Toney v. Commissioner, Social Security Administration

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KEVIN TONEY,
Plaintiff,
v. No. 1:21-cv-00557-ZMF
KILOLO KIJAKAZI,
Acting Commissioner of Social Security,
Defendant.
MEMORANDUM OPINION
Plaintiff Kevin Toney moves to reverse a decision by Defendant Commissioner of the
Social Security Administration (“Commissioner” or “SSA”) adopting the findings of an
Administrative Law Judge (“ALJ”) and denying Mr. Toney’s application for Supplemental
Security Income (“SSI”) and Disability Insurance Benefits (“DIBs”). See Pl.’s Mot. J. Pleadings
at 1, ECF No. 18 [hereinafter “Pl.’s Mot.”]. Mr. Toney claims that the ALJ committed reversible
error at steps three, four, and five in the five-step process used by the SSA to determine whether a
claimant is disabled. See 20 C.F.R. § 416.920(a)(4); see also Pl.’s Mot. at 12–13, 16–17, 23. Mr.
Toney further claims that the for-cause removal restriction on the Social Security Administration
Commissioner is unconstitutional and renders the ALJ’s decision constitutionally defective. See
Pl.’s Mot. at 11.
On September 14, 2021, by consent of both parties, United States District Judge Royce C.
Lamberth referred this matter to a magistrate judge for all purposes. See Order Referring Case to
a Magistrate Judge, ECF No. 12. Pending before this Court are Plaintiff’s Motion for Judgment
on the Pleadings and Defendant’s Motion for Judgment of Affirmance. See Pl.’s Mot.; Def.’s Mot.
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J. Affirmance, ECF No. 19 [hereinafter “Def.’s Mot.”]. Having considered the parties’
submissions and the Administrative Record, 1 and for the reasons set forth below, the undersigned
will DENY the Plaintiff’s Motion for Judgment on the Pleadings, and GRANT the Defendant’s
Motion for Judgment of Affirmance in an accompanying order.
I. BACKGROUND
A. Statutory Framework
The Social Security Act (the “Act”) provides DIB for “disabled” individuals. 42 U.S.C. §
423(a)(1). The Act defines “disability” as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment . . . which has
lasted or can be expected to last for a continuous period of not less than 12 months.” Id.§ 423(d)(1)(A). The impairment must be severe and must render the individual unable to perform
both “previous work” and “any other kind of substantial gainful work which exists in the national
economy.” § 1382c(a)(3)(B); 20 C.F.R. § 416.905(a).
The SSA uses a five-step sequential process to determine whether a claimant is
disabled. See 20 C.F.R. § 416.920(a)(4). If a determination can be made at any step, the SSA does
not go on to the next step. See id. The burden of proof is borne by the claimant at each of the first
four steps and switches to the Commissioner at step five. See Butler v. Barnhart, 353 F.3d 992,
997 (D.C. Cir. 2004) (citing 20 C.F.R. §§ 404.1520, 416.920). At step one, the claimant must
demonstrate that he is not presently engaged in “substantial gainful activity.” 20 C.F.R. §
416.920(a)(4)(i). At step two, the claimant must show that he has a “severe” medically
determinable impairment that “significantly limits [his] physical or mental ability to do basic work
1
The Administrative Record consists of ten exhibits. See ECF No. 7. For ease of reference,
citations to the Administrative Record will refer to “AR” and cite to the consecutive page
numbers provided in the lower right-hand corner of each page.
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activities.” Id. § 416.920(a)(4)(ii). At step three, the claimant must show that his impairment—
or combination of impairments—“meets or equals” the criteria of an impairment listed in the SSA
Commissioner’s regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment does not meet
or equal a listed impairment, the Commissioner proceeds to step four, which requires the
Commissioner to determine the claimant’s residual functional capacity (“RFC”) and whether, in
light of the RFC, the claimant can still perform any relevant past work. See id. §§
416.920(a)(4)(iv), 416.920(e)–(f). If the RFC indicates that the claimant cannot engage in past
work, then at step five, the ALJ looks to the claimant’s RFC, age, education, and past work
experience to determine if he can perform “other work” in the national economy. See id. §§
416.920(a)(4)(v), 416.920(g).
