Jones v. Kijakazi

Full title: TANIKA JONES o/b/o E.D., Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner…

Court: United States District Court, Middle District of Pennsylvania

Date published: Nov 8, 2022

CIVIL 1:21-CV-2133 (M.D. Pa. Nov. 8, 2022)

Opinion

CIVIL 1:21-CV-2133

11-08-2022

TANIKA JONES o/b/o E.D., Plaintiff v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant

MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.

BRANN, CHIEF JUDGE.

REPORT AND RECOMMENDATION

MARTIN C. CARLSON, UNITED STATES MAGISTRATE JUDGE.

I. Introduction

The Supreme Court has underscored for us the limited scope of our substantive review when considering Social Security appeals, noting that:

The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.--,----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at .229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999)

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(comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

The plaintiff, Tanicka Jones, appeals from an adverse decision of the Commissioner of Social Security denying her minor child, E.D.'s, application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. The jurisdiction of this Court is invoked pursuant to 42 U.S.C. § 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference). For the reasons expressed herein, we will recommend that the Court affirm the decision of the Commissioner.

II. Statement of Facts and of the Case

On October 2, 2019, Tanicka Jones on behalf of E.D., a child under age 18, protectively filed an application for Supplemental Security Income (SSI). (Tr. 16). Initially the alleged disability onset date was December 1, 2010, but was later amended to October 2, 2019, the date of the protective filing. (Id.) E.D.'s SSI application was based upon several mental impairments. These impairments included: depression, attention deficit hyperactivity disorder (“ADHD”), and oppositional defiance disorder. (Tr. 17). The administrative record reveals that these disorders were considered severe impairments for E.D. (Id.)

E.D. was born in December 2006 and thus was twelve years old when the application for SSI was filed. (Tr. 31). E.D. has history of struggling to focus not 2 only at school but at home. (Tr. 541). E.D. started taking medications for ADHD when she was three years old. (Id.) At the time of the hearing, E.D. was enrolled in public school, but she was home-schooled for a period of time prior to the hearing because E.D.'s mother, Ms. Jones, believed she would be able to handle E.D.'s symptoms better than her teachers. (Id.)

Initially Ms. Jones' claim on behalf of E.D. was denied on February 13, 2020, and was denied again on October 15, 2020, upon reconsideration. (Tr. 16.) On October 26, 2020, the plaintiff requested a hearing. (Id.) Due to the COVID-19 pandemic Ms. Jones agreed to a telephonic hearing, which was held on February 5, 2021.

At the time of the hearing E.D. was in 7^th grade. (Tr. 37). E.D. testified that in school she needs extra help with mathematics, history, and science and at the time had all F's and a D in her classes. (Tr. 37-38, 41). E.D. explained when she is not doing homework, she is normally on her phone watching videos on Tik Tok. (Tr. 42). E.D. also testified she enjoys skateboarding with friends. (Tr. 39) Ms. Jones testified E.D. is a loner at home and does not like to be involved in family activities. (Tr. 46). Ms. Jones stated that E.D. struggles to complete chores and homework assignments without supervision. (Tr. 46-48). Further, Ms. Jones explained E.D. struggles when she is group settings. (Tr. 52). 3

It was against this backdrop that the ALJ issued a decision on March 1, 2021, denying Ms. Jones application for SSI on behalf of E.D. (Tr. 13-28). The ALJ employed the three-step evaluation process to determine whether a child is eligible for SSI payments by reason of disability. As part of this analysis the ALJ must sequentially determine: (1) whether the child is engaged in substantial gainful activity; (2) whether the child has a medically determinable, severe impairment; (3) whether the child's impairment or combination of impairments meets, medically equals, or functionally equals an impairment listed in part B of 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.924.

In this decision, the ALJ first concluded that E.D. has not engaged in substantial gainful activity since October 2, 2019, the application date. (Tr. 17). At Step 2 of the sequential analysis, the ALJ found that the E.D. has the following severe impairments: depression; attention deficit hyperactivity disorder (“ADHD”); and oppositional defiance disorder. (Id.) At Step 3 the ALJ determined that the claimant did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Tr. 18-22). The ALJ specifically considered Listings 112.06, 112.08, and 112.14 and determined the mental health impairments E.D. was diagnosed with did not meet these listings. (Tr. 18). 4

The ALJ explained that: “To meet a Listing, the claimant's mental impairments must result in at least one extreme or two marked limitations in a broad area of functioning, which are: understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; or adapting or managing themselves.” (Id.) The ALJ found that E.D. did not have extreme or marked limitations in any broad area of functioning, but rather moderate limitations in the four broad areas of functioning. (Id.) In reaching this conclusion the ALJ relied on the following: the longitudinal treatment notes; the lack of any records that E.D. received inpatient mental health treatment or referral to crisis intervention; no “paragraph C” criteria was met; and finally, that the state agency psychological consultants did not conclude a mental listing is medically equaled. (Id.)

