(SS) Sexton v. Commissioner of Social Security ( 2022 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 KATHY RUTH SEXTON Case No. 1:21-cv-00379-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL (ECF Nos. 1, 19). SECURITY, 16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding her 22 application for disability insurance benefits. The parties have consented to entry of final judgment 23 by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal 24 to the Court of Appeals for the Ninth Circuit. (ECF No. 14). 25 Plaintiff presents the following issues: 26 1. The ALJ failed to properly evaluate the medical opinion evidence consistent with Agency authority and Ninth Circuit precedent, in particular regarding 27 Plaintiff’s standing/walking limitations and hand and arm use limitations. 28 described above, but also specifically so in failing to consider Plaintiff’s stellar 2 work history. 3 3. The decision in this case, by . . . Appeals Council AAJs who derive their authority from the Commissioner that was not constitutionally appointed, is 4 constitutionally defective, requiring remand. 5 (ECF No. 19, p. 3). Having reviewed the record, administrative transcript, the briefs of the 6 parties, and the applicable law, the Court finds as follows: 7 I. ANALYSIS 8 A. Evaluation of Opinions of Dr. Ramayya and Dr. Sirakoff 9 Plaintiff argues that the ALJ did not properly evaluate the medical opinions of Dr. 10 Ramayya and Dr. Sirakoff under the pertinent legal authority. (ECF No. 19, p. 14). As an initial 11 matter, the parties agree that this claim is governed by the agency’s “new” regulations concerning 12 how ALJs must evaluate medical opinions for claims filed on or after March 27, 2017.1 20 C.F.R. 13 §§ 404.1520c, 416.920c; (ECF No. 19, p. 13; ECF No. 20, p. 11). The regulations set 14 “supportability” and “consistency” as “the most important factors” when determining the 15 opinions’ persuasiveness. 20 C.F.R. §§ 404.1520c(b)(2), 416.920c(b)(2). 16 While case authority preceding the new regulations required an ALJ to provide clear and 17 convincing or specific and legitimate reasons for rejecting certain medical opinions, Ryan v. 18 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008), Plaintiff does not argue that these 19 articulation standards still apply with the passage of the new regulations, nor could she in light of 20 the Ninth Circuit’s recent decision in Woods v. Kijakazi, No. 21-35458, 2022 WL 1195334 (9th 21 Cir. Apr. 22, 2022). 22 The revised social security regulations are clearly irreconcilable with our caselaw 23 according special deference to the opinions of treating and examining physicians on account of their relationship with the claimant. See 20 C.F.R. § 404.1520c(a) 24 (“We will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) . . ., including those from your medical 25 sources.”). Our requirement that ALJs provide “specific and legitimate reasons” 26 for rejecting a treating or examining doctor’s opinion, which stems from the special weight given to such opinions . . . is likewise incompatible with the revised 27 regulations. Insisting that ALJs provide a more robust explanation when 28 1 Plaintiff applied for benefits on August 24, 2017. those sources—contrary to the revised regulations. 2 Id. at *6 (internal citation omitted). Accordingly, under the new regulations, “the decision to 3 discredit any medical opinion, must simply be supported by substantial evidence.” Id. at *1. 4 “Substantial evidence means more than a scintilla but less than a preponderance.” Thomas v. 5 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is “relevant evidence which, considering the 6 record as a whole, a reasonable person might accept as adequate to support a conclusion.” Id. 7 In conjunction with this requirement, “[t]he agency must ‘articulate . . . . how persuasive’ 8 it finds ‘all of the medical opinions’ from each doctor or other source, 20 C.F.R. § 404.1520c(b), 9 and ‘explain how [it] considered the supportability and consistency factors’ in reaching these 10 findings, id. § 404.1520c(b)(2).” Woods, 2022 WL 1195334, at *6. 11 Supportability means the extent to which a medical source supports the medical opinion by explaining the “relevant . . . objective medical evidence.” Id. 12 § 404.1520c(c)(1). Consistency means the extent to which a medical opinion is 13 “consistent . . . with the evidence from other medical sources and nonmedical sources in the claim.” Id. § 404.1520c(c)(2). 