2 3

4 5 6 7 8 UNITED STATES DISTRICT COURT 9

EASTERN DISTRICT OF CALIFORNIA

10 11 NANCY ALVARADO RAMOS, Case No. 1:20-cv-01606-EPG 12 Plaintiff, FINAL JUDGMENT AND ORDER 13 REGARDING PLAINTIFF’S SOCIAL v. SECURITY COMPLAINT 14 COMMISSIONER OF SOCIAL (ECF Nos. 15, 16) 15 SECURITY,

16 Defendant.

17 This matter is before the Court on Plaintiff Nancy Alvarado Ramos’s (“Plaintiff”) 18 complaint for judicial review of an unfavorable decision by the Commissioner of the Social 19 Security Administration. The parties have consented to entry of final judgment by the United 20 States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the Court 21 of Appeals for the Ninth Circuit. (ECF Nos. 7, 9, 10). 22 At a hearing on December 8, 2021, the Court heard from the parties and, having reviewed 23 the record, administrative transcript, the briefs of the parties, and the applicable law, finds as 24 follows: 25 /// 26 /// 27 /// 28 2 Plaintiff first argues that the Administrative Law Judge’s (“ALJ”) Residual Functional 3 Capacity (“RFC”) assessment omitted limitations provided by Drs. Malone and Heldman without 4 explanation. 5 The ALJ provided the following evaluation of the opinion Drs. Malone and Heldman:

6 The undersigned finds the psychological opinions of the State Agency 7 psychologists, D. Malone, Ph.D. and Patricia Heldman, M.D., to be persuasive because they are consistent and supported. 8 Dr. Malone and Dr. Heldman both opined that the claimant has moderate 9 limitations in her abilities to understand, remember or apply information and 10 interact with others and mild limitations in her abilities to concentrate, persist or maintain pace and adapt or manage oneself. (Exhibits 2A/12 and 6A/9) Dr. 11 Malone and Dr. Heldman further limited the claimant to understanding, remembering and carrying out simple and detailed instructions and procedures of 12 at least two to three steps but making more errors with detailed tasks, minimal 13 contact and reliance upon others and can interact with other appropriately for short durations pertaining to work related matters. (Exhibits 2A/15-18 and 6A/12-14) 14 Dr. Malone’s and Dr. Hartman’s opinions are consistent with the claimant’s 15 mostly normal mental status examinations finding that she had good grooming, made appropriate eye contact, had cooperative behavior, a normal mood, 16 congruent affect, normal speech, coherent, relevant and logical thought processes, with normal thought content, good insight and unimpaired judgment with 17 intermittent reports of a depressed or anxious mood, hallucinations and 18 ruminations. (Exhibits 5F/5-7; 9F/16, 18, 20, 22, 27-28, 33, 36-38, 45, 47) Dr. Malone’s and Dr. Heldman’s opinions are supported by their detailed review and 19 analysis of the evidence of record available when they made their determinations. (Exhibits 2A and 6A) 20

21 (A.R. 32-33). Based on these opinions as well as other evidence, the ALJ adopted the following 22 Residual Functional Capacity (“RFC”): 23 After careful consideration of the entire record, the undersigned finds that the 24 claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except the claimant can never climb 25 ladders, ropes or scaffolds. The claimant can only frequently stoop, kneel crouch 26 and crawl. The claimant can only frequently handle, finger and feel with the bilateral upper extremities. The claimant cannot work at unprotected heights or 27 around heavy machinery. The claimant is limited to performing only simple and routine tasks, meaning the claimant is not capable of complex judgment or 28 employees and the public. The claimant can maintain a production pace of a 2 simple and routine nature. The claimant can adapt to changes in the workplace of a simple and routine nature. 3 4 (A.R. 26). 5 Plaintiff argues that the RFC is not sufficiently supported and explained because the 6 opinion that Plaintiff could perform “at least” two to three steps was ambiguous and should have 7 been confirmed, and because the RFC did not incorporate their opinion that Plaintiff would make 8 more mistakes on detailed work tasks. In response, the Commissioner argues that the ALJ’s RFC 9 findings were more restrictive than the findings from Drs. Malone and Heldman and included a 10 limitation to work involving the performance of only simple, routine tasks where she is not capable of 11 complex judgment or analysis. 12 The RFC is an administrative finding left to the Commissioner. See 20 C.F.R. § 13 404.1527(e)(2) (stating that “[o]ther opinions of issues reserved to the Commissioner” include “your 14 residual functional capacity”); Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“it is the 15 responsibility of the ALJ, not the claimant's physician, to determine residual functional 16 capacity.”). The ALJ must base his RFC finding on an analysis of the record as a whole. See Social 17 Security Ruling (SSR) 96-8p (explaining that, “RFC is assessed by adjudicators at each level of the 18 administrative review process based on all of the relevant evidence in the case record”). 19 The court finds no error here. Although the ALJ endorsed the opinions of Drs. Malone and 20 Heldmen, she adopted an RFC that was arguably consistent with yet more restrictive than their opined 21 limitations. In particular, the ALJ’s RFC included the following relevant limitation: “The claimant is 22 limited to performing only simple and routine tasks, meaning the claimant is not capable of 23 complex judgment or analysis.” Such an RFC was sufficiently supported by the evidence and 24 consistent with the ALJ’s evaluation of the doctors’ opinions. 25 B. Removal Limitation on Commissioner Saul 26 Plaintiff next claims that, because the ALJ derived its authority to hear the claim from an 27 unconstitutional delegation of authority, the Court should vacate and remand. Plaintiff explains 28 that Andrew Saul held the office of Commissioner of Social Security as the sole person 2 terminated him. The United States Supreme Court held in Seila Law LLC v. CFPB, 140 S. Ct. 3 2183 (2020) that it is unconstitutional for an executive agency to be led by a single member-head, 4 who serves for a longer term than the president, and who can only be removed from the position 5 for cause. Id. at 2204; see also Collins v. Yellin, 594 U.S. __ at 26 (2021). Additionally, the 6 Office of Legal Counsel has issued an opinion that casts significant doubt on the constitutionality 7 of the appointment of the Commissioner of Social Security. Office of Legal Counsel, 8 Constitutionality of the Commissioner of Social Security’s Tenure Protection, 2001 WL 2981542 9 (July 8, 2021). 10 Here, the ALJ heard the claims at a hearing on February 21, 2020 and issued his decision 11 on April 21, 2020. The Appeals Council denied review on September 22, 2020. Thus, the 12 relevant agency actions were all completed within the unconstitutional tenure of Commissioner 13 Saul. Because the agency’s actions were completed under unconstitutional authority, Plaintiff 14 claims that these actions were constitutionally defective. Accordingly, Plaintiff requests a new 15 hearing and administrative decision. 16 The Commissioner agrees that 42 U.S.C. § 902(a)(3) violates the separation of powers to 17 the extent it is construed as limiting the President’s authority to remove the Commissioner 18 without cause. However, it argues that this alone does not justify a remand. Instead, a party 19 seeking remand must show that the restriction on removal authority actually caused her harm, 20 citing Collins v. Yellen, 141 S. Ct. 1761, 1787-89 (2021). Here, Plaintiff cannot do so because (1) 21 the ALJ in this case had his appointment ratified by an Acting Commissioner of Social Security 22 whom the President could have removed at will at any time; and (2) the removal restriction did 23 not cause the denial of Plaintiff’s claim. The Commissioner also argues that various other legal 24 doctrines including harmless error, de facto officer, and the rule of necessity, as well as prudential 25 considerations caution against remand here. 26 On December 6, 20201, the Commissioner also filed a notice of supplemental authority 27 citing a number of district courts that have refused to set aside unfavorable disability benefits 28 decisions based on the statutory restriction on removal of a Social Security Commissioner. (ECF 2 Rivera-Herrera v. Kijakazi, No. 1:20-cv-01326, 2021 WL 5450230, at *5-8 (E.D. Cal. Nov. 22, 3 2021); Shaun A. v. Comm’r of Soc. Sec., No. C21-5003-SKV, 2021 WL 5446878, at *4-6 (W.D. 4 Wash. Nov. 22, 2021); Shannon R. v. Comm’r of Soc. Sec., No. C21-5173-MLP, 2021 WL 5 5371394, at *7-9 (W.D. Wash. Nov. 18, 2021); Michelle T. v. Comm’r of Soc. Sec., No. 3:20-cv- 6 06085, 2021 WL 5356721 (W.D. Wash. Nov. 17, 2021); John R. v. Comm’r of Soc. Sec., No. 7 C20-6176, 2021 WL 5356719, at *5-8 (W.D. Wash. Nov. 16, 2021); Alice T. v. Kijakazi, No. 8 8:21CV14, 2021 WL 5302141, at *18-19 (D. Neb. Nov. 15, 2021); Lisa Y. v. Comm’r of Soc. 9 Sec., __ F. Supp. 3d __, 2021 WL 5177363, at *8 (W.D. Wash. Nov. 8, 2021); Boger v. Kijakazi, 10 No. 1:20-cv-00331, 2021 WL 5023141, at *3 (W.D.N.C. Oct. 28, 2021); Robinson v. Kijakazi, 11 No. 1:20-cv-00358, 2021 WL 4998397, at *3 (W.D.N.C. Oct. 27, 2021). 12 As an initial matter, the ALJ in this case was properly appointed. (ECF No. 17, at p. 5) 13 (“Alvarado concedes that ALJ Bryant was properly appointed by the Acting or Deputy 14 Commissioner Berryhill.”). Thus, there is no reason to void the actions by the ALJ. See 15 Collins, 141 S.Ct. at 1787 (“All the officers who headed the FHFA during the time in question 16 were properly appointed. Although the statute unconstitutionally limited the President's authority 17 to remove the confirmed Directors, there was no constitutional defect in the statutorily prescribed 18 method of appointment to that office. As a result, there is no reason to regard any of the actions 19 taken by the FHFA in relation to the third amendment as void.”). 20 As to whether Plaintiff is nevertheless entitled to retrospective relief, the Court looks to 21 the following guidance from the Supreme Court in Collins:

22 That does not necessarily mean, however, that the shareholders have no 23 entitlement to retrospective relief. Although an unconstitutional provision is never really part of the body of governing law (because the Constitution automatically 24 displaces any conflicting statutory provision from the moment of the provision's enactment), it is still possible for an unconstitutional provision to inflict 25 compensable harm. And the possibility that the unconstitutional restriction on the 26 President's power to remove a Director of the FHFA could have such an effect cannot be ruled out. Suppose, for example, that the President had attempted to 27 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 28 1 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 2 stand in the way. In those situations, the statutory provision would clearly cause harm. 3 4 | Id. 1788-1789. 5 Here, Plaintiff has not shown any connection between the denial of benefits and the 6 | unconstitutional removal provision. Accordingly, remand is not warranted. See Frank W. v. 7 | Kijakazi, 2021 WL 5505883, at *4 (S.D. Cal. Nov. 24, 2021) (Here, there is no allegation even 8 | suggesting a direct nexus between the adjudication of plaintiff's disability claim by the SSA and 9 | the alleged separation of powers violation in the removal statute that applies to the 10 | Commissioner.”); Shaun A. v. Commissioner of Social Security, 2021 WL 5446878, at *6 (W.D. 11 Wash. Nov. 22, 2021) (“Plaintiff cannot show any connection between the unconstitutional limit 12 | on Commissioner Saul's removal and the ALJ's decision denying him benefits.”). 13 Plaintiff does allege in her reply that she has established sufficient harm based on 14 | President Biden’s apparent delay in terminating Commissioner Saul combined with President 15 | Biden’s comments at the termination criticizing Commissioner Saul for politicizing social 16 | security benefits and reducing due process protections for appeals hearings. (ECF No. 17, at p. 17 | 8). However, Plaintiff has not pointed to any lack of due process in this case. 18 C. Conclusion 19 In light of the foregoing, the Court affirms the decision of the Commissioner of Social 20 | Security. 21 The Clerk of the Court is directed to close this case. 22 3 IT IS SO ORDERED. Dated: _ January 10, 2022 [see heey □ 25 UNITED STATES MAGISTRATE JUDGE 26 27 28