Next, the ALJ determined the issue of functional equivalence to a listing by assessing E.D.'s degree of impairment in six domains of functioning: (1) Acquiring and Using Information; (2) Attending and Completing Tasks; (3) Interacting and Relating with Others; (4) Moving about and Manipulating Objects; (5) Caring for Yourself; and (6) Health and Physical Well-Being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). (Tr. 18-22). Under this functional equivalence analysis, if the ALJ found that E.D. exhibited either a “marked” limitation in two of these six domains, or an 5 “extreme” limitation in any single domain she would be deemed disabled. 20 C.F.R. § 416.926a(d).

Guided by this analytical paradigm, the ALJ found that E.D. suffered from no extreme or marked impairments and determined that she only experienced less than marked impairments in the domains of acquiring and using information, attending and completing tasks, interacting with others, and the ability to care for herself. (Tr. 18-22.) Based upon these findings the ALJ concluded that E.D. did not satisfy the juvenile disability criteria under the Act since she did not display marked impairments in at least two domains of functioning and denied this claim. (Tr. 22).

This appeal followed. (Doc. 1). On appeal, the plaintiff contends that the ALJ committed multiple errors with symptom evaluation that compel reversal and that the ALJ's step three evaluation was not supported by substantial evidence. (Doc. 17, at 7-13). Additionally, the plaintiff argues that the appointment of Andrew Saul, the Commissioner of the Social Security Administration at the time of the ALJ's decision in this case, violates the separation of powers doctrine and thus the decisions in this case are constitutionally defective because the ALJ and Appeals Council Judges derive their authority from the Commissioner. (Id., at 13-17).

This matter has been fully briefed by the parties and is now ripe for resolution. (Docs. 17, 20, 21). As discussed in greater detail below, having considered the 6 arguments of counsel and carefully reviewed the record, we recommend that the ALJ's decision be affirmed.

III. Discussion

A. Child Disability Claims: Initial Burdens of Proof, Persuasion and Articulation for the ALJ

The legal standards which govern an ALJ's consideration of a childhood disability claim under the Act are familiar ones.

The Social Security Act provides that in order to qualify for disability benefits, a child must have “a medically determinable physical or mental impairment, which results in marked and severe functional limitations, and 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.” 42 U.S.C. § 1382c(a)(3)(C)(I). The Commissioner has interpreted this statutory provision in regulations which provide that a child whose condition meets, medically equals, or functionally equals the criteria of a listed impairment must be found disabled. Similarly, a child whose impairment(s) do not meet or equal (medically or functionally) the listing criteria contained in 20 C.F.R. Part 404, Subpart P, Appendix 1 is not disabled. 20 C.F.R. § 416.924(a).

Under these regulations, when determining the issue of functional equivalence to a listed impairment, there are six domains of functioning which an ALJ must consider: (1) Acquiring and Using Information; (2) Attending and Completing 7 Tasks; (3) Interacting and Relating with Others; (4) Moving about and Manipulating Objects; (5) Caring for Yourself; and (6) Health and Physical Well-Being. 20 C.F.R. § 416.926a(b)(1)(i)-(vi). In order to establish a disabling level of functional equivalence to a listed impairment, an ALJ must conclude that a child exhibits either a “marked” limitation in two of these six domains, or an “extreme” limitation in any single domain. 20 C.F.R. § 416.926a(d). The Commissioner defines a “marked” limitation as one which:

interferes seriously with your ability to independently initiate, sustain, or complete activities. Your day-today functioning may be seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. ‘Marked' limitation also means a limitation that is ‘more than moderate' but ‘less than extreme.' It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least two, but less than three, standard deviations below the mean.

20 C.F.R. § 416.926a(e)(2).

The Commissioner then defines an “extreme” limitation as one which:

interferes very seriously with your ability to independently initiate, sustain, or complete activities. Your day-to-day functioning may be very seriously limited when your impairment(s) limits only one activity or when the interactive and cumulative effects of your impairment(s) limit several activities. ‘Extreme' limitation also means a limitation that is ‘more than marked.' ‘Extreme' limitation is the rating we give to the worst limitations. However, “extreme limitation” does not necessarily mean a total lack or loss of ability to function. It is the equivalent of the functioning we would expect to find on standardized testing with scores that are at least three standard deviations below the mean.

8 20 C.F.R. § 416.926a(e)(3).

B. Substantial Evidence Review - the Role of this Court

When reviewing the Commissioner's final decision denying a claimant's application for benefits, this Court's review is limited to the question of whether the findings of the final decision-maker are supported by substantial evidence in the record. See 42 U.S.C. §405(g); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). Substantial evidence “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). But in an adequately developed factual record, substantial evidence may be “something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is 9 supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003).

The Supreme Court has underscored for us the limited scope of our review in this field, noting that:

The phrase “substantial evidence” is a “term of art” used throughout administrative law to describe how courts are to review agency factfinding. T-Mobile South, LLC v. Roswell, 574 U.S.--,----, 135 S.Ct. 808, 815, 190 L.Ed.2d 679 (2015). Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains “sufficien[t] evidence” to support the agency's factual determinations. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) (emphasis deleted). And whatever the meaning of “substantial” in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is “more than a mere scintilla.” Ibid.; see, e.g., Perales, 402 U.S. at 401, 91 S.Ct. 1420 (internal quotation marks omitted). It means-and means only-“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison, 305 U.S. at 229, 59 S.Ct. 206. See Dickinson v. Zurko, 527 U.S. 150, 153, 119 S.Ct. 1816, 144 L.Ed.2d 143 (1999) (comparing the substantial-evidence standard to the deferential clearly-erroneous standard).

Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019).

The question before this Court, therefore, is not whether the claimant is disabled, but rather whether the Commissioner's finding that [she] is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote 10 a lack of substantial evidence”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The Secretary's determination as to the status of a claim requires the correct application of the law to the facts”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues ....”).

Several fundamental legal propositions flow from this deferential standard of review. First, when conducting this review “we are mindful that we must not substitute our own judgment for that of the fact finder.” Zirnsak v. Colvin, 777 F.3d 607, 611 (3d Cir. 2014) (citing Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005)). Thus, we are enjoined to refrain from trying to re-weigh the evidence. Rather our task is to simply determine whether substantial evidence supported the ALJ's findings. However, we must also ascertain whether the ALJ's decision meets the burden of articulation demanded by the courts to enable informed judicial review. Simply put, “this Court requires the ALJ to set forth the reasons for his decision.” Burnett v. Comm'r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). As the Court of Appeals has noted on this score:

In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements ... are insufficient. The ALJ must provide a “discussion of the evidence” and an “explanation of reasoning” for his conclusion sufficient to enable

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meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular “magic” words: “Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis.” Jones, 364 F.3d at 505.

Diaz v. Comm'r of Soc. Sec., 577 F.3d 500, 504 (3d Cir. 2009).

Thus, in practice ours is a twofold task. We must evaluate the substance of the ALJ's decision under a deferential standard of review, but we must also give that decision careful scrutiny to ensure that the rationale for the ALJ's actions is sufficiently articulated to permit meaningful judicial review.

C. Legal Benchmarks for the ALJ's Assessment of a Claimant's Alleged Symptoms

The interplay between the deferential substantive standard of review that governs Social Security appeals, and the requirement that courts carefully assess whether an ALJ has met the standards of articulation required by law, is also illustrated by those cases which consider analysis of a claimant's reported pain. When evaluating lay testimony regarding a claimant's reported degree of pain and disability, we are reminded that:

[T]he ALJ must necessarily make certain credibility determinations, and this Court defers to the ALJ's assessment of credibility. See Diaz v. Comm'r, 577 F.3d 500, 506 (3d Cir.2009) (“In determining whether there is substantial evidence to support an administrative law judge's decision, we owe deference to his evaluation of the evidence [and] assessment of the credibility of witnesses....”). However, the ALJ must specifically identify and explain what evidence he found not credible

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and why he found it not credible. Adorno v. Shalala, 40 F.3d 43, 48 (3d Cir.1994) (citing Stewart v. Sec'y of Health, Education and Welfare, 714 F.2d 287, 290 (3d Cir.1983)); see also Stout v. Comm'r, 454 F.3d 1050, 1054 (9th Cir.2006) (stating that an ALJ is required to provide “specific reasons for rejecting lay testimony”). An ALJ cannot reject evidence for an incorrect or unsupported reason. Ray v. Astrue, 649 F.Supp.2d 391, 402 (E.D.Pa.2009) (quoting Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir.1993)).

Zirnsak v. Colvin, 777 F.3d 607, 612-13 (3d Cir. 2014).

Yet, it is also clear that:

Great weight is given to a claimant's subjective testimony only when it is supported by competent medical evidence. Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir. 1979); accord Snedeker v. Comm'r of Soc. Sec., 244 Fed.Appx. 470, 474 (3d Cir. 2007). An ALJ may reject a claimant's subjective testimony that is not found credible so long as there is an explanation for the rejection of the testimony. Social Security Ruling (“SSR”) 96-7p; Schaudeck v. Comm'r of Social Security, 181 F.3d 429, 433 (3d Cir. 1999). Where an ALJ finds that there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the individual's pain or other symptoms, however, the severity of which is not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the individual's statements based on a consideration of the entire case record.

McKean v. Colvin, 150 F.Supp.3d 406, 415-16 (M.D. Pa. 2015) (footnotes omitted). Thus, we are instructed to review an ALJ's evaluation of a claimant's subjective reports of pain under a standard of review which is deferential with respect to the ALJ's well-articulated findings but imposes a duty of clear articulation upon the ALJ so that we may conduct meaningful review of the ALJ's conclusions. 13

In the same fashion that medical opinion evidence is evaluated, the Social Security Rulings and Regulations provide a framework under which the severity of a claimant's reported symptoms are to be considered. 20 C.F.R. §§ 404.1529, 416.929; SSR 16-3p. It is important to note that though the “statements of the individual concerning his or her symptoms must be carefully considered, the ALJ is not required to credit them.” Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 363 (3d. Cir. 2011) (referencing 20 C.F.R. §404.1529(a) (“statements about your pain or other symptoms will not alone establish that you are disabled”). It is well settled in the Third Circuit that “[a]llegations of pain and other subjective symptoms must be supported by objective medical evidence.” Hantraft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (referring to 20 C.F.R. § 404.1529). When evaluating a claimant's symptoms, the ALJ must follow a two-step process in which the ALJ resolves whether a medically determinable impairment could be the cause of the symptoms alleged by the claimant, and subsequently must evaluate the alleged symptoms in consideration of the record as a whole. SSR 16-3p.

First, symptoms, such as pain or fatigue, will only be considered to affect a claimant's ability to perform work activities if such symptoms result from an underlying physical or mental impairment that has been demonstrated to exist by medical signs or laboratory findings. 20 C.F.R. §§ 404.1529(b), 416.929(b); SSR 16-3p. 14 During the second step of this credibility assessment, the ALJ must determine whether the claimant's statements about the intensity, persistence, or functionally limiting effects of his or her symptoms are substantiated based on the ALJ's evaluation of the entire case record. 20 C.F.R. § 404.1529(c), 416.929(c); SSR 163p. This includes but is not limited to medical signs and laboratory findings, diagnoses, and other medical opinions provided by treating or examining sources, and other medical sources, as well as information concerning the claimant's symptoms and how they affect his or her ability to work. Id. The Social Security Administration has recognized that individuals may experience their symptoms differently and may be limited by their symptoms to a greater or lesser extent than other individuals with the same medical impairments, signs, and laboratory findings. SSR 16-3p.

Thus, to assist in the evaluation of a claimant's subjective symptoms, the Social Security Regulations identify seven factors which may be relevant to the assessment of the severity or limiting effects of a claimant's impairment based on a claimant's symptoms. 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3). These factors include: activities of daily living; the location, duration, frequency, and intensity of the claimant's symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to 15 alleviate his or her symptoms; treatment, other than medication that a claimant has received for relief; any measures the claimant has used to relieve his or her symptoms; and, any other factors concerning the claimant's functional limitations and restrictions. Id.; see Koppenaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1995999, at *9 (M.D. Pa. Apr. 8, 2019), report and recommendation adopted sub nom. Koppenhaver v. Berryhill, No. 3:18-CV-1525, 2019 WL 1992130 (M.D. Pa. May 6, 2019); Martinez v. Colvin, No. 3:14-CV-1090, 2015 WL 5781202, at *8-9 (M.D. Pa. Sept. 30, 2015); George v. Colvin, No. 4:13-CV-2803, 2014 WL 5449706, at *4 (M.D. Pa. Oct. 24, 2014).

D. Legal Benchmarks Governing Step 3 of This Sequential Analysis

This dichotomy between the Act's deferential standard of review and caselaw's requirement that ALJs sufficiently articulate their findings to permit meaningful judicial review is particularly acute at Step 3 of this disability evaluation process. At Step 3 of this sequential analysis, the ALJ is required to determine whether, singly or in combination, a claimant's ailments and impairments are so severe that they are per se disabling and entitle the claimant to benefits. As part of this Step 3 disability evaluation process, the ALJ must determine whether a claimant's alleged impairment is equivalent to a number of listed impairments, commonly referred to as listings, that are acknowledged as so severe as to preclude 16 substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(iii); 20 C.F.R. pt. 404, subpt. P, App. 1; Burnett, 220 F.3d 112, 119.

In making this determination, the ALJ is guided by several basic principles set forth by the social security regulations and case law. First, if a claimant's impairment meets or equals one of the listed impairments, the claimant is considered disabled per se and is awarded benefits. 20 C.F.R. §416.920(d); Burnett, 220 F.3d at 119. However, to qualify for benefits by showing that an impairment, or combination of impairments, is equivalent to a listed impairment, a plaintiff bears the burden of presenting “medical findings equivalent in severity to all the criteria for the one most similar impairment.” Sullivan v. Zebley, 493 U.S. 521, 531 (1990) (citing 20 C.F.R. §416.920(d); SSR 83-19 at 91). An impairment, no matter how severe, that meets or equals only some of the criteria for a listed impairment is not sufficient. Id.

The determination of whether a claimant meets or equals a listing is a medical one. To be found disabled under Step 3, a claimant must present medical evidence or a medical opinion that his or her impairment meets or equals a listing. An ALJ is not required to accept a physician's opinion when that opinion is not supported by the objective medical evidence in the record. Maddox v. Heckler, 619 F.Supp. 930, 935-936 (D.C. Okl. 1984); Carolyn A. Kubitschek & Jon C. Dubin, Social Security 17 Disability Law and Procedure in Federal Courts, § 3:22 (2014). However, it is the responsibility of the ALJ to identify the relevant listed impairments, because it is “the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits.” Burnett, 220 F.3d at 120 n.2.

On this score, however, it is also clearly established that the ALJ's treatment of this issue must go beyond a summary conclusion, since a bare conclusion “is beyond meaningful judicial review.” Burnett, 220 F.3d at 119. Thus, case law “does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis. Rather, the function . . . is to ensure that there is sufficient development of the record and explanation of findings to permit meaningful review.” Jones, 364 F.3d at 505. This goal is met when the ALJ's decision, “read as a whole,” id., permits a meaningful review of the SLJ's Step 3 analysis. However, when “the ALJ's conclusory statement [at Step 3] is . . . beyond meaningful judicial review,” a remand is required to adequately articulate the reasons for rejecting the claim at this potentially outcome-determinative stage. Burnett, 220 F.3d at 119.

E. The ALJ's Decision is Supported by Substantial Evidence.

In this setting, we are mindful that we are not free to substitute our independent assessment of the evidence for the ALJ's determinations. Rather, we must simply ascertain whether the ALJ's decision is supported by substantial 18 evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of evidence,” Pierce, 487 U.S. at 565, but rather “means- and means only-‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' ” Biestek, 139 S.Ct. at 1154. Judged against these deferential standards of review, we find that substantial evidence supported the ALJ's decision that E.D. was not entirely disabled.

On appeal the plaintiff first challenges the ALJ's symptom evaluation. The plaintiff alleges the ALJ erred in three ways regarding symptom evaluation that compel reversal. First, the plaintiff argues the ALJ incorrectly applied a clear and convincing evidence standard as opposed to a preponderance of the evidence standard. (Doc. 17, at 7). Second, the plaintiff highlights that the ALJ stated the claimant's behaviors improved with medication and argues that the ALJ cannot infer that an improved condition means the claimant is not disabled. (Id., at 8-9) (citing Tr. 21). Third, the plaintiff argues the ALJ erred because the ALJ discounted the provider's evidence of mental health limitations simply because the claimant was not hospitalized for psychiatric reasons. (Doc. 17, at 9). For the reasons discussed below we conclude the ALJ's symptom evaluation in this case complied with the dictates of the law and was supported by substantial evidence. 19

The plaintiff first argues that the ALJ erred in evaluating E.D's symptoms by using a clear and convincing evidence standard, rather than a preponderance of the evidence standard since the ALJ noted that the allegations “ ‘concerning the intensity, persistence and limiting effects of [E.D.'s] symptoms are not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision.” (Doc. 17, at 7) (quoting Tr. 20) (emphasis added). We disagree.

Initially, it appears as though the plaintiff conflates the standards used for considering her overall disability claim with those applicable to evaluating subjective complaints of intensity and persistence. In general, the plaintiff is correct that “[t]he administrative law judge shall issue a written decision that gives the findings of fact and the reasons for the decision. The administrative law judge must base the decision on the preponderance of the evidence offered at the hearing or otherwise included in the record.” 20 C.F.R. § 404.953(a). However, in evaluating a claimant's subjective symptoms, including intensity and persistence, ALJs use a different standard:

We will consider all of your statements about your symptoms, such as pain, and any description your medical sources or nonmedical sources may provide about how the symptoms affect your activities of daily living and your ability to work. However, statements about your pain or other symptoms will not alone establish that you are disabled. There must be objective medical evidence from an acceptable medical source

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that shows you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and that, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled. In evaluating the intensity and persistence of your symptoms, including pain, we will consider all of the available evidence, including your medical history, the medical signs and laboratory findings, and statements about how your symptoms affect you. We will then determine the extent to which your alleged functional limitations and restrictions due to pain or other symptoms can reasonably be accepted as consistent with the medical signs and laboratory findings and other evidence to decide how your symptoms affect your ability to work.

20 C.F.R. § 404.1529(a) (emphasis added); see also 20 C.F.R. § 416.929(a).

Here, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” as required by 20 C.F.R. §§ 404.1529(a) and 416.929(a). (Tr. 9). The ALJ determined, after considering all evidence available to her, that the plaintiff's representation of her symptoms did not align with the longitudinal treatment notes of record. Therefore, the ALJ's assessment of the evidence in this case fully complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant can demand in a disability proceeding. Thus, the ALJ did not apply an incorrect legal standard when evaluating the case. 21

The plaintiff next argues that the ALJ improperly relied on the fact that E.D.'s behaviors improved with medication. On this score, the ALJ stated that E.D.'s behaviors improved with medication, and thus, the plaintiff argues that “having an improved condition does not mean that the Claimant is not disabled” (Doc. 17, at 89). The plaintiff's argument relies on Morales v. Apfel, 225 F.3d 310 (3d Cir. 2000), which explained that “the work environment is completely different from home or a mental health clinic[]” for a plaintiff who suffers from mental impairments, and therefore, a doctor's observations that the claimant is “ ‘stable and well controlled with medication' during treatment does not support the medical conclusion that [the claimant] can return to work.” Morales, 225 F.3d at 319. Thus, the plaintiff asserts that “having an improved condition does not mean that the Claimant is not disabled.” (Doc. 17, at 9).

In response, the Commissioner argues that “the ALJ did not rely solely on statements that [E.D.'s] condition was “stable” in finding that she was not disabled.” (Doc. 20, at 29). The Commissioner highlighted that the “ALJ reasonably considered a notation in E.D.'s IEP indicating that Plaintiff herself attributed E.D.'s behavior to a lack of medication (Tr. 596) ....Thus, the ALJ considered that E.D's medication was effective to manage her conditions (Tr. 596).” (Id. at 30). We agree with the Commissioner and conclude that the ALJ did not improperly rely on the notion that 22 the claimant's behavior improved on medication in denying claimant's application for SSI. The Commissioner fairly and carefully assessed this evidence with other factual, medical, and opinion evidence.

Additionally, we conclude that the ALJ did not give undue weight to the fact that the record is devoid of evidence that E.D. received inpatient mental health treatment or was referred to crisis intervention. The plaintiff argues that “[t]he ALJ overstated the significance of the Claimant's failure to pursue emergency room treatment and failed to consider that hospitals charge very high prices for emergency room services for non-emergency conditions.” (Doc. 17, at 9). We disagree.

The ALJ simply makes note of this evidence in her opinion; there is no indication in the ALJ's analysis that this evidence was a driving factor in the ALJ's determination that E.D. is not disabled according to the Act or that ALJ discounted other evidence because of this fact. (Tr. 18-22). Therefore, we conclude that the ALJ did not error in her symptom evaluation.

Finally, the plaintiff argues that the ALJ did not fulfill her obligation to adequately develop the medical record because “[w]ith the relative lack of opinion evidence in the file the ALJ should have sent the Claimant to a consultative examiner or scheduled a medical expert at the hearing for an opinion as to the Claimant's limitations.” (Doc. 17, at 13). 23

It is true that administrative proceedings are distinct from adversarial judicial proceedings, and thus in some cases the ALJ may have an obligation to ensure that the administrative record is adequately developed, specifically where the claimant has not done so. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995) This is true because “[a]lthough the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.” Id. (citing Hess v. Sec'y of Health, Ed. & Welfare, 497 F.2d 837, 840 (3d Cir.1974)). However, the ALJ is not required to search out all relevant evidence which might be available, “since that would in effect shift the burden of proof to the government.” Id. at 840 (citing Easley v. Finch, 431 F.2d 1351, 1353 (4th Cir.1970)).

The regulations in this field thus require the ALJ to inquire fully into the matters at issue and admit testimony of witnesses and any documents which are relevant and material. 20 C.F.R. § 410.640. If the ALJ believes that there is relevant and material evidence available which has not been presented at the hearing, the ALJ may take the necessary steps to ensure that evidence is entered into the record. Id.

“It is important to recognize that the scope of an ALJ's duty to independently investigate the facts is relatively narrow.” Poleck v. Astrue, 2009 WL 3738602, at *2 (E.D.Pa.2009). 24 The Third Circuit has “never formally imposed a broad duty to investigate and develop arguments for all parties.” Id. (citing N.J. Media Group v. Ashcroft, 308 F.3d 198, 223 (3d Cir.2002); Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 120 n. 2 (3d Cir.2000)). There is a “heightened level of care and the responsibility of the ALJ to assume a more active role when the claimant is unrepresented.” Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir.1979).

