North Carolina Cases September 20, 2022: Harris v. Kijakazi

Case Description

1

MEMORANDUM AND RECOMMENDATION

Robert B. Jones, Jr., United States Magistrate Judge.

This matter is before the court-on the parties' cross-motions for judgment on the pleadings [DE-14, -21] pursuant to Fed.R.Civ.P. 12(c). Claimant Norman Harris (“Claimant”) filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits (“DIB”). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the matter be remanded to the Acting Commissioner for further proceedings.

I. STATEMENT OF THE CASE

Claimant protectively filed an application for a period of disability and DIB on June 22, 2018, alleging disability beginning December 6, 2016. (R. 15, 219-27). His claim was denied initially and upon reconsideration. (R. 56-85). A hearing before an Administrative Law Judge (“ALJ”) was held on September 1, 2020, at which Claimant, represented by counsel, and a

2

vocational expert (“VE”) appeared and testified. (R. 28-55). Claimant amended his alleged onset date to August 5,2019. (R. 35). On October 7,2020, the ALJ issued a decision denying Claimant's request for benefits. (R. 12-27). On January 4, 2021, the Appeals Council denied Claimant's request for review. (R. 1-6). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.

II. STANDARD OF REVIEW

The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act (“Act”), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). “The findings of the Commissioner ... as to any fact, if supported by substantial evidence, shall be conclusive . . . .” 42 U.S.C. § 405(g). Substantial evidence is “evidence which a reasoning mind would accept as sufficient to support a particular conclusion.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a “large or considerable amount of evidence,” Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is “more than a mere scintilla . . . and somewhat less than a preponderance.” Laws, 368 F.2d at 642. “In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner].” Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craigv. Chater, 16 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the “substantial evidence” inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers,

3

131 F.3d 438, 439-40 (4th Cir. 1997).

III. DISABILITY EVALUATION PROCESS

The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:

The claimant (1) must not be engaged in “substantial gainful activity,” i.e., currently working; and (2) must have a “severe” impairment that (3) meets or exceeds [in severity] the “listings” of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform ... past work or (5) any other work.

Albright v. Comm'r of the SSA, 174 F.3d 473,475 n.2 (4th Cir. 1999). “If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps.” Pass v. Chater, 65 F.3d 1200,1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.

When assessing the severity of mental impairments, the ALJ must do so in accordance with the “special technique” described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the “special technique.” Id. § 404.1520a(e)(3).

In this case, Claimant alleges the ALJ failed to properly evaluate Claimant's impairments under Listing 1.04A and failed to give substantial weight to Claimant's disability rating from the Department of Veterans Affairs (“VA”), and the structure of the Social Security Administration is

4

constitutionally invalid. Pl.'s Mem. [DE-15] at 5-16.

IV. ALJ'S FINDINGS

Applying the above-described sequential evaluation process, the ALJ found Claimant “not disabled” as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment since August 5,2019, the amended alleged onset date. (R. 17). Next, the ALJ determined Claimant had the severe impairments of cervicalgia with bilateral radiculopathy in upper extremities, post-effects of total left knee replacement with osteoarthritis, degenerative disc disease with spondylosis, and right knee degenerative joint disease and osteoarthritis. (R. 17-18). However, at step three, the ALJ concluded Claimant's impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 18).

Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work with the following limitations:

he could occasionally climb ramps and stairs; he could never climb ladders, ropes, or scaffolds; he could occasionally kneel and crouch; he could never crawl; he could frequently handle, finger, and feel bilaterally; he should avoid moderate exposure to workplace hazards and could never work at unprotected heights; he would occasionally use a cane for support only; and he would be absent no more than 1 day per month due to his impairments.

(R. 19-22). In making this assessment, the ALJ found Claimant's statements about his limitations riot entirely consistent with the medical and other evidence. (R. 19). At step four, the ALJ

5

concluded Claimant could not perform the requirements of his past relevant work as a sheriff's deputy. (R. 22). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 22- 23).

