Kain v. Commissioner of Social Security

Filing 19

Memorandum of Opinion and Order: This matter is before the Court upon the Report and Recommendation of Magistrate Judge William H. Baughman, Jr. ("R&R")(Doc. 17 ) recommending that the decision of the Commissioner be affirmed. The R&R is ACCEPTED and the decision of the Commissioner is AFFIRMED. Judge Patricia A. Gaughan on 9/15/22. (LC,S)

Case: 5:21-cv-00879-PAG Doc #: 19 Filed: 09/15/22 1 of 6. PageID #: 1725

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Amanda Athena Lee Kain,
Plaintiff,
Vs.
Commissioner of Social Security,
Defendant.

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CASE NO. 5:21 CV 879
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Report and Recommendation of Magistrate
Judge William H. Baughman, Jr. (“R&R”)(Doc. 17) recommending that the decision of the
Commissioner be affirmed. Plaintiff objects to the R&R. For the reasons that follow, the R&R
is ACCEPTED and the decision of the Commissioner is AFFIRMED.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 72, which governs the matter herein inasmuch as timely
objections have been made to the Report and Recommendation, provides in part:
(b)(3) Resolving Objections
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The district judge must determine de novo any part of the
magistrate judge's disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
As stated in the Advisory Committee Notes, “The term ‘de novo’ signifies the
magistrate’s findings are not protected by the clearly erroneous doctrine, but does not indicate
that a second evidentiary hearing is required.” citing United States v. Raddatz, 447 U.S. 667
(1980).
ANALYSIS
Plaintiff objects to the R&R on the basis that the Commissioner lacked the constitutional
authority to delegate to the Administrative Law Judge (“ALJ”). As such, the ALJ acted without
constitutional authority and the decision denying benefits is null. Because of the nature of
plaintiff’s objection, it is not necessary to set forth the relevant medical evidence or procedural
posture of this case.
Plaintiff argues that the ALJ in her case lacked proper authority because the ALJ derived
that authority from a Commissioner, who was subject to an unconstitutional removal provision.
That provision, 42 U.S.C. § 902(a), protected the Commissioner from removal except in cases of
“neglect of duty or malfeasance in office.” The government agrees that the Commissioner was
subject to an unconstitutional removal provision under Seila Law because the President must be
able to remove the Commissioner at will. Instead, the government argues that remand is
unnecessary under Collin v. Yellen because plaintiff fails to show harm resulting from the
unconstitutional removal provision.
In Seila Law, the Supreme Court held that for-cause removal protections placed upon the
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Director of the Consumer Financial Protection Bureau violated the separation of powers because
the President must be able to remove officers at will. Seila Law v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183, 2197 (2020). The Court in Collins v. Yellen extended Seila Law to for-cause
removal restrictions on the Director of the Federal Housing Finance Agency. 141 S. Ct. 1761,
1783 (2021).
But, where remedies are concerned, the Court distinguished between cases involving
unconstitutional appointments and cases involving properly appointed officers whose removal
protections are unconstitutional. Id. at 1788. An unconstitutionally appointed officer
lacks the authority to act, but a constitutionally appointed officer subject to for-cause removal
protection still acts with proper authority. Id. at n.23 (“[T]he unlawfulness of [a] removal
provision does not strip [an officer] of the power to undertake the other responsibilities of his
office.”). When a properly appointed officer has for-cause removal protections, a party may still
be entitled to retrospective relief, but the party must show that the removal provision inflicted
harm. Id. at 1788. Action taken by an unconstitutionally appointed officer, by contrast, would
require remand. Id. (citing Lucia v. S.E.C., 139 S. Ct. 2044, 2055 (2018) (remedy for
unconstitutionally appointed ALJ is a new hearing)). In Collins, the Court remanded on the issue
of harm to determine whether shareholders could establish harm stemming from the
unconstitutional removal provision. Id. at 1788-89. The Court offered hypothetical ways that the
shareholders could show harm: evidence that the President attempted to remove a director but
was prevented from doing so by court order, or a statement by the President showing that he
would remove a director if the removal protection were not present. Id. at 1789.
Here, the government admits that the Commissioner was subject to an unconstitutional

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removal provision, 42 U.S.C. § 902(a). Under Seila Law and Collins, then, the question becomes
what remedy, if any, is appropriate. Plaintiff seeks remand for a new hearing on the basis that
the ALJ lacked authority to hear her case because ALJs derive authority from the Commissioner.
The Supreme Court made clear in Collins that a plaintiff who was subjected to an
officer’s decision where that officer was protected by an unconstitutional removal provision will
not automatically be entitled to relief. The Court explained that Seila Law had ordered a remand
to decide whether the challenged action “had been ratified by an Acting Director who was
removable at will by the President.” Collins v. Yellen, 141 S. Ct. 1761, 1788. The Court went
on to discuss ways that plaintiffs could be harmed by an unconstitutional removal provision. Id.
at 1789 (“[I]t is still possible for an unconstitutional [removal] provision to inflict compensable
harm.”) (emphasis added). Ultimately, the Collins Court remanded to explore harm. Id.
Lower courts have interpreted the Collins “compensable harm” requirement to mean that
a party must show a “link . . . between the removal provision and [the plaintiff's] case” such that
the harm is “particularized to [the Plaintiff].” See Kaufmann v. Kijakazi, 2022 WL 1233238, at *
5 (9th Cir. 2022). As explained above, Collins gave several such examples, such as proof that the
President tried to remove a particular officer but was prevented from doing so by a court order.
Kaufmann provided other hypotheticals, such as the President taking special interest in a
plaintiff’s case or the Commissioner directing the Appeals Council to “decide her case in a
particular way because of the statutory limits on the President’s removal authority.” Id.
The government points to a number of cases wherein lower courts have held that the
unconstitutional removal provision protecting the Commissioner of Social Security did not cause
compensable harm. (Doc. 14-1 at PageID 1667, n.4). Those cases, relying on Collins,

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consistently find that plaintiffs fail to show a nexus between the removal provision and the
adverse decision in their benefits case. See, e.g., Crawford v. Comm’r of Soc. Sec., 2021 WL
5917130, at *8 (S.D. Ohio Dec. 14, 2021), report and recommendation adopted by 2022 WL
219864 (S.D. Ohio Jan. 25, 2022).
Plaintiff’s sole rebuttal case, Tafoya v. Kijakazi, merely held that a plaintiff had standing
to litigate her constitutional challenge to the removal provision. 551 F. Supp. 3d 1054, 1062 (D.
Colo. 2021). Indeed, the court expressed doubt that the plaintiff would later succeed on the
merits. Id. at 1059 (“While ultimately, the righteousness vel non of her arguments on the merits
may gain plaintiff little, if anything, the question before me is one of standing, and thus does not
implicate the merits.”).
Plaintiff makes no argument that she suffered a particularized harm as a result of the
unconstitutional removal provision. She does not argue that the President took interest in her
case or that the Commissioner acted in a particular way because he knew that he could only be
removed for cause. She argues solely that the ALJ lacked authority to decide her case because
the Commissioner similarly lacked authority. But this argument conflates an error in the
Commissioner's appointment– which would have deprived the Commissioner of authority to act–
with an error in the removal provision, which does not deprive the Commissioner of authority.
Collin v. Yellen, 141 S. Ct. 1761, 1788 (2021). The Court concludes that plaintiff, having failed
to allege a particularized injury caused by the removal provision, is not entitled to remand for a
new hearing.1 Accordingly, plaintiff’s objection is not well-taken.2

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Because the Court has determined that plaintiff’s argument fails,
the Court need not reach the alternative argument presented by
defendant, i.e, the ALJ had full authority to act because he was
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CONCLUSION
For the foregoing reasons, the Court ACCEPTS the R&R and the decision of the
Commissioner is AFFIRMED.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Chief Judge
Dated: 9/15/22

appointed by an Acting Commissioner subject to at-will removal.
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The Court reviewed the remainder of the R&R for clear error and
found none.
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