Opinion

Kutyba v. Commissioner of the Social Security Administration

Court: District Court, N.D. Ohio
Filed: Jan 31, 2023
Cited by: 0 cases
Authority: More cited than 28.1%

holding that the ALJ did not commit reversible error in finding that 200 local jobs and 6,000 national jobs were “significant”

How later courts described this case

holding that the ALJ did not commit reversible error in finding that 200 local jobs and 6,000 national jobs were “significant”
6,000 national jobs and 200 local jobs were significant
finding that the trial court erred in granting summary judgment for the plaintiff on a Step Five challenge when 1,350 jobs existed in the local economy
finding that 400,000 national jobs and 125 local jobs was “significant”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

WALTER JOHN KUTYBA, ) CASE NO. 5:22-CV-00483-CEH

)

Plaintiff, )

) MAGISTRATE JUDGE

v. ) CARMEN E. HENDERSON

)

COMMISSIONER OF THE SOCIAL )

SECURITY ADMINISTRATION, ) MEMORANDUM ORDER & OPINION

)

Defendant, )

I. Introduction

Plaintiff, Walter John Kutyba (“Claimant”), seeks judicial review of the final decision of

the Commissioner of Social Security denying his applications for Supplemental Security Income

(“SSI”) and Disability Insurance Benefits (“DIB”). This matter is before me by consent of the

parties under 28 U.S.C. § 636(c) and Rule 73 of the Federal Rules of Civil Procedure. For the

reasons set forth below, the Court AFFIRMS the Commissioner’s decision.

II. Procedural History

Claimant filed applications for DIB and SSI on August 16, 2019, alleging a disability onset

date of June 15, 2018. (ECF No. 7, PageID #: 42). The applications were denied initially and upon

reconsideration, and Claimant requested a hearing before an administrative law judge (“ALJ”).

(ECF No. 7, PageID #: 42). On March 9, 2021, an ALJ held a telephonic hearing, during which

Claimant, represented by counsel, and an impartial vocational expert testified. (ECF No. 7, PageID

#: 42, 65). The ALJ issued a written decision finding Claimant was not disabled on April 1, 2021.

(ECF No. 7, PageID #: 39). The ALJ’s decision became final on February 3, 2022, when the

Appeals Council declined further review. (ECF No. 7, PageID #: 28).

Claimant filed his Complaint to challenge the Commissioner’s final decision on March 28,

2022. (ECF No. 1). The parties have completed briefing in this case. (ECF Nos. 10, 11, 13).

Claimant asserts the following assignments of error:

(1) The appointment of Andrew Saul as Commissioner of the Social

Security Administration violated the separation of powers. As such,

the decision in this case by an ALJ who derived her authority from

Andrew Saul was constitutionally defective.

(2) The ALJ erred when she found that [Claimant] was not disabled

based on the testimony of the vocational witness who identified only

one job [Claimant] could perform, a job which did not exist in

significant numbers in the national economy.

(3) The ALJ erred when she failed to properly consider [Claimant’s]

symptoms, including pain, in accordance with Social Security

Ruling 16-3.

(ECF No. 10, PageID #: 687).

III. Background

A. Relevant Hearing Testimony

The ALJ summarized the relevant testimony from Claimant’s hearing:

At the hearing, the claimant testified that he cannot work primarily

due to back pain that prevents him from being on his feet, and the

effects of a stroke. He indicated that he is unable to stand for more

than 10 minutes without experiencing pain, and he tried various

treatment methods such as epidural injections, but they did not help

much. According to the claimant, he is currently receiving pain

management services, his physician recommended spinal surgery,

and his stroke made things worse for him, including affecting his

right leg. He further alleged that he occasionally uses a cane,

sometimes loses his balance, has no mobility in his right arm, and

has a cyst on his left wrist that must be drained. The claimant stated

that he can lift five to 10 pounds, but will suffer for the next two

days after lifting, has problems with sitting such as being unable to

get comfortable, and has trouble with falling and staying asleep at

night. Regarding activities of daily living, the claimant testified that

he currently lives with his father and fiancé, and he performed some

gardening in the summer, but his fiancé and father did the planting,

and has been unable to engage in hobbies such as fishing for the past

two years (hearing testimony).

(ECF No. 7, PageID #: 47–48). The ALJ found this testimony inconsistent with the medical record:

The claimant’s allegations are determined to be less than fully

consistent with the evidence. The nature and degree of pain and

functional limitations alleged by the claimant is not supported by

medical and non-medical sources. Diagnostic test results and

physical examination findings have been largely unremarkable, and

the claimant had a relatively conservative treatment history for his

physical health impairments since the alleged onset date, with

conservative treatment measures such as epidural injections and

pain medications. For example, a physical examination performed

in 2020 revealed that the claimant was alert and oriented to all

spheres, in no acute distress, his gait was grossly non-antalgic, there

was tenderness in the paraspinal muscles, a facet loading test was

positive bilaterally, straight leg raise testing was consistent with

femoral stretch and L4 dermatome on the left, and he could rise from

the seated to standing position without difficulty (Exhibit 16F, pg.

4).

