Opinion
CIV-21-720-D
06-08-2022
KYLE GENE KUBIAK, Plaintiff, v. KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL, UNITED STATES MAGISTRATE JUGE
Kyle Gene Kubiak (Plaintiff) brings this action for judicial review of the Commissioner of Social Security's final decision that he was not “disabled” under the Social Security Act. See 42 U.S.C. §§ 405(g), 423(d)(1)(A). Chief United States District Judge Timothy D. DeGiusti has referred the matter to the undersigned Magistrate Judge for submission of findings and recommendations consistent with 28 U.S.C. § 636(b)(1)(B), (b)(3), and Fed.R.Civ.P. 72(b).Doc. 14.
Citations to the parties' pleadings and attached exhibits will refer to this Court's CM/ECF pagination. Citations to the Administrative Record (AR) will refer to its original pagination.
Plaintiff asks this Court to reverse the Commissioner's decision and remand the case for further proceedings, arguing the Administrative Law Judge (ALJ) did not properly consider the medical opinions and failed to include all of Plaintiff's limitations in the residual functional capacity (RFC) assessment. Doc. 16, at 4-13. He also contends he has been deprived of a valid administrative adjudicatory process because the President was statutorily restricted in his ability to terminate the Commissioner of the Social Security Administration. Id. at 13-16. After careful review of the record, the parties' briefs, and the relevant authority, the undersigned finds no reversible error with regard to any of Plaintiff's claims. The undersigned thus recommends the Court affirm the Commissioner's decision. See 42 U.S.C. § 405(g).
Residual functional capacity “is the most [a claimant] can still do despite [a claimant's] limitations.” 20 C.F.R. § 404.1545 (a)(1).
I. Administrative determination.
A. Disability standard.
The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “This twelve-month duration requirement applies to the claimant's inability to engage in any substantial gainful activity, and not just [the claimant's] underlying impairment.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (citing Barnhart v. Walton, 535 U.S. 212, 218-19 (2002)).
B. Burden of proof.
Plaintiff “bears the burden of establishing a disability” and of “ma[king] a prima facie showing that he can no longer engage in his prior work activity.” Turner v. Heckler, 754 F.2d 326, 328 (10th Cir. 1985). If Plaintiff makes that prima facie showing, the burden of proof then shifts to the Commissioner to show Plaintiff retains the capacity to perform a different type of work and that such a specific type of job exists in the national economy. Id.
C. Relevant findings.
1. Administrative Law Judge's findings.
The ALJ assigned to Plaintiff's case applied the standard regulatory analysis to decide whether Plaintiff was disabled during the relevant timeframe. AR 15-30; see 20 C.F.R. § 404.1520(a)(4); see also Wall v. Astrue, 561 F.3d 1048, 1052 (10th Cir. 2009) (describing the five-step process). The ALJ found that Plaintiff:
(1) did not engage in substantial gainful activity between April 25, 2017, the alleged onset date, and September 30, 2019, the date last insured;
(2) has the following severe impairments: depressive bipolar disorder and anxiety disorder;
(3) had no impairment or combination of impairments that met or medically equaled the severity of a listed impairment;
(4) had the RFC to perform a full range of work at all exertional levels with the following non-exertional limitations: he could perform one- to two-step tasks with no interaction with the general public or occasional interaction with supervisors or coworkers;
(5) was not able to perform his past relevant work;
(6) can perform jobs that exist in significant numbers in the national economy, such as cart attendant, Dictionary of Occupational Titles (DICOT) 920.687-014, janitor, DICOT 381.687-018, and floor waxer, DICOT 381.687-034; and so,
(7) was not under a disability from April 25, 2017, through September 30, 2019.See AR 17-29.
2. Appeals Council's findings.
The Social Security Administration's (SSA) Appeals Council denied Plaintiff's request for review, see id. at 1-6, making the ALJ's decision “the Commissioner's final decision for [judicial] review.” Krauser v. Astrue, 638 F.3d 1324, 1327 (10th Cir. 2011) (citing Doyal v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003)).
II. Judicial review of the Commissioner's decision.
A. Review standard.
The Court reviews the Commissioner's final decision to determine “whether substantial evidence supports the factual findings and whether the ALJ applied the correct legal standards.” Allman v. Colvin, 813 F.3d 1326, 1330 (10th Cir. 2016). Substantial evidence is “more than a scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084; see Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (“It means-and means only-such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”) (internal quotation marks and citation omitted). A decision is not based on substantial evidence “if it is overwhelmed by other evidence in the record.” Wall, 561 F.3d at 1052 (citation omitted). The Court will “neither reweigh the evidence nor substitute [its] judgment for that of the agency.” Newbold v. Colvin, 718 F.3d 1257, 1262 (10th Cir. 2013) (citation omitted).
