Mills v. Kijakazi

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CHAD M.,1
Plaintiff,
v.
KILOLO KIJAKAZI,2
Acting Commissioner of Social Security,
Defendant.
Case No. 3:21-cv-00268-TMB
DECISION AND ORDER
On 	or 	about April 	2, 	2019, 	Chad 	M. 	(“Plaintiff”) 	protectively 	filed 	an
application for disability insurance benefits (“DIB”) under Title II of the Social
Security Act (“the Act”)3 alleging disability beginning November 1, 2018.4 Plaintiff
1 Plaintiff’s name is partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the
recommendation of the Committee on Court Administration and Case Management of the Judicial
Conference of the United States. 	See Memorandum, Committee on Court Administration and
Case 	Management 	of 	the 	Judicial 	Conference 	of 	the 	United 	States 	(May 	1, 	2018),
https://www.uscourts.gov/sites/default/files/18-cv-l-suggestion_cacm_0.pdf.
2 Kilolo Kijakazi is now the Acting Commissioner of Social Security and is automatically substituted
as a party pursuant to Fed. R. Civ. P. 25(d). See also section 205(g) of the Social Security Act,
42 U.S.C. 405(g) (action survives regardless of any change in the person occupying the office of
Commissioner of Social Security).
3 Title II of the Social Security Act provides benefits to disabled individuals who are insured by
virtue of working and paying Federal Insurance Contributions Act (FICA) taxes for a certain
amount of time. Title XVI of the Social Security Act is a needs-based program funded by general
tax revenues designed to help disabled individuals who have low or no income. Plaintiff brought
claims under Titles II and XVI. 	Although each program is governed by a separate set of
regulations, the regulations governing disability determinations are substantially the same for both
programs. Compare 20 C.F.R. §§ 404.1501–1599 (governing disability determinations under Title
II) with 20 C.F.R. §§ 416.901–999d (governing disability determinations under Title XVI). 	For
convenience, the Court cites the regulations governing disability determinations under both titles.
4 Administrative Record (“A.R.”) 514, 516. 	The application summary, not the application itself,
appears in the Court’s record.
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has exhausted his administrative remedies and filed a Complaint seeking relief
from this Court.5 	Plaintiff’s Opening Brief asks the Court to reverse and remand
the agency’s decision for an award of benefits, or in the alternative, for further
administrative proceedings.6 	The Commissioner filed an Answer and Response
Brief.7 Plaintiff filed a Reply Brief.8
Oral argument was not requested and was not necessary to the Court’s
decision. This Court has jurisdiction to hear an appeal from a final decision of the
Commissioner of Social Security.9 	For the reasons set forth below, Plaintiff’s
request for relief is denied.
I. 	STANDARD OF REVIEW
A decision by the Commissioner to deny disability benefits will not be
overturned unless it is either not supported by substantial evidence or is based
upon legal error.10 	“Substantial evidence” has been defined by the United States
Supreme Court as “such relevant evidence as a reasonable mind might accept as
5 Docket 1 (Plaintiff’s Compl.).
6 Docket 12 (Plaintiff’s Mot.); Docket 13 (Plaintiff’s Br.).
7 Docket 10 (Answer); Docket 16 (Commissioner’s Br.).
8 Docket 17 (Reply).
9 42 U.S.C. § 405(g).
10 Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing Gonzalez v.
Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)).
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adequate to support a conclusion.”11 	Such evidence must be “more than a mere
scintilla,” but may be “less than a preponderance.”12 	In reviewing the agency’s
determination, the Court considers the evidence in its entirety, weighing both the
evidence that supports and that which detracts from the administrative law judge
(“ALJ”)’s conclusion.13 	If the evidence is susceptible to more than one rational
interpretation, the ALJ’s conclusion must be upheld.14 A reviewing court may only
consider the reasons provided by the ALJ in the disability determination and “may
not affirm the ALJ on a ground upon which he did not rely.”15 An ALJ’s decision will
not be reversed if it is based on “harmless error,” meaning that the error “is
inconsequential to the ultimate nondisability determination, or that, despite the
legal error, the agency’s path may reasonably be discerned, even if the agency
explains its decision with less than ideal clarity.”16 	Finally, the ALJ has a “special
duty to fully and fairly develop the record and to assure that the claimant’s interests
11 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of New York v.
