Tosland v. Commissioner of Social Security
Filing
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ORDER ON PLAINTIFF'S 1 COMPLAINT affirming this matter, signed by Judge J Richard Creatura. (GMR)
Case 3:20-cv-06085-JRC Document 39 Filed 11/17/21 Page 1 of 13
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
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MICHELE T.,
Plaintiff,
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CASE NO. 3:20-cv-06085-JRC
ORDER ON PLAINTIFF’S
COMPLAINT
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed. R. Civ. P. 73 and Local
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Magistrate Judge Rule MJR 13. See also Consent to Proceed Before a United States Magistrate
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Judge, Dkt. 3. This matter has been fully briefed. See Dkts.23, 34, 38.
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Plaintiff suffers from diabetic neuropathy which causes numbness in her feet. The ALJ
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found the opinion of her longtime treating physician on plaintiff’s limitations was inconsistent
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with objective medical evidence, including the findings of a treating neurologist. Because
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ORDER ON PLAINTIFF’S COMPLAINT - 1
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substantial evidence supports the ALJ’s finding, and because plaintiff has not shown any
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constitutional defect in the decision, the Court affirms.
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PROCEDURAL HISTORY
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Plaintiff’s application for disability insurance benefits (“DIB”) pursuant to 42 U.S.C. §
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423 (Title II of the Social Security Act) was denied initially and following reconsideration. See
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AR 75, 83. Plaintiff’s requested hearing was held before Administrative Law Judge Allen G.
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Erickson (“the ALJ”) on February 6, 2020. See AR 38–74. On February 18, 2020, the ALJ issued
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a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the
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Social Security Act. See AR.20–36.
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On September 10, 2020, the Appeals Council denied plaintiff’s request for review,
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making the written decision by the ALJ the final agency decision subject to judicial review. AR.
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1; see 20 C.F.R. § 404.981. Plaintiff filed a complaint in this Court seeking judicial review of the
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ALJ’s written decision in November 2020. See Dkt. 1. Defendant filed the sealed administrative
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record regarding this matter (“AR.”) on May 12, 2021. See Dkt. 15.
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BACKGROUND
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Plaintiff was born in 1962 and was 55 years old on the alleged date of disability onset of
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December 21, 2017. See AR 218. Plaintiff has past work experience as a cashier checker, but
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quit due to foot pain that prevented her from standing for long periods. AR 48.
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According to the ALJ, plaintiff has at least the severe impairment of diabetic neuropathy.
AR 25.
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of
social security benefits if the ALJ's findings are based on legal error or not supported by
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substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th
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Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).
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DISCUSSION
In plaintiff’s Opening Brief, plaintiff raises the following issues: (1) whether the ALJ
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erred in evaluating the medical opinion evidence; and (2) whether the ALJ’s decision was
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constitutionally defective, because the statute governing the Commissioner’s appointment and
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tenure violated the Constitution’s separation of powers. See Dkt. 23, p. 1.
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1. Whether the ALJ Erred in Evaluating the Medical Opinion Evidence
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Plaintiff assigns error to the ALJ’s evaluation of an opinion from John C. Bausher, M.D.,
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Ph.D. See Dkt. 23, p. 8.
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A. Medical Opinion Standard of Review
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The Ninth Circuit has held that deference is due to a treating or examining doctor’s
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opinion and that if an ALJ rejects such an opinion and the opinion is contradicted by another
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doctor’s opinion, the “ALJ may only reject it by providing specific and legitimate reasons that
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are supported by substantial evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014).
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For applications beginning March 27, 2017, however, the Administration has directed ALJs that
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they are no longer to defer to medical opinions from treating or examining sources (see 20
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C.F.R. § 404.1527(c)), instead evaluating the persuasiveness of medical opinions by analyzing
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their “supportability” and “consistency,” as well as other appropriate factors. 20 C.F.R. §
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404.1520c(a). Because plaintiff’s claim was filed in December 2017, the new regulations apply
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to the instant case.
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This Court—and others—have concluded that the new regulations supplant judicial
precedent regarding the weight given to controverted examining and treating source opinions, to
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the extent that there is a conflict. See Dkt. 20, Mooney v. Commissioner of Social Security, 3:19-
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cv-05103-RBL-JRC, (W.D. Wash. Feb 14, 2020), report and recommendation adopted, 2020
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WL 1139765; Martinson v. Commissioner of Social Security, 3:20-cv-05149-JRC (W.D. Wash.
