1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FRANCISCO A., Case No.: 20-cv-01768-KSC

12 Plaintiff,

ORDER ON JOINT MOTION FOR

13 v. JUDICIAL REVIEW

14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security1 15 Defendant. [Doc. No. 17] 16 17 18 19 On September 9, 2020, plaintiff Francisco A. (“plaintiff”) filed a complaint pursuant 20 to 42 U.S.C. § 405(g) seeking judicial review of defendant’s denial of his application for 21 disability benefits. Doc. No. 1. Before the Court is the parties’ Joint Motion for Judicial 22 Review (the “Joint Motion” or “Jt. Mot.”). Doc. No. 17. In the Joint Motion, plaintiff 23 requests to have his application for benefits remanded to the Social Security Administration 24 (the “Administration”) for further proceedings, and defendant (“defendant” or the 25 “Commissioner”) moves to have her determination that plaintiff is not disabled affirmed. 26 27 28 1 See generally id. The Court has carefully considered the parties’ arguments, the applicable 2 law, and the evidence in the record. For the reasons stated below, plaintiff’s request for 3 remand is DENIED and the judgment of the Commissioner is AFFIRMED. 4 I. BACKGROUND 5 A. Plaintiff’s Application for Disability Benefits 6 On November 6, 2017, plaintiff applied for supplemental security income under 7 Title XVI of the Social Security Act (“SSA”), alleging a disability beginning March 11, 8 2017. Certified Administrative Record (“AR”) at 15.2 After his application was denied at 9 the initial stage and upon reconsideration, plaintiff requested and was given a hearing 10 before an administrative law judge (“ALJ”). Id. The hearing was held on August 26, 2019. 11 Id. Plaintiff appeared with counsel and gave testimony, and the ALJ also heard testimony 12 from a vocational expert. Id. In a decision dated December 20, 2019, the ALJ concluded 13 that plaintiff was not disabled as defined by the SSA. Id. at 15, 25. The Appeals Council 14 denied review of the ALJ’s decision on July 30, 2020, and the decision became final on 15 that date. Id. at 1-3. 16 B. Summary of the ALJ’s Findings 17 The ALJ followed the five-step process described in the applicable regulations in 18 rendering his decision.3 See generally AR at 15-25. At step one, the ALJ found plaintiff 19

20 2 The Court adopts the parties’ pagination of the AR. All other record citations are to the page numbers 21 generated by the Court’s CM/ECF system.

22 3 See 20 C.F.R. §§ 404.1520. First, the ALJ must determine whether the claimant is engaged in substantial gainful activity. Id., § 404.1520(a)(4)(i). Second, the ALJ must determine whether the claimant suffers 23 from a “severe” impairment within the meaning of the regulations. Id., § 404.1520(a)(4)(ii). Third, if the ALJ finds the claimant suffers from a severe impairment, the ALJ must determine whether that impairment 24 meets or is medically equal to one of the impairments identified in the regulations’ Listing of Impairments. 25 Id., § 404.1520(a)(4)(iii). Fourth, if the impairment does not meet or equal a listing, the ALJ must determine the claimant’s residual functional capacity (“RFC”) based on all impairments (including those 26 that are not severe) and whether that RFC is sufficient for the claimant to perform his or her past relevant work. Id., § 404.1520(a)(4)(iv). At the fifth and final step, the ALJ must determine whether the claimant 27 can make an adjustment to other work based on his or her RFC. Id., §404.1520(a)(4)(v). Throughout this process, “the ALJ ‘is responsible for determining credibility, resolving conflicts in medical testimony, and 28 1 did not engage in substantial gainful activity from the alleged date of the onset of plaintiff’s 2 disability through the date of the ALJ’s decision. Id. at 17. 