B. Factual Background
1. Mr. Toney’s Testimony and Reports
Mr. Toney previously worked as a housekeeper, cleaner, commercial groundskeeper,
kitchen helper, and material handler. See AR 65. He had not engaged in substantial gainful activity
since June 1, 2017, the alleged disability onset date. See AR 16. According to Mr. Toney, he did
not have trouble following directions if they are written in elementary language. See AR 57.
Further, he could follow spoken instructions if he could hear them with his hearing aids. See AR
298. Mr. Toney lived with a friend who did the work around the home such as cooking, cleaning,
laundry, and shopping. See AR 61. Mr. Toney would go to the store with his friend, who carried
the bags home from the store. See AR 61. He did not drive and had not taken any long trips
recently. See AR 62. Mr. Toney testified that on an average day he watched TV, moved from the
bed to a chair, tried to eat and take his medications, and slept. See AR 62. He could stand for ten
or fifteen minutes before having to sit back down. See AR 63. Mr. Toney stated that he could
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walk a block without having to stop. See AR 63. However, he had previously indicated that he
could only walk three to five feet without needing to stop and rest. See AR 298. Mr. Toney walked
with a cane for support, but the cane was not prescribed by a doctor. See AR 298–99.
2. Medical Evidence
Since June 2017, Mr. Toney has been diagnosed with recurrent diverticulitis. See AR 768.
On February 24, 2018, a chest x-ray revealed that Mr. Toney had mild chronic obstructive
pulmonary disease and a bullet fragment lodged in his upper back. See AR 662. On February 28,
2018, Mr. Toney underwent multiple procedures to treat his diverticulitis with abscess formation
without complication. See AR 758–59. On July 31, 2018, a hip x-ray indicated that Mr. Toney
did not have arthritis. See AR 487.
On July 31, 2018, a consultative examiner, Dr. Elizabeth Nolte, evaluated Mr. Toney. See
AR 488. Dr. Nolte determined that Mr. Toney had a post gunshot wound to the upper back,
diverticulitis, chronic back pain, chronic abdominal pain, status post partial colectomy, status post
open reduction and internal fixation of right mandible, and status post open reduction and internal
fixation of right radius and ulna. See AR 488. Dr. Nolte noted that Mr. Toney had a “waddling”
gait, could walk on his heels, and his cane did not appear to be medically necessary. See AR 486.
Dr. Nolte tested Mr. Toney’s extremities and found that Mr. Toney had 5/5 strength in his
extremities and no muscle atrophy. See AR 487. Mr. Toney also had 4/5 grip strength bilaterally,
a strong pinch bilaterally, and he could zip, button, and tie. See id. Dr. Nolte listed Mr. Toney’s
prognosis as fair and noted that he had moderate limitations in walking, bending, reaching, and
hearing. See AR 488.
On November 10, 2018, Psychologist Sonya Clyburn saw Mr. Toney for a consultative
examination. See AR 525. Mr. Toney indicated to Dr. Clyburn that he completed twelfth grade
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and was in special education due to his attention-deficit/hyperactivity disorder (“ADHD”) and
academic slowness. See AR 525. Mr. Toney reported one previous psychiatric hospitalization for
thirty days when he was in middle school, but he was unaware of the reason and date of the
hospitalization. See AR 525. Mr. Toney reported having short and long-term memory deficits,
concentration difficulties, word finding difficulties, receptive language deficits, and difficultly
learning new material, planning, organizing, and sequencing. See AR 526.
Dr. Clyburn’s diagnosed Mr. Toney with mild intellectual disability, ADHD, mild
recurrent major depressive disorder, generalized anxiety disorder, and post-traumatic stress
disorder. See AR 529. Dr. Clyburn identified Mr. Toney’s self-reported medical diagnoses as
asthma, diverticulosis, history of broken bones, hearing loss, back pain, and stomach pain. See
AR 529. Dr. Clyburn listed Mr. Toney’s prognosis as fair and recommended psychotherapy,
psychiatric intervention, medical follow up and evaluation, vocational training, and pain
management. See AR 529.
