Candusso v. Kijakazi

622 F.Supp.3d 100

Barbara CANDUSSO, Plaintiff, v. Kilolo KIJAKAZI, Defendant.

Civil Action No. 21-437

United States District Court, W.D. Pennsylvania

Filed August 17, 2022

Cynthia C. Berger, Berger & Green, Pittsburgh, PA, Robert W. Gillikin, II, Rutter Mills, LLP, Norfolk, VA, for Plaintiff.

Ryan Wilk, DOJ-USAO, Civil Division, Pittsburgh, PA, Katie Gaughan, Social Security Administration, Philadelphia, PA, for Defendant.

ORDER

Alan N. Bloch, United States District Judge

AND NOW, this 17th day of August 2022, upon consideration of Plaintiff's Motion for Summary Judgment (Doc. No. 13) filed in the above-captioned matter on October 13, 2021,

IT IS HEREBY ORDERED that the Motion is DENIED.

AND, further, upon consideration of Defendant's Motion for Summary Judgment (Doc. No. 16) filed in the above-captioned matter on November 8, 2021, IT IS HEREBY ORDERED that the Motion is GRANTED.¹

I. Background

Plaintiff applied for disability insurance benefits ("DIB") under Title II of the Social Security Act ("Act"), 42 U.S.C. § 401 et seq. on December 18, 2018. (R. 15). She pursued that claim before an Administrative Law Judge ("ALJ") who, on June 26, 2020, rendered a decision finding Plaintiff was not disabled under the Act. (R. 26). That decision became the Commissioner of Social Security's ("Commissioner") final decision pursuant to 20 C.F.R. § 404.981 when the Appeals Council denied Plaintiff's request for review on February 10, 2021. (R. 1). Before the Court, Plaintiff challenges the decision denying her application for benefits and seeks remand of this matter for further administrative proceedings. In pursuit of her requested remedy, she has argued that the underlying administrative proceedings, the ALJ's decision, and the Appeals Council's denial of her request for review deprived her of a constitutionally valid determination of her disability. She has further argued that the ALJ's determination of her residual functional capacity ("RFC") is unsupported by substantial evidence. Defendant opposes remand and defends the ALJ's final decision as being supported by substantial evidence. The Court, having considered the arguments set forth in the parties' motions for summary judgment, will affirm the agency's decision denying Plaintiff's DIB application.

II. Standard of Review

The Court is authorized to review the Commissioner's final decision by 42 U.S.C. § 405(g). Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir. 2001). The Court's review of legal questions is plenary, and the Court reviews findings of fact for substantial evidence. Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999) (citations omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, — U.S. —, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (citation omitted).

III. Legal Analysis

Plaintiff's main argument for remand is that she was "deprived . . . of a valid administrative adjudicatory process." (Doc. No. 14, pg. 5). She argues that, throughout the administrative proceedings in this matter, former Commissioner Andrew Saul enjoyed unconstitutional protection from at-will removal from that office by the President, pursuant to 42 U.S.C. § 902(a)(3). She alleges that she suffered injuries arising from Section 902(a)(3), such as the denial of a constitutionally valid hearing, adjudication, and decision(s) from the ALJ and the Appeals Council because those Social Security Administration ("SSA") officers derived their authority from Commissioner Saul. Defendant, Acting Commissioner Kilolo Kijakazi, concedes that Section 902(a)(3) is constitutionally defective, but argues Plaintiff suffered no compensable harms.

The removal-restriction provision in Section 902(a)(3) does appear to be an unconstitutional restriction of the President's power to remove executive officers. The SSA is headed by a Commissioner who is "appointed by the President, by and with the advice and consent of the Senate" for "a term of 6 years." Id. §§ 902(a)(1), (3). Section 902(a)(3) purports to protect the Commissioner from removal prior to the expiration of the six-year term absent a finding of "neglect of duty or malfeasance in office." Id. Serious doubt was cast on the constitutionality of that protective provision by the Supreme Court's recent decisions in Seila Law LLC v. Consumer Financial Protection Bureau, — U.S. —, 140 S. Ct. 2183, 207 L.Ed.2d 494 (2020), and Collins v. Yellen, — U.S. —, 141 S. Ct. 1761, 210 L.Ed.2d 432 (2021). In their wake, most courts have found the removal-restriction provision in Section 902(a)(3) to be indefensible. Herein, this Court joins them.