3 At step two, the ALJ found that plaintiff had the following severe impairments: 4 schizoaffective disorder, borderline intellectual functioning, history of methamphetamine 5 dependence, morbid obesity, obstructive sleep apnea, and diabetes mellitus type II. Id. The 6 ALJ further found that these medically determinable impairments “cause[d] more than 7 minimal limitations in [plaintiff’s] ability to perform work-related activities.”4 Id. 8 At step three, the ALJ found that none of these plaintiff’s physical or mental 9 impairments, alone or in combination, met or medically equaled one of the impairments 10 listed in the Commissioner’s Listing of Impairments. Id. at 17-20. 11 At step four, the ALJ found that plaintiff had the RFC to perform sedentary work, 12 except that plaintiff could perform simple, repetitive tasks with occasional interaction with 13 the public. Id. at 20. The ALJ then determined that plaintiff could not return to his previous 14 work as a dishwasher. Id. at 24. 15 At step five, the ALJ found that plaintiff could perform jobs that existed in 16 significant numbers in the national economy, taking into consideration plaintiff’s age, 17 education, work experience and RFC and the testimony of a vocational expert, who 18 identified sedentary positions that could be performed by a person with plaintiff’s specific 19 limitations.5 Id. The ALJ then found that plaintiff was not disabled within the meaning of 20 the Social Security regulations. Id. at 25. 21 II. DISPUTED ISSUES 22 Plaintiff requests that the Court reverse the ALJ’s decision and remand for further 23 proceedings (or, alternatively, vacate and remand) on two bases: First, plaintiff argues that 24 the ALJ did not properly consider the medical evidence of plaintiff’s mental impairments. 25

26 27 4 The ALJ found that plaintiff’s asthma was well-controlled and did not limit his ability to work. Id.

5 These included document preparer (DOT 249.587-018), production worker (DOT 734.687-074) and 28 1 See Jt. Mot. at 6-8; 34. Plaintiff asserts that the ALJ “fail[ed] to address” evidence of 2 plaintiff’s anger, paranoia and tendency to isolate himself, leading to an RFC that is 3 “inconsistent” with plaintiff’s mental limitations. Id. at 7; see also id. at 15 (stating that 4 plaintiff’s medical records are “consistent with a long history of mental impairment” that 5 the ALJ “did not address”). As a result, plaintiff claims, the ALJ assigned plaintiff an RFC 6 that is not supported by substantial evidence. Id. at 8. 7 Second, plaintiff argues that the ALJ’s decision should be overturned because it was 8 issued under an “unconstitutional delegation of authority.” Id. at 15. Plaintiff explains that 9 the Office of Legal Counsel (“OLC”) has recently issued an opinion that “casts significant 10 doubt” upon the constitutionality of the Commissioner of Social Security’s appointment, 11 because pursuant to 42 U.S.C. § 902(a)(3) (hereafter “Section 902(a)(3)”) the 12 Commissioner serves a six-year term and is only removable for cause, in violation of the 13 separation of powers. Id. at 16-17. Plaintiff acknowledges that the OLC’s opinion is “not 14 binding,” but states that Commissioner Saul’s appointment was likely unconstitutional, he 15 “had no authority to delegate to the ALJ in this case or the Appeals Council to make 16 findings of fact and issue final decisions as to benefits eligibility.” Id. at 16, 18. Thus, 17 according to plaintiff, since the “relevant agency decisions” (i.e., the administrative 18 hearing, the issuance of the ALJ’s decision, and the Appeals Council’s denial of review) 19 all took place while Andrew Saul was the Commissioner of Social Security, his claim must 20 be remanded for readjudication. Id. at 18, 33. 21 Defendant requests that the denial of benefits be affirmed. Id. at 34. With respect to 22 the RFC, defendant argues that the ALJ “reasonably balanced the evidence before him and 23 translated that evidence” into an appropriate and well-supported RFC. Id. at 12. Defendant 24 states that the ALJ properly accounted for plaintiff’s mental limitations in assessing 25 plaintiff as capable of performing simple, repetitive tasks with occasional interaction with 26 the public. Id. at 14. Defendant further asserts that plaintiff is “attempt[ing] to reweigh the 27 evidence” on appeal because he failed to meet his burden of demonstrating his disability 28 in the first instance. Id. at 11, 14. 1 Regarding plaintiff’s argument that the ALJ’s decision resulted from an 2 “unconstitutional delegation of authority,” id. at 15, defendant “agree[s] that [Section] 3 902(a)(3) violates the separation of powers to the extent it is construed as limiting the 4 President’s authority to remove the Commissioner without cause.” Id. at 20. However, 5 defendant states that “without more,” there is no basis to set aside the ALJ’s decision (or 6 the subsequent denial of review) because under applicable precedent, plaintiff must “show” 7 that the unconstitutional restriction “actually caused him harm,” meaning here that it 8 informed the decision to deny his claim for benefits. Id.; see also id. at 24 (noting that there 9 is no “nexus” between the ALJ’s decision and the allegedly unconstitutional removal 10 provisions). Defendant also cites several other “remedial doctrines” – including harmless 11 error, the de facto officer doctrine, the rule of necessity and “prudential considerations” – 12 that weigh against disturbing the ALJ’s decision based on Commissioner Saul’s allegedly 13 unconstitutional appointment. See id. at 27-32. 14 III. STANDARD OF REVIEW 15 The Commissioner’s final decision “must be affirmed” if it is “supported by 16 substantial evidence, and if the Commissioner applied the correct legal standards.” Batson 17 v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). “Substantial evidence” 18 means “‘such relevant evidence as a reasonable mind might accept as adequate to support 19 a conclusion.’” Ford, 950 F.3d at 1154 (citation omitted). This Court must review the 20 record as a whole and consider adverse as well as supporting evidence. See Ahearn v. Saul, 21 988 F.3d 1111, 1115 (9th Cir. 2021). Where the evidence is susceptible of more than one 22 rational interpretation, the Commissioner’s decision must be upheld. Id. However, the 23 Court cannot uphold the Commissioner’s decision for reasons “ʻthe agency did not invoke 24 in making its decision.’” Stout v. Comm’r Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 25 2006) (citation omitted). The Court may affirm an erroneous decision if the error is 26 harmless. Ford, 950 F.3d at 1154. 27 /// 28 /// 1 IV. DISCUSSION 2 Issue 1: The RFC and Plaintiff’s Mental Impairments 3 A. The ALJ Appropriately Considered the Objective Medical Evidence and 4 Plaintiff’s Subjective Testimony in Assessing Plaintiff’s RFC 5 Plaintiff asserts that the ALJ’s assessment of plaintiff’s RFC is not supported by 6 substantial evidence because in “formulating” the RFC, the ALJ “relied upon the findings 7 of Dr. Whitehead,” which plaintiff asserts are “inconsistent” with the record as a whole. 8 See Jt. Mot. at 7-8. Plaintiff further asserts the ALJ improperly failed to address or consider 9 all the “pertinent” records of plaintiff’s treatment, which allegedly demonstrate that 10 plaintiff’s “anger,” “paranoia,” and tendency to “isolate[] himself” prevent him from 11 “working in proximity to or in coordination with coworkers and supervisors.” Id. at 6, 7. 12 The Court disagrees. The ALJ’s decision carefully documents the record before him 13 and the bases for his RFC determination. The Court notes that the ALJ’s RFC 14 determination was preceded by his assessment of whether plaintiff’s mental limitations 15 satisfied Paragraphs A, B or C of the listings, including a detailed review of the medical 16 records in this regard and the ALJ’s consideration of plaintiff’s testimony and demeanor at 17 the hearing. See AR at 18-20. Based on these considerations, the ALJ found plaintiff had 18 only moderate limitations in both “understanding, remembering, or applying information” 19 and “interacting with others,” and mild limitations in “concentrating, persisting or 20 maintaining pace” and “adapting or managing oneself.” Id. at 18. The ALJ further 21 determined that these limitations “[did] not preclude the performance of all competitive 22 work.” See id. (emphasis added). 23 Proceeding to the RFC determination, the ALJ expressly considered plaintiff’s 24 subjective testimony regarding his limitations, and the objective medical evidence in the 25 record. See id. at 20-23. The ALJ noted that plaintiff had been hospitalized following a 26 5150 hold in early 2017, at which time he was diagnosed with schizoaffective disorder, 27 bipolar type, and methamphetamine dependence. Id. at 21. The ALJ also noted that plaintiff 28 sought treatment, and had been prescribed medication, for symptoms of depression, 1 anxiety, and irritability in 2017 and 2019. Id. With reference to Dr. Whitehead’s October 2 2019 consultative examination, the ALJ noted that plaintiff reported a history of depression 3 and that during the examination plaintiff was cooperative, rational and did not exhibit signs 4 of a major mood disorder. Id. at 22. The ALJ addressed plaintiff’s physical limitations 5 based on a review of the medical records. Id. at 22-23. 6 The ALJ also considered plaintiff’s subjective symptom testimony.6 Id. at 22. The 7 ALJ found that although plaintiff’s impairments could cause the alleged symptoms, 8 plaintiff’s testimony regarding the limiting effect of those impairments was “not entirely 9 consistent” with the objective medical evidence. Id. at 22. Specifically, the ALJ noted that 10 plaintiff’s symptoms improved with treatment compliance, including taking his prescribed 11 medications and abstaining from methamphetamine use. Id. at 23. The ALJ also noted that 12 plaintiff helped care for his child and attended church. Id. at 19, 21. In other words, the 13 ALJ considered plaintiff’s subjective testimony, but “rejected [his] conclusion that his 14 [condition] rendered [him] unable to engage in substantial gainful employment of any 15 kind.” Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (finding no error in ALJ’s 16 discrediting of subjective testimony). In doing so, the ALJ carefully detailed the facts in 17 the record that undermined plaintiff’s testimony and supported his determination that 18 plaintiff’s mental and physical limitations “would not preclude the performance of 19 sedentary work with some additional mental and social limitations due to [plaintiff’s] 20 severe mental impairments.” See AR at 20-23; see Connett v. Barnhart, 340 F.3d 871, 873- 21 74 (9th Cir. 2003) (finding ALJ provided “clear and convincing reasons” to reject 22 23 24 6 At the hearing, plaintiff stated that due to his depression and his weight, he spent most of his day he 25 “stayed stuck in [his] house” and watched TV “most of the time.” AR at 40-41. Plaintiff also testified that he took “all kinds of medicine to calm [himself] down,” and described his symptoms as follows: 26 “Sometimes I think people are after me and I tell my wife and I just go home and I don’t go out [of] the house for a couple days because I think they’re after me. … [S]ometimes I hear voices.” Id. at 37. He 27 testified that he hears voices “once every two months,” but that he had recently started taking a new medication and that he had not experienced auditory hallucinations since beginning the treatment. Id. at 28 1 claimant’s testimony by identifying “specific facts in the record that demonstrate[d] an 2 objective basis for his finding”). 3 Consistent with the applicable regulations, the ALJ did not assign “any specific 4 evidentiary weight, including controlling weight,” to any medical opinions or findings, 5 including Dr. Whitehead’s report. See id. at 23. Rather, in the context of the entire medical 6 record, the ALJ found Dr. Whitehead’s opinion regarding plaintiff’s limitations was 7 persuasive in some respects, yet unpersuasive in others. Id. at 23. Specifically, based on 8 the consistency of Dr. Whitehead’s assessments with the objective medical record, the ALJ 9 found Dr. Whitehead’s conclusion that plaintiff could perform simple tasks persuasive, but 10 disagreed with Dr. Whitehead’s opinion that plaintiff had “no limitations.” Id. 11 The Court finds that the ALJ appropriately evaluated Dr. Whitehead’s report (and 12 other opinion evidence in the record) for consistency and supportability as required by the 13 regulations. See 20 C.F.R. § 404.1520c(b)(2) (identifying “supportability . . . and 14 consistency” as “the most important factors” the Administration considers in determining 15 “how persuasive . . . a medical source’s medical opinions” are). The Court further finds 16 that the ALJ could reasonably find, based on the evidence cited, that plaintiff could perform 17 simple, repetitive tasks, with “some social limitations due to the claimant’s reported 18 symptoms of paranoia and irritability.” Id. at 23; see Mayes v. Massanari, 276 F.3d 453, 19 459 (9th Cir. 2001) (“When the evidence can rationally be interpreted in more than one 20 way, the [C]ourt must uphold the Commissioner’s decision.”). 21 B. The RFC Determination Is Supported by Substantial Evidence 22 23 The Court has independently reviewed the record, “consider[ing] the entire record 24 as a whole” and weighing adverse as well as supporting evidence. Revels v. Berryhill, 874 25 F.3d 648, 654 (9th Cir. 2017). Based upon its review as summarized below, the Court 26 further finds that the ALJ’s decision is supported by substantial evidence. 27 Plaintiff was hospitalized from March 2, 2017 through March 4, 2017, on reports 28 that he was a danger to himself. Id. at 443. Plaintiff, who was homeless at the time, 1 reportedly was experiencing suicidal ideation and paranoid delusions and had not been 2 compliant with his medications. Id. He was started on Prozac and Zyprexa “with significant 3 response to treatment.” Id. at 442. He was discharged with a plan for “close psychiatric 4 followup monitoring.” Id. 5 Plaintiff’s mother referred him to the County’s Mental Health Services in August 6 2017. Id. at 470. During an August 23, 2017 initial screening, he was noted to be 7 cooperative, alert and oriented with appropriate affect, euthymic mood and coherent 8 thought process. Id. at 463. He denied suicidal intent and reported wanting to hurt himself 9 in the past, but that he “f[elt] better” when taking his medications. Id. at 464. He reported 10 feeling anxious and unhappy with his recent weight gain, insomnia, and visual and auditory 11 hallucinations that were improved with medicine. Id. at 464, 468. He expressed an interest 12 in receiving continued mental health services. Id. at 464. 13 Plaintiff returned to the County Mental Health Services on August 29, 2017, for a 14 behavioral health assessment. Id. at 470. He was noted to be depressed, cooperative and 15 alert. Id. at 477. He reported auditory and visual hallucinations, mood swings, and feeling 16 sad and angry. Id. at 470, 472. Plaintiff was assessed as meeting the criteria for 17 schizoaffective disorder and major depressive episodes. Id. at 479. He stated he was 18 interested in obtaining medications, which he reportedly had not been taking in the five to 19 six months before this appointment, because they made him “relaxed” and “there’s no more 20 voices.” Id. He reported that he went to church “often” and expressed an interest in ongoing 21 therapy. Id. at 471, 473, 479. 22 The record contains notes of various visits to Family Health Centers of San Diego 23 for treatment of his depression and anxiety, among other conditions. See, e.g., AR at 501, 24 543-44, 588-89. On April 25, 2018, he was started on a trial of Wellbutrin for depression. 25 Id. at 501. He was requested to follow up in 4 to 6 weeks and counseled that regular exercise 26 and “relaxation techniques” could alleviate his depression. Id. at 504-05. 27 Plaintiff was seen by K. Rozell, LCSW, for several visits between October 2018 and 28 April 2019 for his symptoms of depression and anxiety. See, e.g., id. at 543, 551, 553, 554- 1 57. During an October 18, 2018 intake assessment, plaintiff reported that he had been 2 depressed “for all of his life” and had taken Prozac, Serequel and Adderall until he moved 3 to Riverside two years prior. Id. at 554. He reported feeling “down,” nervous and easily 4 irritated or annoyed. Id. Ms. Rozell noted that plaintiff was alert and cooperative, with an 5 appropriate affect and a depressed and anxious mood. Id. at 557. 6 A behavioral health assessment by Ms. Rozell dated April 1, 2019 indicates that 7 plaintiff had depressive and anxiety symptoms “since childhood” and that his depression 8 had worsened with his recent weight gain. Id. at 545. He reported visual hallucinations and 9 paranoia but denied delusions or mania. Id. Ms. Rozell noted plaintiff was alert, coherent 10 and cooperative. Id. at 547-48. Ms. Rozell recommended plaintiff receive supportive 11 psychotherapy and psychiatry regularly over the next six months, with a goal of “reduc[ing] 12 anxiety and depressive symptoms.” Id. at 549. 13 During an April 9, 2019 visit to Family Health Centers, plaintiff reported “anxiety” 14 and “overeating,” but the provider did not further elaborate on these issues. Id. at 598-99. 15 An “Encounter and Procedure” note from R. Searles, M.D. at St. Vincent de Paul 16 dated May 21, 2019, reflects that plaintiff presented on that date seeking a letter for a 17 service animal. Id. at 617. Plaintiff reported that he felt depressed and hopeless, and that 18 he had been “feeling down for months” since he stopped taking Wellbutrin. Id. Plaintiff 19 reported that he tended to isolate himself and did not like to be around people. Id. at 617- 20 18. Plaintiff also reported that he felt “2/10” without his meds and “7/10” when taking 21 them. Id. Plaintiff also reported that he recently got a dog, and that it “made [him] happy” 22 but that he required a letter from a medical provider to be able to keep the dog at his housing 23 complex. Id. Dr. Searles noted that plaintiff met the criteria for major depressive disorder, 24 for which Wellbutrin was partially effective. Id. at 618. Dr. Searles recommended plaintiff 25 start Lexapro and gave plaintiff a two-month supply with instructions to follow up with his 26 providers at Family Health Centers in six weeks. Id. at 618-19. 27 On June 6, 2019, plaintiff presented to Dr. Baiou at Family Health Centers to request 28 completion of a “statement of parental incapacity” form. Id. at 588. Plaintiff reported that 1 he was unable to take care of his daughter due to his obesity, difficulty ambulating, 2 diabetes, and mood disorder. Id. Dr. Baiou’s note indicates that the form was “completed 3 and scanned,” but does not contain any objective findings from this visit.7 Id. at 589. 4 On October 14, 2019, plaintiff was evaluated by Dr. Whitehead, after having failed 5 to appear for a previously scheduled consultative psychological examination on February 6 20, 2018. Id. at 493, 621-27. Dr. Whitehead took plaintiff’s history, performed a mental 7 status evaluation, and conducted specialized testing, the results of which were documented 8 in his report. Id. at 624. Plaintiff was taking Wellbutrin, among other medications, at the 9 time of this examination. Id. at 625. The results of the mental status examination are notable 10 for Dr. Whitehead’s findings that plaintiff presented in a stable and euthymic mood and 11 “actively participated in the evaluation process.” Id. at 625-26. Dr. Whitehead did not 12 observe any indications of hallucinations, paranoia, or other psychotic thought processes. 13 Id. at 626. Dr. Whitehead also noted the absence of any signs of a severe affective or mood 14 disorder. Id. The testing revealed that plaintiff had borderline intellectual functioning. Id. 15 at 628. Based upon his examination, Dr. Whitehead concluded that plaintiff could perform 16 work activities that required simple tasks at a constant level, and that plaintiff’s mental 17 health issues “did not seem prominent and [were] managed on an outpatient basis.” Id. Dr. 18 Whitehead deemed plaintiff capable of working without limitations. Id. at 621-22. 19 Other medical notes and reports in the record are not germane to plaintiff’s claim 20 that his anger, paranoia, and self-isolating behaviors prevent him from working. However, 21 these records reflect on plaintiff’s other medically determinable impairments, including 22 morbid obesity, sleep apnea, diabetes, and leg swelling. See e.g., AR at 506-08, 519-23, 23 525-28, 539-42, 598-99. The record also contains documentation that plaintiff requested 24

25 26 7 Plaintiff was seen by Dr. Baiou on May 23, 2019, which Dr. Baiou noted was his “1st time to see patient.” Id. at 592. Upon examination, Dr. Baiou assessed plaintiff with morbid obesity and type II diabetes 27 mellitus and treated him for a cough. Id. at 592-93. There is no indication that plaintiff’s anxiety or mood disorders were discussed or evaluated during this visit, nor any reference to plaintiff’s recent prescription 28 1 authorization for a motorized scooter for mobility. Id. at 534-37, 575, 576, 595, 603. There 2 are several notes of visits with a nutritionist, and referrals for bariatric surgery 3 consultations. See id. at 560-71, 590-91, 595, 601-02, 608-11, 614. 4 Based on the foregoing review of the objective medical evidence, the Court finds 5 that the ALJ’s determination that plaintiff could engage in sedentary work, limited to 6 simple, repetitive tasks with occasional interaction with the public, is supported by 7 substantial evidence. Although there are references to plaintiff’s depression, anxiety, 8 paranoia and self-isolation, there are also repeated references to these conditions being 9 controlled or improved by medication, including plaintiff’s own statements to his medical 10 providers. Given these references, the Court cannot agree that the record demonstrates only 11 a “sudden burst” of improvement in plaintiff’s conditions, see Jt. Mot. at 15, but instead 12 documents a consistent pattern of improvement with medication. The Court therefore finds 13 that the ALJ, based on the record before him, could reasonably have concluded that 14 plaintiff’s limitations did not “preclude the performance of all competitive work.” AR at 15 18; see also Revels, 874 F.3d at 654 (noting that “where the evidence is susceptible of more 16 than one rational interpretation, the Commissioner’s decision must be upheld”). 17 Accordingly, the ALJ’s decision that plaintiff is not disabled will not be disturbed. See 18 Ahearn, 988 F.3d at 1115 (“If substantial evidence in the record supports the ALJ’s 19 decision we must defer to the ALJ.”). 20 Issue 2: Unconstitutional Delegation of Authority 21 The Court finds no merit to plaintiff’s contention that he is entitled to a new hearing 22 because Commissioner Saul – and, by extension, the ALJ and the Appeals Council – were 23 “insul[a]ted from a review that [was] subject to Presidential and thus political oversight.” 24 Jt. Mot. at 33. As numerous courts to address this issue have found, to be entitled to remand, 25 plaintiff must “show[] a connection between the denial of benefits” by a properly appointed 26 ALJ and “the unconstitutional removal provision.” See Ramos v. Comm’r of Soc. Sec., No. 27 1:20-cv-01606-EPG, 2022 WL 105108, at *4 (E.D. Cal. Jan. 11, 2022); see also id. at *3 28 (collecting cases); Kasey V. v. Comm’r of Soc. Sec., No. C20-6153 RAJ, 2022 WL 102048, 1 at *6 (W.D. Wash. Jan. 11, 2022) (affirming denial of benefits where plaintiff “failed to 2 show any connection between the unconstitutional removal provision and the ALJ’s 3 decision denying him benefits”). 4 In Michele T. v. Comm’r of Soc. Sec., -- F. Supp. 3d --, 2021 WL 5356721 (W.D. 5 Wash. Nov. 17, 2021), the court addressed the identical argument plaintiff advances here: 6 namely, that pursuant to the Supreme Court’s decisions in Selia Law LLC v. Consumer 7 Financial Protection Bureau, 140 S. Ct. 2183 (2020) and Collins v. Yellen, 141 S. Ct. 1761 8 (2021), the removal provisions of Section 902(a)(3) are unconstitutional and therefore 9 required remand. See generally id. at **3-4. The Michele T. court expressly found that “a 10 straightforward application of Selia Law and Collins dictates a finding that the removal 11 provision in [Section] 902(a)(3) violates the separation of powers[,]” and is 12 unconstitutional. See id. at *3. The court rejected the argument, however, that the flawed 13 removal provision “automatically render[ed] all agency action unconstitutional” and 14 “void.” Id. at *4; see also Kasey V., 2022 WL 102048, at *7 (“although the removal clause 15 in 42 U.S.C. § 902(a)(3) violates separation of powers, it does not require the ALJ’s 16 decision to be reversed”). The Michele T. court explained that this argument was “not 17 supported” by Selia Law and Collins, because the Administration would continue to 18 function even if the offending provision were severed. Id. 19 The Michele T. court also rejected plaintiff’s argument that “there [was] a 20 possibility” that plaintiff was harmed by the unconstitutional provision because it 21 “politicized” plaintiff’s claims. Michele T., 2021 WL 5356721, at *5. Instead, the court 22 looked to whether plaintiff could establish “an identifiable basis to contend that but for the 23 unconstitutional removal provision,” her claim for benefits would have been decided 24 differently. Id. The court observed that there was “nothing showing the Commissioner of 25 the [Administration] implemented new and relevant agency action that may have turned 26 upon the President’s inability to remove the Commissioner,” nor any evidence that any 27 “regulations, agency policies or directives” implemented by Commissioner Saul “affected 28 her claims.” Id. Plaintiff was also unable to show that but for the unconstitutional removal 1 provision, a different Commissioner would have been appointed “who would have 2 administered plaintiff’s claims differently.” Id. Finally, plaintiff could not demonstrate that 3 she was harmed by Section 902(a)(3)’s removal provision, because “the ALJ’s decision 4 . . . [was] based upon an uncontested factual record and the application of governing law, 5 including unchallenged regulations.” Id. In sum, the plaintiff in Michele T. was unable to 6 “show how or why [Section] 902(a)(3)[’s] removal clause possibly harmed her.” Id. 7 The Court finds that the same reasoning applies here, and that the same conclusion 8 follows. As in Michele T., plaintiff’s claim for benefits was adjudicated on an uncontested 9 factual record by a properly appointed ALJ who correctly applied governing law and 10 precedent. Plaintiff has not demonstrated that but for Commissioner Saul’s appointment 11 pursuant to the “constitutionally infirm” removal provision, see Jt. Mot. at 33, the outcome 12 of that adjudication would have been different. Plaintiff’s vague statement that the ALJ 13 and the Appeals Council were “protected” falls far short of the necessary showing that 14 there was a “connection between the unconstitutional removal provision and the ALJ’s 15 decision denying him benefits.” Kasey V., 2022 WL 102048, at *6; see also Frank W. v. 16 Kijakazi, No. 20-cv-1439-KSC, 2021 WL 5505883 at *4, (S.D. Cal. Nov. 23, 2021) 17 (explaining that the likely unconstitutionality of Section 902(a)(3) “does not mean the 18 adjudication of plaintiff's disability claim was ‘infected,’ ‘tainted,’ or decided ‘under an 19 unconstitutional delegation of authority.’”).8 Accordingly, plaintiff’s request for remand 20 on this basis is DENIED. 21 V. CONCLUSION 22 The Court “may set aside a denial of benefits only if it is not supported by substantial 23 evidence or is based on legal error.” Robbins v. Soc. Sec. Admin., 446 F.3d 880, 882 *9th 24 Cir. 2006). For the foregoing reasons, the Court finds in this case that the ALJ applied the 25 26 27 8 As the Court finds the removal provisions of Section 902(a)(3) do not require remand, it does not reach defendant’s other arguments regarding harmless error, the de facto officer doctrine, the rule of necessity 28 1 || correct legal standards, and that his determination that plaintiff is not disabled within the 2 meaning of the SSA is supported by substantial evidence. The Court further finds that the 3 ||removal provisions of 42 U.S.C. § 902(a)(3), even if unconstitutional, do not require 4 ||reversal. Accordingly, IT IS HEREBY ORDERED that the final decision of the 5 |}Commissioner of Social Security is AFFIRMED. The Clerk of the Court shall enter 6 || judgment accordingly and terminate the case. 7 || Dated: February 7, 2022 Mh iy i; ) 8 —= 9 Hori. Karen S. Crawford United States Magistrate Judge 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28