Regarding the consistency of the claimant’s mental health

allegations, he had a very limited treatment history since the

allege[d] onset date, without evidence of psychiatric hospitalization

in the record, and told Dr. Haaga that he was not currently taking

any psychotropic medications or receiving counseling services, nor

was he interested in therapy. Such absence of documentation of

ongoing treatment is inconsistent, and it seriously undermines

allegations of disabling, or even severe, limitations of function,

lasting twelve months in duration, and despite treatment (20 CFR

404.1520(a)(4)(ii) and 404.1509). Additionally, the claimant

reported mostly mild to moderate level symptoms during his

psychological consultative examination with Dr. Haaga, without

evidence of hallucinations, delusions, obsessions, compulsions,

cognitive disorder, current suicidal/homicidal ideation, or other

serious issues (Exhibit 9F). Thus, there are no indications in the

medical record of limitations beyond the performance of light level

work with the non-exertional restrictions listed above.

After careful consideration of the evidence, the undersigned finds

that the claimant’s medically determinable impairments could

reasonably be expected to cause the alleged symptoms; however, the

claimant’s statements concerning the intensity, persistence and

limiting effects of these symptoms are not entirely consistent with

the medical evidence and other evidence in the record for the reasons

explained in this decision.

(ECF No. 7, PageID #: 49–50).

A vocational expert also testified at the hearing. (ECF No. 7, PageID #: 76–77). She

testified that the Claimant was unable to perform past relevant work with the ALJ’s suggested

Residual Functional Capacity. (ECF No. 7, PageID #: 79). However, the expert noted that Claimant

could perform a job as a furniture rental consultant, which has 14,000 jobs in the economy. (ECF

No. 7, PageID #: 79).

B. Relevant Medical Evidence

The ALJ also summarized Claimant’s health records and symptoms:

The claimant has a history of obesity, degenerative disc disease and

arthritis of the lumbar spine, lumbar neuritis, status post stroke with

right hemiparesis, and hypertension. In June of 2020, he presented

to Dr. Dallara at University Hospitals for an initial evaluation

regarding low back pain that radiated to the bilateral legs, which was

worse in the left leg. According to the claimant, his pain involved a

sharp, achy sensation, it was made worse by everything, and his pain

increased followed a stroke that occurred last year related to right-

sided weakness (Exhibit 16F, pg. 1). The claimant rated his current

pain level as nine out of 10, and said that his past treatment methods

included pain medications, while admitting that he was taking

medications received from a friend (Exhibit 16F, pg. 2). A physical

examination performed at this time revealed that the claimant was

alert and oriented to all spheres, in no acute distress, his gait was

grossly non-antalgic, there was tenderness in the paraspinal muscles,

a facet loading test was positive bilaterally, straight leg raise testing

was consistent with femoral stretch and L4 dermatome on the left,

and he could rise from the seated to standing position without

difficulty (Exhibit 16F, pg. 4). Based on these findings, Dr. Dallara

diagnosed the claimant with lumbosacral back pain, arthritis of the

lumbar spine, degenerative disc disease, and neuritis, while advising

him to obtain an EMG and spine x-ray (Exhibit 16F, pg. 5). The

claimant underwent an EMG study in July of 2020 based on a

history of lower back pain radiating down the left thigh. This study

was mildly abnormal, showing electrodiagnostic evidence

suggestive, but not definitive for a mild left chronic L5 and S1

radiculopathy, with the need for clinical correlation (Exhibit 17F,

pg. 10). In September of 2020, the claimant underwent an MRI of

the lumbar spine based on a history of lumbar radiculopathy. This

study revealed multilevel degenerative changes of the lumbar spine,

including marked spinal canal stenosis at the L4/5 level (Exhibit

16F, pg. 6).

As noted above, the claimant also has a history of obesity. Treating

notes from University Hospitals taken in June of 2020 list the

claimant’s body mass index (BMI) at 34.86, consistent with obesity

(Exhibit 17F, pg. 4). As indicated in SSR 19-2p, obesity may have

an adverse impact upon co-existing impairments. For example,

someone with obesity and arthritis may have more pain and

limitation than might be expected from arthritis alone. In addition,

obesity may limit an individual’s ability to sustain activity on a

regular and continuing basis during an eight-hour day, five-day or

equivalent schedule. The effects of obesity have been considered in

this decision, when applicable, at each step of the sequential

evaluation, and it has been concluded that, even with this

consideration, the claimant is capable of performing a range of light

level work.

In addition to the above physical impairments, the claimant has

mental impairments including adjustment disorder with mixed

anxiety and depressed mood and neurocognitive disorder. In

December of 2019, he attended a psychological consultative

examination with Dr. Haaga. At this time, the claimant reported that

he was applying for disability benefits primarily due to his

handicaps that affected his brain, and difficulty handling stress

(Exhibit 9F, pg. 1). According to the claimant, he was never

formally diagnosed with a mental health impairment, never saw a

mental health professional, and was never psychiatrically

hospitalized. He indicated that he did not need to see a therapist, and

took some medications for anxiety after his stroke, but they were

“zombifying” for him (Exhibit 9F, pg. 4). Regarding activities of

daily living, the claimant he woke up around noon, spent his days

staring at the wall, managed his own finances, was able to drive, and

was limited in performing household chores while recovering from

his stroke. A mental status examination performed at this time

revealed that the claimant had adequate grooming and hygiene, he

was cooperative, his interaction with Dr. Haaga was adequate, his

speech was 100 percent understandable, and he needed to be

redirected at times, but his thought processes were logical,

organized, coherent, and rambling. In addition, the claimant

appeared to be depressed, with a congruent affect, he described his

sleep as problematic, endorsing onset and interruption insomnia, his

psychomotor activity was normal, he denied suicidal ideation,

intent, or plan, and there were no motor manifestations of anxiety

(Exhibit 9F, pg. 4). Finally, the claimant was alert and oriented to

all spheres, there was no evidence of hallucinations or delusions, his

attention and concentration were adequate, and he was likely

functioning in the average range of intelligence for his age (Exhibit

9F, pg. 5). Based on these findings, Dr. Haaga diagnosed the

claimant with adjustment disorder with mixed anxiety and depressed

mood, and mild neurocognitive disorder – vascular disease with

behavioral disturbance (Exhibit 9F, pg. 6).