NLRB, 305 U.S. 197, 229 (1938)).
12 Id.; Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975).
13 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
14 Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (citing Rhinehart v. Finch, 438 F.2d 920,
921 (9th Cir. 1971)).
15 Garrison v. Colvin, 759 F.3d 995, 1010 (9th Cir. 2014).
16 Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotations and citations
omitted).
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are considered.”17 	This duty exists “even when a claimant is represented by
counsel.”18
II. 	DETERMINING DISABILITY
The Social Security Act (“the Act”) provides for the payment of disability
insurance to individuals who have contributed to the Social Security program and
who suffer from a physical or mental disability.19 	In addition, Supplemental
Security Income (“SSI”) may be available to individuals who do not have insured
status under the Act but who are age 65 or older, blind, or disabled.20 Disability is
defined in the Act as follows:
[I]nability 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.21
The Act further provides:
An individual shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
17 Smolen v. Chater, 80 F.3d 1273,1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441,
443 (9th Cir. 1983)); superseded in part by statute on other grounds, 20 C.F.R. § 416.929(c)(3).
See also Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014).
18 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
19 42 U.S.C. § 423(a).
20 42 U.S.C. § 1381a.
21 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
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substantial 	gainful 	work 	which 	exists 	in 	the 	national 	economy,
regardless of whether such work exists in the immediate area in which
he lives, or whether a specific job vacancy exists for him, or whether
he would be hired if he applied for work. 	For purposes of the
preceding sentence (with respect to any individual), “work which
exists in the national economy” means work which exists in significant
numbers either in the region where such individual lives or in several
regions of the country.22
The Commissioner has established a five-step process for determining
disability within the meaning of the Act.23 A claimant bears the burden of proof at
steps one through four in order to make a prima facie showing of disability.24 	If a
claimant establishes a prima facie case, the burden of proof then shifts to the
agency at step five.25 	The Commissioner can meet this burden in two ways: “(a)
by the testimony of a vocational expert, or (b) by reference to the Medical-
Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2.”26
22 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
23 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
24 Treichler v. Comm’r Soc. Sec. Admin., 775 F.3d 1090, 1096 n.1 (9th Cir. 2014) (quoting Hoopai
v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007)); see also Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999).
25 Treichler, 775 F.3d at 1096 n.1; Tackett, 180 F.3d at 1098 (emphasis in original).
26 Tackett, 180 F.3d at 1101.
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The steps, and the ALJ’s findings in this case, are as follows:
Step 1. 	Determine whether the claimant is involved in “substantial gainful
activity” (SGA).27 The ALJ determined that Plaintiff had not engaged in SGA since
November 1, 2018, the alleged onset date.28
Step 2. Determine whether the claimant has a medically severe impairment
or 	combination 	of 	impairments. 	A 	severe 	impairment 	significantly 	limits 	a
claimant’s physical or mental ability to do basic work activities and does not
consider 	age, 	education, 	or 	work 	experience. 	The 	severe 	impairment 	or
combination 	of 	impairments 	must 	satisfy 	the 	twelve-month 	duration
requirement.29 	The 	ALJ 	determined 	that 	Plaintiff 	had 	the 	following 	severe
impairments: 	degenerative 	disc 	disease 	of 	the 	lumbar 	spine, 	right 	shoulder
impairment, and mood disorder.30 	The ALJ also found the following non-severe
impairments: obstructive sleep apnea, hypertension, bilateral wrist pain, and
obesity.
Step 3. 	Determine whether the impairment or combination of impairments
meet(s) or equal(s) the severity of any of the listed impairments found in 20 C.F.R.
27 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
28 A.R. 241.
29 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
30 A.R. 242.
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pt. 404, subpt. P, app.1, precluding substantial gainful activity. If the impairment(s)
is(are) the equivalent of any of the listed impairments, and meet(s) the duration
requirement, the claimant is conclusively presumed to be disabled. 	If not, the
evaluation goes on to the fourth step.31 The ALJ determined that Plaintiff did not
have an impairment or combination of impairments that met or medically equaled
the severity of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1.32
Before proceeding to step four, a claimant’s residual functional capacity
(“RFC”) is assessed.33 	Once determined, the RFC is used at both step four and
step five. An RFC assessment is a determination of what a claimant is able to do
on a sustained basis despite the limitations from his impairments, including
impairments that are not severe.34 	The ALJ determined that Plaintiff had the
residual functional capacity to perform a full range of light work with following
limitations: he is limited to thirty minutes of standing at one time for up to two hours;
he is limited to thirty minutes of walking at one time for up to two hours; he is limited
to two hours of sitting at one time for up to 7 hours in an 8 hour workday; he can
31 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).