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August 25, 2020); see also Gretchen S. v. Saul, No. 6:19-CV-01842-IM, 2020 WL 6076265, at
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*4 (D. Or. Oct. 15, 2020) (ruling that the broad authority conferred on the Administration by 42
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U.S.C. § 405 means that prior judicial precedent must yield in the face of new, permissible
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regulations and that “[a]s such, the 2017 regulations apply here and displace any case law
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precedent to the extent required to do so.”), appeal filed December 6, 2020; see also Allen T. v.
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Saul, No. EDCV 19-1066-KS, 2020 WL 3510871, at *3 (C.D. Cal. June 29, 2020) (“[T]he Court
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is mindful that it must defer to the new regulations, even where they conflict with prior judicial
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precedent. . . .”).
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Nevertheless, the Court makes no ruling in this case about whether the specific and
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legitimate standard of review continues to apply. Resolution of this issue is not necessary to
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decide this case: regardless of the outcome of this issue, the Court must review whether the
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ALJ’s decision is supported by substantial evidence and is free from legal error. See Lambert v.
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Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). That is, the ALJ “must provide sufficient reasoning
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that allows us to perform our own review, because the grounds upon which an administrative
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order must be judged are those upon which the record discloses that its action was based.” Id.
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(internal citations and quotations omitted). Applying this standard—and regardless of the
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continued viability of the requirement that an ALJ provide specific and legitimate reasons to
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reject a controverted treating doctor’s opinion—the Court concludes that the ALJ’s findings
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were supported by substantial evidence.
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B. Opinion of John C. Bausher, M.D., Ph.D.
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Dr. Bausher, plaintiff’s treating physician for 31 years, completed a physical functional
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assessment form on December 27, 2019, offering his opinion on plaintiff’s physical limitations.
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See AR 468–70. Therein, he indicated that plaintiff could sit for no more than one hour at a time
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and stand for no more than 30 minutes at a time; could sit for a total of two hours, and stand or
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walk for less than two hours, of an eight-hour workday; would need to take unscheduled breaks
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“every hour or less” during the workday; and could be expected to be off-task for 30% of the
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workday. AR 468, 470. In addition, he indicated that plaintiff could never lift loads greater than
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ten pounds, and could rarely lift loads less than that; and that plaintiff would have significant
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limitations with reaching, handling, and fingering, being able to handle 30% of the time
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bilaterally, finger 40% of the time with her left hand, and 30% of the time with her right; and
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could reach in front 30% of the time and 10% of the time overhead with either arm. AR 469.
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The ALJ found Dr. Bausher’s opinion unpersuasive by virtue of its inconsistency with (1)
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his own physical examination notes; (2) the findings of plaintiff’s treating neurologist; and (3)
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plaintiff’s self-reports indicating she had no upper extremity issues and did not have neuropathy
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in her hands. AR 30.
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With respect to this second reason, when conflicting medical evidence is present, the ALJ
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is charged with determining credibility and resolving any conflicts. Chaudhry v. Astrue, 688 F.3d
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661, 671 (9th Cir. 2012). Here, the ALJ found that Dr. Bausher’s opinion was inconsistent with
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Dr. Miller’s clinical findings of intact muscle strength, tone and bulk, stable gait without ataxia,
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intact reflexes, and no evidence of limb or truncal ataxia. AR 30 (citing AR 403–04). In arguing
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against the ALJ’s finding, plaintiff notes that Dr. Miller credited plaintiff’s complaint of
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numbness in her feet. Dkt. 23, p. 12. The ALJ, however, specifically accounted for these
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complaints of foot numbness in plaintiff’s RFC determination, but still found that this ailment
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did not cause the extent of limitations opined by Dr. Bausher.
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It is not unusual for different health professionals to reach different conclusions. The ALJ
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is the one who must choose between these conclusions and provide specific and legitimate
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reasons of doing so. The ALJ did so here. Substantial evidence supported the ALJ’s conclusion
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that plaintiff’s overall presentation and performance on physical examinations, particularly
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before Dr. Miller, showed her health to be in a better state than that which the limitations
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assessed by Dr. Bausher would indicate. See 20 C.F.R. §§ 404.1520c(c)(2) (“The more
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consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence
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from other medical sources or nonmedical sources in the claim, the more persuasive the medical
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opinion(s) or prior administrative medical finding(s) will be.”). The Court has reviewed the
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records relied upon by the ALJ and determined that they meet the substantial evidence standard.