V. DISCUSSION

A. Listing 1.04A

Claimant contends the ALJ erred by finding his degenerative disc disease of the cervical spine with cervical spondylosis causing neural foraminal narrowing with suspected impingement of the right C4-C5 and C5-C6 nerve roots does not meet or equal Listing 1.04A. Pl.'s Mem. [DE-15] at 5-8. Defendant contends that the ALJ thoroughly discussed Listing 1.04, and her conclusion that Claimant's impairment did not meet the listing requirements is supported by the record. Def.'s Mem. [DE-22] at 29-30.

The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 404.1525(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. § 404.1520(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Even if an impairment does not meet the listing criteria, it may still satisfy the listing if the impairment medically equals the criteria. 20 C.F.R. § 404.1525(c)(5); SSR 17-2p, 2017 WL 1105349 (Mar. 27, 2017). The burden of demonstrating that an impairment meets or equals a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).

When “there is at least conflicting evidence in the record” as to whether a claimant satisfies a listing, the ALJ must explain her determination that the claimant's impairment does not meet or

6

exceed the listing. Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). The ALJ cannot “summarily conclude” that a listing is not satisfied because “insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings.” Id. For example, in Radford the record showed “limited motion of the spine on at least four occasions, positive straight leg raises at least five times, and sensory reflex loss on at least three occasions,” but it also showed “no weakness, sensory loss, or limitation of motion during some examinations.” Id. at 296. The court held that there was conflicting evidence requiring a detailed explanation from the ALJ. Id.

To satisfy Listing 1.04A, a claimant must show a disorder of the spine “(e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in compromise of a nerve root (including the cauda equine) or the spinal cord” with the following:

A. Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine);

20 C.F.R. § 404, subpt. P, app. 1, § 1.04A. The claimant “need not show that each symptom was present at precisely the same time-i.e., simultaneously-in order to establish the chronic nature of his condition.” Radford, 734 F.3d at 294. “Nor need a claimant show that the symptoms were present in the claimant in particularly close proximity.” Id. The Commissioner has recognized that “abnormal physical findings may be intermittent,” but a claimant may nonetheless prove a chronic condition by showing that he experienced the symptoms “over a period of time,” as evidenced by “a record of ongoing management and evaluation.” Id. (quoting 20 C.F.R. pt. 404, subpt P, app. 1, § 1.00D). “To require proximity of findings would read a new requirement into

7

the listing that is unsupported by the text, structure, medical practice, or common sense.” Id.

At step three the ALJ determined Claimant's spinal disorder did not satisfy Listing 1.04, explaining as follows:

To meet Listing 1.04, a disorder of the spine must result in compromise of a nerve root or the spinal cord with evidence of nerve root compression, spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication. MRI examinations failed to reveal any significant lumbar herniations, stenosis or nerve root impingement. In reaching this conclusion, the undersigned has considered Acquiescence Ruling 151(4), stating that Listing 1.04 requires that a claimant show only “that each of the symptoms are present, and that the claimant has suffered or can be expected to suffer from nerve root compression continuously for at least 12 months.” According to the U.S. Court of Appeals for the Fourth Circuit, the claimant need not show that each criterion was present simultaneously or in particularly close proximity.

Regarding the claimant's cervical degenerative disc disease, he had forward flexion 0-50 degrees and extension 0-60 degrees on examination. (Exhibit 7F). Lateral' flexion was 0-45 degrees and rotation was 0-80 degrees bilaterally. He was diagnosed with cervicalgia and cervical radiculopathy. An MRI of the cervical spine in February 2018 showed multilevel intervertebral discogenic disease, predominantly involving C3-4 through C7-T1, coupled with cervical spondylosis causing varying degrees of neural foraminal narrowing with suspected impingement of the right C4-5 and left C5-6 nerve roots. (Exhibit IF). Upon neurosurgical consultation in April 2019, however, Dr. David Hart found no surgical indication for his symptoms. (Exhibit 8F). He noted only moderate central canal stenosis at ¶ 4-5. There was no noted neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss as required by Listing 1.04(A).

(R. 18). Several of the ALJ's findings merit further explanation.