In March 2019, at a follow up appointment at Howard University Hospital, Mr. Toney
reported doing well. See AR 895. The provider noted that Mr. Toney continued to have
intermittent rectal bleeding and minimal abdominal pain, but he had no diarrhea, weight loss,
dysphagia, fever, nausea, or vomiting. See AR 895.
C. Procedural Background
On March 16, 2018, Mr. Toney applied for DIBs and SSI. See AR 239, 243. On September
21, 2018, the SSA denied Mr. Toney’s DIBs and SSI applications. See AR 168–71. On October
15, 2018, Mr. Toney requested reconsideration. See AR 176–77. On December 7, 2018, the SSA
affirmed the September 21, 2018 denial after reconsideration. See AR 183–89. On January 5,
2019, Mr. Toney requested a hearing before an ALJ. See AR 190–91.
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On November 21, 2019, ALJ Raghav Kotval held a hearing on Mr. Toney’s claims. See
AR 34. On January 15, 2020, ALJ Kotval affirmed the denial of benefits. See AR 14–28. At step
one, the ALJ found that Mr. Toney had not engaged in substantial gainful activity since the alleged
disability onset date. See AR 16. At step two, the ALJ found that Mr. Toney had the following
severe impairments: “gastritis and duodenitis, asthma, fracture of bones, hearing loss, arthritis,
affective mood disorder, and anxiety disorder.” AR 16. The ALJ further determined that Mr.
Toney had a mild limitation in interacting with others and the following moderate limitations:
understanding, remembering or applying information; concentrating, persisting, or maintaining
pace; and adapting or managing himself. See AR 17–19.
At step three, the ALJ determined that Mr. Toney “d[id] not have an impairment or
combination of impairments that meets or medically equals the severity of” Listings 1.02
(dysfunction of major joints), 5.08 (weight loss due to digestive disorder), 2.10 (hearing loss), or
3.03 (asthma). See AR 17. Further, the ALJ found that Mr. Toney’s mental health impairments
did not meet or medically equal the criteria of Listings 12.04 and 12.06. See AR 18. The ALJ
found that the “Paragraph B” criteria were not satisfied “[b]ecause the claimant’s mental
impairments d[id] not cause at least two ‘marked’ limitations or one ‘extreme’ limitation.” AR
18–19. The ALJ also determined that the evidence did not satisfy the “Paragraph C” criteria. See
AR 19.
At step four, the ALJ found that:
[T]he claimant has the [RFC] to perform light work as defined in 20 [C.F.R.
§§] 404.1567(b) and 416.967(b) except he can occasionally climb ramps/stairs;
climb ladders, ropes, or scaffolds; balance; stoop; kneel; crouch; and crawl. He can
only occasionally be exposed to moving mechanical parts and unprotected heights;
pulmonary irritants and poor ventilation; concentrated odors, fumes, dusts, and
gases; and vibration. He can only work in a moderately loud work environment or
quieter. He is limited to simple, routine tasks, not at a production pace but
performed in two-hour increments following which the claimant would need a
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break of 10-to-15 minutes. That break can be accommodated during normal work
breaks. He can further only occasionally adjust to changes in workplace settings.
AR 19–20. The ALJ consequently determined that Mr. Toney was capable of performing his past
relevant work as a housekeeping cleaner. See AR 26.
At step five, the ALJ determined that given Mr. Toney’s RFC, age, education, and work
experience in conjunction with the Medical-Vocational Guidelines, there were additional jobs in
sufficient numbers in the national economy that he could perform, including Ticket Seller, Toll
Collector, and Order Caller. See AR 26–28. The ALJ determined that if Mr. Toney needed the
assistance of a cane for ambulation, he could perform the jobs of Ticket Seller, Toll Collector, and
Order Caller, but not his past relevant work in housekeeping. See AR 28. In reaching the
conclusions of steps four and five, the ALJ relied on the testimony of impartial vocational expert,
Charlotte G. Dixon. See AR 14.