32 A.R. 242.
33 20 C.F.R. § 416.945.
34 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
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frequently push and pull with the right upper extremity; he can occasionally climb
ramps and stairs, but can never climb ladders, ropers, or scaffolds; he can
frequently balance; he can occasionally stoop, kneel, crouch, and crawl; he can
occasionally reach overhead with his right upper extremity; he must avoid all
unprotected heights and hazardous machinery; he is limited to routine, receptive
tasks; and he may have no more than occasional contact with the public.35
Step 4. 	Determine whether the claimant is capable of performing past
relevant work. 	At this point, the analysis considers whether past relevant work
requires the performance of work-related activities that are precluded by the
claimant’s RFC. If the claimant can still do his past relevant work, the claimant is
deemed not to be disabled.36 Otherwise, the evaluation process moves to the fifth
and final step. 	The ALJ determined that Plaintiff is unable to perform his past
relevant work as a chemical operator II (DOT #558.685-062, medium, svp4, semi-
skilled); pipeliner (DOT #877.684-126, heavy, svp5, skilled); fitter helper (DOT
#801.687-014, heavy, svp3 semi-skilled); or laborer (DOT #939.687-018, very
heavy, svp1, unskilled).37
35 A.R. 250.
36 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
37 A.R. 250.
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Step 5. Determine whether the claimant is able to perform other work in the
national economy in view of his age, education, and work experience, and in light
of the RFC. 	If so, the claimant is not disabled. 	If not, the claimant is considered
disabled.38 	The ALJ determined that there were jobs that existed in significant
numbers in the national economy that Plaintiff could perform, including assembler
(DOT #729.687-010, light, svp2, unskilled); agricultural sorter (DOT #529.687-186,
light, svp2, unskilled); and small products assembler (DOT #706.684-022, light,
svp2, unskilled).39
The ALJ concluded that Plaintiff was not disabled within the meaning of the
Social Security Act at any time from November 1, 2018 through April 21, 2021, the
date of the ALJ’s decision.40
III. 	PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff was born in 1972 and met the SSA definition of a “younger individual
(age 18-49)” for the entire relevant period.41 	Plaintiff met the insured status
38 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
39 A.R. 251.
40 A.R. 251.
41 A.R. 250.
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requirements for DIB benefits through December 31, 2023.42 	Plaintiff applied for
disability benefits on April 2, 2019.43 	On August 6, 2019, the Social Security
Administration (“SSA”) determined Plaintiff was not disabled under the applicable
rules.44 	Plaintiff 	requested 	a 	hearing 	before 	an 	ALJ.45 	Plaintiff 	and 	his
representative appeared telephonically at the administrative hearing on March 5,
2021.46 	Medical Expert (“ME”) Jack Lebeau, M.D., psychological medical expert
(“PME”) Jay Toews, EdD, and vocational expert (“VE”) Leta Berkshire also testified
by telephone.47 On April 21, 2021, the ALJ issued an unfavorable decision.48 On
October 12, 2021, the Appeals Council denied Plaintiff’s request for review.49 On
December 13, 2021, Plaintiff appealed the Commissioner’s final decision to this
Court.50
42 A.R. 241. In order to qualify for disability benefits under Title II, a claimant must have “insured
status” and show his disability began by his date last insured. 42 U.S.C. §§ 423(a)(1), (c)(2),
(d)(1)(A).
43 A.R. 239, 514.
44 A.R. 333.
45 A.R. 340.
46 A.R. 239.
47 A.R. 266-271 (psychological medical expert testimony); A.R. 276-286 (medical expert
testimony); A.R. 299-309 (vocational expert testimony).