"The President's power to remove—and thus supervise—those who wield executive power on his behalf follows from the text of Article II." Seila Law, 140 S. Ct. at 2191-92 (citing Myers v. United States, 272 U.S. 52, 47 S.Ct. 21, 71 L.Ed. 160 (1926)). In Seila Law, the Supreme Court decided that the structure of the Consumer Financial Protection Bureau ("CFPB") violated the Constitution's separation of powers in its insulation of the CFPB Director from removal except for cause. Id. at 2191-92. Once appointed, the CFPB Director could only be removed by the President "for inefficiency, neglect of duty, or malfeasance in office." 12 U.S.C. § 5491(c)(3). The Supreme Court struck down that restriction of the President's removal power, explaining that the President must have the power to remove "subordinate officers" who assist him in fulfilling his duty to "take Care that the Laws be faithfully executed." Id. (citing U.S. Const. Art. II, §§ 1, 3).² The ramifications of Seila Law for the SSA were not entirely clear at the time of that decision. Though there undoubtedly were similarities among the SSA and CFPB, those agencies were distinguished in Seila Law wherein it was observed that, "unlike the CFPB, the SSA lack[ed] the authority to bring enforcement actions against private parties." Id. at 2202.

However, doubt concerning Seila Law's application to the removal-restriction provision in Section 902(a)(3) was soon thereafter resolved by the Supreme Court's decision in Collins. In Collins, the Supreme Court considered a constitutional challenge to the structure of the Federal Housing Finance Agency ("FHFA"). 141 S. Ct. at 1770. The act creating that agency dictated that the FHFA would be "led by a single Director who is appointed by the President with the advice and consent of the Senate." Id. at 1771 (citing 12 U.S.C. §§ 4512(a), (b)(1)). The act further dictated that the FHFA Director would serve a five-year term and would only be removable "by the President 'for cause.' " Id. (citing 12 U.S.C. § 4512(b)(2)). Explaining that Seila Law was "all but dispositive," the Court held that the "for-cause restriction on the President's removal authority violates the separation of powers." Id. at 1783. The Court "rejected, as unpersuasive, several proffered distinctions between" the CFPB and the FHFA and held that "even 'modest restrictions' " of the President's ability "to remove the head of an agency with a single top officer" was unconstitutional. Kaufmann v. Kijakazi, 32 F.4th 843, 848 (9th Cir. 2022) (citing Collins, 141 S. Ct. at 1787).

Courts considering post-Seila Law/Collins challenges to Section 902(a)(3)'s removal-restriction provision have decided that the provision is unconstitutional, though severable from the rest of the statute. Kaufmann, 32 F.4th at 849; Stamm v. Kijakazi, 577 F.Supp.3d 358, 365-66 (M.D. Pa. 2021); Mor v. Kijakazi, No. CV 21-1730 (JMV), 2022 WL 73510, at *5 (D.N.J. Jan. 7, 2022); High v. Kijakazi, No. CV 20-3528, 2022 WL 394750, at *5 (E.D. Pa. Feb. 9, 2022). This is consistent with the position taken by the Department of Justice after Collins in a memorandum opinion that immediately preceded President Biden's removal of Andrew Saul from the office of Commissioner just two years into his six-year term. Constitutionality of the Commissioner of Social Security's Tenure Protection, 2021 WL 2981542, at *11 (O.L.C. July 8, 2021); Rives v. Comm'r of Soc. Sec., No. 1:20CV2549, 2022 WL 681273, at *1 (N.D. Ohio Mar. 8, 2022) ("After this opinion, President Biden removed Commissioner Saul from his position and appointed Kilolo Kijakazi as the Acting Commissioner.").³ Pursuant to Seila Law/Collins, this Court likewise recognizes that Section 902(a)(3)'s removal-restriction provision is unconstitutional and unenforceable.

The Court's recognition of the unconstitutionality of the removal-restriction provision is, of course, not the end of the matter. "Having found that the removal restriction violates the Constitution, [the Court] turn[s] to the [Plaintiff's] request for relief." Collins, 141 S. Ct. at 1787. See e.g., Kaufmann, 32 F.4th at 849 ("The final question, then, is the appropriate remedy for Claimant, whose appeal to the Appeals Council was denied while Commissioner Saul served under an unconstitutional removal provision."). In Collins, the Supreme Court explained that "an unconstitutional removal provision does not affect the authority of the underlying agency officials to act." Kaufmann, 32 F.4th at 849 (citing Collins, 141 S. Ct. at 1787-88 & n.23). Therefore, challengers are not entitled to an undoing of an officer's actions as though their exercise of authority is "void ab initio." Collins, 141 S. Ct. at 1788 n.24. As the Honorable Judge Karen Marston explained: "[t]here is a distinction between the exercise of authority that an official does not possess and the exercise of proper constitutional authority while subject to unlawful removal conditions." Lewis v. Comm'r of Soc. Sec., No. CV 21-1202-KSM, 2022 WL 1136687, at *6 (E.D. Pa. Apr. 18, 2022). The distinction being that "[t]he former is presumptively void while the latter requires a showing of actual and causal harm." Id.

Moreover, to obtain "retrospective relief" a challenger must establish that the unconstitutional provision resulted...