B. The ALJ did not commit reversible error with regard to his consideration of medical opinions.
Plaintiff contends the ALJ did not properly consider the opinions of Dr. Eddie Scott, Ed.D., Dr. Ray Hand, Ph.D., Ms. Linda Sloan, B.A., BHCM II, Dr. Raymond Azadgoli, M.D., and an unknown individual at Hope Community Services who completed an Outpatient Request for Prior Authorization. Doc. 16, at 9-13. The undersigned finds the ALJ committed no reversible error in his consideration of any of the alleged opinion evidence.
Plaintiff also asserts Dr. Jim L. Burke, D.O. “was not found on the internet” and that his resume was not included in the record. Doc. 16, at 9. To the extent Plaintiff maintains that the ALJ should not have considered Dr. Burke's opinion, Plaintiff has waived this argument for lack of development. See Murrell v. Shalala, 43 F.3d 1388, 1389 n.2 (10th Cir. 1994) (holding inadequately framed or developed “perfunctory complaints” are insufficient to invoke review).
1. The ALJ must discuss the persuasiveness of a medical opinion.
“A medical opinion is a statement from a medical source about what [a claimant] can still do despite [his] impairment(s)” and whether a claimant has a limitation or restriction in the ability to perform physical, mental, or other demands of work or to adapt to environmental conditions. 20 C.F.R. § 404.1513(a)(2). Other evidence from a medical source-including “judgments about the nature and severity of [a claimant's] impairments, [a claimant's] medical history, clinical findings, diagnosis, treatment prescribed with response, or prognosis”-is not a medical opinion. Id. § 404.1513(a)(3).
The ALJ does not “defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s).” Id. § 404.1520c(a). Instead, the ALJ evaluates the persuasiveness of all medical opinions and prior administrative medical findings by considering a list of factors. Id. § 404.1520c(b). The factors are: (i) supportability; (ii) consistency; (iii) relationship with the claimant (including length of the treatment relationship, frequency of examinations, purpose and extent of the treatment relationship, and examining relationship); (iv) specialization; and (v) “other factors that tend to support or contradict a medical opinion or prior administrative finding” (including, but not limited to, “evidence showing a medical source has familiarity with the other evidence in the claim or an understanding of our disability program's policies and evidentiary requirements”). Id. § 404.1520c(c). Supportability and consistency are the most important factors and the ALJ must explain how both were considered. See id § 404.1520c(b)(2). The ALJ need not explain how he considered the other factors. Id. But when the ALJ finds that two or more medical opinions or prior administrative findings on the same issue are different but equally well supported and consistent with the record, the ALJ must explain how “the other most persuasive factors in paragraphs (c)(3) through (c)(5)” were considered. Id. § 404.1520c(b)(3).
a. A Global Assessment of Functioning (GAF) score is not a medical opinion under 20 C.F.R. § 404.1513(a)(2).
Dr. Hand conducted a consultative examination of Plaintiff on March 16, 2017. AR 487-91. Plaintiff complains the ALJ did not evaluate Dr. Hand's assessment of a GAF score of 41-50. Doc. 16, at 10. Dr. Hand, however, did not assess such a GAF score. Instead, he found Plaintiff's “[GAF] ranges from the moderate to serious symptom range”-which the ALJ addressed in the decision. AR 25, 491.
This statement represents a GAF score in the 41-60 range. See Keyes-Zachary v. Astrue, 695 F.3d 1156, 1162 n.1 (10th Cir. 2012) (noting a GAF score of 41-50 indicates “[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school function (e.g., no friends, unable to keep a job)” and a score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)” (internal quotation marks omitted)).
A finding of a GAF ranging “from moderate to serious symptom range” is not a medical opinion under 20 C.F.R. § 404.1513(a)(2) because it is not a statement about what Plaintiff can do despite his mental impairments. See Butler v. Astrue, 412 Fed.Appx. 144, 147 (10th Cir. 2011) (noting GAF scores are “not linked to any work-related limitations”). Thus, the ALJ was not required to consider Dr. Hand's GAF finding as a medical opinion under 20 C.F.R. § 404.1520c.
Plaintiff also complains the ALJ did not address Dr. Hand's notations that his psychiatric drugs made him drowsy, he ceased doing charity work as a stand-up comic due to anxiety, and his anxiety interfered with his ability to complete tasks. Doc. 16, at 9-10. But in this portion of the report, Dr. Hand relayed Plaintiffs description of his own symptoms. AR 487, 489. Because they are not statements from Dr. Hand about what Plaintiff can do, they are not medical opinions. 20 C.F.R. § 404.1513(a)(2).