48 A.R. 251.
49 A.R. 1.
50 Docket 1.
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IV. 	DISCUSSION
Plaintiff is represented by counsel in this appeal. Plaintiff seeks reversal and
remand for immediate payment of benefits, or in the alternative, for further
administrative proceedings.51 	Plaintiff argues: (1) the ALJ violated agency policy
and the law of this District by having the MEs testify without the benefit of having
heard either Plaintiff’s testimony or a summary or Plaintiff’s testimony; (2) the
appointment of Andrew Saul as a single commissioner of SSA who was removable
only for cause and would serve a longer term than that of the President violated
separation of power; and (3) the ALJ and Appeals Council judges were not properly
appointed, and therefore, had no legal authority to adjudicate this case.52 	The
Commissioner disputes Plaintiff’s claims and maintains the decision should be
affirmed.53 	For the reasons explained below, the Plaintiff’s request for relief is
denied.
Lack of Compliance with HALLEX I-2-6-70(b) is Not a Reversible Error
At the hearing, two medical experts testified prior to any testimony from
plaintiff, and the ALJ did not provide the medical experts with a summary of
plaintiff’s testimony as he had not yet testified. The Social Security Administration’s
51 Docket 13 at 11.
52 Docket 13 at 3.
53 Docket 16.
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internal policy manual section I-2-6-70(b) of the Hearing, Appeals, and Litigation
Law Manual (“HALLEX”), provides:
The ME may attend the entire hearing, but this is not required. If the
ME was not present to hear pertinent testimony, such as testimony
regarding the claimant’s current medications or sources and types
of treatment, the ALJ will summarize the testimony for the ME on the
record.54
While Plaintiff is correct that the ALJ violated HALLEX, allegations of non-
compliance with the HALLEX are not enforceable by the district court.55 Plaintiff’s
assertion that a remand is required relies on two recent decisions by the Alaska
District Court, Steele v. Saul and Quick v. Saul; the promulgation of Social Security
Ruling (“SSR”) 13-2p;56 and Remand Orders from the Appeals Council (AC) in
cases involving other applicants.57
With his Opening Brief, Plaintiff provided redacted Orders from the Appeals
Council (AC) remanding an ALJ’s decision based on noncompliance with HALLEX
54 HALLEX I-2-6-70(b)(S.S.A.), 1993 WL 751901.
55 See Roberts v. Comm’r of Soc. Sec. Admin., 644 F.3d 931, 933 (9th Cir. 2011) (“HALLEX . . .
does not carry the force of law and is not binding upon the agency. Therefore, we do not review
allegations of non-compliance with its provisions.”) (internal quotations and citations omitted);
Lockwood v. Comm’r Soc. Sec., 616 F.3d 1068, 1072 (9th Cir. 2010) (“HALLEX does not impose
judicially enforceable duties on either the ALJ or this court.”) (internal citations omitted).
56 SSR 13-2p, 2013 WL 603764, provides, in pertinent part, that “[w]e require adjudicators at all
levels of administrative review to follow agency policy, as set out in the Commissioner’s
regulations, SSRs, Social Security Acquiescence Rulings (ARs), and other instructions, such as
the Program Operations Manual System (POMS), Emergency Messages, and the Hearings,
Appeals and Litigation Law manual (HALLEX).”
57 Docket 13 at 6.
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in cases involving other applicants for disability benefits.58 	“The differences
between courts and agencies are nowhere more pronounced than in Social
Security proceedings.”59 The AC is the last administrative decisional level60 and
was established to oversee the hearings and appeals process and promote
national consistency in hearing decisions.61 The AC “may review cases to correct
anything from ‘error[s] of law’ to ‘broad policy or procedural issue[s] that may affect
the general public interest.’”62 	This “decidedly pro-claimant, inquisitorial process
is quite unlike an adversarial suit in which parties are expected to identify, argue,
and preserve all issues.”63 Therefore, as we have noted in other cases, “[t]he Court
is not persuaded that an Appeals Council decision in another case requires
automatic remand on the basis of HALLEX I-2-70B.”64 	Furthermore, Plaintiff
specifically addressed the ALJ’s violation of HALLEX in his Representative’s Brief
58 Docket 13-1.
59 Sims v. Apfel, 530 U.S. 103, 110 (2000).
60 	If the Social Security Appeals Council grants review of a claim, then the decision that the
Council issues is the Commissioner's “final decision.” If, however, the Council denies the request
for review, the ALJ's opinion becomes the final decision. 42 U.S.C.A. § 405(g); 20 C.F.R. §§
404.900(a)(4)–(5), 404.955, 404.981, 422.210(a).