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Although the ALJ provided additional reasons for discounting Dr. Bausher’s opinion, the
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Court need not assess whether these reasons were proper, as any error would be harmless. See
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Presley-Carrillo v. Berryhill, 692 Fed. Appx. 941, 944–45 (9th Cir. 2017) (citing Carmickle v.
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Commissioner, Social Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008)) (although an ALJ erred
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on one reason he gave to discount a medical opinion, “this error was harmless because the ALJ
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gave a reason supported by the record” to discount the opinion).
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2. Whether the ALJ’s Decision was Constitutionally Valid
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Next, plaintiff asserts that the ALJ’s decision was constitutionally defective, because
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recent Supreme Court decisions call into question the constitutionality of a statute limiting the
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President’s removal power over the Commissioner of Social Security. Dkt. 23, p. 4.
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ORDER ON PLAINTIFF’S COMPLAINT - 6
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Removal of the Commissioner of Social Security is governed by 42 U.S.C. § 902(a)(3).
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Under § 902(a)(3), the Commissioner may only be removed from office “pursuant to a finding
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by the President of neglect of duty or malfeasance in office.” Id. Plaintiff contends § 902(a)(3)
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violates separation of powers under Article II of the United States Constitution, and therefore the
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Commissioner's final decision denying Plaintiff benefits was made by individuals who lacked
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valid delegated authority to make the decision. Dkt. 23 at 4; Dkt. 38 at 3. Plaintiff's argument
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relies upon the Supreme Court decisions in Seila Law LLC v. Consumer Financial Protection
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Bureau, 140 S. Ct. 2183 (2020), and Collins v. Yellen, 141 S. Ct. 1761 (2021).
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In Seila Law, the Supreme Court held the Consumer Financial Protection Bureau’s
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(“CFPB”) removal structure limiting the removal of the CFPB Director by the President only for
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“inefficiency, neglect of duty, or malfeasance of office,” 12 U.S.C. § 5491(c)(3), violated
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separation of powers. Seila Law, 140 S. Ct. at 2197. In Collins the Court held a provision
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limiting the President to removing the Directors of the Federal Housing Finance Agency
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(“FHFA”) only for cause violated the separation of powers. Collins, 141 S. Ct. at 1783 (holding
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“Seila Law is all but dispositive”).
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A straightforward application of Seila Law and Collins dictates a finding that §
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902(a)(3)'s removal provision violates separation of powers. As in Seila Law and Collins, the
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Social Security Commissioner is a single officer at the head of an administrative agency and
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removable only for cause. See 42 U.S.C. § 902(a)(3). Section 902 thus has the same infirmity as
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the removal provisions at issue in Seila Law and Collins. The Court accordingly concludes §
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902(a)(3) violates separation of powers. See Seila Law, 140 S. Ct. at 2197; Collins, 141 S. Ct. at
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1783.
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In her reply brief, plaintiff suggests § 902 may be constitutional because “in dicta, the
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Seila Law court questioned whether § 902(a)(3) was unconstitutional.” Dkt. 29 at 8. The Seila
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Law Court noted differences between the SSA and CFPB but did not find the differences
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rendered § 902(a)(3) constitutional or rendered CFPB’s removal limitation unconstitutional. See
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Seila Law, 140 S. Ct. at 2202. The Collins Court clarified that “[c]ourts are not well-suited to
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weigh the relative importance of the regulatory and enforcement authority of disparate agencies,
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and we do not think that the constitutionality of removal restrictions hinges on such an inquiry.”
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141 S. Ct. at 1785. This clarification precludes the possibility § 902(a)(3) is constitutional based
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upon dicta in Seila Law.
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Having concluded §902(a)(3)'s removal provision violates separation of powers, the
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Court turns to the parties' dispute over the proper remedy. Plaintiff contends under Seila Law and
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Collins, the remedy is reversal because the § 902's removal clause renders the Social Security
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Administration's structure unconstitutional, and "the Commissioner had no authority to delegate
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leaving the ALJ here and the Appeals Council without any authority . . . to make findings of fact
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and issue decision as to benefits eligibility." Dkt. 23 at 6. In her reply brief, Plaintiff amplifies
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this argument arguing Presidential power over an agency is "like water flowing" and §
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902(a)(3)'s infirm removal clause "stops the flow of authority such that the Commissioner and
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inferior officers below do not have delegated authority." Dkt. 38 at 6.
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Plaintiff's argument is similar to arguments the plaintiffs raised and the Court rejected in
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Seila Law and Collins. First, like the plaintiffs in Seila Law, plaintiff here argues § 902(a)(3)'s
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removal provision automatically renders all agency action unconstitutional. The Court in Seila
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Law rejected such an argument observing one section of a statute may violate the Constitution
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without rendering the entire act void. Seila Law, 140 S. Ct. at 2209. The Court stated the removal
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limitation of the CFPB Director is the only defect and removal of the defect removes the
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constitutional violation. The Court concluded the removal limitation was severable because the
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CFPB is capable of functioning independently of the infirm removal clause. Id. at 2209 ("The
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provisions of the Dodd-Frank Act bearing on the CFPB's structure and duties remain fully
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operative without the offending tenure restriction. Those provisions are capable of functioning
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independently, and there is nothing in the text or history of the Dodd-Frank Act that
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demonstrates Congress would have preferred no CFPB to a CFPB supervised by the President.");
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see also 140 S. Ct. at 2245.2
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Similarly, if the removal clause in § 902(a)(3) is severed, the SSA remains fully
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functional. This is evident because there can be no dispute that since the promulgation of §
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902(a)(3), the SSA has continued to function fully and has granted and denied thousands of
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benefits applications. It should be noted that the Administration continues to function even if the
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Commissioner’s position is temporarily unfilled or delegated to an acting Commissioner. It
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would be unrealistic to imagine that the work of the entire Administration suddenly stops
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whenever the Commissioner is unavailable, or the position is temporarily vacated for any reason.
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The work of the Administration must go on. Indeed, plaintiff 's suggestion that there is no need
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to "unwind favorable decisions" made by the SSA notwithstanding § 902(a)(3) infirm removal
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clause, supports this conclusion. Dkt. 38 at 8. The Court concludes, just as the Court in Seila Law
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found, that § 902(a)(3)'s removal clause is the only constitutional defect in this case. The clause
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is severable because if removed the constitutional violation disappears, and the SSA remains
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fully operational and functional without the infirm tenure provision.
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The Supreme Court in Collins also rejected the argument that an invalid removal
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provision rendered the FHFA's actions void from the outset. The Supreme Court stated there was
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"no reason to hold that the third amendment must be completely undone." Collins, supra. at
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1788. The Collins Court further stated “[a]lthough the statute unconstitutionally limited the
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President’s authority to remove the confirmed Directors, there was no constitutional defect in the
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statutorily prescribed method of appointment to that office. As a result, there is no reason to
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regard any of the actions taken by the FHFA [challenged on appeal] as void.”). Collins, at 1787.
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Accordingly, the argument the SSA's actions here are either void ab initio or became void at
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some later point due to § 902(a)(3)'s removal clause is not supported by either Seila Law or
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Collins.
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While the Supreme Court in both Seila Law and Collins held an unconstitutional removal
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clause does not automatically void agency action and mandate reversal, the Court in Collins
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addressed whether reversal is appropriate if harm could be shown. The Collins Court found it
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was “possible for an unconstitutional provision to inflict compensable harm,” and the
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“possibility that the unconstitutional restriction on the President’s power to remove a Director of
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the FHFA could have such an effect cannot be ruled out.” 141 S. Ct. at 1788–89.
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In her reply brief, plaintiff argues “[Commissioner] Saul’s actions, under constitutional
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authority or not, have caused specific harm by undermining, politicizing and reducing due
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process protections to Plaintiff's claims.” Dkt. 38 at 4. This argument that there is a possibility §
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902(a)(3) harmed plaintiff fails to recognize the significant difference between the agency action
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in Collins and the SSA action here.
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In Collins, the Directors of the FHFA adopted an amendment (the “Third Amendment”)
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to certain financial agreements that “materially changed the nature of the agreements” and
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resulted in the companies in which plaintiffs were shareholders transferring to the U.S. Treasury
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“at least $124 billion dollars more than the companies would have had to pay” under the prior
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form of the agreements. Id. at 1774. The plaintiffs in Collins thus had an identifiable basis to
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contend that but for the unconstitutional removal provision, the President may have removed and
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appointed a different Director who would have disapproved of the adoption (or implementation)
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of the Third Amendment. See id. at 1789.
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In contrast, there is nothing showing the Commissioner or the SSA implemented new and
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relevant agency action that may have turned upon the President’s inability to remove the
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Commissioner. Plaintiff has not identified any new regulations, agency policies or directives
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Commissioner Saul installed that may have affected her claims. Plaintiff thus fails to show how
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or why § 902(a)(3) removal clause possibly harmed her.