Plaintiff also contends the “ALJ never discussed” two other GAF scores in the record. Doc. 16, at 11. The record reflects Ms. Sloan assessed Plaintiff with a GAF score of 40 on July 21, 2015, and an unsigned Outpatient Request for Prior Authorization shows Plaintiff's GAF score of 45 on September 27, 2017. AR 476, 518. As noted above, the ALJ did not err by failing to discuss the persuasiveness of the GAF scores. And the ALJ was not required to discuss the scores because a “citation to the GAF scores, without more, does not show that the GAF score was ‘significantly probative' or that the ALJ's omission of further discussion of this score undermined the RFC determination.” Pritz v. Comm'r of Soc. Sec., No. CIV-17-224-SM, 2018 WL 357906, at *4 (W.D. Okla. Jan. 10, 2018); see also Paulsen v. Colvin, 665 Fed.Appx. 660, 668 (10th Cir. 2016) (holding a “[d]iagnosis of a condition does not automatically mean that the claimant is disabled; what matters is whether the condition results in work-related limitations”).
Plaintiff also notes that Ms. Sloan found Plaintiff had severe problems in “Social Relations” and “School/Work Problems.” AR 476. But these are not medical opinions because they do not describe what Plaintiff can still do despite his impairments or whether he has a limitation or restriction in the ability to perform specific demands of work activities. 20 C.F.R. § 404.1513(a)(2). Plaintiff further asserts his diagnoses of major depressive disorder and PTSD on the unsigned form are “treating opinions.” Doc. 16, at 11 (citing AR 518). But diagnoses are not considered medical opinions. 20 C.F.R. § 404.1513(a)(3).
Plaintiff contends “[t]he record supports and is consistent with” what he considered mental health opinions, including the GAF scores. Doc. 16, at 11. In support of this argument, Plaintiff lists reported symptoms contained in the medical record. Id. at 11-12. But the ALJ thoroughly discussed Plaintiff's symptoms in formulating the RFC, AR 19-28, so this does not change the undersigned's finding that the GAF score was not significantly probative or that its omission undermined the RFC.
b. Dr. Azadgoli issued no medical opinion.
Plaintiff also contends the ALJ did not discuss the persuasiveness of Dr. Azadgoli's medical opinions related to Plaintiff's physical impairments. Doc. 16, at 12-13. Plaintiff states that “Dr. Azadgoli noted [his] symptoms include pain in [his] hips, feet, and hands.” Id. at 12 (citing AR 478-80). Plaintiff also notes that Dr. Azadgoli reported “some crepitus with motion in his neck, swollen and tender joints of both hands, and grip strength of 4/5.” Id. (citing AR 478-79). But the findings cited by Plaintiff do not amount to medical opinions. See 20 C.F.R. § 404.1513(a)(1) (listing objective medical evidence in a separate category from medical opinions); Id. § 404.1513(a)(3) (considering “judgments about the nature and severity of [a claimant's] impairments, . . . clinical findings, [and] diagnosis” to be “other medical evidence . . . that is not . . . a medical opinion”). Thus, the ALJ did not err by failing to consider the persuasiveness of Dr. Azadgoli's findings.
c. The ALJ did not commit reversible error by not discussing the persuasiveness, supportability, and consistency of Dr. Scott's opinion.
Plaintiff presented to Dr. Scott for a mental status examination on October 30, 2019. AR 695-700. Dr. Scott found that Plaintiff's “ability to understand, remember and carry out simple and complex instructions in a work-related environment would be rated as fair.” Id. at 700. Plaintiff contends the ALJ erred by not discussing the persuasiveness of Dr. Scott's opinion. Doc. 16, at 10-11.
Plaintiff also notes the “ALJ did not contact Dr. Scott to request specific mental work restrictions.” Doc. 16, at 11. To the extent Plaintiff argues the ALJ erred by failing to contact Dr. Scott, he did not properly develop this argument and the undersigned considers it waived. See Murrell, 43 F.3d at 1389 n.2.
Although the ALJ addressed Dr. Scott's finding in his summary of the report, he did not describe how persuasive he found Dr. Scott's opinion or engage in a discussion of how Dr. Scott supported the opinion or how consistent it is with the other evidence in the file. AR 25-26. The Commissioner contends the ALJ's failure does not amount to error because the statement is not a medical opinion. Doc. 20, at 23. More specifically, the Commissioner asserts Dr. Scott did not establish concrete limitations on Plaintiff's ability to understand, remember, or carry out simple or complex instructions. Id.