61 	Brief 	History 	and 	Current 	Information 	about 	the 	Appeals 	Council, 	SSA,
https://www.ssa.gov/appeals/about_ac.html, last visited July 14, 2022.
62 Id. (quoting 20 CFR § § 404.970(a).
63 Carr v. Saul, 141 S. Ct. 1352, 1363 (2021) (Thomas, concurring in part).
64 Aaron A.M. v. Saul, Case No. 4:20-cv-00009-SLG, 2021 WL 1269894, at *14 n. 145 (D. Alaska
Apr. 6, 2021).
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to the AC.65 	The AC “considered the reasons and… found the reasons do not
provide a basis for changing the [ALJ’s] decision.”66 The Court agrees.
Plaintiff also claims SSR 13-2p and the “law of this District” require a remand
for violations of Agency policy.67 	In support of his position, Plaintiff points to two
recent decisions by the Alaska District Court, Steele v. Saul and Quick v. Saul.68
Unfortunately, Plaintiff’s reliance on these cases is misplaced and ignores the
subsequent case law.
While both Steele v. Saul and Quick v. Saul found the ALJ erred by allowing
the medical experts to testify before the claimant, both cases were remanded for
multiple reasons69 and neither explicitly dealt with whether HALLEX imposes
judicially enforceable duties or whether Plaintiff’s reliance on SSR 13-2p was
65 A.R. 617.
66 A.R. 1.
67 Docket 13 at 3.
68 Steele v. Saul, 520 F.Supp.3d 1198 (D. Alaska Feb. 19, 2021); Quick v. Saul, 520 F.Supp.3d
1190 (D. Alaska Feb. 19, 2021).
69 Steele, 520 F.Supp.3d 1198 (remanding because there was not substantial evidence to support
the classification of claimant's past relevant work and this error was not harmless; ALJ's reasons
for rejecting opinion of doctors who opined that claimant was impaired were not supported by
substantial evidence; and further development of record was necessary); Quick, 520 F. Supp. 3d
at 1195-96 (remanding because neither of the two testifying medical experts was qualified to opine
about development of a specific condition; one of the experts should not have even been
permitted to testify as a medical expert because her medical license was revoked prior to the
hearing and she was terminated from the Panel of Consultative Examiners; and there was
evidence to support a mental health condition the ALJ did not consider an impairment).
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misplaced.70 	Further, in subsequent cases, the Court explained, “[b]ased on the
arguments defendant has raised in [these cases], arguments that were not raised
in Steele or Quick, the court must conclude that the ALJ was not required to
comply with HALLEX 1-2-6-70(b). Even after the promulgation of SSR 13-2p, the
Ninth Circuit has plainly continued to take the position that the HALLEX does not
create judicially enforceable duties.”71
SSR 13-2p is a policy clarifying how the SSA determines “whether ‘drug
addiction and alcoholism’ (DAA) is material to [SSA’s] determination of disability.”72
As other district courts in the Ninth Circuit have held, SSR 13-2 is not binding here
because Plaintiff is not claiming the ALJ improperly applied the drug and alcohol
70 SSR 13-2p, 2013 WL 603764, is a policy clarifying how the SSA determines “whether ‘drug
addiction and alcoholism’ (DAA) is material to [SSA’s] determination of disability.” As other district
courts in the Ninth Circuit have held, SSR 13-2 is not binding here because Plaintiff is not claiming
the ALJ improperly applied the drug and alcohol dependence factors. See, e.g., Kathleen v. Saul,
Civ. No. 3:19-cv-00651-JLS-RNB, 2020 WL 353602, at *8 (S.D. Cal. Jan. 21, 2020) (“As Plaintiff
does not claim the ALJ improperly applied the Plaintiff’s drug or alcohol dependence in his
disability determination, SSR 13-2p is not binding.”) (citing Martinez v. Colvin, Civ. No. 6:14-cv-
01703-MC, 2016 WL 270911, at *5 (D. Or. Jan. 20, 2016) (“Plaintiff made no claims that there
were misinterpretations of policies relating to drug addiction and alcoholism in this case.