14 Id. 15 1. Dr. Ramayya’s Opinion 16 Plaintiff challenges the ALJ’s assessment of the medical opinions of Dr. Ramayya and Dr. 17 Sirakoff. The ALJ concluded that Dr. Ramayya’s opinion was less persuasive, explaining as 18 follows: 19 Second, the undersigned considered the opinion of Dr. Aruna S. Ramayya, M.D., 20 the claimant’s own medical source and primary care physician who has treated the claimant for twenty-four years (6F). She opined that the claimant would be off task 21 more than twenty-five percent of her workday and she could maintain attention 22 and concentration for less than fifteen minutes before needing a break (6F/7). The claimant would be absent more than four days a month as the result of her 23 impairments or treatment (6F/5). The claimant could lift and/or carry less than ten pounds (6F/8). The claimant could sit, stand, or walk for one hour in a normal 24 workday and would need to sit and stand at will (6F/8). Dr. Ramayya opined that 25 the claimant would need to recline throughout the day for twenty minutes each time (6F/8). The claimant must use a cane and a walker to ambulate more than one 26 or two blocks (6F/8-9). The claimant can frequently reach, handle, finger, feel, push, and pull with her bilateral upper extremities (6F/9). She can frequently use 27 foot controls with her bilateral lower extremities (6F/9). The claimant could rarely 28 balance, stoop, and rotate her head and neck, but never kneel, crouch, or crawl claimant could never ladders, ropes, or scaffolds (6F/10). She could never work at 2 unprotected heights and rarely work around moving mechanical parts (6F/10). The claimant could occasionally operate a vehicle, be exposed to humidity, wetness, 3 pulmonary irritants, temperature extremes, and vibrations (6F/10). 4 The undersigned finds Dr. Ramayya’s opinion less persuasive. Dr. Ramayya did not indicate on the form the specific findings she relied on when making her 5 decision. Her exam findings also do not support her opinion because her physical 6 findings are normal and her psychiatric findings are based solely on the claimant’s subjective statements (2F; 9F). Dr. Ramayya based her opinion on the claimant’s 7 subjective statements and the imaging studies. The evidence of the claimant’s stable exam findings, conservative treatment, and overall normal gait, range of 8 motion, and motor strength in all her joints is inconsistent with Dr. Ramayya’s 9 opinion overall. For example, the claimant has a normal gait, which is inconsistent with Dr. Ramayya’s finding that the claimant required an assistive device for 10 ambulation or could frequently use foot and leg controls. The claimant can drive for one hour to reach her doctor, which is inconsistent with Dr. Ramayya’s opinion 11 the claimant could only sit for one hour in an eight-hour day. Additionally, there is 12 no evidence that the claimant’s impairments were exacerbated by any environmental factors. The claimant’s family helped her move and she has 13 befriended her neighbors. This is inconsistent with Dr. Ramayya’s mental limitations. However, the evidence of the claimant’s pain within the range of 14 motion in her bilateral wrists is consistent with Dr. Ramayya limiting the claimant 15 to frequent manipulative activities. For these reasons, the undersigned finds Dr. Ramayya’s opinion less persuasive. 16 (A.R. 25-26).2 17 The ALJ’s first reason to discount the persuasiveness of Dr. Ramayya’s opinion is that the 18 form used did not indicate what specific findings were used to make her decision. This reason 19 invokes the supportability factor, which considers the relevant objective medical evidence and 20 supporting explanations for a medical source opinion. Indeed, the checklist form used by Dr. 21 Ramayya lacks specific findings. For example, while Dr. Ramayya opined that Plaintiff was 22 limited to one hour total of sitting and standing/walking in an eight-hour workday, the section of 23 the form asking for an explanation of “why” “particular medical or clinical findings” supported 24 this assessment was left blank. (A.R. 497). Accordingly, given the lack of specific support for the 25 limitations assessed, it was reasonable for the ALJ to deem the opinion less persuasive. Crane v. 26 Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (“The ALJ, however, permissibly rejected [evaluations] 27 2 Plaintiff “asserts no error regarding the ALJ’s findings about her mental health impairments.” (ECF No. 28 19, p. 4 n.3). 2 conclusions.”). 3 The next reason given to discount the persuasiveness of Dr. Ramayya’s opinion is that it 4 was inconsistent with the record, e.g., normal physical findings, conservative treatment, and 5 Plaintiff’s abilities. This reasoning invokes the consistency factor, which considers whether a 6 medical opinion is consistent with other evidence from other medical and nonmedical sources. 