Plaintiff acknowledges Dr. Scott's report does not provide concrete limitations, but instead amounted to “a very vague assessment of [his] ability to perform mental functional limitations.” Doc. 16, at 11. But the statement at issue is Dr. Scott's finding that Plaintiff had a “fair” ability to understand, remember and carry out simple instructions in a work-related environment.AR 700. “The word ‘fair' is both a measure of ability and disability” and “is on the balance between poor ability to function and greater ability to function.” Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000); see also Fannin v. Comm'r, SSA, 857 Fed.Appx. 445, 446 n.3 (10th Cir. 2021) (“The agency defines a ‘[m]oderate' limitation in mental functioning in a work setting as one in which the claimant's ‘functioning in this area independently, appropriately, effectively, and on a sustained basis is fair.'” (quoting 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00.F.2.c)).
The Commissioner argues that Dr. Scott's statement “wasn't limited to simple instructions as Plaintiff suggests, but instead related to Plaintiff's ability to perform those activities for both simple and complex instructions.” Doc. 20, at 22 (emphasis in original). This does not alter Dr. Scott's finding that Plaintiff had a fair ability related to simple instructions.
Assuming Dr. Scott's statement amounts to a medical opinion that should have been analyzed under 20 C.F.R. § 404.1513(a)(2)(ii), the error is harmless because the Court can “confidently say no reasonable administrative factfinder, following the correct analysis, could have resolved the factual matter in any other way.” Allen v. Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004).
The ALJ's RFC assessment restricted Plaintiff to one- to two-step tasks with no interaction with the general public or occasional interaction with supervisors or coworkers. The undersigned concludes a claimant with fair limitations in his ability to understand, remember, and carry out simple instructions can perform jobs that require short, simple instructions. See MacKelvey v. Berryhill, 2017 WL 4564697, at *3 (C.D. Cal. Oct. 11, 2017) (physician's finding that a claimant had a “fair” ability “to understand and remember simple instructions” did not “equal []an opinion that Plaintiff would be unable to understand and remember simple instructions in a workplace environment protected from other sources of stress, such as frequent interactions other people”); Kellinger v. Comm'r of Soc. Sec., 2011 WL 3163248, at *4, *9 (D.N.J. July 26, 2011) (finding a physician's opinion that Plaintiff had a fair ability to “understand[,] remember[,] and[,] carry out simple instructions” was “consistent” with the RFC which limited Plaintiff to “simple and repetitive tasks”); Walker v. Astrue, 2011 WL 590599, at *9 (E.D. Cal. Feb. 10, 2011) (an RFC limiting a claimant to “perform[ing] simple, repetitive tasks” was “consistent with [the doctor's] finding that [the claimant] had a fair ability to understand and remember very short and simple instructions”).
Other courts have also found that “[a] one-to-two step limitation”-such as that in Plaintiff's RFC assessment-“is more restricting on a plaintiff than a short, simple instructions limitation.” Sigmon v. Berryhill, 2018 WL 3738227, at *3 (W.D. N.C. Aug. 7, 2018); see also Walter R. v. Saul, 2019 WL 6918079, at *4 (C.D. Cal. Dec. 18, 2019) (finding “[a] limitation to ‘simple one to two step (unskilled) tasks' is more restrictive” than a “limitation to ‘simple repetitive tasks'”). Thus, Plaintiff's RFC assessment is at least as restrictive as Dr. Scott's assessed limitation, if not more so. Any error in the ALJ's assessment is harmless. See Keyes-Zachary, 695 F.3d at 1163 (holding an alleged error harmless where the RFC was “generally consistent” with a physician's findings because there was “no reason to believe that a further analysis or weighing of [the] opinion could advance [the claimant's] claim of disability”).
To the extent Plaintiff alleges the ALJ erred at step five, his argument also falters. The ALJ found Plaintiff could perform the jobs of cart attendant, DICOT 920.687-014, janitor, DICOT 381.687-018, and floor waxer, DICOT 381.687-034. Dr. Scott's finding also allows Plaintiff to perform the requirements of the floor waxer occupation. AR 29.