Therefore, SSR 13-2p is inapplicable here and does not change this Court’s application of
Lockwood.”); Hollen v. Comm'r of Soc. Sec., 2017 WL 1075194, at *8-*9 (S.D. Cal. Mar. 22, 2017)
(“[A]s SSR 13-2p does not mandate the ALJ follow HALLEX procedures, the ALJ did not err by
refusing to summarize Plaintiff’s subjective testimony for the ME.”).
71 Aaron A.M. v. Saul, No. 4:20-CV-00009-SLG, 2021 WL 2292788, at *1 (D. Alaska June 4, 2021)
(denying motion to alter judgment) (citing Lehman v. Saul, Case No. 3:20-cv-00184-HRH, 2021
WL 1232670, at *9–10 (D. Alaska April 1, 2021). See also Ryan Allen C. v. Kijakazi, No. 3:20-CV-
00220-SLG, 2021 WL 5139476, at *7 (D. Alaska Nov. 4, 2021); Donna K. v. Kijakazi, No. 3:20-
CV-00286-JMK, 2022 WL 902463, at *1 (D. Alaska Mar. 28, 2022).
72 SSR 13-2p, available at 2013 WL 603764.
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dependence factors. 	Moreover, as previously stated, even after SSR 13-2p was
enacted, the Ninth Circuit has continued to hold that the SSA’s internal policy
manuals such as HALLEX do not give rise to legally enforceable rights.73
Even if the Court were to find the HALLEX judicially enforceable, the ALJ’s
noncompliance here was harmless. 	In this case, Plaintiff’s arguments are all
procedural in nature. 	Plaintiff’s Opening Brief specifically concedes, “due to the
nature of [Plaintiff’s] arguments, a detailed summary of the medical evidence is not
necessary.”74 	Nowhere does Plaintiff cite to any specific harm that he suffered
because the ALJ did not comply with HALLEX I-2-6-70(b). Additionally, the Courts
review 	of 	the 	entire 	record 	revealed 	the ALJ’s 	decision 	was 	supported 	by
substantial evidence. Therefore, in this case, a remand is not warranted based on
the ALJ's alleged error in having the medical experts testify before Plaintiff testified.
The Unconstitutional Removal Provision Does Not Require a Remand
Plaintiff argues that he is entitled to a new hearing before a new ALJ because
the ALJ's delegation of authority came from the Commissioner, whose appointment
was 	constitutionally 	defective 	pursuant 	to 	United 	States 	Supreme 	Court
73 See, e.g., Wilson v. Berryhill, 732 F. App'x 504, 507 (9th Cir. 2018); Withrow v. Colvin, 672 F.
App'x 748, 749 (9th Cir. 2017); Whitten v. Colvin, 642 F. App'x 710, 713 (9th Cir. 2016); Durden v.
Colvin, 546 F. App'x 690, 690-91 (9th Cir. 2013). A court or litigant may cite to unpublished Ninth
Circuit opinions issued on or after January 1, 2007. U.S. Ct. App. 9th Cir. R. 36-3(b); Fed. R. App.
P. 32.1(a).
74 Docket 13 at 3.
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precedent.75 Since this appeal was filed, the Ninth Circuit addressed and rejected
a nearly identical constitutional challenge.76
In Kaufmann v. Kijakazi, the Ninth Circuit acknowledged that the Removal
Provision in 42 U.S.C. § 902(a)(3) “violates separation of powers principles and
must be severed from the statute.”77 	However, applying Collins v. Yellen in the
specific context of a social security disability case, the Kaufmann court held
that “unless 	a 	claimant 	demonstrates 	actual 	harm 	[from 	the 	unconstitutional
provision], the unconstitutional provision has no effect on the claimant's case.”78
A review of Plaintiff's Reply Brief, filed after Kaufmann was decided, is
telling; 	Plaintiff 	did 	not 	respond 	to 	any 	of 	Defendant's 	arguments 	regarding
Plaintiff's 	inability 	to 	show 	he 	suffered 	any 	actual 	harm 	from § 	902(a)(3)’s
unconstitutional removal provision. 	Indeed, the Court finds that Plaintiff failed to
address the relevant test at all.