(ECF No. 7, PageID #: 48–49).

C. Relevant Work Evidence

The ALJ summarized her findings related to Claimant’s ability to perform another job in

the national economy:

The vocational expert testified that given all of these factors the

individual would be able to perform the requirements of

representative occupations such as a furniture rental consultant

(DOT # 295.357- 018, 14,000 jobs nationally). The undersigned

finds that the vocational expert identified a significant number of

jobs in the national economy.

Pursuant to SSR 00-4p, the undersigned has determined that the

vocational expert’s testimony is consistent with the information

contained in the Dictionary of Occupational Titles. However, the

vocational expert’s testimony regarding overhead reaching and the

use of the hands in the workplace was supplemented by her training

and experience in the field. Based on the testimony of the vocational

expert, the undersigned concludes that, considering the claimant’s

age, education, work experience, and residual functional capacity,

the claimant is capable of making a successful adjustment to other

work that exists in significant numbers in the national economy. A

finding of “not disabled” is therefore appropriate under the

framework of the above-cited rules.

(ECF No. 7, PageID #: 51–52).

IV. The ALJ’s Decision

The ALJ made the following findings relevant to this appeal:

2. The claimant has not engaged in substantial gainful activity since

June 15, 2018, the alleged onset date (20 CFR 404.1571 et seq., and

416.971 et seq.).

3. The claimant has the following severe impairments: obesity,

degenerative disc disease and arthritis of the lumbar spine, lumbar

neuritis, status post stroke with right hemiparesis, hypertension,

adjustment disorder with mixed anxiety and depressed mood, and

neurocognitive disorder (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals the severity of one of

the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1

(20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925

and 416.926).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) with occasionally lifting and/or carrying, including

upward pulling, up to 20 pounds; frequently lifting and/or carrying,

including upward pulling, up to 10 pounds; standing and/or walking,

with normal breaks for a total of 6 hours in an 8-hour workday;

sitting, with normal breaks, for about 6 hours in an 8-hour workday;

pushing and/or pulling, including the operation of hand/foot

controls, is unlimited, other than as shown for lifting and/or

carrying, except occasional pushing and pulling with the right upper

extremity; occasionally climbing ramps and stairs, balancing,

stooping, kneeling, crouching, or crawling; never climbing ladders

ropes, or scaffolds; no workplace hazards, including work around

unprotected heights, commercial driving, or operating on or around

dangerous machinery; occasional use of the right upper extremity

for overhead reaching, handling, and fingering; and he is able to

perform simple, routine, tasks in an work environment where 1)

there are no tasks that involve high production quotas, or fastpaced

production demands, and 2) there are only occasional changes in

workplace tasks or duties, with any such changes being gradually

introduced and explained in advance.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965)

10. Considering the claimant’s age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from June 15, 2018, through the date of this

decision (20 CFR 404.1520(g) and 416.920(g)).

(ECF No. 7, PageID #: 44, 45, 46–47, 50, 51, 52).

V. Law & Analysis

A. Standard of Review

The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).

“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting

Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. Comm’r

of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) (citing Abbott

v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986)

(en banc)). If the Commissioner’s decision is supported by substantial evidence, it must be

affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42 U.S.C.

§ 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).

B. Standard for Disability

The Social Security regulations outline a five-step process that the ALJ must use in

determining whether a claimant is entitled to supplemental-security income or disability-insurance

benefits: (1) whether the claimant is engaged in substantial gainful activity; (2) if not, whether the

claimant has a severe impairment or combination of impairments; (3) if so, whether that

impairment, or combination of impairments, meets or equals any of the listings in 20 C.F.R. § 404,

Subpart P, Appendix 1; (4) if not, whether the claimant can perform her past relevant work in light

of her residual functional capacity (“RFC”); and (5) if not, whether, based on the claimant’s age,

education, and work experience, she can perform other work found in the national economy.

§ 404.1520(a)(4)(i)–(v); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642–43 (6th Cir. 2006).

The claimant bears the ultimate burden of producing sufficient evidence to prove that she is

disabled and, thus, entitled to benefits. § 404.1512(a). Specifically, the claimant has the burden of

proof in Steps One through Four. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.

1997). The burden shifts to the Commissioner at Step Five to establish whether the claimant has

the residual functional capacity to perform available work in the national economy. Id.

C. Discussion

Claimant raises three issues on appeal. First, he claims the appointment of Andrew Saul as

Commissioner of the Social Security Administration violated the separation of powers doctrine of

the United States Constitution. (ECF No. 10, PageID #: 696). Thus, Claimant argues that the ALJ,

who was delegated authority by Commissioner Saul, did not have the power to adjudicate this

case. (ECF No. 10, PageID #: 697). Second, Claimant contends that the ALJ erred in failing to

allow counsel to question the vocational expert about temperaments related to an alternative job

in the economy and incorrectly found that 14,000 positions in the national economy was

“significant.” (ECF No. 10, PageID #: 701). Third, Claimant alleges the ALJ failed to properly

consider his subjective complaints of pain. (ECF No. 10, PageID #: 703).