First, the ALJ found that “MRI examinations failed to reveal any significant lumbar herniations, stenosis or nerve root impingement.” Id. A February 24, 2018 MRI revealed “cervical spondylosis causing varying degrees of neural foraminal narrowing with suspected impingement of the right C4-C5 and left C 5-C6 nerve roots.” (R. 377). The detailed analysis of the MRI results specific to C4-C5 further indicate “uncovertebral facet joint hypertrophy causing severe rightsided neural foraminal narrowing with impingement of the exiting nerve root at this level.” (R. 376)

8

(emphasis added). Thus, the ALJ's finding that the MRI revealed no nerve root impingement appears to be incorrect. Furthermore, to the extent the ALJ believed the nerve root impingement was not “significant,” it is unclear what in the MRI results this finding is based on, and Listing 1.04A does not contain the word “significant.” 20 C.F.R. §404, subpt. P, app. 1, § 1.04A. Likewise, the ALJ noted that the neurosurgeon characterized Claimant's central canal stenosis at ¶ 4-5 as “only moderate,” (R. 18, 625), but Listing 1.04A requires only a showing of stenosis accompanied by other symptoms, and it is unclear why moderate stenosis would not be sufficient. The Fourth Circuit in Radford cautioned against reading new requirements into the listings. 734 F.3d at 294.

Second, the ALJ noted that there was no surgical indication for Claimant's symptoms. (R. 18, 626). Again, Listing 1.04A does not require the claimant to be a surgical candidate, and the absence of a surgical option does not necessarily mean the condition is not disabling. See Bradberry v. Berryhill, No. 2:16-CV-03352-MBS-MGB, 2018 WL 735424, at *6 (D.S.C. Jan. 18, 2018) (citing Garcia v. Astrue, 10 F.Supp.3d 282, 293-94 (S.D.N.Y. 2012) (recognizing “[t]he fact that Plaintiffs condition could not be corrected by surgery does not establish that it was not disabling; it simply means it could not be treated surgically.”), report and recommendation adopted, 2018 WL 733189 (D.S.C. Feb. 6, 2018).

Finally, the ALJ found that during a neurosurgical consultation in April 2019, there was “no noted neuro-anatomic distribution of pain, limitation of motion of the spine, [or] motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss as required by Listing 1.04(A).” (R. 18, 624-25). However, the requisite symptoms are present on other occasions. For example, on March 8, 2018, examination revealed impairments in range of motion, strength, flexibility, motor control, posture, and sensation, as well as pain at rest

9

and pain with palpation. (R. 377-79). On other occasions throughout 2018 and 2019, Claimant had decreased reduced strength on the right at ¶ 5 and decreased mobility at ¶ 5, C6, and C7, (R. 345-46, 358-59); diminished reflexes, (R. 331); motor and sensory loss, pain with palpation of the cervical paraspinals, fair but restricted range of motion, and pain with side bending and rotation, (R. 640-41); tenderness to palpation in the posterior cervical and periscapular regions, diminished sensation on the left upper extremity, and muted Babinski reflex, (R. 624-25); motor and sensory loss, positive Tinel's sign (reflex), pain with palpation of the cervical paraspinals, fair range of motion, and pain with side bending and rotation, (R. 633); pain with left and right cervical spine maneuvers (i.e., facet joint loading and Spurling sign positive), and reduced reflexes, (R. 824-25); and motor and sensory loss, and positive Tinel's sign (reflex), (R. 698, 703).