Floor waxer is a reasoning level 1 occupation. DICOT 381.687-034, 1991 WL 673262. Jobs categorized as “Level 1” for reasoning development on the Scale of General Education Development (GED) require an individual to “apply commonsense understanding to carry out simple one- or two-step instructions” and “[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job.” DOT App'x C, § III, 1991 WL 688702. Occupations with an SVP of 1 or 2 are considered “unskilled work.” SSR 00-4p, 2000 WL 1898704, at *3. Further, claimants who have a fair ability to understand, remember and carry out simple instructions can perform unskilled work, such as the floor waxer position. See AR 29 (noting floor waxer has an SVP of 2); Jones v. Saul, 2021 WL 4342720, at *5 (E.D. Ky. Sept. 23, 2021) (finding a doctor's opinion that the claimant's “ability to understand and remember simple instructions is fair” was incorporated into an RFC that limited the Plaintiff to unskilled work). And because there are 198,000 floor waxer jobs in the national economy, AR 29, those jobs alone are sufficient to amount to a significant number available to Plaintiff. Stokes v. Astrue, 274 Fed.Appx. 675, 684 (10th Cir. 2008) (holding no “reasonable factfinder could have determined that suitable jobs did not exist in significant numbers” where 152,000 jobs were available nationally). Thus, any error is harmless. See Lane v. Colvin, 643 Fed.Appx. 766, 770 (10th Cir. 2016) (finding harmless error where there was “no actual conflict” between the medical opinion and one of the jobs the vocational expert testified Plaintiff could perform).
The jobs of cart attendant, DICOT 381.687-034, 1991 WL 687964 (identified by the ALJ as “cart attendant,” but listed in the DOT as “bagger” or “grocery packer”), and janitor, DOT 381.687-018, 1991 WL 673258, require a reasoning level of 2. Reasoning level 2 jobs require a worker to “[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions” and “[d]eal with problems involving a few concrete variables in or from standardized situations. DOT App'x C, § III, 1991 WL 688702. Application of Dr. Scott's limitation may preclude Plaintiff's performance of these jobs. Paddelty v. Colvin, No. CIV-14-891-D, 2016 WL 3647697, at *3 (W.D. Okla. July 1, 2016) (finding an apparent conflict where “Plaintiff could only ‘understand, remember, and follow simple, repetitive 1-2-3 step tasks in a routine work setting,'” and the ALJ found Plaintiff could perform jobs requiring a reasoning level of 2).). Given the undersigned's conclusion Plaintiff could perform the job of floor waxer, there is no need to determine whether the cart attendant and janitor jobs are consistent with Dr. Scott's opinion.
C. The ALJ did not err in formulating the RFC assessment.
The Plaintiff's RFC assessment limited him to a full range of work at all exertional levels, but “he could have performed one to two step tasks with no interaction with the general public or occasional interaction with supervisors or coworkers.” AR 19. Plaintiff contends the ALJ erred in formulating the RFC for a variety of reasons. Doc. 16, at 4-9.
First Plaintiff contends the record supports a more limited RFC, including:
• Limitations in walking and standing;
• Limitations in reaching, fingering, and handling;
• Avoidance of bright lights;
• Being off task;
• Unscheduled breaks to leave the job site;
• Limitations in turning his head and neck;
• Sit/stand option;
• No changes in the workplace; and
• No contact with others on the job outside of family/friends/wife.Id. at 4-6. In support of these alleged limitations, Plaintiff mostly cites to various medical records describing Plaintiff's symptoms. Id. Additionally, Plaintiff contends “[n]o reasonable person can glean from this record that [he] has ZERO physical limitations.” Id. at 6. Plaintiff also argues “[t]he record is saturated with [his] symptoms from his mental health impairments that would affect his ability to perform mental-related abilities.” Id. But Plaintiff also notes that the “ALJ admitted many of these symptoms in [his] decision.” Id. at 6-7 (citing AR 23-26). Thus, these general arguments amount to an invitation to reweigh the evidence, which the Court cannot do. See Newbold, 718 F.3d at 1262.
In a more specific argument, Plaintiff contends the ALJ misrepresented the evidence because he “mistook abnormal pedal pulses for reduced circumference in his arm.” Doc. 16, at 4. But the ALJ correctly noted Plaintiff's right arm was one centimeter smaller in diameter than his left arm. AR 692. While the record indicated Plaintiff's pedal pulses were rated “+2” bilaterally, AR 687, 690, 692, such a finding is only “slightly diminished.” See Hatmaker v. Comm'r of Soc. Sec., 2022 WL 109348, at *5 (S.D. Ohio Jan. 12, 2022) (noting record showed the claimant's “pedal pulse was 2+, or slightly diminished”). Thus, the undersigned finds the ALJ did not fail to “discuss the significantly probative evidence he rejects.” Carpenter v. Astrue, 537 F.3d 1264, 1266 (10th Cir. 2008).