1. Claimant’s Separation of Powers Argument Fails

Claimant asserts that “[b]ased on the fact that Andrew Saul’s tenure as Commissioner of

SSA was unconstitutional, and he was Commissioner at the time of the ALJ and Appeals Council

decisions, this matter should be remanded for a de novo hearing.” (ECF No. 10, PageID #: 699).

He argues that because Acting Commissioner Saul was unconstitutionally appointed, the authority

he delegated to the ALJ to hear and ultimately determine Claimant’s application for disability

benefits was also unconstitutional. (See ECF No. 10, PageID #: 698). In support of this argument,

Claimant cites to Seila Law LLC v. CFPB, 140 S. Ct. 2183 (2020), for the proposition that Saul’s

appointment under 42 U.S.C. § 902(a) violates the separation of powers because it limits the

President’s authority to remove the Commissioner without cause. (See ECF No. 10, PageID

#: 696). The Commissioner does not dispute that the relevant removal provision “violates the

separation of powers to the extent it is construed as limiting the President’s authority to remove

the Commissioner without cause.” (ECF No. 11, PageID #: 715 (citations omitted)). Instead, the

Commissioner argues that Claimant is not entitled to relief because “even where an

unconstitutional statutory removal restriction exists, a plaintiff seeking relief on that basis must

show that the restriction actually caused him harm.” (ECF No. 11, PageID #: 716 (citing Collins

v. Yellen, 141 S. Ct. 1761, 1787–89 (2021)). Specifically, the Commissioner argues that Claimant

cannot show harm to support his claim for relief because the ALJ’s appointment was ratified by

an Acting Commissioner who was not subject to the challenged removal restriction and because

Claimant cannot show that the removal restriction caused the denial of his benefits. (ECF No. 11,

PageID #: 718).

Before the Court may address the substance of this argument, the Court must first

determine whether Claimant has standing to challenge the alleged unlawful removal provision.

The Commissioner does not specifically contest Claimant’s standing. However, even if the parties

do not challenge standing, “federal courts have a duty to consider their subject matter jurisdiction

in regard to every case and may raise the issue sua sponte.” Answers in Genesis of Ky., Inc. v.

Creation Ministries Int’l, Ltd., 556 F.3d 459, 465 (6th Cir. 2009) (citations omitted).

To establish Article III standing, a plaintiff must show that she has suffered an “injury in

fact” that is “fairly traceable” to the defendant’s conduct and would likely be “redressed by a

favorable decision.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (alterations

omitted) (citations and internal quotation marks omitted). “[F]or purposes of traceability, the

relevant inquiry is whether the plaintiffs’ injury can be traced to allegedly unlawful conduct of the

defendant, not to the provision of law that is challenged.” Collins, 141 S. Ct. at 1779 (internal

quotation marks and citation omitted).

In his reply brief, Claimant first argues that he has standing because the Commissioner

“failed to proffer any argument” that he lacked standing. (ECF No. 13, PageID #: 747). However,

“[a]s a jurisdictional requirement, standing . . . cannot be waived or forfeited.” Va. House of

Delegates v. Bethune-Hill, 139 S. Ct. 1945, 1951 (2019) (emphasis added). Next, Claimant argues

that he has standing as a “a disability claimant who had received an unfavorable decision during

the administrative process . . . .” (ECF No. 13, PageID #: 747 (citing Brinkman v. Kijakazi, No.

2:21-cv-00528-EJY, 2021 WL 4462897, at *2 (D. Nev. Sept. 9, 2021) and Sylvia A. v. Kijakazi,

No. 5:21-CV-076-M-BQ, 2021 WL 4692293, at *3 (N.D. Tex. Sept. 13, 2021), report and

recommendation adopted, No. 5:21-CV-076-M-BQ, 2021 WL 4622528 (N.D. Tex. Oct. 7,

2021))). Contrary to Claimant’s argument, in Brinkman, the court found that the plaintiff lacked

standing to bring the constitutional challenge by failing to “allege facts that support a finding that

her injury, the denial of disability benefits, can be or is traced to the conduct of the SSA

Commissioner.” 2021 WL 4462897, at *2. Citing to Collins and Seila Law, the court explained:

“Because Plaintiff offers nothing that traces the decision by the ALJ in her case to any alleged

injurious conduct by the SSA Commissioner, she has not demonstrated traceability and her

constitutional violation claim fails for lack of standing.” Id. Thus, Brinkman does not support

Claimant’s argument.