II. LEGAL STANDARD
This Court may not reweigh the evidence; it may only determine whether the ALJ’s
determination was based on substantial evidence and applied the relevant legal standards. See
Butler, 353 F.3d at 999. Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Id. (quoting Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted)). Substantial evidence is a deferential standard that
“requires more than a scintilla, but can be satisfied by something less than a preponderance of the
evidence.” Id. (quoting Fla. Mun. Power Agency v. Fed. Energy Regul. Comm’n, 315 F.3d 362,
365–66 (D.C. Cir. 2003) (internal citation omitted)). On review, the “plaintiff bears the burden of
demonstrating that the Commissioner’s decision [was] not based on substantial evidence or that
incorrect legal standards were applied.” Settles v. Colvin, 121 F. Supp. 3d 163, 169 (D.D.C. 2015)
(quoting Muldrow v. Astrue, No. 11-1385, 2012 WL 2877697, at *6 (D.D.C. July 11, 2012)).
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III. ANALYSIS
A. The ALJ’s Evaluation of Listing Criteria
The ALJ “specifically identifie[d] Listing[s] [1.02, 5.08, 2.10, 3.03, 12.04, and 12.06],
describe[d his] reasons for concluding that Plaintiff’s condition d[id] not meet or medically equal
th[ose] Listing[s], and [went] on to discuss the evidence in the record in significant detail,” Conway
ex rel. Tolen v. Astrue, 554 F. Supp. 2d 26, 35 (D.D.C. 2008), including medical records, a
disability report, function reports, and consultative examiner reports, see AR 17–18. There was
no requirement “that the ALJ provide an exhaustive point-by-point breakdown of each and every
listed impairment.” Keene v. Berryhill, 732 F. App’x 174, 177 (4th Cir. 2018).
First, the ALJ found that “[t]he evidence d[id] not show that the claimant’s dysfunction of
major joints [met] Listing 1.02. The claimant’s records d[id] not indicate that he suffer[ed] from
an inability to use the bilateral upper extremities to perform gross and fine manipulation, nor d[id]
he suffer from an inability to ambulate effectively as result of joint dysfunction.” AR 17; cf.
Campfield v. Comm’r of Soc. Sec., 228 F. Supp. 3d 87, 108 (D.D.C. 2016) (finding that the plaintiff
did not have a Listing 1.02 impairment because the record did not indicate a bilateral limitation in
the upper extremities or “an extreme limitation of the ability to walk”). The ALJ’s finding was
supported by Dr. Nolte’s consultative examiner report concluding that Mr. Toney’s cane was not
medically necessary, that Mr. Toney could walk without the cane, and that Mr. Toney retained 5/5
bilateral strength in his extremities. See AR 486–87. The ALJ’s reliance on these facts was
appropriate. See Mann v. Astrue, 284 F. App’x 567, 571 (10th Cir. 2008) (affirming ALJ’s
determination that, based on the consultative physician’s findings and contrary to the plaintiff’s
testimony, the plaintiff could walk without a cane).
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Second, the ALJ found that “[t]he severity of the claimant’s mental impairments,
considered singly and in combination, d[id] not meet or medically equal the criteria of [L]istings
12.04 and 12.06.” AR 18. In doing so, the ALJ considered whether Listings 12.04 and 12.06
Paragraph B criteria were satisfied. See AR 18. The ALJ’s determination was supported by Dr.
Clyburn’s consultative examiner report finding that Mr. Toney only had moderate and mild mental
health limitations, while Paragraph B criteria required extreme and/or marked impairments. See
AR 18–19, 525–29. The ALJ’s reliance on these facts was appropriate. See Jones v. Soc. Sec.
Admin. Comm’r, 857 F. App’x 587, 592 (11th Cir. 2021) (upholding the ALJ’s determination that
the plaintiff only had moderate mental health limitations based upon the consultative
psychologist’s opinion and corresponding records).