Plaintiff also points to the ALJ's findings in the special technique at Step Three as evidence supporting greater limitations. Doc. 16, at 7-8. There, the ALJ found Plaintiff had mild-to-moderate limitations in adapting or managing oneself and moderate limitations in interacting with others and concentration, persisting, or maintaining pace. AR 18. Plaintiff contends the ALJ found:
• When Plaintiff interacts with others, he responds by withdrawing, experiencing mood swings, and becoming angry;
• Plaintiff would be “off task throughout the work day” due to second guessing himself resulting in him performing tasks over and over again along with being frustrated/distracted by the constant chatter in his head;
• Plaintiff responds to stress “by just shutting it down.”Doc. 16, at 7-8. Thus, Plaintiff argues the ALJ is bound by these findings and “there is no question whatsoever but that Plaintiff had at least some mental functional limitations in responding to others, responding to ‘stress', and being ‘off task.'” Id. at 8. He contends the ALJ erred by failing to address these issues in the RFC. Id. at 9.
The undersigned notes that the ALJ did not find Plaintiff would be “off task throughout the workday,” Doc. 16, at 8,-instead, he found Plaintiff had moderate limitations “with regard to concentrating, persisting or maintaining pace.” AR 18.
The ALJ thoroughly addressed Plaintiff's symptoms and medical records related to his mental impairments. AR 18-28. The discussion included references to Plaintiff's reports of being “withdrawn,” being “distracted by things,” “difficulty with stress and would shut down,” having “brain fog,” and that he typically sat alone by himself. Id. at 18, 20. The ALJ noted reports to medical providers that he had an inability to concentrate and maintain focus, avoiding social situations, being “isolated in a crowd,” and “getting paranoid in big groups.” Id. at 23-24. The ALJ also addressed Plaintiff's reports that he “reported difficulty complet[ing] tasks,” was “prone to panic attacks in a public setting or stressful environment,” and had “anxiety if given many responsibilities.” Id. at 26. The ALJ also referenced a medical record indicating “severe” social withdrawal, but with a good prognosis. Id. In addition, the ALJ included reports of more positive findings, such demonstrating stable mood, mentation, motivation, and sleep as well as compliance with prescribed medication in multiple visits in 2016, “making progress in motivation for independent living skills/employment and feelings of empowerment over the direction of his life” in January 2017, and “a normal mood and affect with normal attention span and concentration” in June 2019. Id. at 22-24. The ALJ also noted Plaintiff performed stand-up comedy and found such performances to be “not generally consistent with the allegation of a social phobia.” Id. at 28. Given the ALJ's detailed consideration of the evidence, Plaintiff's contentions again amount to an improper attempt to reweigh the evidence. See Newbold, 718 F.3d at 1262.
Plaintiff contests the ALJ's consideration of his performing stand-up comedy because he contends the underlying record indicating Plaintiff performed stand-up comedy in March 2020 is a “clear typographical error.” Doc. 21, at 2 (citing AR 732). The crux of Plaintiff's argument is that he could not have performed stand-up comedy because his symptoms were increasing. Id. at 2-3. This is more a request to reweigh the evidence than an argument that the record was incorrect. After reviewing the record in question, the undersigned finds it is not obvious that the notation related to stand-up comedy is a typographical error.
Plaintiff also contends the finding of moderate limitations in completing the special technique “is absolutely binding.” Doc. 16, at 8. But “[t]he social security ruling on assessing a claimant's RFC cautions that ‘[t]he adjudicator must remember that the limitations identified in the ‘paragraph B' . . . criteria are not an RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process.'” Vigil v. Colvin, 805 F.3d 1199, 1203 (10th Cir. 2015) (quoting SSR 96-8p, 1996 WL 374184, at *4). Thus, a finding of a moderate limitation in concentration, persistence, or pace at step three does not necessarily translate to a work-related functional limitation for the purposes of the RFC assessment.” Id.; see also Beasley v. Colvin, 520 Fed.Appx. 748, 754 (10th Cir. 2013) (“[An] ALJ's finding of ‘moderate difficulties' in social functioning in the ‘paragraph B' criteria does not necessarily translate to a work-related functional limitation for the purposes of the RFC assessment,” so, the ALJ “was under no obligation to include limitations in social functioning in [Plaintiff's] RFC based solely on his finding that she had ‘moderate difficulties' in social functioning as part of the distinct step-three analysis.”). Further, the RFC accounts for moderate limitations in interacting with others by restricting Plaintiff to “no interaction with the general public [and] occasional interaction with supervisors or coworkers.” AR 19; see also SSR 83-10, 1983 WL 31251, at *5. (defining “occasionally” as occurring from very little up to one-third of the time). Thus, Plaintiff's argument is without merit.
Finally, Plaintiff contends “the ALJ must include in [his] RFC finding how the claimant responds when he does interact with his boss or employees.” Doc. 16, at 8-9 (citing https://occupationalinfo.org/contents.html; SSR 00-4p, 2000 WL 1898704; SSR 85-16, 1985 WL 56855; SSR 85-15, 1985 WL 56857; POMS DI 34001.032E2). The authorities Plaintiff cites do not support this proposition, and “[t]he ALJ need only consider the resultant functional limitations arising from [Plaintiff's] conditions, if any, to formulate [the] RFC.” Corber v. Massanari, 20 Fed.Appx. 816, 822 (10th Cir. 2001).
Plaintiff argues for the first time in his reply brief that the ALJ misrepresented evidence related to medication prescribed for his arthritis and neuropathy. Doc. 21, at 6. The undersigned concludes Plaintiff has waived this argument. See Kruse v. Astrue, 436 Fed.Appx. 879, 885 n.2 (10th Cir. 2011) (“Arguments presented for the first time in a reply brief are waived.”).
Thus, the undersigned finds Plaintiff's arguments relating to the formulation of the RFC lack merit.
D. Plaintiff's separation-of-powers argument does not require reversal.
1. The parties' arguments.
Plaintiff contends that “it is unconstitutional for an executive agency to be led by a single head who serves for a longer term than the President and can only be removed from his position for cause.” Doc. 16, at 13 (citing Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183 (2020)). Because the Commissioner of the SSA was led by such an individual-Andrew Saul- Plaintiff contends the agency's “structure is unconstitutional.” Id. at 14. Plaintiff asserts that “[t]he ALJ's delegation of authority in this case came from Mr. Saul and is therefore constitutionally defective” and, thus, the Appeals Council determination was defective. Id.
In his opening brief, Plaintiff also argued the ALJ's determination was defective. Doc. 16, at 14. But in his reply brief, Plaintiff advised he “will not pursue the ALJ issue any further.” Doc. 21, at 7-8.
The Commissioner agrees that the statutory provision limiting the President's authority to remove the Commissioner without cause-42 U.S.C. § 902(a)(3)-“violates the separation of powers,” but contends “without more, that conclusion does not support setting aside an unfavorable SSA disability benefits determination.” Doc. 20, at 5. More specifically, the Commissioner argues there is no “suggestion of a nexus between Section 902(a)(3)'s tenure protection for a confirmed Commissioner and the ALJ's appointment.” Id. at 9. Further, the Commissioner argues Plaintiff cannot show that § 902(a)(3) affected the Agency's determination on Plaintiff's claim for benefits. Id. at 914. Finally, the Commissioner contends Plaintiff's request for rehearing should be denied under the harmless error doctrine, the de facto officer doctrine, the rule of necessity, and broad prudential considerations. Id. at 14-18.
2. Plaintiff's claim lacks merit because he did not show harm resulting from the unconstitutional statutory restriction on Commissioner Saul's termination.
In Collins v. Yellen, the Supreme Court held a statutory “for-cause restriction on the President's removal authority” of the Federal Housing Finance Agency (FHFA) Director “violate[d] the separation of powers.” 141 S.Ct. 1761, 1783 (2021). There, shareholders of Fannie Mae and Freddie Mac argued that a provision of an agreement with the FHFA should be “completely undone” because the provision “was adopted and implemented by officers who lacked constitutional authority and that their actions were therefore void ab initio.” Id. at 1787. The Court held:
All the officers who headed the FHFA during the time in question were properly appointed. Although the statute unconstitutionally limited the President's authority to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed method of appointment to that office. As a result, there is no reason to regard any of the actions taken by the FHFA in relation to the third amendment as void.Id . (emphasis in original). But the Court also held that “it is . . . possible for an unconstitutional provision to inflict compensable harm” and that “the possibility that the unconstitutional restriction on the President's power to remove a Director of the FHFA could have such an effect cannot be ruled out.” Id. at 1789. Addressing hypotheticals, the Court stated:
Suppose, for example, that the President had attempted to remove a Director but was prevented from doing so by a lower court decision holding that he did not have “cause” for removal. Or suppose that the President had made a public statement expressing displeasure with actions taken by a Director and had asserted that he would remove the Director if the statute did not stand in the way. In those situations, the statutory provision would clearly cause harm.Id. The Court remanded the case for a determination on the issue of whether the shareholders were harmed. Id.