In Sylvia A., however, the court found that “[p]laintiff’s separation-of-powers claim is both

traceable and redressable such that she has standing to pursue it.” 2021 WL 4692293, at *4. The

court explained that the traceability requirement was met “[b]ecause the ALJ derives authority

directly from the Commissioner, and the ALJ’s disability determination becomes the

Commissioner’s final decision.” Id. at *3. In so finding, the court observed that “‘[i]f the removal

protections afforded the Commissioner violate the constitutional requirement of separation of

powers, the Commissioner has no authority to delegate.’” Id. (alteration in original) (citations

omitted). Sylvia A.’s conclusion, however, directly conflicts with the Supreme Court’s conclusion

in Collins that the unlawfulness of a similar removal provision did not strip the relevant executive

officer “of the power to undertake the other responsibilities of his office.” 141 S. Ct. at 1788 n.23

(citing Seila Law, 140 S. Ct. at 2207–11). Accordingly, this Court does not find Sylvia A. to be

persuasive. See Rives v. Comm’r of Soc. Sec., No. 1:20-CV-02549, 2022 WL 1076216, at *22

(N.D. Ohio Feb. 4, 2022), report and recommendation adopted, No. 1:20CV2549, 2022 WL

681273 (N.D. Ohio Mar. 8, 2022); Reese v. Comm’r of Soc. Sec., No. 5:20-CV-2385, 2022 WL

1090538, at *17 (N.D. Ohio Jan. 31, 2022), report and recommendation adopted, No.

5:20CV2385, 2022 WL 831122 (N.D. Ohio Mar. 21, 2022).

The mere receipt of an unfavorable decision is not sufficient to establish harm traceable to

the alleged unlawful conduct. The majority of courts having examined this issue have concluded

that a party similarly situated to Claimant lacks standing by failing to allege facts supporting that

the denial of disability payments could be traced to the conduct of the Commissioner of the Social

Security Administration. See Walker v. Comm’r of Soc. Sec., No. 4:20-CV-02506-CEH, 2022 WL

1266135, at *6 (N.D. Ohio Apr. 28, 2022) (collecting cases).

Therefore, Claimant has failed to show compensable harm connected to the

unconstitutional removal provision. Claimant asserts that “based on the fact that Andrew Saul’s

tenure as Commissioner of SSA was unconstitutional, and he was Commissioner at the time of the

ALJ decision, this matter should be remanded for a de novo hearing.” (ECF No. 10, PageID

#: 699). However, “the fact that the removal restriction in § 902(a)(3) is unconstitutional does not

entitle [Claimant] to a remand for a new hearing and decision in his case.” Klapp v. Comm’r of

Soc. Sec., No. 5:20-CV-02850-JDG, 2022 WL 310228, at *15 (N.D. Ohio Feb. 2, 2022). As the

Supreme Court in Collins explained, “there is no basis for concluding that any head of the FHFA

lacked the authority to carry out the functions of the office” because the removal restriction was

unconstitutional. 141 S. Ct. at 1788.

Claimant argues in his reply brief that he did not receive “constitutionally valid” decisions

by the ALJ and that this is his compensable harm. (ECF No. 13, PageID #: 750–51). To the extent

Claimant again asserts a challenge to Mr. Saul’s delegation authority, this challenge fails under

Collins, as discussed above.

Claimant also asserts that “[t]he ALJ was delegated the authority by the Commissioner in

this matter, which means that her ability to make findings of fact and issue a final decision was

constitutionally defective. . . . [t]his means that a presumptively inaccurate legal standard was

utilized by the ALJ to adjudicate this claim . . . .” (ECF No. 10, PageID #: 697). But Claimant fails

to explain what inaccurate legal standard the ALJ applied to this case. Moreover, Claimant’s

argument that the Commissioner had no authority to carry out the functions of office because the

removal restriction was unconstitutional was rejected by the Supreme Court in Collins. 141 S. Ct.

at 1788.

None of Claimant’s assertions describe the type of compensable harm stemming from an

unconstitutional removal provision that was described in Collins. Claimant does not state that

when his application was pending the President was unable to remove Saul from office or believed

that he was unable to do so. Collins, 141 S. Ct. at 1789. In fact, Claimant admits in his reply brief

that when President Biden sought advice from DOJ as to whether he could remove Saul as

Commissioner, DOJ confirmed that he could. (See ECF No. 13, PageID #: 749). President Biden

then immediately removed Saul without issue. Without a harm traceable to an unlawful action by

the Commissioner, Claimant does not have standing to challenge the constitutionality of

§ 902(a)(3). See Rives, 2022 WL 1076216, at *22–23.

Accordingly, Claimant’s constitutional challenge fails because he “has not described

compensable harm due to the unconstitutional removal provision in § 902(a)(3) under which Saul

served as Social Security Commissioner.” Lynch v. Comm’r of Soc. Sec., No. 1:21CV0556-JDG,

2022 WL 614777, at *17 (N.D. Ohio Mar. 2, 2022); Miley, 2021 WL 6064754, at *1 (“[Plaintiff]

lacks standing to contest the constitutionality of the ALJ’s decision based on the president’s

removal authority.”).

The Commissioner also argues that Claimant’s request for relief fails under other legal and

equitable doctrines, including harmless error, the de facto officer doctrine, the rule of necessity,

and broad prudential considerations. (ECF No. 11, PageID #: 716). Because this Court concludes

that Claimant does not have standing, and this Court lacks jurisdiction to hear the relevant

constitutional arguments, these additional arguments will not be addressed herein.