Finally, neither testimony from Mr. Toney or the medical records indicated a severe
impairment of the spine or neurological function. 2 See AR 343, 369, 408, 495, 535, 541, 770, 889,
898, 928, 943, 959, 968, 974, 985 (treatment provider records showing no severe impairments of
the spine or neurological function); AR 44–63 (Plaintiff’s testimony showing no claim of severe
impairments of the spine or neurological function). Thus, record evidence did not “clearly
generate[] an issue” that would implicate a need for the ALJ to evaluate Listing 1.15 for Disorders
of the Spine, or any Neurological Listings in 11.00. See Cobb, 770 F. Supp. 2d at 170 (citing Wells
v. Astrue, No. 02-cv-1357, 2009 WL 2338047, at *7 n.5 (D.D.C. July 30, 2009)) (remanding when
“[d]espite having just concluded that the plaintiff’s severe impairments [] included arthritis, back
2
Mr. Toney had severe impairments related to stomach and digestive issues, breathing problems,
fracture of bones, hearing loss, arthritis, and mood and anxiety disorders. See AR 16. These other
impairments need not be addressed because plaintiff did not have severe spinal or neurological
impairments, which is the primary issue here. Step three only “requires the ALJ to perform a
listing comparison for the relevant severe impairments.” See Cobb v. Astrue, 770 F. Supp. 2d 165,
170 (D.D.C. 2011) (emphasis added).
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and neck pain, and depression, the ALJ’s decision only analyzed whether the plaintiff’s mental
impairment—i.e., depression—met the criteria for a listed impairment”) (internal quotations
omitted).
B. The ALJ’s Evaluation of Mr. Toney’s RFC
The RFC is “the most [a claimant] can still do despite [his] limitations.” 20 C.F.R.
§ 404.1545(a)(1). When determining the RFC, the ALJ “must build a ‘logical bridge’ from the
evidence to his conclusion.” Banks v. Astrue, 537 F. Supp. 2d 75, 84 (D.D.C. 2008) (quoting
Lane–Rauth v. Barnhart, 437 F. Supp. 2d 63, 67 (D.D.C. 2006)). SSR 96-8p, a policy ruling by
the SSA, requires the RFC determination to be a “function-by-function” inquiry based on all the
relevant evidence of a claimant’s abilities and contain a “narrative discussion” that includes
supporting evidence, but a written function-by-function analysis is not required. Id. at 84–85
(citing Butler, 353 F.3d at 1000). “[T]he ALJ must explain how he considered and resolved any
‘material inconsistencies or ambiguities’ evident in the record . . . .” Id.
1. Weighing Mr. Toney’s Testimony
A claimant’s “[s]tatements about . . . symptoms will not alone establish that [he was]
disabled. There must be objective medical evidence from an acceptable medical source that shows
[he] ha[d] a medical impairment(s) which could reasonably be expected to produce the . . .
symptoms alleged.” 20 C.F.R. § 416.929(a). Whenever the claimant’s statements about the
intensity, persistence, or functionally limiting effects of pain or other symptoms are not
substantiated by objective medical evidence, the ALJ must make a credibility finding of the
claimant’s statements “based on a consideration of the entire case record.” SSR 96–7P, 1996 WL
374186 (July 2, 1996). The ALJ’s decision “must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be sufficiently specific to make
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clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the
individual’s statements and reasons for that weight.” Butler, 353 F.3d at 1005 (quoting SSR 96–
7p, 1996 WL 374186 (July 2, 1996)).
The ALJ considered evidence of both physical and mental limitations of the Plaintiff in the
RFC determination. See AR 20–25. The ALJ considered the Plaintiff’s statements regarding his
symptoms and the extent to which those symptoms could be reconciled by the objective medical
evidence. See AR 20–21, 23, 26. The ALJ then built a “logical bridge” to his determination that
the record did not support the Plaintiff’s statements regarding his symptoms beyond the
consultative examiners’ findings. See AR 20–21, 23, 26; Banks, 537 F. Supp. 2d at 84–85
(affirming ALJ’s decision because “the ALJ explained why he discounted certain opinions and
provided a ‘logical bridge’ between the evidence and his conclusion, [thus] he met the standards
required under SSR 96–8p.”). The ALJ referred to medical records showing the lack of
complication in Plaintiff’s recovery from treatment of his diverticulitis, that Plaintiff had normal
muscle strength and could walk without a cane, and that Plaintiff’s breathing and mental health
difficulties were non-severe. See AR 23–24 (citing AR 544–46, 895, 941, 943 (showing
uncomplicated diverticulitis treatment); then citing AR 343, 369, 408, 495, 535, 541, 770, 889,
898, 928, 943, 959, 968, 974, 985 (showing normal muscle strength and gait); then citing AR 662
(showing non-severe breathing difficulties); and then citing AR 525–26 (showing non-severe
mental health difficulties)).