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There is also nothing showing former President Trump would have removed
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Commissioner Saul and appointed a new Commissioner who would have administered this
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plaintiff’s claims differently. Rather, former President Trump appointed Commissioner Saul, and
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was still in office on February 18, 2020, when the ALJ's decision that plaintiff challenges was
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issued. See AR 20–36. This remained the case on September 10, 2020, when the Appeals
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Council issued its decision denying plaintiff’s request for review. AR 1–6. Thus, plaintiff’s
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argument that the “efforts of the Appeals Council to exhaust Plaintiff’s administrative remedies
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lack any presidential authority” is unsupported. Dkt. 38, p. 7. Accordingly, because there is no
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evidence that the former president sought to remove Commissioner Saul, there is no connection
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between § 902(a)(3)’s removal clause and possible harm the removal clause might have caused
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plaintiff. Cf. Collins, 141 S. Ct. at 1802 (Kagan, J., concurring) (“[G]iven the majority’s remedial
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analysis, I doubt the mass of SSA decisions—which would not concern the President at all—
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would need to be undone. . . . When an agency decision would not capture a President’s
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attention, his removal authority could not make a difference.”).
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Even assuming §902(a)(3)’s removal clause prevented former President Trump from
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removing Commissioner Saul and confirming a different Commissioner, there is no possibility §
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902(a)(3) harmed plaintiff, because the final decision of the Commissioner that is before this
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Court for review is the ALJ’s decision. The ALJ’s decision in this case is based upon an
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uncontested factual record and the application of governing law, including unchallenged
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regulations. The ALJ’s decision and the administrative record are both subject to review by this
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Court. The specific Commissioner who heads the SSA or any directive the Commissioner gave
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regarding plaintiff’s case would not alter the viability of the ALJ’s decision herein. This is
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because the Court has reviewed the record and the ALJ’s decision at issue and concludes that the
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ALJ did not err, and that the case should be affirmed for these reasons. Had the Court found
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otherwise and determined that the ALJ’s decision was not supported by substantial evidence or
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free of legal error, the Court would have reversed the Commissioner’s final decision. Hence, the
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Court reaches its decision to reverse or affirm the Commissioner’s final decision notwithstanding
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the existence of § 902(a)(3)’s removal clause, who the Commissioner was at the time the
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decision became final, or what directives the Commissioner may have given the ALJ. The Court
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thus concludes that there is no possibility § 902(a)(3)’s removal clause harmed plaintiff in this
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case.
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Plaintiff also mentions, in her reply brief, that the Commissioner's actions reduced "due
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process protections." Dkt. 38, p. 4. Seila Law and Collins addressed infirm removal provisions
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that the Court found violate separation of powers, not due process; these cases thus provide no
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basis to support a due process claim. Additionally, a conclusory allegation that due process was
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denied is not sufficient to raise a colorable constitutional claim. See e.g. Hoye v. Sullivan, 985
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F.2d 990, 992 (9th Cir. 1992).
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In sum, the Court finds § 902(a)(3)'s unconstitutional removal clause does not
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automatically void the actions of the SSA or the Commissioner's final decision in this case.
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Reversal is not mandated under Seila Law or Collins because § 902(a)(3)'s removal clause is
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severable, and because there is no possibility § 902(a)(3)'s removal clause harmed Plaintiff.
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Based upon the Court's review of the administrative record and the ALJ's decision the Court
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finds the ALJ did not err in discounting Dr. Bausher’s opinion. This finding is not contingent
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upon or affected by § 902(a)(3) and Plaintiff thus fails to show the removal provision in §
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902(a)(3) is connected to the ALJ’s decision denying her benefits. See Decker Coal Co. v.
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Pehringer, 8 F.4th 1123, 1138 (9th Cir. 2021) (“[T]here is no link between the ALJ’s decision
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awarding benefits and the allegedly unconstitutional removal provisions. And nothing commands
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us to vacate the decisions below on that ground.”)).
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The Court accordingly concludes that while § 902(a)(3) violates separation of powers, the
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violation is not grounds to reverse the Commissioner's final decision and remand the matter in
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this case. Rather, the basis of the Court's determination to reverse the Commissioner's final
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decision is the Court's independent review of the administrative record and the ALJ's decision,
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and the Court's conclusion the ALJ did not err.
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CONCLUSION
Based on these reasons and the relevant record, the Court ORDERS that this matter be
AFFIRMED.
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JUDGMENT is for the defendant and the case is closed.
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Dated this 17th day of November, 2021.
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A
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J. Richard Creatura
Chief United States Magistrate Judge
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ORDER ON PLAINTIFF’S COMPLAINT - 13
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