2. Substantial Evidence Supports the ALJ’s Finding that a Significant Number of

Jobs Existed in the National Economy that Claimant Could Work

Claimant next argues that the ALJ erred in her decision to restrict Plaintiff’s counsel from

asking the vocational expert about the temperament for furniture retail consultants, the position

the expert testified Claimant could work in. (ECF No. 10, PageID #: 700–01). To support his

argument, he refers to other cases where the ALJs have discussed temperament with the vocational

expert. (ECF No. 10, PageID #: 701 (citing Brown v. Astrue, No. 1:10cv305, 2011 WL 2470232,

at *6 (N.D. Ohio June 20, 2011); Huddleston v. Comm’r of Soc. Sec., No. 1:12cv623, 2013 WL

351257, at *3 (N.D. Ohio Jan. 11, 2013); Woollard v. Comm’r of Soc. Sec., No. 5:14cv206, 2015

WL 630850, at *7 (N.D. Ohio Feb. 13, 2015))). Claimant also alleges the ALJ erred in finding that

14,000 jobs in the national economy was a significant number to meet the burden at Step Five of

the disability analysis. (ECF No. 10, PageID #: 701–02 (citing Tapp v. Sec’y of HHS, No.

1:90cv1214, 1991 WL 426310 (N.D. Ohio July 18, 1991); Nejat v. Comm’r of Soc. Sec., 359 F.

App’x. 574 (6th Cir. 2009); Taskila v. Comm’r of Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016);

Smathers v. Comm’r of Soc. Sec., No. 2:14cv500, 2015 WL 401017, at *5 (S.D. Ohio Jan. 28,

2015), report and recommendation adopted 2015 WL 5568324 (S.D. Ohio Sept. 22, 2015))).1

Claimant argues that later cases found that the number of jobs in Taskila and Nejat referred to

“regional or local and not national [jobs] and so were insignificant.” (ECF No. 10, PageID #: 701–

02). Further, Claimant states that Smathers noted that there was only one occupation in Nejat, so

the Step Five burden was not met. (ECF No. 10, PageID #: 702).

1 Claimant also cites a number of cases outside the district to show varying numbers of jobs

that were considered insignificant for the purposes of Step Five. (See ECF No. 10, PageID #: 702

(citing Isaac v. Saul, 2:20cv11573, 2021 WL 4770122, at *6–8 (E.D. Mich. Apr. 29, 2021), report

and recommendation adopted 2021 WL 4167211 (E.D. Mich. Sept. 14, 2021) (citing Troyer v.

Comm’r of Soc. Sec., No. 1:12cv759, 2013 WL 4954883, at *5 (W.D. Mich. Sept. 12, 2013));

Malone v. Astrue, No. 3:10cv1137, 2012 WL 1078932, at *6 (M.D. Tenn. Mar. 30, 2012); Mackins

v. Astrue, 655 F. Supp. 2d 770 (W.D. Ky. 2009); John C. v. Saul, No. 4:19-cv-04111-SLD-JEH,

2021 WL 794780, at *5 (C.D. Ill. Mar. 2, 2021))).

The Commissioner contends that Claimant has not shown that the ALJ was required to

obtain testimony from the vocational expert about a job’s temperament and thus erred in failing to

do so. (ECF No. 11, PageID #: 728 (referencing Social Security Emergency Message EM-21065

which states that the SSA does not consider temperaments because temperament ratings “do not

represent functional requirements for work because they reflect the personal interests, natural

abilities, and personality” of claimants rather than functional abilities)). The Commissioner also

argues that substantial evidence supports the ALJ’s finding that 14,000 jobs in the national

economy was a significant number. (ECF No. 11, PageID #: 726). The Commissioner specifically

points to Hall v. Bowen, 837 F.2d 272 (6th Cir. 1988), a case that provides factors for determining

if a specific number of jobs is significant, arguing that the Hall factors support the ALJ’s finding.

(ECF No. 11, PageID #: 726). The Commissioner also challenges Claimant’s interpretation of

Taskila and Nejat, arguing that they clearly refer to national jobs, not regional or local jobs as

Claimant argues. (ECF No. 11, PageID #: 727). Likewise, the Commissioner argues that neither

Tapp nor Smathers apply here because Tapp is a “single, non-binding opinion” that does not review

the Hall factors, and Smathers found that 8,250 jobs were insignificant, and there are 14,000 jobs

here. (ECF No. 11, PageID #: 727).

In his reply brief, Claimant merely challenges the Commissioner’s reference to the Social

Security Emergency Message since it was sent seven months after the ALJ’s decision. (ECF No.

13, PageID #: 746). He argues it constitutes a post hoc rationalization to justify the ALJ’s exclusion

of temperament testimony. (ECF No. 13, PageID #: 746).

As an initial matter, the Court agrees that Claimant has failed to establish that the ALJ is

required to discuss job temperament and erred in failing to do so. Claimant does not cite any statute

or Social Security Ruling to support his argument and only cited cases where job temperament

happened to be discussed at a hearing, rather than decisions requiring ALJs to discuss

temperament. (See ECF No. 10, PageID #: 701). Finally, an ALJ has the discretion to direct an

administrative hearing, so this ALJ did not err in limiting the vocational expert’s testimony to

issues other than temperament. See 42 U.S.C.A. § 1009(a)(1) (“The Commissioner of Social

Security may, on the Commissioner of Social Security's own motion, hold such hearings and

conduct such investigations and other proceedings as the Commissioner of Social Security deems

necessary or proper for the administration of this subchapter.”). Thus, the Court finds that the ALJ

did not err in failing to discuss job temperament at the administrative hearing.2

The Court now turns to Claimant’s second argument, that the ALJ improperly found 14,000

jobs in the national economy to be significant. This claim requires the Court to review Step Five

in the disability analysis framework.