7 While Plaintiff criticizes the ALJ for not “clarify[ing] the ALJ’s reasoning for finding Dr. 8 Ramayya’s opinion unpersuasive,” the Court concludes that the explanation offered was 9 sufficiently clear. For example, the ALJ pointed to specific inconsistencies in the record: that 10 Plaintiff’s normal gait was “inconsistent with Dr. Ramayya’s finding that the claimant required an 11 assistive device for ambulation or could frequently use foot and leg controls” and that Plaintiff’s 12 one hour drive for doctor visits was “inconsistent with Dr. Ramayya’s opinion the claimant could 13 only sit for one hour in an eight-hour day.” (A.R. 26, 60 (noting hour drive to doctor visits), 419 14 (noting normal gait)). While Plaintiff points to other record evidence and alternative reasoning 15 that might support her argument (ECF No. 19, pp. 16-29), the Court’s concludes that the record 16 reasonably supported the ALJ’s decision. See Thomas, 278 F.3d at 954 (“Where the evidence is 17 susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the 18 ALJ’s conclusion must be upheld.”). 19 Accordingly, the Court concludes that the ALJ’s decision to deem Dr. Ramayya’s opinion 20 less persuasive was supported by substantial evidence after consideration of the supportability 21 and consistency factors. 22 2. Dr. Sirakoff’s Opinion 23 The ALJ concluded that Dr. Sirakoff’s opinion was not persuasive, explaining as follows: 24 Specifically, the undersigned considered the opinion of Dr. Dimitri Sirakoff, D.O., the claimant’s own medical source and overall worker’s compensation evaluator 25 (1F/40). In reference to the patient’s cervical spine, he found the claimant was precluded from repetitive neck bending and neck motions (1F/40). In addition, she 26 is also permanently precluded from abrupt or prolonged posturing of the cervical 27 spine (1F/40). The claimant must be allowed to wear a C-collar support at work (1F/40). She should also be provided an ergonomic workstation (1F/40). In 28 bending (1F/40). She should be allowed to wear a thoracolumbar posture support 2 brace at work (1F/40). Finally, Dr. Sirakoff opined that the claimant could return to her present occupation if the above restrictions could be accommodated (1F/40). 3 For similar reasons, the undersigned finds Dr. Sirakoff’s . . . opinions not overly 4 persuasive. [Dr. Sirakoff’s] opinions are not expressed in terms consistent with the Agency’s regulations. The doctor[] did not contemplate all of the claimant’s 5 impairments. . . . Dr. Sirakoff’s findings do not support his opinion. While he 6 observed the claimant wore a back brace to the exams and used a cane, neither device was prescribed by a doctor (1F/4). Dr. Sirakoff prescribed a conservative 7 treatment plan for the claimant, including osteopathic medical care, chiropractic treatment, active and passive range of motion exercise, physical modalities, and 8 stretching and strengthening exercises (1F/36). This does not support Dr. 9 Sirakoff’s findings that the claimant was permanently precluded from cervical spine posturing and repetitive bending. 10 [And] Dr. Sirakoff’s . . . are [not] consistent with the record. While the claimant’s 11 cervical spine range of motion was decreased, she was never told to wear a C- collar all the time and her primary care physician told the claimant to use it to 12 alleviate headaches. This is inconsistent with the findings that the claimant was precluded from postural activities. Rather this evidence is consistent with the 13 residual functional capacity limiting the claimant to occasional postural activities. . 14 . . For these reasons, the undersigned finds the specific worker’s compensation findings of Dr. Sirakoff . . . are not persuasive. 15 (A.R. 26-27).3 16 The ALJ’s first reason to discount the persuasiveness of Dr. Sirakoff’s opinion is that it 17 was not expressed in terms consistent with social security regulations. This rationale goes to the 18 supportability factor and was reasonable to note given that workers’ compensation guidelines are 19 not controlling in the social security context. See Desrosiers v. Sec’y of Health & Hum. Servs., 20 846 F.2d 573, 576 (9th Cir. 1988) (“The categories of work under the Social Security disability 21 scheme are measured quite differently” than those under California workers’ compensation law.). 22 However, an ALJ is still entitled to draw logical inferences from non-controlling guidelines, 23 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996), and Plaintiff argues that the ALJ’s analysis 24 threw out the “baby with the bathwater.” (ECF No. 19, p. 19). The Court disagrees. 25 The ALJ cited the disconnect between the workers’ compensation and social security 26 27 3 The Court has removed portions of the ALJ’s discussion that reference Dr. Emily P. Wakim, whose 28 opinion is not at issue in this case. 2 Notably, the ALJ cited specific inconsistencies between Dr. Sirakoff’s opinion and the record, 3 e.g., the claimant’s use of a non-prescribed cane and back brace and Dr. Sirakoff’s 4 recommendation of a conservative treatment plan. (A.R. 321 (stating that Plaintiff should be 5 “considered to undergo conservative medical management”)); see Parra v. Astrue, 481 F.3d 742, 6 751 (9th Cir. 2007) (“We have previously indicated that evidence of ‘conservative treatment’ is 7 sufficient to discount a claimant's testimony regarding severity of an impairment.”) (citation 8 omitted). 9 Accordingly, the Court concludes that the ALJ’s decision to deem Dr. Sirakoff’s opinion 10 not persuasive was supported by substantial evidence after consideration of the supportability and 11 consistency factors. 12 Lastly, Plaintiff argues that if the ALJ had found the opinions of Dr. Ramayya and Dr. 13 Sirakoff as persuasive as some state agency consulting opinions in the record, a separate 14 provision from the new regulations would have been triggered, requiring the ALJ to consider the 15 treatment relationship between her and the doctors who gave equally persuasive opinions. (ECF 16 No. 19, p. 21); (see A.R. 25 (finding opinions of Dr. Rule and Dr. Vaghaiwalla “persuasive 17 overall”)). 18 As the Ninth Circuit has noted, 19 The revised regulations recognize that a medical source’s relationship with the claimant is still relevant when assessing the persuasiveness of the source's opinion. 20 See id. § 404.1520c(c)(3). Thus, an ALJ can still consider the length and purpose of the treatment relationship, the frequency of examinations, the kinds and extent 21 of examinations that the medical source has performed or ordered from specialists, 22 and whether the medical source has examined the claimant or merely reviewed the claimant's records. Id. § 404.1520c(c)(3)(i)–(v). However, the ALJ no longer 23 needs to make specific findings regarding these relationship factors: 24 [W]e will explain how we considered the supportability and consistency factors for a medical source’s medical opinions . . . in your determination 25 or decision. We may, but are not required to, explain how we considered 26 the [relationship] factors ... when we articulate how we consider medical opinions . . . in your case record. 27 Id. § 404.1520c(b)(2) (emphasis added). 28 medical opinions . . . about the same issue are . . . equally well-supported . . . and 2 consistent with the record . . . but are not exactly the same.” Id. § 404.1520c(b)(3). In that case, the ALJ “will articulate how [the agency] considered the other most 3 persuasive factors.” Id. Other factors include relationship factors, id. § 404.1520c(c)(3), whether the medical source’s opinion concerns “medical issues 4 related to his or her area of specialty,” id. § 404.1520c(c)(4), and any “other 5 factors that tend to support or contradict [the] medical opinion,” id. § 404.1520c(c)(5). 6 Woods, 2022 WL 1195334, at *6. 7 Here, because the Court has concluded that the ALJ did not err regarding the 8 persuasiveness assigned to the opinions of Dr. Ramayya and Dr. Sirakoff, there were not two or 9 more medical opinions that were equally well-supported and consistent with the record but not 10 exactly the same. Thus, the Court rejects Plaintiff’s argument that the ALJ was required to discuss 11 the relationship factors. 12 B. Credibility 13 Plaintiff next argues that the ALJ erred in rejecting her subjective complaints. Generally, 14 Plaintiff references her prior argument regarding the ALJ’s discounting of the opinions of Dr. 15 Ramayya and Dr. Sirakoff and states that the ALJ’s credibility finding is erroneous for the same 16 reasons. (ECF No. 19, p. 22). And Plaintiff adds that the ALJ erred by failing to consider “her 17 near perfect wor[k] record for 30 years prior to filing her claim for disability.” (ECF No. 19, p. 18 23). Plaintiff reasons that it would be illogical for her to give up her career to receive less 19 lucrative disability benefits. (Id.). 20 As to a plaintiff’s subjective complaints, the Ninth Circuit has concluded as follows: 21 Once the claimant produces medical evidence of an underlying impairment, the 22 Commissioner may not discredit the claimant’s testimony as to subjective symptoms merely because they are unsupported by objective evidence. Bunnell v. 23 Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to 24 discredit excess pain testimony solely on the ground that it is not fully corroborated by objective medical findings”). Unless there is affirmative evidence 25 showing that the claimant is malingering, the Commissioner’s reasons for rejecting 26 the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ 27 must identify what testimony is not credible and what evidence undermines the claimant’s complaints. 28 2 ALJ’s reasoning as to subjective testimony “must be supported by substantial evidence in the 3 record as a whole.” Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995). 4 As an initial matter, the ALJ concluded that Plaintiff’s “medically determinable 5 impairments could reasonably be expected to cause the alleged symptoms.” (A.R. 22). 6 Accordingly, because there is no affirmative evidence showing that Plaintiff was malingering, the 7 Court looks to the ALJ’s decision for clear and convincing reasons, supported by substantial 8 evidence, for not giving full weight to Plaintiff’s symptom testimony. 9 The ALJ summarized Plaintiff’s complaints as follows: 10 At the hearing, the claimant alleged she could not work because she could not sit 11 or stand for long periods. She also could not talk on the phone or use a computer because of the pain in her hands. She uses a neck brace to relieve her neck pain. 12 She stopped taking pain medication because she was taking it so long that it 13 stopped working and the doctors were worried about liver damage. She treated her pain with a surgery that burned her nerves. She also uses exercise to treat her pain. 14 The claimant has pain that starts in her wrists, moves up her arms, and into her shoulders. The injections for her back pain have not helped. She does her 15 household chores less often and does them more slowly. She testified that her 16 neighbors help her with household chores. 17 (A.R. 22). Because Plaintiff does not challenge the ALJ’s reasons for discounting her subjective 18 complaints, the Court does not recite the ALJ’s entire discussion. However, the ALJ generally 19 reasoned that the degree of limitations that Plaintiff alleged were inconsistent with normal 20 medical findings, conservative treatment, and Plaintiff’s daily activities. (A.R. 22-25). 21 As an initial matter, to the extent that Plaintiff reincorporates her argument challenging 22 the ALJ’s rejection of opinion testimony, the Court concludes that the ALJ did not err for the 23 reasons given above. Next, to the extent that Plaintiff argues that the ALJ’s decision is erroneous 24 based on the alleged failure to consider Plaintiff’s work history, the Court disagrees. 25 True, social security regulations require an ALJ to consider “all of the evidence presented, 26 including information about [a claimant’s] prior work record.” 20 C.F.R. § 404.1529(c)(3). 27 However, an “ALJ is not required to discuss evidence that is neither significant nor probative.” 28 2 characterizing her work history as “stellar,” she offers no developed argument as to what in her 3 work history was significant or probative as to her credibility determination. Accordingly, the 4 Court cannot conclude that the ALJ was required to discuss it. 5 Moreover, while the ALJ never engaged in a detailed discussion of Plaintiff’s work 6 history in considering her credibility, the ALJ discussed it generally such that the Court is 7 satisfied that the ALJ considered it. For example, the ALJ noted that Plaintiff was able to 8 “describe her prior work history.” (A.R. 20). And the ALJ noted the Plaintiff’s discussion of her 9 work history at the hearing. (A.R. 22, 42-45 (discussion of Plaintiff’s 26 years as an account 10 manager at a shipping company)). Given Plaintiff’s failure to explain how the ALJ was obligated 11 to further address her work history, the Court finds no reason to overturn the ALJ’s credibility 12 determination. 13 C. Unconstitutional Administrative Process 14 Lastly, Plaintiff argues that, because the Appeals Council derived its authority to hear the 15 16 claim from an unconstitutional delegation of authority, the Court should vacate and remand.4 17 (ECF No. 17, p. 23). Specifically, Plaintiff argues that 42 U.S.C. § 902(a)(3), which allows the 18 Commissioner to be removed “only pursuant to a finding by the President of neglect of duty or 19 malfeasance in office,” violates the separations of powers doctrine. And because former- 20 Commissioner Saul was appointed under an unconstitutional removal provision, the delegation of 21 authority to the Appeals Council was unconstitutional, and it had no authority to render a decision 22 in this case. 23 Defendant agrees that 42 U.S.C. § 902(a)(3) violates the separation of powers to the extent 24 it is construed as limiting the President’s authority to remove the Commissioner without cause. 25 (ECF No. 20, p. 11). However, Defendant argues that this alone does not justify a remand. 26 4 Plaintiff initially argued that the ALJ acted under an unconstitutional delegation of authority, but later 27 waived that argument in her reply brief. (ECF No. 21, p. 2 (“To be clear for what follows, she will not pursue the ALJ issue any further because the ALJ issued her decision while former President Trump was 28 still in office.”)). 2 caused her harm. Here, Plaintiff cannot do so because the removal restriction did not affect the 3 determination of Plaintiff’s claim. Defendant also argues that various other legal doctrines 4 including harmless error, de facto officer, and the rule of necessity, as well as prudential 5 considerations caution against remand here. 6 The Ninth Circuit’s recent opinion in Kaufmann v. Kijakazi, No. 21-35344, 2022 WL 7 1233238 (9th Cir. Apr. 27, 2022), decided after the opening and opposition briefs were filed, is 8 dispositive of this issue. In Kaufman, the Ninth Circuit held that § 902(a)(3) “violates separation 9 of powers principles and must be severed from the statute.” Id. at *2. However, the Court 10 concluded that an actual showing of harm is still required to warrant relief. Id. at *5. This requires 11 a showing that the removal restriction affected the claimant in a particularized way, “for example, 12 that the President took an interest in her claim or that the Commissioner directed the Appeals 13 Council to decide her case in a particular way because of the statutory limits on the President’s 14 removal authority.” Id. A generalized argument “that the unconstitutional removal provision 15 16 affected the “expected value” of Claimant’s claim because the Commissioner theoretically could 17 act in more ways than he could have without the removal restriction,” is insufficient to show 18 actual harm. Id. 19 Here, Plaintiff argues that the harm she suffered was denial of a constitutionally valid 20 adjudication process and decision. (ECF No. 21, p. 2). However, such argument is not specific to 21 Plaintiff and does not show that the President took an interest in her claim or directed the Appeals 22 Council to decide her case in a particular way. Rather, if the Court agreed, it would result in the 23 “undo[ing] [of] all disability decisions made by the Social Security Administration while the 24 removal provision was operative.” Kaufmann, 2022 WL 1233238, at *5. Plaintiff also argues that 25 she has established actual harm based on President Biden’s apparent delay in terminating 26 Commissioner Saul combined with a White House statement at the termination criticizing 27 Commissioner Saul for politicizing social security benefits and reducing due process protections 28 enn ne een nn nn nn on ne on on nn nn ER 1 | for appeals hearings. (ECF No. 21, at p. 3). However, such speculation around the timing of 2 | Commissioner Saul’s removal and President Biden’s criticism does not establish that President 3 | Biden “would remove the [Commissioner] if the statute did not stand in the way.”° Collins v. 4 Yellen, 141 S. Ct. 1761, 1789 (2021); Kathy R. v. Kijakazi, No. 2:21-CV-00095-JDL, 2022 WL 5 42916, at *4 (D. Me. Jan. 5, 2022), report and recommendation adopted, 2022 WL 558359 (D. 6 Me. Feb. 24, 2022) (addressing and rejecting argument that timing of Commissioner Saul’s 7 removal satisfied the necessary nexus between the unconstitutional provision and the harm 8 alleged by plaintiff ). Because Plaintiff offers no evidence of actual harm, this claim fails. 9 II. CONCLUSION AND ORDER 10 Accordingly, the decision of the Commissioner of Social Security is hereby affirmed. And D the Clerk of the Court is directed to close this case. 13 IT IS SO ORDERED. 14 1s | Dated: _May 9, 2022 [Je hey 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 > Notably, Plaintiff improperly raised this argument for the first time in her reply brief, thus depriving Defendant of an opportunity to respond to it. See Brand v. Kijakazi, No. 2:20-CV-02219-NJK, 2021 WL 25 || 5868131, at *6 (D. Nev. Dec. 10, 2021) (concluding that plaintiff waived same argument by raising it for the first time in plaintiffs reply brief). However, for the reasons above, it would fail even if Plaintiff had 26 not waived the argument. ® Although Plaintiff calls much attention in her reply to the timing of President Biden’s decision to remove 27 || Commissioner Saul from office upon purportedly learning his ability to do so, Plaintiff’s opening brief also asserts that the unconstitutionality of the removal provision has been questioned since President 28 | Clinton was in office. (ECF No. 19, pp. 24-25, n. 15; ECF No. 21, p. 3). 12