The ALJ also discussed how the record failed to show physical or mental limitations
beyond the consultative examiner’s findings despite the Plaintiff’s testimony to the contrary. See
AR 21–23. “[T]he ALJ . . . found that Plaintiff’s statements as to the intensity, persistence, and
limiting effects of those symptoms were ‘not entirely consistent’ with the record evidence.” Jamil
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D. v. Kijakazi, No. 21-cv-464, 2022 WL 910334, at *6 (D.D.C. Mar. 29, 2022) (citation omitted).
For example, the ALJ explained that the record showed Plaintiff’s strength and gait to be normal,
even though Plaintiff claims they were not. See AR 23 (citing AR 343, 369, 408, 495, 535, 541,
770, 889, 898, 928, 943, 959, 968, 974, 985). The ALJ’s reliance on the consultative examiner’s
report provided the necessary specific reason to discount plaintiff’s testimony. See Jamil D., 2022
WL 910334, at *6 (upholding the ALJ’s RFC determination contrary to the plaintiff’s statements
regarding his symptoms where the ALJ considered record evidence, the plaintiff’s statements, and
consulting physician opinions).
Despite determining that Plaintiff’s arthritis was a severe impairment, see AR 16, the ALJ
noted that the consultative examiner’s report found his cane to be medically unnecessary—again
contrary to Plaintiff’s statements. See AR 22–23. The medical records reveal that Plaintiff could
walk without a cane and needed no help changing for the consultative examination or getting on
and off the exam table. See AR 486. The ability to walk without a cane is a sufficient, specific
reason to discount plaintiff’s testimony to the contrary. See Mann, 284 F. App’x at 571 (affirming
the ALJ’s determination that, based on the consultative physician’s findings and contrary to the
plaintiff’s testimony, the plaintiff could walk without a cane). Thus, the ALJ properly considered
and explained the weight he gave to the medical evidence in the record. See AR 25–26; SSR 96-
7P, 1996 WL 374186 (July 2, 1996).
2. Weighing the Evidence and Opinions from Treating Providers
The ALJ must give a treating physician’s opinion “‘controlling weight’ if [the opinion is]
not inconsistent with other substantial record evidence and [is] well-supported by medically
acceptable clinical and laboratory diagnostic techniques.” Butler, 353 F.3d at 1003. An ALJ who
rejects a treating physician’s opinion must “explain his reasons for doing so.” Williams v. Shalala,
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997 F.2d 1494, 1498 (D.C. Cir. 1993) (citing Simms v. Sullivan, 877 F.2d 1047, 1052–53 (D.C.
Cir. 1989)).
The ALJ considered the opinions and evidence of treating providers, including Dr.
Williams, when determining the RFC. See, e.g., AR 22–23. The treating providers offered
opinions that were consistent with the ALJ’s determinations. See, e.g., AR 25 (citing AR 296,
343, 369, 408, 495, 525–32, 535, 541, 770, 889, 898, 928, 943, 959, 968, 974, 985) (treating
provider records showing that Plaintiff’s diverticulitis resolved with treatment, and Plaintiff had
normal strength and gait allowing him to walk without a cane). The treating providers’ records
cited by Plaintiff do not indicate limitations beyond the ALJ’s findings. See Pl.’s Reply at 2, ECF
No. 21 (citing AR 21–26, 44–46, 50–54, 293–99, 336–38, 420, 449–52, 484, 487, 526–29, 546–
47, 812–23, 877, 933–35, 953–59, 967, 972–77, 983–88).
Additionally, the ALJ explained that the consultative examiners’ opinions were persuasive
because of their depth of analysis and consistency with other record evidence. See AR 25.
Specifically, the ALJ compared the consultative examiner’s opinions to underlying medical
records from treating physicians, including as to uncomplicated diverticulitis treatment, normal
gait and muscle strength, and non-severe difficulties in plaintiff’s breathing and mental health. See
AR 25–26. The treating physicians’ records were largely consistent with the consultative
examiners’ findings, which the ALJ highlighted. See, e.g., AR 25–26 (citing AR 296, 343, 369,
408, 495, 525–32, 535, 541, 770, 889, 898, 928, 943, 959, 968, 974, 985). For example, the ALJ
discussed how the “treatment records consistently noted the claimant retains normal muscle
strength and normal gait and station without the use of any assistive device,” consistent with the
consultative examiner’s opinion. Compare AR 23, 26 (citing medical records from treatment
providers finding that Plaintiff had normal gait and strength) with AR 484–88 (consultative
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examiner report finding the same). Further, the ALJ found that the psychiatric consultative
examiner’s finding of only mild to moderate mental health limitations was consistent with the
medical record, citing both Plaintiff’s infrequent treatment and self-reported capabilities
“including his ability to utilize public transportation, shop in stores, and manage his finances
independently.” See AR 25 (explaining Plaintiff’s self-reported activities); AR 525 (explaining
that Plaintiff reported no current psychiatric treatment and one previous psychiatric hospitalization
as a child of which there is no record). Accordingly, there were no “‘material inconsistencies or
ambiguities’ evident in the record” for the ALJ to explain. Banks, 537 F. Supp. 2d at 84.
C. Constitutionality of the SSA Commissioner’s Removal Restriction
It is undisputed that the SSA Commissioner’s for-cause removal provision violates the
constitutional separation of powers. Constitutionality of the Comm’r of Soc. Sec.’s Tenure Prot.,
2021 WL 2981542 (O.L.C. July 8, 2021). This Circuit has not addressed the SSA Commissioner’s
for-cause removal restriction; however, many other courts have rejected these claims for lack of
compensable harm. See Juliana Jolean A. v. Kijakazi, No. 5:20-cv-1268, 2022 WL 595361, at *4
(N.D.N.Y. Feb. 28, 2022); Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1137 (9th Cir. 2021)
(upholding the ALJ’s decision where there was no showing of compensable harm caused by the
unlawful provision); Brinkman v. Kijakazi, No. 2:21-cv-00528, 2021 WL 4462897, at *2 (D. Nev.
Sept. 29, 2021) (“Plaintiff has not shown that whether the President could remove the SSA
Commissioner without limitations . . . impacted the independence of the ALJ or his decision in
Plaintiff’s case.”); Perez-Kocher v. Comm’r of Soc. Sec., No. 6:20-cv-2357, 2021 WL 6334838,
at *5 (M.D. Fla. Nov. 23, 2021) (finding no showing of compensable harm where plaintiff did not
allege any direct action by former Commissioner or any involvement, or even awareness, by the
former President of the ALJ’s decision). Plaintiff has failed to identify any social security cases
14
that reached a contrary result. See Pl.’s Mot. at 10–11. Further, “Plaintiff has not alleged any
connection between the removal restriction and the unfavorable decision denying [his] claim for
benefits. [He] therefore has not alleged that the unconstitutional removal restriction itself inflicted
compensable harm.” Juliana Jolean A., 2022 WL 595361, at *4 (citing Collins v. Yellen, 141 S.
Ct. 1761, 1789 (2021)); see Pl.’s Mot. at 10–11. Accordingly, Plaintiff has not shown that the for-
cause removal restriction caused him harm, as required under Collins. See 141 S. Ct. at 1787–89.
IV. CONCLUSION
For the reasons stated above, the Court will DENY the Plaintiff’s Motion for Judgment on
the Pleadings, and GRANT the Defendant’s Motion for Judgment of Affirmance.
Zia M.
Date: August 1, 2022 Faruqui
___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE
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