If an ALJ’s analysis reaches Step Five, the claimant has established they cannot complete

past relevant work. See § 404.1520(a)(4)(i)–(v). Accordingly, the burden shifts to the

Commissioner to demonstrate that there are still a “significant number” of jobs in the national

economy that the claimant is capable of working. See id.; Jones v. Comm’r of Soc. Sec., 336 F.3d

469, 474 (6th Cir. 2003) (“[A]t step five of the inquiry . . . the burden shifts to the Commissioner

to identify a significant number of jobs in the economy that accommodate the claimant's residual

functional capacity[.]”). “There is no ‘magic number’ that qualifies as ‘significant’ for purposes

of satisfying this prong of the disability inquiry.” Cunningham v. Astrue, 360 F. App’x 606, 615

(6th Cir. 2010) (quoting Hall, 837 F.2d at 275). Instead, a “significant” number is determined by

2 The Court need not reference or discuss the Emergency Message the Commissioner

submitted in support of its argument as the Court finds other reasons why Claimant’s argument

fails. The Court also notes that the message cited no binding authority in its discussion of

temperaments and was published many months after the ALJ’s decision.

the facts of the case and common sense. See Hall, 837 F.2d at 275. Hall indicates several factors

courts may review in making such a determination:

A judge should consider many criteria in determining whether work

exists in significant numbers, some of which might include: the level

of claimant's disability; the reliability of the vocational expert's

testimony; the reliability of the claimant's testimony; the distance

claimant is capable of travelling to engage in the assigned work; the

isolated nature of the jobs; the types and availability of such work,

and so on. The decision should ultimately be left to the trial judge's

common sense in weighing the statutory language as applied to a

particular claimant's factual situation.

Id. Indeed, because this is a fact-specific inquiry, courts have found that varying numbers of jobs

across local, state, and national regions are “significant” for the purposes of Step Five. See Stewart

v. Sullivan, No. 89–6242, 1990 WL 75248, at *3–4 (6th Cir. June 6, 1990) (finding that 400,000

national jobs and 125 local jobs was “significant”); Hall, 837 F.2d at 275 (finding that the trial

court erred in granting summary judgment for the plaintiff on a Step Five challenge when 1,350

jobs existed in the local economy); Taskila, 819 F.3d at 906 (holding that the ALJ did not commit

reversible error in finding that 200 local jobs and 6,000 national jobs were “significant”); Nejat,

359 F. App’x at 579 (2,000 jobs significant).

Here, the vocational expert testified that while Claimant could no longer perform his past

work with the ALJ’s RFC, he could still work as a furniture rental consultant. (See ECF No. 7,

PageID #: 79). The expert testified that there are 14,000 jobs at the light, unskilled level of work

for this position. (ECF No. 7, PageID #: 79).3

The ALJ relied on the vocational expert’s testimony to find that 14,000 jobs was a

“significant” number for the purposes of Step Five and that the Commissioner had met their burden

3 The vocational expert did not specify whether these were national, state, or local jobs.

However, in the ALJ’s decision, it is clear the ALJ interpreted this number as national.

of determining that Claimant was not disabled. (See ECF No. 7, PageID #: 51–52). Moreover,

under the Hall factors—which the ALJ was not required to apply—this finding was reasonable.

Claimant was found to have an RFC of light work and Claimant has not challenged the vocational

expert’s testimony or qualifications. (See also ECF No. 7, PageID #: 77 (Claimant’s counsel telling

the ALJ she had no objections to the vocational expert’s qualifications)). The ALJ noted in her

RFC analysis that Claimant could still drive, and Claimant has not alleged he is incapable to

driving to a position or that the jobs are geographically isolated. (See ECF No. 7, PageID #: 49

(noting that Claimant testified he drives)). Further, as 14,000 jobs is well above the “significant”

numbers of other courts, this Court finds that it was not unreasonable for the ALJ to find this

number significant for the purposes of Step Five. See Taskila, 819 F.3d at 906 (6,000 national jobs

and 200 local jobs were significant); Nejat, 359 F. App’x at 578–79 (2,000 national jobs).4

Accordingly, the Court finds that substantial evidence supports the ALJ’s finding that there were

a significant number of jobs in the national economy.

Claimant’s references to various cases outside this district are only marginally relevant to

the instant case since this is a fact-specific inquiry that depends upon the unique circumstances of

the case. See Hall, 837 F.2d at 275. Thus, this Court is not bound by other courts’ specific findings

related to their unique factual circumstances—especially courts outside this district and circuit.

Further, Claimant’s reliance on Tapp does not establish his argument. (ECF No. 10, PageID

#: 699–700). In Tapp, the court held that a few hundred regional jobs, 2,000 state jobs, and 30,000

national jobs constituted an insignificant number but failed to explain why. See 1991 WL 426310,

4 Claimant’s argument that Taskila and Nejat did not analyze national jobs is unfounded.

A reading of either case establishes that these cases did in fact consider national job estimates.

at *1.5 The opinion is two pages, and as discussed above, because of the unique facts of every case,

the circumstances of the case will dictate varying “significant” numbers. See Hall, 837 F.2d at

275.6 As substantial evidence supports this ALJ’s finding that 14,000 jobs was a significant

number and the finding does not conflict with Sixth Circuit precedent, this Court sees no reason to

disturb the ALJ’s ultimate disability finding.