Plaintiff does not assert Commissioner Saul was improperly appointed.
Anticipating that the SSA's removal provision would be “next on the chopping block,” Justice Kagan wrote in a concurring opinion that “given the majority's remedial analysis, I doubt the mass of SSA decisions-which would not concern the President at all-would need to be undone.” Id. at 1802 (Kagan, J., concurring). She reasoned that “[w]hen an agency decision would not capture a President's attention, his removal authority could not make a difference-and so no injunction should issue.” Id.
In his reply brief, Plaintiff argues he was harmed because President Biden would have terminated Commissioner Saul if it had not been for the statutory limitations on his removal. In support, Plaintiff notes that President Biden fired Commissioner Saul one day after the Department of Justice issued a Memorandum Opinion confirming Commissioner Saul could be removed from office by the President. Doc. 21, at 9 (citing Constitutionality of the Comm'r of Soc. Sec.'s Tenure Prot., 2021 WL 2981542, at *1 (O.L.C. July 8, 2021)).
Plaintiff also cites a news article in which an unnamed White House official expressed displeasure with Commissioner Saul's performance since taking office-including that he “undermined and politicized Social Security disability benefits.” Id. (citing https://federalnewsnetwork.com/people/2021/07/biden-fires-saul-as-ssa-commissioner/). Plaintiff argues that these facts together indicate that “it is unmistakable that President Biden would have fired Commissioner Saul immediately upon taking office had he believed it was legal.” Id. at 10.
The Court notes that the statement in the article cited by Plaintiff is from an unnamed White House official, not from the President. And Plaintiff has not “presented concrete evidence that the President expressed his displeasure with [Commissioner] Saul, or that the President said he would remove Saul if the statute did not stand in his way.” O'Leary v. Kijakazi, 2022 WL 820015, at *10 (D. Nev. Mar. 18, 2022) (concluding that “Plaintiff's proffer of harm is simply too tenuous”). Plaintiff's argument amounts to no more than speculation about the President's mindset. See Dixon v. Kijakazi, 2022 WL 1096424, at *9-10 (E.D. N.C. Feb. 1, 2022) (finding the claimant's argument that the fact the President did not terminate Commissioner Saul “until after Collins shows that the President ‘would have fired' the Commissioner ‘immediately upon taking office had he believed it was legal'” was “simply speculation”), adopted, 2022 WL 1096844 (E.D. N.C. Apr. 12, 2022).
Additionally, “[n]othing in the record suggests any link whatsoever between the removal provision and [Plaintiff's] case.” Kaufmann v. Kijakazi, 32 F.4th 843, 850 (9th Cir. 2022) (noting that the claimant did “not assert, for example, that the President took an interest in her claim or that the Commissioner directed the Appeals Council to decide her case in a particular way because of the statutory limits on the President's removal authority”). Plaintiff cannot identify harm without some direct link between the President's policy preferences and the agency's decision. See Linnear v. Kijakazi, 2022 WL 1493563, at *7 (S.D. Ga. May 11, 2022) (“Lower courts have uniformly agreed with Justice Kagan when adjudicating Social Security appeals. Plaintiff does not cite, and the undersigned has not found, a single instance of a District [Court] reversing a Social Security decision on the basis of § 902(a)(3)'s unconstitutionality.”); Dixon, 2022 WL 1096424, at *10 (“[The claimant] has not alleged that the outcome of this case contravened the President's policy preference, so the President's authority to control those who work for him is not implicated here.”); Burrell v. Kijakazi, 2022 WL 742841, at *5 (E.D. Pa. Mar. 10, 2022) (“Plaintiff, however, has not suggested a direct nexus between the adjudication of his disability claim by the Appeals Council and the separation of powers violation in the removal statute that applies to the Commissioner. Nor has Plaintiff shown how the President's inability to remove the Commissioner without cause might have affected any ALJ's disability benefits decision, much less his own. . . . Thus, if Collins requires the reversal or vacating of any Social Security disability decision, it is not this one.”).
Therefore, the undersigned finds Plaintiff's allegation of reversible constitutional error is without merit.
III. Recommendation and notice of right to object.
For the above reasons, the undersigned recommends that the Court affirm the Commissioner's final decision.
The undersigned advises the parties that they may file an objection to this Report and Recommendation with the Clerk of Court on or before June 22, 2022, under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises the parties that failure to timely object to this Report and Recommendation waives the right to appellate review of both factual and legal issues contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This Report and Recommendation disposes of all issues and terminates the referral to the undersigned Magistrate Judge in this matter.