As stated, plaintiff asserts the ALJ failed to fully develop the record by not ordering a consultative examination of claimant's mental impairments. As a general matter, “[t]he decision to order a consultative examination is within the sound discretion of the ALJ.” Basil v. Colvin, 2014 WL 896629, at *2 (W.D. Pa. Mar. 6, 2014) (citing Thompson v. Halter, 45 Fed.Appx. 146, 149 (3d Cir. 2002); 20 C.F.R. §§ 404.1517, 416.917). Further, the exercise of this discretion is linked to an informed assessment of the evidence in each case. Thus:

An “ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision.” Id. Other circumstances necessitating a consultative examination include situations where a claimant's medical records do not contain needed additional evidence, or when the ALJ needs to resolve a conflict, inconsistency or ambiguity in the record. See, 20 C.F.R. §§ 404.1519(a), 416.919(a).

Basil, 2014 WL 896629, at *2. See Rissmiller v. Colvin, 2016 WL 6107209, at *5 (E.D. Pa. Oct. 18, 2016). Therefore, a determination of whether a consultative 25 examination is needed in a particular case is a discretionary judgment by an ALJ and is a judgment that should be firmly rooted in an assessment of the evidence as a whole. Ultimately, “the ALJ's duty to develop the record does not require a consultative examination unless the claimant establishes that such an examination is necessary to enable the ALJ to make the disability decision.” Thompson, 45 Fed.Appx. at 149.

The plaintiff argues “there is no support for the ALJ's step three findings as the record is devoid of any opinions from treating or examining physicians[]” and further that “[t]he relative paucity of the record speaks to the ALJ's failure to develop the record.” We disagree with the plaintiff's assessment of the record and believe the record contained substantial evidence for the ALJ to make her determination. As the Commissioner highlighted: “the record contained both medical and educational records reflecting E.D.'s functioning.... a consultative examination performed in connection with a prior application [which] showed that E.D.'s psychiatric problems were not significant enough to interfere with her ability to function on a daily basis.” (Doc. 20, at 35) (citing Tr. 210, 269-76, 326, 330-39, 361-68,423-31, 522-24, 59596, 639-43); (Id. at 36) (opinions from Dr. Garito and Dr. Gavazzi concerning E.D.'s limitations, citing Tr. 391-94). Therefore, we cannot conclude the ALJ abused her discretion by not ordering a consultative examination or scheduling a medical expert 26 to testify at the hearing. Rather, we conclude that the ALJ's step three finding was supported by substantial evidence.

At bottom, it appears that the plaintiff is requesting that this court re-weigh the medical evidence and subjective testimony. This we may not do. See Chandler v. Comm'r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (“Courts are not permitted to re-weigh the evidence or impose their own factual determinations.”); see also Gonzalez v. Astrue, 537 F.Supp.2d 644, 657 (D. Del. 2008) (“In determining whether substantial evidence supports the Commissioner's findings, the Court may not undertake a de novo review of the Commissioner's decision and may not re-weigh the evidence of the record.”) (internal citations omitted)). Rather, our task is simply to determine whether the ALJ's decision is supported by substantial evidence, a quantum of proof which is less than a preponderance of the evidence but more than a mere scintilla, Richardson, 402 U.S. at 401, and “does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce, 487 U.S. at 565. Finding that this deferential standard of review is met here, we conclude that a remand is not appropriate for the purpose of further assessing this opinion evidence. 27

In sum, on its merits the ALJ's assessment of the evidence in this case complied with the dictates of the law and was supported by substantial evidence. This is all that the law requires, and all that a claimant can demand in a disability proceeding. Thus, notwithstanding the argument that this evidence might have been viewed in a way which would have also supported a different finding, we are obliged to affirm this ruling once we find that it is “supported by substantial evidence, ‘even [where] this court acting de novo might have reached a different conclusion.' ” Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986) (quoting Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 812 (3d Cir. 1986)). Accordingly, under the deferential standard of review that applies to appeals of Social Security disability determinations, we find that substantial evidence supported the ALJ's evaluation of this case and recommend that this decision be affirmed.

G. The ALJ's Decision Is Not Constitutionally Defective.

Finally, the plaintiff contends that the ALJ's authority was constitutionally defective, in that the ALJ derives her power from the Commissioner of Social Security, and the Commissioner of Social Security was not constitutionally appointed at the time of the ALJ's decision because the statutory removal clause for the Commissioner violates the separation of powers. The parties agree that the removal clause violates the separation of powers to the extent it limits the President's 28 authority to remove the Commissioner, but the Commissioner contends that this is not a basis for setting aside an unfavorable ALJ decision denying benefits. After consideration, we agree with the rising tide of caselaw suggesting that there is no reversible error where the plaintiff has not shown a traceable injury linked to the unconstitutional removal clause. Accordingly, this argument is not a basis for a remand in this case.

The plaintiff contends that E.D. was not afforded a valid administrative adjudicatory process because E.D.'s claim was denied by an ALJ who was appointed by a Commissioner whose appointment was constitutionally defective. The plaintiff relies on the Supreme Court's decision in Seila Law LLC v. CFPB, 140 S.Ct. 2183 (2020). In Seila Law, the Supreme Court found that the Consumer Financial Protection Bureau's removal structure violated the separation of powers, as that structure essentially insulated the director of the CFPB from removal by the President. Id. at 2197. Moreover, in Collins v. Yellen, 141 S.Ct. 1761 (2021), the Supreme Court held a removal provision which allowed for the President to remove the director of the Federal Housing Finance Agency only for cause violated the separation of powers. Id. at 1783.

The Third Circuit has not addressed whether these Supreme Court decisions are applicable to the Social Security Administration. However, the SSA limits the 29 removal of the Commissioner only for cause. See 42 U.S.C. § 902(a)(3) (“An individual serving in the office of Commissioner may be removed from office only pursuant to a finding by the President of neglect of duty or malfeasance in office”). Moreover, at least one court within this circuit has found that the removal provision for the Commissioner of the SSA violates the separation of powers. See Stamm v. Kijakazi, -- F.Supp.3d --, 2021 WL 6197749, at *5 (M.D. Pa. Dec. 31, 2021) (Mehalchick, M.J.) (“Applying the holdings in Seila Law and Collins here makes it clear that the provision for removal of the Commissioner of Social Security, 42 U.S.C. § 902(a)(3), violates the separation of powers”).

Yet while the structure of the Social Security Act's retention provisions may foster some separation of powers concerns, what is less apparent is how those concerns provide the plaintiff with grounds to set aside this ALJ's decision. In this regard, other courts have taken the Collins approach and held that Social Security plaintiffs typically do not have standing to challenge the separation of powers violation, as these plaintiffs could not show that the removal clause caused them a traceable injury. Indeed, in Collins, the Supreme Court found that “whenever a separation-of-powers violation occurs, any aggrieved party with standing may file a constitutional challenge.” Collins, 141 S.Ct. at 1780 (emphasis added). As applied to Social Security plaintiffs, one court has aptly explained: 30

In Collins, the Directors of the FHFA adopted an amendment (the “Third Amendment”) to certain financial agreements that “materially changed the nature of the agreements” and resulted in the companies in which plaintiffs were shareholders transferring to the U.S. Treasury “at least $124 billion dollars more than the companies would have had to pay” under the prior form of the agreements. Id. at 1774. The plaintiffs in Collins thus had an identifiable basis to contend that but for the unconstitutional removal provision, the President may have removed and appointed a different Director who would have disapproved of the adoption (or implementation) of the Third Amendment. See id. at 1789.

In contrast, there is nothing showing the Commissioner or the SSA implemented new and relevant agency action that may have turned upon the President's inability to remove the Commissioner. Plaintiff has not identified any new regulations, agency policies or directives Commissioner Saul installed that may have affected her claims. Plaintiff thus fails to show how or why § 902(a)(3) removal clause possibly harmed her.

Wicker v. Kijakazi, 2022 WL 267896, at *10 (E.D. Pa. Jan. 28, 2022) (quoting Lisa Y. v. Comm'r of Soc. Sec., -- F.Supp.3d --, 2021 WL 5177363, at *7 (W.D. Wash. Nov. 8, 2021)).

Thus, following Collins, many courts in this circuit have found that Social Security plaintiffs do not have standing to make a separation of powers challenge because they cannot show a nexus between the unconstitutional removal provision and some compensable harm. See e.g., Jones v. Kijakazi, 2022 WL 1016610, at *12 (D. Del. April 5, 2022) (“Plaintiff does not articulate how the President's inability to remove the Commissioner without cause affected the ALJ's disability determination 31 in this case”) Adams v. Kijakazi, 2022 WL 767806, at * 11 (E.D. Pa. Mar. 14, 2022) (“Plaintiff has failed to establish any nexus between the removal restriction and the denial of her application for benefits”); Kowalski v. Kijakazi, 2022 WL 526094, at *11 (M.D. Pa. Feb. 22, 2022) (Mehalchick, M.J.) (“There is no allegation suggesting a direct nexus between the adjudication of Kowalski's disability claim by the ALJ and the alleged separation of powers violation in the removal statute that applies to the Commissioner”).

In the instant case, the plaintiff simply contends that E.D. was not afforded a valid administrative adjudicatory process because the removal structure for the Commissioner of SSA is unconstitutional. However, as this recent caselaw illustrates, much more is needed than a generalized assertion that the unconstitutionality of the removal clause requires a remand. Rather, the plaintiff must show that the removal structure itself caused E.D. harm. The plaintiff makes no such allegation here.

IV. Recommendation

For the foregoing reasons, IT IS RECOMMENDED that the decision of the Commissioner in this case should be affirmed and the plaintiff's appeal denied.

The parties are further placed on notice that pursuant to Local Rule 72.3: Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in

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28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

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