Instead, Plaintiff bases his argument on Carr v. Saul.79 	The petitioners in
Carr argued that under Lucia v. S.E.C., they were entitled to new hearings before
75 Docket 13 at 3.
76 Kaufmann v. Kijakazi, 32 F.4th 843 (9th Cir. 2022).
77 Id. at 846.
78 Id. at 849–50 (citing Collins, 141 S. Ct. 1761, 1788-89 (2021)).
79 Docket 17 at 7 (citing Carr v. Saul, 141 S. Ct. 1352 (2021)).
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different ALJs because the ALJs who originally heard their cases were not properly
appointed 	under 	the Appointments 	Clause 	of 	the 	U.S. 	Constitution.80 	The
Commissioner argued petitioners forfeited their Appointments Clause challenges
by failing to make them first to their respective ALJs. The Supreme Court decided
the petitioners did not forfeit their claims.81
Unlike Appointments Clause defects, where the presiding official does not
enjoy proper authority to occupy the office,82 Collins explained that “settled
precedent … confirms the unlawfulness of [a] removal provision does not strip [an
official] of the power to undertake the other responsibilities of his office.”83 	Thus,
a 	party 	challenging 	an 	agency's 	past 	actions 	must 	instead 	show 	how 	the
unconstitutional removal provision actually harmed the party.84
Plaintiff has not sufficiently alleged any actual, particularized harm and tied
it to the unconstitutional statutory removal restriction in the Social Security Act, and
nothing in the record suggests any link whatsoever between the removal provision
80 138 S. Ct. 2044 (2018).
81 Carr, 141 S. Ct. at 1354 (holding the Courts of Appeals erred in imposing an issue-exhaustion
requirement on petitioners' Appointments Clause claims).
82 See Lucia, 138 S. Ct. at 2044 (holding when the ALJ overseeing Petitioner's claim was not
constitutionally appointed at the time he conducted the hearing, Petitioner is entitled to remand
for a hearing before a constitutionally-appointed ALJ and a new decision on her claim).
83 Collins, 141 S. Ct. at 1788 n. 23 (citing Seila L. LLC v. Consumer Fin. Prot. Bureau, 140 S. Ct.
2183, 2207-2211 (2020).
84 Kaufmann, 32 F. 4th at 849.
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and Plaintiff’s case.85 	Accordingly, the Court declines to remand the case for a
new hearing on this basis.
Substantial Evidence Supports the ALJ’s Decision
A district court may not substitute its judgment for that of the Commissioner
when the evidence can reasonably support either affirming or reversing the
decision.86 Instead, where the evidence is susceptible to more than one rational
interpretation, the Commissioner's decision must be upheld if it is “supported by
inferences reasonably drawn from the record.”87 	Here, the decision is supported
by substantial evidence, and finding no legal error, the Court affirms.
V. CONCLUSION
The Court, having carefully reviewed the administrative record, finds that the
ALJ’s determinations were free from legal error and supported by substantial
evidence. Accordingly, IT IS HEREBY ORDERED that Plaintiff’s request for relief
85 See, e.g., Collins, 141 S. Ct. at 1802 (Kagan, J., concurring in part) (opining that “I doubt the
mass of [Social Security Administration] decisions—which would not concern the President at
all—would need to be undone” because “[w]hen an agency decision would not capture a
President's attention, his removal authority could not make a difference”); Ramos v. Comm'r, Case
No. 1:20-cv-01606-EPG, 2022 WL 105108, at *3–4 (E.D. Cal. Jan. 11, 2022) (collecting cases
and concluding that the claimant “has not shown any connection between the denial of benefits
and the unconstitutional removal provision”).
86 Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007).
87Tommasetti 	v. 	Astrue, 	533 	F.3d 	1035, 	1038 	(9th 	Cir. 	2008) (citation 	omitted); see
also Lingenfelter, 504 F.3d at 1035.
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at Docket 13 is DENIED; the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED this 25th day of July, 2022, at Anchorage, Alaska.
_/s/ Timothy M. Burgess_________
TIMOTHY M. BURGESS
UNITED STATES DISTRICT JUDGE
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