The Fourth Circuit made clear in Radford that the claimant “need not show that each symptom was present at precisely the same time-i.e., simultaneously-in order to establish the chronic nature of his condition,” and that “abnormal physical findings may be intermittent,” but a claimant may nonetheless prove a chronic condition by showing that he experienced the symptoms “over a period of time,” as evidenced by “a record of ongoing management and evaluation.” Id. Here, the Claimant had all the requisite symptoms present on March 8, and also continued to demonstrate symptoms intermittently over time, while showing some improvement in his symptoms for decreasing lengths of time (from ninety down to fifteen days) after receiving injections. (R. 331, 345-46, 358-59, 377-79, 624-25, 633, 640-41, 698, 703, 824-25); Lankton v. Kijakazi, No. 2:20-CV-56-RJ, 2022 WL 822919, at *5 (E.D. N.C. Mar. 17, 2022) (remanding case for further consideration of Listing 1.04A where the ALJ erroneously found that symptoms were absent when the record indicated otherwise). In this case, the conflicting evidence in the record required a more thorough discussion from the ALJ, and the court cannot follow the ALJ's

10

reasoning in finding that Claimant's cervical impairment did not meet Listing 1.04A. Accordingly, it is recommended that the matter be remanded for further consideration.

B. The VA Disability Rating

Claimant contends that the ALJ erred in failing to give substantial weight to Claimant's 100% VA disability rating. Pl.'s Mem. [DE-15] at 8-15. Defendant argues there was no error because the ALJ is not required to provide an analysis of a decision made by any other governmental agency about whether a claimant is disabled, but did appropriately consider Claimant's medical records from the VA. Def.'s Mem. [DE-22] at 19-29.

The record contains a rating decision from the VA listing each of Claimant's impairments with the associated disability rating and a combined rating, which was 100% beginning January 30, 2017. (R. 211-16). The ALJ did not mention Claimant's VA disability rating. (R. 15-23).

In Bird v. Commissioner of Social Security Administration, the Fourth Circuit found that “both the VA and Social Security programs serve the same governmental purpose of providing benefits to persons unable to work because of a serious disability.” 699 F.3d 337, 343 (4th Cir. 2012) (citation omitted). “Thus, ... in making a disability determination, the SSA must give substantial weight to a VA disability rating” unless the record clearly demonstrates that a lesser weight is appropriate. Id. (“[B]ecause the SSA employs its own standards for evaluating a claimant's alleged disability ... an ALJ may give less weight to a VA disability rating when the record before the ALJ clearly demonstrates that such a deviation is appropriate.”).

Subsequent to Bird, the SSA amended its regulations to provide for claims such as this one, filed on or after March 27,2017, that “[d]ecisions by other governmental agencies” are “inherently neither valuable nor persuasive” and the SSA “will not provide any analysis about how we considered such evidence in our determination or decision . . . .” 20 C.F.R. §§ 404.1520b(c)(1),

11

416.920b(c)(1). The regulations further provide:

Other governmental agencies and nongovernmental entities-such as the Department of Veterans Affairs ... - make disability, blindness, employability, Medicaid, workers' compensation, and other benefits decisions for their own programs using their own rules. Because a decision by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits is based on its rules, it is not binding on us and is not our decision about whether you are disabled or blind under our rules. Therefore, in claims filed (see § 404.614) on or after March 27, 2017, we will not provide any analysis in our determination or decision about a decision made by any other governmental agency or a nongovernmental entity about whether you are disabled, blind, employable, or entitled to any benefits. However, we will consider all of the supporting evidence underlying the other governmental agency or nongovernmental entity's decision that we receive as evidence in your claim in accordance with § 404.1513(a)(1) through (4).

20 C.F.R. §§ 404.1504, 416.904. It is upon these regulations that Defendant relies to support the ALJ's decision, arguing it was enough for the ALJ to review the treatment records from the VA, and the ALJ was not required to provide any analysis regarding Claimant's VA disability rating.

Judge Flanagan recently addressed this issue in Pizarro v. Kijakazi, No. 5:21-CV-46-FL, 2022 WL 966823, at *3-4 (E.D. N.C. Mar. 30, 2022). In Pizarro, the ALJ explained his consideration of the claimant's receipt of VA disability benefits as follows:

The claimant's receipt of VA compensation for disability has also been considered. . . . The undersigned has considered this finding and notes that the Veteran's [sic] Administration is an agency that operates under rules, guidelines, standards, and philosophies different from those of the Social Security Administration. The criteria and standards as well as the rules and regulations used by the VA in determining disability are unique to that Agency and as such, the relevance of this opinion is limited. . . . The undersigned need not provide articulation about the evidence that is inherently neither valuable nor persuasive.