3. The ALJ Properly Evaluated Claimant’s Subjective Complaints and Substantial

Evidence Supports her RFC

Claimant finally argues that the ALJ erred in finding that the record did not support

Claimant’s allegations of pain and other symptoms.7 (ECF No. 10, PageID #: 708). He claims this

was a harmful error as the “medical documentation and reported pain precluded [him] from

standing/walking the requisite time to perform work at the light exertion level [and] he should have

been found disabled.” (ECF No. 10, PageID #: 708). Claimant also alleges the ALJ failed to

properly detail his testimony and articulate “any supportable rationale beyond the boilerplate

5 The court simply noted that it found the numbers insignificant “[f]or the reasons set out

in this Court's ruling in Crabtree v. Secretary of Health and Human Services, Case No.

5:89CV2081 (February 14, 1981) [1991 CCH UNEMPLOYMENT INSURANCE REPORTS,

¶ 15,891A].” 1991 WL 426310, at *1. However, this is an unpublished opinion from 1981 that the

Court cannot find. Thus, this Court cannot ascertain the Tapp court’s rationale for finding the

number of jobs insignificant, and Claimant had failed to provide any insight into the matter.

6 To the extent that Clamant seeks to argue a single job cannot be found in significant

numbers, this argument fails. The two cases Claimant cited in support of this passing argument

were Tapp and Smathers, however, the courts in these cases did not find that the numbers were

insignificant solely because they related to one job. In Tapp, the court did not indicate that it was

rejecting the number because it related to one job. 1991 WL 426310, at *1. Further, in Smathers,

the court rejected the number for several reasons, including that fact that it was unclear what the

actual number was. 2015 WL 401017, at *6. Thus, the court did not reject the number solely

because the vocational expert recommended only one job.

7 While Claimant’s argument largely centers around his allegations of pain, the headline of

this issue in his brief challenges the ALJ’s consideration of his “symptoms, including pain,” rather

than pain exclusively. (See ECF No. 10, PageID #: 703). Thus, this Court has reviewed all the

ALJ’s references to inconsistencies between the record and both physical and mental health

symptoms, rather than pain alone.

paragraph” for why the ALJ discounted his testimony. (ECF No. 10, PageID #: 709 (citing Cox v.

Comm’r of Soc. Sec., 615 F. App’x 254, 260 (6th Cir. 2015))). Claimant argues that this violated

Social Security Ruling (“SSR”) 16-3p and Rogers. (ECF No. 10, PageID #: 709 (citing 486 F. 3d

at 249)). Finally, Claimant argues the ALJ failed to build a logical bridge between the evidence

documenting his health and the ultimate decision to deny benefits. (ECF No. 10, PageID #: 710).

The Commissioner responds that the ALJ properly evaluated Claimant’s subjective pain in

accordance with § 404.1529(c) and SSR 16-3p. (ECF No. 11, PageID #: 729). Contrary to

Claimant’s allegation that the ALJ rejected his complaints outright, the Commissioner points out

that the ALJ simply rejecting Claimant’s allegations of disabling symptoms. (ECF No. 11, PageID

#: 730, 732). The Commissioner also argues that the RFC of light work was consistent with the

record, including the expert recommendations, and that Claimant improperly asks this Court to

reweigh the evidence. (ECF No. 11, PageID #: 730–31, 732).

The evaluation of a claimant’s subjective complaints rests with the ALJ. See Siterlet v.

Sec’y of HHS, 823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 248 (noting that “credibility

determinations regarding subjective complaints rest with the ALJ”). In evaluating a claimant’s

symptoms, the ALJ must look to medical evidence, statements by the claimant, other information

provided by medical sources, and any other relevant evidence on the record. § 404.1529(c); SSR

16-3p, 2017 WL 5180304.

Beyond medical evidence, SSR 16-3p sets forth seven factors that the ALJ should consider.

The ALJ need not analyze all seven factors but should show that she considered the relevant

evidence. See Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724, 733 (N.D. Ohio 2005). “[I]f an

individual’s statements about the intensity, persistence, and limiting effects of symptoms are

inconsistent with the objective medical evidence and the other evidence, we will determine that

the individual’s symptoms are less likely to reduce his or her capacities to perform work-related

activities or abilities to function independently, appropriately, and effectively in an age-appropriate

manner.” SSR 16-3p, 2017 WL 5180304. The ALJ’s “decision must contain specific reasons for

the weight given to the individual’s symptoms . . . and be clearly articulated so the individual and

any subsequent reviewer can assess how the adjudicator evaluated the individual’s symptoms.”

Id.; see also Felisky v. Bowen, 35 F.2d 1027, 1036 (6th Cir. 1994) (“If an ALJ rejects a claimant’s

testimony as incredible, he must clearly state his reason for doing so.”). While a reviewing court

gives deference to an ALJ’s credibility determination, “the ALJ’s credibility determination will

not be upheld if it is unsupported by the record or insufficiently explained.” Carr v. Comm’r of

Soc. Sec., No. 3:18CV1639, 2019 WL 2465273, at *10 (N.D. Ohio April 24, 2019) (citing Rogers,

486 F.3d at 248–49), report and recommendation adopted by 2019 WL 3752687 (N.D. Ohio Aug.

8, 2019).

Claimant states that the ALJ “did not comply with the requirement of SSR 16-3p” and

“failed to [provide] specific reasons for [her] finding on credibility,” contrary to Rogers. (ECF No.

10, PageID #: 709). The ALJ specified Claimant’s subjective complaints: