the merits or deprives the claimant of

a substantial right.”). And the court will not uphold a decision when the Commissioner’s

reasoning does “not build an accurate and logical bridge between the evidence and the result.”

Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Charter, 78

F.3d 305, 307 (7th Cir. 1996)); accord Shrader v. Astrue, No. 11-13000, 2012 U.S. Dist. LEXIS

157595 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is not mentioned, the court cannot

determine if it was discounted or merely overlooked.”).

B. Step Two: Multiple Sclerosis as a Medically Determinable Impairment

Bruce argues that the ALJ erred when she failed to identify his multiple sclerosis as a

medically determinable impairment. ECF Doc. 13 at 8-10. Bruce argues that the record

evidence during the period under adjudication contained references to many of the signs and

symptoms associated with multiple sclerosis, such as: (i) references to motor weakness, back

pain, burning and numbness, and dizziness; (ii) diagnoses of vertigo, foot numbness, and

peripheral neuropathy; and (iii) his hand tremors and brain lesion. ECF Doc. 13 at 10-11. Bruce

argues that Dr. Patel’s findings confirmed a diagnosis of multiple sclerosis dating back five

years. ECF Doc. 13 at 10-11. He argues that just because the diagnosis could not be confirmed

until after his date last insured, it did not mean the disease was not present during the relevant

period. ECF Doc. 13 at 11. And he argues the error was harmful because, by virtue of multiple

sclerosis not being determined to be a medically determinable impairment, it was not considered

in fashioning the RFC. ECF Doc. 13 at 12.

The Commissioner responds that substantial evidence supports the ALJ’s finding that

multiple sclerosis was not a medically determinable impairment. ECF Doc. 16 at 18-20. The

Commissioner argues that Bruce’s self-reported symptoms were insufficient to establish the

existence of a medically determinable impairment. ECF Doc. 16 at 20. The Commissioner

argues that there was no objective evidence of hand tremors during the period under adjudication

and Dr. Patel only suggested that Bruce’s multiple sclerosis had been present for five years based

on Bruce’s self-reported symptom history. ECF Doc. 16 at 20-21.

In his reply brief, Bruce argues that the ALJ failed to explain why his multiple sclerosis

was not a medically determinable impairment and that the Commissioner relies on post hoc

rationalizations for why it wasn’t. ECF Doc. 18 at 5.

At Step Two, a claimant must show that he has a “severe” medically determinable

impairment. 20 C.F.R. § 404.1520(a)(4)(ii). A condition must first qualify as a “medically

determinable impairment” before the ALJ determines whether it is “severe.” 20 C.F.R.

§ 404.1521. And whether a condition qualifies as a “medically determinable impairment” is

determined exclusively on the basis of objective medical evidence. Id. (“We will not use your

statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an

impairment(s).”). If the ALJ concludes that a condition is not a “medically determinable

impairment,” the ALJ need not consider the condition in assessing the RFC. Rouse v. Comm’r of

Soc. Sec., No. 2:16-cv-0223, 2017 U.S. Dist. LEXIS 6172, at *11 (S.D. Ohio Jan. 17, 2017). A

Step Two error is harmless, however, if the ALJ considers the impairment at later steps. See

Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 577 (6th Cir. 2009).

The ALJ applied proper legal standards and reached a decision supported by substantial

evidence in determining that Bruce did not have medically determinable impairment of multiple

sclerosis during the period under adjudication. 42 U.S.C. § 405(g); Rogers, 486 F.3d at 241.

The ALJ’s findings at Step Two did not address Bruce’s multiple sclerosis. (Tr. 369-70).

However, the ALJ addressed the condition at Step Four, stating:

Records and diagnostic imaging subsequent to the date last insured reflect

complaints of lower extremity weakness, confusion, and balance problems, as

well as a diagnosis of treatment for multiple sclerosis after the claimant was

referred by his physician, [Dr.] Escolas … to a neurologist, [Dr.] Patel … in

2015.[] (8F, 14-30; 9F, 3-4, 18-20; 10F; 11F; 12F; 14F). However, during the

relevant period, there are simply no anatomical, physiological or psychological

abnormalities shown by medically acceptable clinical or laboratory diagnostic

techniques as required by 20 CFR 404.1521 to substantiate the claimant’s most

serious complaints described at the hearing.

(Tr. 375). Two paragraphs later, after discussing obesity and the consistency of Bruce’s stated

severity of his symptoms with the evidence, the ALJ included a nearly identical paragraph. (Tr.

376-77). Although framed in terms of consistency between Bruce’s subjective symptom

complaints and the objective medical evidence, a commonsense reading of the entire ALJ

decision – including the ALJ’s citation to 20 C.F.R. § 404.1521 – indicates that the ALJ’s

reasoning applied to both her Step Two and Step Four findings. Buckhanon ex rel. J.H. v Astrue,

368 F. App’x 674, 678-79 (7th Cir. 2010).

As applicable to her Step Two findings, the ALJ applied proper legal standards and

reached a decision supported by substantial evidence. Because Bruce’s application concerned a

claim for DIB, he had to show that he was disabled on or before the expiration of his insured

status – December 31, 2013. Garner v. Heckler, 745 F.2d 383, 390 (6th Cir. 1984); see also 42

U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. § 404.130. On or before December 31, 2013, no doctor

had diagnosed multiple sclerosis; Bruce had not been evaluated or treated for multiple sclerosis;

and none of the treatment notes mentioned multiple sclerosis as a possible diagnosis. Although

Bruce claims that he had symptoms during the period under adjudication that were consistent

with those attributable to multiple sclerosis, without corroborative objective medical findings,

that is not enough. 20 C.F.R. § 404.1521; see SSR 16-3p, 2016 SSR LEXIS 5, at *5-6 (Mar. 16,

2016). The corroborative objective medical findings confirming a diagnosis of multiple sclerosis

did not occur until Dr. Patel’s interpretation of Bruce’s MRI on February 13, 2015 – over a year

after the date last insured. (Tr. 338-41, 781-84).

Bruce argues that Dr. Patel’s findings regarding Bruce’s multiple sclerosis should have

been found to relate back to the period under adjudication. (Tr. 340-41). He points out that

Dr. Patel had a “clinical suspicion” that Bruce may have had multiple sclerosis as of February

2015 which “may have been there for a few years. His history also appears to be of at least five

years duration.” (Tr. 340); see ECF Doc. 13 at 10-11. “Evidence relating to a later time period

is only minimally probative … and is only considered to the extent it illuminates a claimant’s

health before the expiration of his or her insured status.” Jones v. Comm’r of Soc. Sec., 121 F.3d

708, *3-4 [published in full-text format at 1997 U.S. App. LEXIS 18448] (6th Cir. 1997)

(unpublished) (citations omitted). The ALJ specifically discussed Bruce’s consultations with

Dr. Patel but found that during the relevant period there were “no anatomical, physiological or

psychological abnormalities shown by medically acceptable clinical or laboratory diagnostic

techniques required by 20 CFR 404.1521.” (Tr. 375). The ALJ’s findings in this regard were

consistent with the regulations because she focused on the absence of multiple-sclerosis-

corroborative findings – tremors and a brain lesion – during the period under adjudication. (Tr.

337, 375).

Moreover, the ALJ’s discussion of Bruce’s symptoms and consultation with Dr. Patel

shows that the ALJ considered Bruce’s multiple sclerosis in making her RFC analysis. Thus,

any error the ALJ may have made by not determining that Bruce’s multiple sclerosis was a

medically determinable impairment was harmless. Nejat, 359 F. App’x at 577; see also, e.g.,

Robin v. Comm’r of Soc. Sec., No. 2:21-cv-96, 2022 U.S. Dist. LEXIS 31391, at *16 (S.D. Ohio

Feb. 23, 2022); Cotton v. Comm’r of Soc. Sec., No. 2:20-cv-5477, 2021 U.S. Dist. LEXIS

226465, at *17-19 (S.D. Ohio Nov. 24, 2021); Bobb v. Comm’r of Soc. Sec., No. 2:19-cv-5612,

2021 U.S. Dist. LEXIS 34169, at *4 (S.D. Ohio Feb. 24, 2021). And Bruce has not otherwise

challenged the ALJ’s determination that Bruce’s subjective symptom complaints concerning his

multiple sclerosis were inconsistent with the objective evidence during the period under

adjudication. See generally ECF Doc. 13; ECF Doc. 18; see McPherson v. Kelsey, 125 F.3d

989, 995-96 (6th Cir. 1997). As noted at page 9 above, the record shows that Bruce

acknowledged he was able do perform his work during the period under adjudication despite

experiencing what may have been early signs of multiple sclerosis. Thus, even if it was possible

that Bruce had multiple sclerosis in 2012 and 2013, the ALJ had insufficient evidence to find that

the condition significantly limited Bruce’s ability to perform basic work activities during the

period under consideration.

Because the ALJ applied proper legal standards and reached a decision supported by

substantial evidence in conducting her Step Two analysis, the ALJ’s conclusion that Bruce’s

multiple sclerosis was not a medically determinable impairment cannot be second-guessed by

this court. Rogers, 486 F.3d at 241; O’Brien, 819 F. App’x at 416. And, moreover, any alleged

error was rendered harmless by the ALJ’s consideration of Bruce’s multiple sclerosis at later

steps. Nejat, 359 F. App’x at 577.

C. Step Four: Weighing of Opinion Evidence and RFC

Bruce argues that the ALJ failed to apply proper legal standards in weighing the opinion

evidence concerning his mental health impairments. ECF Doc. 13 at 12-17. Specifically, Bruce

argues that the ALJ gave inadequate reasons for rejecting their mental RFC findings, when

Dr. Smith’s opinion included findings that were consistent with those of the state agency

consultants. ECF Doc. 13 at 13-16. Bruce argues that the ALJ could not rely on the change in

the regulations after the state agency consultants issued their opinion to discount it. ECF Doc. 13

at 16. And Bruce argues that it was “relatively unimportant” that Dr. Smith did not find that

Bruce was limited to one- to two-step tasks because “it is likely that Dr. Smith would not provide

exactly the same opinions as the state agency doctors.” ECF Doc. 13 at 16.

The Commissioner responds that the ALJ reasonably weighed Dr. Smith’s opinion more

heavily than those of the state agency consultants. ECF Doc. 16 at 21-24. The Commissioner

argues that the state agency consultants’ mental RFC finding limiting Bruce to one- to two-step

tasks referred to Bruce’s ability to understand and carry out instructions, whereas Dr. Smith

found no limitations in that area of mental functioning. ECF Doc. 16 at 22. The Commissioner

argues that the change in the applicable regulations was relevant. ECF Doc. 16 at 23. And the

Commissioner argues that the ALJ’s mental RFC findings were otherwise consistent with the

state agency consultants’ findings and that none of the jobs the VE testified to involved

significant social interaction. ECF Doc. 16 at 22-23. The Commissioner also argues that Bruce

has not pointed to evidence that greater limitations were warranted. ECF Doc. 16 at 24.

At Step Four of the sequential evaluation process, the ALJ must weigh every medical

opinion that the SSA receives. 20 C.F.R. § 404.1527(c). Under the regulations applicable to

Bruce’s claim, the ALJ must determine the weight due to an evaluating source opinion by

considering the examining and treatment relationship, the supportability of the opinion, the

consistency of the opinion with the record as a whole, and whether the opinion was issued by a

specialist. 20 C.F.R. § 404.1527(c)(1)-(5); see SSR 06-03p, 2006 SSR LEXIS 5, at *6-7 (2006).

However, the ALJ need not give an exhaustive factor-by-factor analysis. See Francis v. Comm’r

of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011). It is enough that the ALJ consider the

opinion, assign weight, and give an explanation as to why the conflicting aspects of the opinion

were rejected. 20 C.F.R. § 404.1527(f)(2); see also SSR 96-6p, 1996 SSR LEXIS 3, at *6 (July

2, 1996); SSR 96-8p, 1996 SSR 5, at *20 (July 2, 1996); SSR 06-03p, 2006 SSR LEXIS 5, at

*15-16.

The ALJ applied proper legal standards and reached a decision supported by substantial

evidence in giving only partial weight to the state agency consultants’ mental RFC findings. 42

U.S.C. § 405(g); Rogers, 486 F.3d at 241. The ALJ complied with the regulations by

considering the evidence and clearly stating the weight assigned to each source’s opinion. 20

C.F.R. § 404.1527(c), (f)(2); (Tr. 378). And the ALJ provided sufficiently clear reasons for

giving the state agency consultants’ opinion “partial weight” when she stated:

While these opinions support a finding that the claimant required functional

limitations to account for his severe mental impairment, the mental criteria

changed since the opinions were given and the mental [RFC] was not consistent

with the opinion of Dr. Smith who felt that the claimant was capable of

understanding, remembering, or carrying out instructions. Further, Dr. Smith’s

opinion made no reference to limitation of completing simple one to two step

tasks. The opinions were supported by the diagnosis of social phobia. (6F).

(Tr. 378); see 20 C.F.R. § 404.1527(f)(2).

The changes in the paragraph B criteria could potentially be relevant under the

regulations as “other factors,” but it is not clear why the changes to the paragraph B criteria

would bear on the functional limitations the state agency consultants assessed in their opinion.

20 C.F.R. § 404.1527(c)(6). Paragraph B findings are distinct and separate from RFC findings.

SSR 96-8p, 1996 SSR LEXIS 6, at *13. Concentration, persistence, and pace, one of the areas

under which Bruce argues the ALJ erred, did not change. Maynard v. Berryhill, No. 2:17-cv-

04131, 2018 U.S. Dist. LEXIS 167350, at *13 (S.D. W. Va Sept. 28, 2018). And the changes to

the areas of social functioning were not substantial. See Montgomery v. Comm’r of Soc. Sec.,

No. 3:17-CV-00617, 2019 U.S. Dist. LEXIS 53646, at *15 (W.D. Ky. Mar. 29, 2019); 75 FR

51340-51341.

Even if the changes to the paragraph B criteria were not proper for the ALJ to consider as

a basis for giving less weight to the state agency consultants’ opinion, the error was harmless.

Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009). As the Commissioner

correctly points out, the ALJ’s mental RFC findings were in some respects consistent with those

of the state agency consultants. See Wilson v. Comm’r of Soc. Sec., 738 F.3d 541, 547 (6th Cir.

2004). The ALJ’s finding that Bruce was limited to simple decisions that did not require

advanced planning and with ten-minute breaks every two hours was consistent with the state

agency consultants’ opinion that Bruce could complete tasks that did not involve extended

periods of attention, concentration or more than daily planning. Compare (Tr. 85, 99), with (Tr.

372). And the ALJ’s finding that Bruce was limited to occasional workplace changes, no fast-

paced production, and simple instructions was consistent with the state agency consultants’

finding that Bruce could complete tasks with no more than occasional changes and that changes

be explained in simple terms. Compare (Tr. 86, 100), with (Tr. 372).

The ALJ’s finding that Bruce could only occasionally and superficially interact with

others was not consistent with the state agency consultants’ finding that Bruce should not be

required to “influence others to follow instructions, demands or handle criticism.” Compare (Tr.

85, 100), with (Tr. 372). But any error would be rendered harmless by the testimony of the VE

at the 2018 ALJ hearing that the job of linen attendant could still be performed even if the

hypothetical individual could not work in a job that required arbitration, negotiation, conflict

resolution, management, or supervision of others, which would account for the limitation to not

instruct others. (Tr. 484, 486). The state agency consultants’ opinion that Bruce should not

handle criticism would be inconsistent with Dr. Smith’s opinion that Bruce “should be able to

deal effectively with supervisors.” (Tr. 275). The inconsistency between Dr. Smith’s and the

state agency consultants’ opinions, which the ALJ relied on, however, was a proper and

independent basis upon which to reject that portion of the state agency consultants’ opinion. 20

C.F.R. § 404.1527(c)(4).

The ALJ’s consistency finding could also independently support the ALJ’s decision to

discount the state agency consultants’ finding that Bruce could only perform one- to two-step

tasks. As the Commissioner correctly points out, the state agency consultants made that finding

with respect to Bruce’s ability to remember and understand instructions, whereas Dr. Smith

found no limitations in that area of mental functioning. (Tr. 84, 98-99, 275). And Dr. Smith’s

objective exam findings, as well as the unremarkable mental status exam findings in the record,

constituted substantial evidence supporting the ALJ’s conclusion. (Tr. 373-75); see also (Tr.

261, 273).

Because the ALJ adequately explained the weight she assigned to the state agency

consultants’ opinion and any errors the ALJ may have made were harmless, the court finds no

basis for remand on account of Bruce’s Step Four challenge. 42 U.S.C. § 405(g); Rogers, 486

F.3d at 241; Bowen, 478 F.3d at 746.

D. Separation of Powers

Bruce argues that former-Commissioner Andrew Saul’s appointment violated the

principle of separation of powers because 42 U.S.C. § 902(a)(3) provides for a six-year term and

makes the Commissioner removable only upon a finding of neglect of duty or malfeasance in

office, which was similar to the statue held to violate separation of powers in Seila Law LLC v.

Consumer Fin. Prot. Bureau, 140 S. Ct. 2183 (2020) (hereafter “Seila Law”). ECF Doc. 13 at

17-18. Therefore, Bruce argues that the Commissioner had no authority to carry out any

functions of his office, and by extension, neither the ALJ nor the Appeals counsel had authority

to adjudicate Bruce’s application, necessitating a remand. ECF Doc. 13 at 18-19, 21.

The Commissioner concedes that 42 U.S.C. § 902(a)(3) violates the principle of

separation of powers but argues that Bruce is nevertheless not entitled to a remand on that basis

because, under Collins v. Yellen, 141 S. Ct. 1761 (2021), he has not shown that he was actually

harmed by the unconstitutional restriction on the president’s removal authority.3 ECF Doc. 16 at

6. Specifically, the Commissioner argues that Bruce was not harmed because the ALJ’s

appointment was ratified in July 2018 by then-Acting Commissioner Nancy Berryhill, who was

not subject to the unlawful removal provision and was presumptively removable at-will. ECF

Doc. 16 at 6, 8-10. The Commissioner alternatively argues, relying on Justice Kagan and Justice

Thomas’s concurring opinions in Collins, that Bruce cannot show actual harm because he cannot

show the unconstitutional removal provision inflicted compensable harm on him. ECF Doc. 16

at 7-8, 10-13. The Commissioner argues that because Bruce has not contested whether Saul was

properly appointed under the Appointments Clause, he did not exercise authority he did not

possess and, by extension, neither did the ALJ. ECF Doc. 16 at 10-11. The Commissioner

argues that Bruce must show that the president’s inability to remove Saul under the removal

provision affected the ALJ’s decision in this case, which the Commissioner argues Bruce has not

done. ECF Doc. 16 at 13.

In his reply brief, Bruce argues that the court need not reach the constitutional issue if it

determines a remand is warranted on another basis. ECF Doc. 18 at 6. Alternatively, Bruce adds

to his constitutional argument that he has standing under Collins because: (i) several out-of-

3 Because the court concludes that, under Collins and related caselaw, Bruce lacks standing to raise his

constitutional challenge, the Commissioner’s other alternative theories for why remand on this issue is not

warranted (as well as Bruce’s reply to those theories) are not addressed.

circuit district courts have held that an adverse decision constitutes an injury in fact; (ii) 42

U.S.C. § 902(a)(3) is unconstitutional; and (iii) he is entitled to relief. ECF Doc. 18 at 7-10. He

argues that he is entitled to relief because he was deprived a constitutionally valid ALJ and

Appeals Council adjudication process and decision. ECF Doc. 18 at 10. Bruce argues that the

Commissioner waived any argument with respect to the unconstitutional actions of the Appeals

Council by not specifically addressing it. ECF Doc. 18 at 10-12. Even if not waived, he argues

he would be entitled to relief, reiterating that the Commissioner had no valid delegable authority.

ECF Doc. 18 at 12-15. Bruce argues that because his claim asserts a structural constitutional

error, he did not need to show direct prejudice. ECF Doc. 18 at 16-18. Even if cause were

required, he argues the constitutional violation itself is sufficient. ECF Doc. 18 at 18-22. And

more specifically, he argues that the changes to Hearings, Appeals, and Litigation Law Manual

(“HALLEX”), the way musculoskeletal impairments were evaluated, and hearing procedures

implemented by Saul affected him. ECF Doc. 18 at 20, 26.

The judicial power of the federal courts “is limited to ‘cases’ and ‘controversies.’”

Muskrat v. United States, 219 U.S. 346, 356 (1911); U.S. Const. art. III § 2. From the case-and-

controversy requirement of the Constitution stems the doctrine of standing, which asks “whether

the plaintiff has made out a ‘case or controversy’ between himself and the defendant within the

meaning of Art. III.” Warth v. Seldin, 422 U.S. 490, 498 (1975); see also Summers v. Earth

Island Inst., 555 U.S. 488, 492-93 (2009). This ordinarily requires that a plaintiff show “(1) an

injury in fact (2) that’s traceable to the defendant’s conduct and (3) that the courts can redress.”

Gerber v. Herskovitz, 14 F.4th 500, 505 (6th Cir. 2021). But when a plaintiff challenges a

statutory restriction on the president’s power to remove an executive officer, the plaintiff can

establish standing “by showing that [he] was harmed by an action that was taken by such an

officer and that the plaintiff alleges was void.” Collins, 141 S. Ct. at 1788 n.24.

Both in Seila Law and Collins, the Supreme Court confronted separation-of-powers

challenges to the structure of single-head executive agencies. The Court first addressed the

structure of the Consumer Finance Protection Bureau (“CFPB”) under 12 U.S.C. § 5491(c)(3),

which made the CFPB Director removable only for “inefficiency, neglect of duty, or

malfeasance.” Seila Law, 140 S. Ct. at 2191-92. Without addressing whether the petitioner had

standing to bring its separation-of-powers argument in the district court in the first instance,4 the

Court held that § 5491(c)’s restrictions on the president’s authority to remove the single head of

the CFPB violated the principle of separation of powers. Id. at 2197.

The Court then addressed the structure of the Federal Housing Finance Agency

(“FHFA”) under 12 U.S.C. § 4512(b)(2), which made the Director of the FHFA removable by

the president only “for cause.” Collins, 141 S. Ct. at 1770. The challenge came to the Court

after the FHFA amended the formula used to calculate the amount of dividends Fannie Mae and

Freddie Mac were required to pay to the U.S. Department of the Treasury. Id. at 1774-75. The

Court determined first that the companies’ shareholders had standing to bring their constitutional

claim because: (1) the FHFA transferred the value of their property rights in the companies (their

net worth) to the Treasury via the variable dividend formula, constituting an injury in fact;

(2) the injury was traceable to the FHFA’s adoption and implementation of the amendment; and

(3) the injury was potentially redressable. Id. at 1779. The Court concluded that a

straightforward application of Seila Law led to the conclusion that § 4512(b)(2)’s removal

4 Seila Law instead determined that the petitioner had appellate standing because (1) the petitioner had

been compelled to comply with a civil investigative demand from the CFPB and provide documents it

would prefer not to, (2) the injury was traceable to the appellate court’s decision, and (3) the injury would

be redressed by a reversal of the appellate court’s decision. 140 S. Ct. at 2196.

restrictions also violated the principle of separation of powers. Id. at 1783-84. Justice Kagan,

somewhat prophetically, predicted the structure of the SSA would be “next on the chopping

block.” Id. at 1802 (Kagan, J., concurring).

Bruce lacks standing to challenge the constitutionality of the SSA’s structure. Bruce

argues that he has standing because his administrative proceedings were conducted pursuant to

policies and regulations implemented by Saul. ECF Doc. 13 at 19; ECF Doc. 18 at 20. But

that’s not enough. “[T]he unlawfulness of the removal provision does not strip the

[Commissioner] of the power to undertake the other responsibilities of his office.” Collins, 141

S. Ct. at 1788 n.23. As Justice Thomas’s concurring opinion clarified, Bruce must do more than

point to a conflict between 42 U.S.C. § 902(a)(3) and the Constitution; he must show some

action on the part of Saul that was unlawful and harmful to him. See id. at 1790-91 (Thomas, J.,

concurring)5; see also Bryan v. Comm’ of Soc. Sec., No. 2:21-cv-2835, 2022 U.S. Dist. LEXIS

31392, at *19 (S.D. Ohio Feb. 23, 2022) (“[C]ourts across the country have uniformly concluded

that the allegedly unconstitutional nature of § 902(a)(3) does not require remand.”) (collecting

cases). More to the point, Bruce must show that the policy and regulatory changes implemented

by Saul adversely affected him. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 n.1

(1992) (“[T]he injury must affect the plaintiff in a personal and individual way.”). He has

pointed to changes to HALLEX, the way musculoskeletal impairments are evaluated, and

administrative hearing procedures, but he has not argued how those changes made it more or less

likely that his applications would be denied. This is in stark contrast to the shareholders in

5 Bruce contests the weight due to the concurring opinions in Collins, stating that they represent “merely

individual justice’s personal views.” ECF Doc. 18 at 17 n.6. Bruce is correct that concurring opinions,

even those of a Supreme Court Justice, are not binding. Nevertheless, the court finds Justice Thomas’s

concurrence highly persuasive to clarifying the necessary showing of standing in separation-of-powers

cases.

Collins, who identified an injury (the loss of net worth in companies in which they owned

shares) traceable to the Director’s unlawful action (amending the formula to calculate dividends).

141 S. Ct. at 1779.

Bruce attempts to avoid the lack a traceable injury with out-of-Sixth Circuit district court

cases which have found standing based on the following reasoning: (i) § 902(a)(3) is

unconstitutional; (ii) the Commissioner therefore exercised improper authority; (iii) because the

Commissioner exercised improper authority, she had no authority to delegate; and (iv) because

the Commissioner had no delegable authority, the ALJ and the Appeals Council lacked any

authority to decide the cases before them. Sylvia v. Kijakazi, No. 5:21-CV-076, 2021 U.S. Dist.

LEXIS 194953, at *7-9 (N.D. Tex. Sept. 13, 2021); Albert v. Kijakazi, No. 1:21-cv-0004, 2021

U.S. Dist. LEXIS 146471, at *5-8 (D. Ala. Aug. 5, 2021); Tafoya v. Kijakazi, No. 21-cv-00871,

2021 U.S. Dist. LEXIS 142283, at *8-10 (D. Colo. July 29, 2021). But this reasoning conflicts

directly with the Supreme Court’s conclusion in Collins that the unconstitutionality of a removal

provision does not strip the agency head “of the power to undertake the responsibilities of his

office.” Collins, 141 S. Ct. at 1788 n.23.

Without a harm traceable to an unlawful action by the Commissioner, Bruce does not

have standing to challenge the constitutionality of § 902(a)(3). See, e.g., Rives, No. 1:20-cv-

2549, 2022 U.S. Dist. LEXIS 41167, at *66-70; Wicker v. Kijakazi, No. 20-4771, 2022 U.S. Dist.

LEXIS 15584, at *27-30 (E.D. Pa. Jan. 28, 2022); S.W. v. Comm’r of Soc. Sec., No. 3:20-cv-

05602, 2021 U.S. Dist. LEXIS 219306, at *20-21 (W.D. Wash. Nov. 12, 2021); see also Rivera-

Herrera v. Kijakazi, No. 1:20-cv-01326, 2021 U.S. Dist. LEXIS 225340, at *21 (E.D. Cal. Nov.

21, 2021) (collecting additional cases rejecting constitutional challenges to § 902(a)(3) for lack

of a fairly traceable harm).

IV. Conclusion

Because Bruce lacks standing to raise his constitutional challenge and because the ALJ

otherwise applied proper legal standards, reached a decision supported by substantial evidence,

and did not reversibly err, the Commissioner’s final decision denying Bruce’s application for

DIB is affirmed.

IT ISSO ORDERED. ?

Dated: May 17, 2022 —é: {eee

homas MXParker >

United States Magistrate Judge

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