Id., at *3. The court concluded that the ALJ's explanation satisfied the requirements of the new regulations where it was apparent the ALJ considered the VA decision, as well as the underlying findings and notes. Id. The court reasoned that further explanation was not required on the basis of Bird because that case applied a prior version of § 404.1504 and SSR 06-3p, which required the

12

ALJ to explain the consideration given to the decision of another governmental agency. Id. The court further explained that in Woods v. Berryhill, 888 F.3d 686,691-92 (4th Cir. 2018), the Fourth Circuit expressly noted the prior version of § 404.1504 “ only applies to claims filed before March 27, 2017,” and “[f]or claims filed on or after March 27, 2017, ALJs must still consider the existence of disability decisions by other governmental or nongovernmental entities, and any evidence underlying those decisions, but are no longer required ‘to provide written analysis about how they consider the decisions from other governmental agencies .'” Pizarro, 2022 WL 966823, at *4 (quoting Woods, 888 F.3d at 691 n.l (quoting 82 Fed.Reg. at 5,848) (emphasis added)). The court acknowledged that prior unpublished decisions in this district had reached a different result, see Roberts v. Kijakazi, No. 5:20-CV-204-D, 2021 WL 4066668 (E.D. N.C. Sept. 7, 2021); Rose v. Saul, No. 7:19-CV-91-BO, 2020 WL 4740479, at *3 (E.D. N.C. Aug. 14, 2020), but found “the foregoing analysis and the weight of authority favors the instant approach.” Pizarro, 2022 WL 966823, at *4 ( citing Rogers v. Comm'r of Soc. Sec., No. 3:20-CV-00206-RJC-DSC, 2022 WL 135310, at *3 (W.D. N.C. Jan. 13, 2022) (noting that “[t]here is ... a trend in district courts across the country ... that the revised regulations trump prior case law”)).

This case, however, differs from Pizarro in that the ALJ here failed to even acknowledge the VA's disability decision and so it is unclear whether the ALJ considered it at all. The revised regulation removes the requirement to explain how another agency decision was considered but not the requirement that it be considered. The court need not decide whether the ALJ's consideration of VA treatment notes was sufficient to satisfy the ALJ's obligations under the new regulations given the need for remand on other issues. On remand, the ALJ should develop the record as necessary and make sufficiently clear that the VA disability determination was considered in accordance with 20 C.F.R. §§ 404.1504, 416.904 and §§ 404.1520b(c)(1), 416.920b(c)(1).

13

C. The Constitutionality of the SSA

Claimant contends that the structure of the SSA is unconstitutional and violates the separation of powers because the agency is led by a single head who serves a longer term than the President and can only be removed from the position for cause; thus, Claimant reasons that Commissioner Andrew Saul's delegation of authority to the ALJs and Appeals Council and his promulgation of regulations were likewise defective, depriving Claimant of a valid administrative adjudicatory process. Pl.' s Mem. [DE-15] at 15-16 (citing Seila Law LLC v. Consumer Fin. Prot. Bureau, 140 S.Ct. 2183 (2020)). Defendant concedes that the removal restriction violates the separation of powers to the extent it is construed as limiting the President's authority to remove the Commissioner without cause but contends that Claimant is entitled to no relief because, among other things, he cannot show the restriction actually caused him harm. Def.' s Mem. [DE-22] at 5-19 ( citing Collins v. Yellin, 141 S.Ct. 1761 (2021)).

In Seila Law, the Court held that Congress may not limit the President's removal authority “when it comes to principal officers who, acting alone, wield significant executive power.” 140 S.Ct. at 2211. In Collins, the Court applied Seila Law to hold that the Federal Housing Finance Agency's structure violated the Constitution. 141 S.Ct. at 1783. However, in addressing the appropriate remedy, the Court distinguished a constitutionally defective appointment from a removal, explaining that

[a]lthough 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. at 1787. The Court did not foreclose that a showing of harm could be made and provided as examples a President attempting to remove a director but being blocked from doing so by a court

14

for failure to show cause, or a President making a public statement expressing displeasure with actions taken by a director and asserting he would remove the director absent the removal restriction. Id. at 1788-89.

Here, Defendant first argues that the ALJ who denied the claim in this case was not appointed by a Commissioner subject to the removal restriction but rather had her appointment ratified by Acting Commissioner Berryhill, who was not subject to the removal restriction, such that as a factual matter there is no separation of powers violation, and Claimant cannot show the requisite nexus between the alleged harm and the removal restriction. Def.'s Mem. [DE-22] at 810. The ALJ's and Appeals Council's decisions were issued after the appointment of former Commissioner Saul, who was subject to the removal provision. However, this does not entitle Claimant to remand because constitutional defects in appointment and removal are distinct. As the Supreme Court explained in Collins, if the appointment of the agency head is valid “there is no reason to regard any of the actions taken by the [agency] as void.” 141 S.Ct. at 1787; see Kaufmann v. Kijakazi, 32 F.4th 843, 849 (9th Cir. 2022) (finding that because “the ALJ, the members of the Appeals Council, Acting Commissioner Berryhill, and Commissioner Saul all served, at all relevant times, under valid appointments,” under Collins the agency's actions were not void).

Furthermore, Claimant's argument that an unconstitutional delegation of authority from Commissioner Saul to the ALJ and Appeals Council demonstrates harm lacks merit under Collins. See Harris v. Kijakazi, No. 21-1853, 2022 WL 2987928, at *3 (4th Cir. July 28, 2022) (rejecting constitutional claim based on Seila Law where the claimant failed to demonstrate actual harm). Claimant theorizes a general harm rather than one “particularized to Claimant,” Kaufmann, 32 F.4th at 850, and courts have found such generalized harms to be insufficient under Collins.

15

See Dixon v. Kijakazi, No. 4:21-CV-00033-M, 2022 WL 1096424, at *9 (E.D. N.C. Feb. 1, 2022) (finding insufficient showing of harm under Collins based on Claimant's argument that the removal provision deprived the Commissioner of the power to take official acts and thus he had no decision making authority to delegate), report and recommendation adopted, 2022 WL 1096844 (E.D. N.C. Apr. 12,2022); Stephens v. Comm 'r of Soc. Sec., 1:20-CV-00320-WCM, 2022 WL 628540 at *4-6 (W.D. N.C. Mar. 3, 2022) (citing Helms v. Comm 'r of Sec. Sec., No. 3:20-CV-589-MOC, 2021 WL 5710096 (W.D. N.C. Dec. 1,2021)); Stubbs v. Kijakazi, No. 6:20-3606-MGL-KFM, 2022 WL 557479, at *3-4 (D.S.C. Feb. 24, 2022) (“Courts in the Fourth Circuit are in one accord that the allegedly unconstitutional nature of § 902(a)(3), standing alone, is an insufficient basis to require remand.”) (citing Pepper v. Kijakazi, No. 6:20-CV-4159-CMC, 2022 WL 391577 (D.S.C. Feb. 9,2022); Helms, 2021 WL 5710096; Robinson v. Kijakazi, No. 1:20-CV-00358-KDB, 2021 WL 4998397 (W.D. N.C. Oct. 27, 2021)); Hutchens v. Comm'r of Soc. Sec., No. 1:20-CV-1124, 2021 WL 5834409, at *13 (M.D. N.C. Dec. 9, 2021) (citing Lisa Y. v. Comm'r of Soc. Sec., 570 F.Supp.3d 993 (W.D. Wash. 2021)). Accordingly, because Claimant has failed to demonstrate a sufficient harm from the alleged unconstitutional removal provision, it is recommended that this argument be rejected.

VI. CONCLUSION

For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-14] be ALLOWED, Defendant's Motion for Judgment on the Pleadings [DE-21] be DENIED, and the matter be REMANDED to the Acting Commissioner for further proceedings.

IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 23, 2022

16

to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g, 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D. N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.

If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins, 766 F.2d 841, 846-47 (4th Cir. 1985).