UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 20-61123-CIV-CANNON/HUNT

AGNES D. JOHN,

Plaintiff,

v.

KILOLO KIJAKAZI,

Acting Commissioner for Social Security,

Defendant.

_________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before this Court on the Parties’ Cross Motions for Summary 

Judgment. ECF Nos. 28, 29. The Honorable Aileen M. Cannon, United States District 

Judge, referred this Matter to the undersigned United States Magistrate Judge for a 

Report and Recommendation. ECF No. 26; see also 28 U.S.C.A. § 636(b); S.D. Fla. L.R., 

Mag. R. 1. Upon thorough review of the Motions and the Responses thereto, the entire 

case file, the applicable law, and being otherwise fully advised in the premises, the 

undersigned respectfully RECOMMENDS that Plaintiff’s Motion for Summary Judgment, 

ECF No. 28, be DENIED and that Defendant’s Motion for Summary Judgment, ECF No. 

29, be GRANTED.

BACKGROUND

Agnes John (“Plaintiff”) filed an application for a period of disability and Disability 

Insurance Benefits (“DIB”) on October 31, 2017, alleging disability beginning on June 15, 

2017. ECF No. 20 at 175–81. The Social Security Administration (“SSA”) denied her 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 1 of 12
2

claim at the initial and reconsideration levels. ECF No. 20 at 100–02, 107–12. A hearing 

on Plaintiff’s disability claim took place on July 12, 2019. ECF No. 20 at 107–12. An 

Administrative Law Judge (“ALJ”) issued an unfavorable decision denying Plaintiff’s claim. 

ECF No. 20 at 17–28. The Appeals Council denied Plaintiff’s request for review of the 

ALJ’s unfavorable decision. ECF No. 20 at 7–14. Plaintiff now seeks judicial review of 

the ALJ’s decision. 

Social Security Framework

To determine whether a claimant is disabled, the Social Security Regulations 

outline a five-step process:

(1) whether the claimant is currently engaged in substantial gainful 

activity; (2) whether the claimant has a severe impairment or 

combination of impairments; (3) whether the impairment meets or 

equals the severity of the specified impairments in the Listing of 

Impairments; (4) based on a residual functioning capacity (“RFC”) 

assessment, whether the claimant can perform any of his or her past 

relevant work despite the impairment; and (5) whether there are 

significant numbers of jobs in the national economy that the claimant 

can perform given the claimant’s RFC, age, education, and work 

experience. 

Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176, 1178 (11th Cir. 2011).

Here, at step one, the ALJ found that Plaintiff has not engaged in substantial gainful 

activity since June 15, 2017. ECF No. 20 at 22. At step two, the ALJ found that Plaintiff 

had the following combination of severe impairments: disorders of the spine and status 

post bilateral knee replacements. Id. At step three, the ALJ found that Plaintiff does not 

have an impairment or combination of impairments that meets or medically equals the 

severity of one of the listed impairments in 20 C.F.R. § 404. Id. at 23. After careful 

consideration of the entire record, at step four, the ALJ found that Plaintiff has the residual 

functional capacity to perform light work as defined in 20 C.F.R. § 416.967(b). Id. at 23. 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 2 of 12
3

At step five, the ALJ found that the claimant was not capable of performing past relevant 

work as a head nurse and a dialysis technician nurse. Id. at 26. However, the ALJ 

determined that Plaintiff acquired work skills from past relevant work that are transferrable 

to other occupations with jobs existing in significant numbers in the national economy. 

ECF No. 20 at 28. As a result, the ALJ found that Plaintiff was not disabled. Id. at 28.

STANDARD OF REVIEW

Judicial review of the ALJ’s decision in a disability case is “limited to an inquiry into 

whether there is substantial evidence to support the findings of the [ALJ], and whether 

the correct legal standards were applied.” Wilson v. Barnhart, 284 F.3d, 1219, 1221 (11th 

Cir. 2002) (citing 42 U.S.C. § 405(g)). Whether the ALJ applied the correct legal 

standards is a question of law, which this Court reviews de novo. Graham v. Bowen, 790 

F.2d 1572, 1575 (11th Cir. 1986) (citing Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th 

Cir. 1982)). “Substantial evidence is more than a scintilla and is such relevant evidence 

as a reasonable person would accept as adequate to support a conclusion.” Crawford v. 

Comm’r of Soc. Sec., 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan, 

125 F.3d 1436, 1439 (11th Cir. 1997)). In determining whether substantial evidence 

exists, the court must scrutinize the record in its entirety, “taking into account evidence 

favorable as well as unfavorable to the decision.” Foote v. Chater, 67 F.3d 1553, 1560 

(11th Cir. 1995). However, the court may not reweigh the evidence or substitute its 

judgment for that of the ALJ. Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) 

(citing Phillips v. Barnhart, 357 F.3d 1232, 1240 n.8 (11th Cir. 2004)). Even if the 

evidence preponderates against the ALJ’s decision, the reviewing court must affirm if the 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 3 of 12
4

decision applies the correct legal standard and is supported by substantial evidence. See 

Crawford, 363 F.3d at 1158–59.

ANALYSIS

Plaintiff makes two arguments in support of her request to reverse the ALJ’s 

decision and remand this case for further proceedings. First, Plaintiff argues that the ALJ 

failed to apply the correct legal standards to her treating doctor’s opinion. Second, 

Plaintiff argues that the ALJ who rendered an unfavorable decision did not have lawful 

authority to hear and decide her claim. Each argument will be addressed in order.

I. Dr. Coats’ Opinion 

The SSA has adopted new regulations that apply to claims filed on or after March 

27, 2017. See 20 C.F.R. § 404.1520c. This new regulatory scheme no longer requires 

the ALJ to either assign more weight to medical opinions from a claimant's treating source 

or explain why good cause exists to disregard the treating source's opinion. See Matos 

v. Comm’r of Soc. Sec., No. 21-11764, 2022 WL 87144, at *4 (11th Cir. Jan. 10, 2022). 

Under the new regulations, an ALJ should focus on the persuasiveness of medical 

opinions and prior administrative medical findings by looking at five factors: (1) 

supportability; (2) consistency; (3) relationship with the claimant; (4) specialization; and 

(5) other factors. 20 C.F.R. § 404.1520c(c)(1)–(5).

The ALJ may, but is not required to, explain how she considered factors other than 

supportability and consistency, which are the most important factors. Id. § 404.1520c(b)2. 

“The more relevant the objective medical evidence and supporting explanations 

presented by a medical source are to support his or her medical opinion(s) or prior 

administrative medical finding(s), the more persuasive the medical opinions or prior 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 4 of 12
5

administrative medical finding(s) will be.” Id. § 404.1520c(c)(1). And “[t]he more 

consistent a medical opinion(s) or prior administrative medical finding(s) is with the 

evidence from other medical sources and nonmedical sources in the claim, the more 

persuasive the medical opinion(s) or prior administrative medical finding(s) will be.” Id. § 

404.1520c(c)(2). Put differently, the ALJ's analysis considers whether the medical 

source's opinion is (1) supported by the source's own records and (2) consistent with the 

other evidence of record. Vachon v. Comm’r of Soc. Sec., No. 6:20-cv-1521-MRM, 2022 

WL 458604, at *5 (M.D. Fla. Feb. 15, 2022). 

Plaintiff asserts that the ALJ failed to explain why the opinion of Plaintiff’s medical 

source, Dr. Coats, was inconsistent with the overall record. Plaintiff claims the ALJ 

supported her conclusion that Dr. Coats’ opinion was inconsistent with the record by 

noting that the record showed that Plaintiff was single, lived alone, performed her own 

household chores, and was able to drive and travel. Plaintiff argues that the ALJ failed 

to explain how these daily activities conflicted with Dr. Coats’ opinion. Plaintiff also 

asserts that the ALJ’s finding that Dr. Coats’ opinion was outweighed by the opinions of 

the State Agency doctors is not based on the correct legal standard. Plaintiff argues that 

the opinion of a non-examining reviewing physician is entitled to little weight. Further, 

Plaintiff contends that the State Agency doctors reviewed neither Dr. Coats’ opinion nor 

Plaintiff’s pain management records, which were introduced after the proceedings.

The Commissioner responds that the ALJ properly considered Dr. Coats’ opinion 

along with the other evidence in assessing Plaintiff’s RFC using the new set of regulations 

that became effective on March 27, 2017. The Commissioner contends that the new 

regulations no longer require the ALJ to follow certain procedures related to considering 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 5 of 12
6

opinions from treating sources; rather, the ALJ must focus on the persuasiveness of a 

medical opinion or prior administrative medical finding using five factors. The 

Commissioner argues that substantial evidence supports the ALJ’s evaluation of Dr. 

Coats’ opinions. 

Here, the undersigned finds that substantial evidence supports the ALJ’s 

evaluation of Dr. Coats’ opinion. The ALJ found portions of Dr. Coats’ opinion dated July 

23, 2018, to be partially persuasive. ECF No. 20 at 26. The ALJ found his assertions 

that Plaintiff could not return to the prior work of a dialysis nurse to be consistent with the 

overall record and the RFC she constructed. Id. However, the ALJ found Dr. Coats’

opinion that Plaintiff could not return to work due to her back condition to be vague and 

lacking a function-by-function analysis, which is required. Id. The undersigned agrees. 

Dr. Coats’ opinion mentions that he expects Plaintiff’s back impairment to prevent her 

from returning to work permanently but does not conduct a function-by-function analysis. 

Further, this vague statement could be seen as being related only to returning to work as 

a dialysis nurse and not other jobs in the national economy.

The ALJ found Dr. Coats’ opinion dated November 14, 2018, to be unpersuasive. 

Id. The ALJ found his opinion that Plaintiff could perform less than a full range of 

sedentary work to be overstated. Id. The ALJ supported her opinion based on evidence

that Plaintiff was able to drive, travel, and perform household chores, as well as the 

opinions of the four State Agency doctors who affirmed that Plaintiff could perform light 

work with postural limitations. ECF No. 20 at 26. The ALJ further discounted Dr. Coats’ 

opinion due to the fact that he stated Plaintiff should elevate her legs but his records were 

devoid of any instruction to Plaintiff that she should do so. Id. Additionally, the ALJ found 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 6 of 12
7

Dr. Coats’ assertion that Plaintiff could not lift more than ten pounds to be inconsistent 

with the overall record. In support, the ALJ referenced the four State Agency doctors and 

their opinions, which contradicted Dr. Coats’ assertion. Id. Further, progress reports from 

Dr. Gupta, another of Plaintiff’s treating doctors, on October 17, 2018, detail that Plaintiff 

had no disabling complaints, was pleasant and alert, and had no muscle pains or 

weakness. ECF No. 20 at 25. Additionally, Dr. Gupta throughout 2018 recommended 

that Plaintiff continue to exercise and eat a low-fat diet. ECF No. 20 at 26. The ALJ also 

noted that several treatment notes indicated Plaintiff had still been working. Id. ECF No. 

20 at 25. As a result, the ALJ found that the State Agency doctors’ opinions were more 

persuasive as they have program knowledge and had access to the entire case record.1 

Thus, the undersigned finds that substantial evidence supports the conclusion that 

the ALJ applied the correct legal standards with respect to Dr. Coats’ opinion.

II. Separation of Powers

Plaintiff next argues that on the date of her unfavorable decision there was no 

validly appointed Commissioner of Social Security, as the agency’s removal provision, 42 

U.S.C. § 902(a)(3) (“removal provision”), violates the Constitution’s separation of powers

framework. As a result, Plaintiff asserts the delegation of authority from thenCommissioner Andrew Saul to the ALJ is constitutionally defective. Thus, as there was 

1. Plaintiff contends, and the Commissioner concedes, that two of the four State 

Agency doctors could not have reviewed Dr. Coats’ November opinion because two of 

the State Agency doctors rendered their opinions prior to this date. The undersigned 

finds such an argument unavailing. Two of the State agency doctors had access to Dr. 

Coat’s opinion, and their opinions are consistent with the opinions of the two previous 

State agency doctors’ opinions who did not have access. In any event, the ALJ reviewed 

all of the relevant evidence, including Dr. Coats’ opinions, and determined that they were 

inconsistent.

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 7 of 12
8

no properly appointed Commissioner and the delegation of authority was constitutionally

defective, Plaintiff alleges that she was deprived of a valid adjudicatory process. 

The Commissioner responds that the Parties agree that the removal provision 

violates separation of powers to the extent it is construed as limiting the President’s 

authority to remove the Commissioner without cause. But the Commissioner argues that

this fact alone without more does not support setting aside an unfavorable SSA disability 

benefits determination. The Commissioner contends that Plaintiff has not shown that the 

removal restriction actually caused her harm. The Commissioner further contends that 

Plaintiff cannot establish any nexus between the removal restriction and the appointment 

of the ALJ who denied her claim. Additionally, the Commissioner states that the ALJ who

adjudicated Plaintiff’s claim held office under an appointment legally ratified in July 2018 

by then-Acting Commissioner Berryhill. Thus, the Commissioner argues that in her acting 

capacity Berryhill was removable at will, which refutes any suggestion of a nexus between 

the removal provision’s tenure protection for a confirmed Commissioner and the ALJ’s 

appointment.

Plaintiff’s claim relates to the Supreme Court’s decision in Seila Law LLC v. 

Consumer Financial Protection Bureau, 140 S. Ct. 2183 (2020). In Seila Law, the 

Supreme Court found that the removal statute governing the Consumer Financial 

Protection Bureau (“CFPB”) violated separation of powers principles because it prevented 

the President from removing the CFPB Director without cause. Id. at 2197. Similarly, In

Collins v. Yellin, 141 S. Ct. 1761 (2021), the Supreme Court considered a challenge to a 

provision restricting the removal of the director of the Federal Housing Finance Agency 

(“FHFA”) that once again prevented the President from removing the agency’s director 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 8 of 12
9

without cause. However, to obtain retrospective relief, the Supreme Court held that a 

plaintiff must show that “an unconstitutional provision . . . inflict[ed] compensable harm.” 

Collins, 141 S. Ct. at 1788–89, 1788 n.24 (stating that Seila’s holding does not mean that 

“actions taken by such an officer are void ab initio and must be undone”).

Plaintiff’s argument is essentially that the ALJ’s decision is void due to the 

unconstitutional nature of the agency’s removal provision. In opposition, the 

Commissioner raises several arguments, chief among them: Plaintiff has failed to show 

that the removal provision inflicted any harm. Plaintiff counters that she has suffered the 

following injuries:

1. Plaintiff did not receive a constitutionally valid hearing and adjudication 

from an ALJ to which Plaintiff was entitled.

2. Plaintiff did not receive a constitutionally valid decision from an ALJ to 

which Plaintiff was entitled. 

3. Plaintiff received an unfavorable decision from this constitutionally illicit 

ALJ adjudication process. 

4. Plaintiff did not receive a constitutionally valid process from the SSA’s 

Appeals Council to which Plaintiff was entitled. 

5. Plaintiff did not receive a constitutionally valid determination by the 

Appeals Council to which Plaintiff was entitled.

In Vickery v. Commissioner of Social Security, the plaintiff alleged that she did not 

receive a constitutionally valid hearing, adjudication, and decision because the ALJ who

rendered her decision did not have a proper delegation of power because the 

Commissioner’s statutory tenure protection violated separation of powers principles. No.

5:21-cv-122-PRL, 2022 WL 252464, at *3 (M.D. Fla. Jan. 27, 2022). The court dismissed

the plaintiff’s constitutional claim on the grounds that plaintiff’s purported injuries were 

conclusory; plaintiff set forth no facts showing plausible harm as a result of the 

Commissioner’s statutory protections; and, thus, Plaintiff could not demonstrate that the 

provision itself “inflict[ed] compensable harm.” Id.

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 9 of 12
10

Similarly, here, the undersigned finds that Plaintiff has not identified how the 

removal provision at issue caused her compensable harm. Like the plaintiff in Vickery, 

Plaintiff’s alleged injuries are nothing more than conclusory allegations. In fact, Plaintiff’s 

alleged injuries are identical to those raised by the plaintiff in Vickery. However, Plaintiff 

has not set forth any facts, other than these conclusory allegations, that show any 

connection between the removal provision and any possible harm to Plaintiff. Further 

straining the nexus between the removal provision and any compensable harm to Plaintiff 

is the fact that the ALJ who rendered the decision held office under an appointment legally 

ratified by then-Acting Commissioner Berryhill, who was not subject to the removal 

provision’s protection. See Helms v. Comm’r of Soc. Sec., No. 3:20-CV-589-MOC, 2021 

WL 5710096, at * 3 (W.D.N.C. Dec. 1, 2021) (holding that even if the plaintiff were

somehow injured by the ALJ’s decision, the ratification of the ALJ's appointment by Acting 

Commissioner Berryhill “adequately cured any such injury,” since the Acting 

Commissioner was not protected from removal from office).

Although the Supreme Court in Collins did not directly address the issue raised 

herein, Justice Kagan foreshadowed its outcome: 

[T]he majority's approach should help protect agency decisions that would 

never have risen to the President's notice. Consider the hundreds of 

thousands of decisions that the [SSA] makes each year. The SSA has a 

single head with for-cause removal protection; so a betting person might 

wager that the agency's removal provision is next on the chopping block ... 

[b]ut given the majority's remedial analysis, I doubt the mass of SSA 

decisions—which would not concern the President at all—would need to be 

undone. That makes sense.... When an agency decision would not capture 

a President's attention, his removal authority could not make a difference—

and so no injunction should issue.

Collins, 141 S. Ct. at 1802 (Kagan, J., concurring). Justice Kagan’s reasoning, as well as 

other decisions from other districts within this Circuit, support the undersigned’s

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 10 of 12
11

conclusion that there is no evidence in the instant action to support a nexus between the 

removal provision and any compensable harm to Plaintiff. Id.; see also Tibettes v. 

Comm’r of Soc. Sec., No. 2:20-cv-872-SPC-MRM, 2021 WL 6297530, at *3 (M.D. Fla. 

Dec. 21, 2021); Vickery, 2022 WL 252464, at *4; Perez-Kocher v. Comm’r of Soc. Sec.,

No. 6:20-cv-2357-GKS-EJK, 2021 WL 6334838, at *4–5 (M.D. Fla. Nov. 23, 2021);

Helms, 2021 WL 5710096, at * 3. 

Plaintiff has not asserted any clear allegations that Acting Commissioner Saul’s 

unconstitutional tenure resulted in harm to her. The ALJ's decision here was based upon 

the factual record and the application of established law, which generally cannot be 

changed by the Commissioner. Plaintiff, like the other plaintiffs in the cited cases, has 

neither shown a nexus between the removal restrictions and her claim, nor has she 

plausibly alleged that the statutory tenure protection affected the ALJ’s decision or caused 

her harm. Therefore, the undersigned recommends that Plaintiff’s Motion for Summary 

Judgment be denied on the constitutional claim.

RECOMMENDATION

For the reasons set forth above, the undersigned hereby RECOMMENDS that 

Plaintiff’s Motion for Summary Judgment ECF No. 28, be DENIED, and that Defendant’s 

Motion for Summary Judgment, ECF No. 29, be GRANTED.

Within seven (7) days after being served with a copy of this Report and 

Recommendation, any party may serve and file written objections to any of the above 

findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. 

§ 636(b)(1); S.D. Fla. Mag. R. 4(b). A response to any objection shall be filed within seven 

(7) days of the objection to this Report and Recommendation. 28 U.S.C. § 636(b)(1); 

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 11 of 12
12

S.D. Fla. Mag. R. 4(b). The parties are hereby notified that a failure to timely object 

waives the right to challenge on appeal the district court’s order based on unobjected-to 

factual and legal conclusions contained in this Report and Recommendation. 11th Cir. 

R. 3-1 (2016); see Thomas v. Arn, 474 U.S. 140 (1985).

DONE and SUBMITTED at Fort Lauderdale, Florida, this 1st day of March 2022.

_____________________________________

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Aileen M. Cannon

All Counsel of Record

Case 0:20-cv-61123-AMC Document 37 Entered on FLSD Docket 03/01/2022 Page 12 of 12