PERKINS v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION (2024)

ORDER

Plaintiff John Lee Perkins appeals the denial of his application for social security benefits. See DE 1 (Complaint). Perkins filed a supporting brief. See DE 11. The Commissioner responded in opposition, seeking affirmance of the underlying decision, see DE 16, and Perkins replied, see DE 19. The administrative record appears at DE 8 (“R.” Administrative Transcript). The Court, having considered the pertinent record and applicable law, DENIES Perkins's appeal and AFFIRMS the disability denial.

I. Background

Perkins is a former client of disgraced and convicted Kentucky lawyer Eric Conn. In September 2006, with Conn as his lawyer, Perkins applied for disability insurance benefits, DIB, and supplemental security income benefits, SSI. See R. at 191-203 (DIB and SSI Applications). Perkins alleged disability beginning on September 30, 2005 due to “ringing ears” and a skin disorder called tinea versicolor. Id. at 215 (Disability Report). On July 6, 2007, Administrative Law Judge (“ALJ”) David Daugherty issued a favorable decision based centrally on a medical report from Frederic Huffnagle, M.D. See id. at 103-07 (ALJ Daugherty Decision); see also id. at 328-34 (F. Huffnagle Rep.).

There was rottenness afoot. During this period, Conn—with the assistance of ALJ Daugherty and Dr. Huffnagle, among others—secured benefits for clients based on fraudulent disability applications. See Hicks v. Comm'r of Soc. Sec., 909 F.3d 786, 793 (6th Cir. 2018). The Social Security Administration (“SSA”) “first learned about possible wrongdoing” in 2006, “when a senior case technician and a master docket clerk ․ raised concerns that Daugherty was reassigning Conn's cases to himself and rapidly deciding them in the claimants' favor.” Id. In 2014, the Office of the Inspector General (“OIG”) identified thousands of applications—all from Conn's former clients—it “ ‘had reason to believe,’ were tainted by fraud.” Id. at 794. In 2015, with the OIG's consent, the SSA proceeded with redetermination hearings to evaluate the flagged applications. Id. This included Perkins's application. The criminal actors, Conn chief among them, have paid a just price. Perkins, who did not knowingly participate in any wrongdoing, faces no blame but does find himself in a difficult procedural posture. The scheme should not have resulted in benefits, but Perkins's innocence also should not, alone at least, result in benefits. The award should depend on the merits and the record proof under apt standards, properly stripped of Conn's taint.

Perkins's DIB claim covers the period from September 30, 2005 through July 6, 2007. On December 29, 2015, following a redetermination hearing, an ALJ concluded that there was insufficient evidence to find Perkins disabled under the Social Security Act (“the Act”). See R. at 10-12 (Notice of Unfavorable Decision), 14-24 (ALJ December 29, 2015 Opinion). The Appeals Council denied review of the ALJ's decision, see id. at 7, and Perkins sued the Commissioner (at the time, Carolyn W. Colvin) via an appeal to federal court, see Perkins v. Colvin, 7:16-CV-00035-JMH, at DE 1 (E.D. Ky. 2016). The district court, after a convoluted course, ultimately remanded the case to the SSA for a second redetermination hearing consistent with the Sixth Circuit's decision in Hicks. See id. at DE 96.

Per Hicks, ALJ Kathleen Eiler held a second redetermination hearing on May 19, 2023. See R. at 446-83 (Hearing Transcript). Following the hearing, Judge Eiler concluded that “there is insufficient evidence supporting a finding of disability during the period at issue.” Id. at 426-37. In doing so, she evaluated the issue of whether Dr. Huffnagle's report should be stricken from the analysis. She assessed the proof, the scheme's pattern, and the earmarks of fraud appearing in this record, determining to exclude the sullied report from the decision on benefit eligibility. See id. at 427. Ultimately, judging the balance for proof relevant to the period at issue, the ALJ found Perkins not disabled. See id. at 436-37. Perkins proceeded to file suit in this Court, challenging the ALJ's conclusion that he is not disabled under the Act. See DE 1. Perkins filed a supporting brief. See DE 11. The Commissioner responded, see DE 16, and Perkins replied, see DE 19. Two months after the matter was fully briefed, Perkins, without leave, filed a notice of supplemental authority.¹ See DE 20. The matter is ripe for ruling.

II. Standard of Review

The Court has carefully reviewed Judge Eiler's decision, the transcript of the administrative hearing, and the pertinent ² administrative record. Judicial review of an ALJ's decision to deny disability benefits is a limited and deferential inquiry into whether substantial evidence supports the denial's factual decisions and whether the ALJ properly applied relevant legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); Jordan v. Comm'r of Soc. Sec., 548 F.3d 417, 422 (6th Cir. 2008); Brainard v. Sec'y of Health & Hum. Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)); see also 42 U.S.C. § 405(g) (providing and defining judicial review for Social Security claims) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive[.]”).

Substantial evidence means “more than a scintilla of evidence, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994); see also Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The Court does not try the case de novo, resolve conflicts in the evidence, or revisit questions of credibility. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). Similarly, the Court does not reverse findings of the ALJ merely because the record contains evidence—even substantial evidence—to support a different conclusion. Warner, 375 F.3d at 390. Rather, the Court must affirm the Agency's decision if substantial evidence supports it, even if the Court might have decided the case differently if it were standing in Judge Eiler's shoes as the adjudicator. See Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999).

When reviewing the ALJ's application of the legal standards, the Court gives deference to her interpretation of the law and reviews the decision for reasonableness and consistency with governing statutes. See Whiteside v. Sec'y of Health & Hum. Servs., 834 F.2d 1289, 1292 (6th Cir. 1987). In a Social Security benefits case, the Agency's construction of the statute should be followed “unless there are compelling indications that it is wrong.” Merz v. Sec'y of Health & Hum. Servs., 969 F.2d 201, 203 (6th Cir. 1992) (quoting Whiteside, 834 F.2d at 1292).

III. Analysis

Perkins argues that the Court should reverse the ALJ's determination because, purportedly, (1) the SSA failed to implement Hicks's “greater procedural protections[;]” (2) the ALJ's rejection of Perkins's treating physician's residual capacity form (“RFC”) is not supported by substantial evidence; and (3) the Agency decisionmakers lacked constitutional authority. DE 11 at 8-17.

a. Procedural Protections

Perkins first argues that the SSA failed to implement “greater procedural protections” referenced by Hicks. See DE 11 at 8. Namely, Perkins asserts that the ALJ should have considered medical records outside of the relevant period (i.e., beyond September 30, 2005 through July 6, 2007) and granted his request to secure an additional medical expert opinion. See DE 11 at 8-10. The Commissioner submits that Perkins “received all of the due process and procedural protections afforded by the Hicks decision[.]” DE 16 at 9.

The Court first considers Perkins's claim that the ALJ should have considered records, outside of the relevant period, to support disability due to anxiety. Pertinent here, in concluding that Perkins was not disabled, ALJ Eiler found that “there is no record of a diagnosis of or treatment for [anxiety] during the relevant time period.” R. at 431. However, Perkins argues that the ALJ should have also considered: (1) a February 2016 treatment note from Perkins's provider, Michael Williams, PA, listing anxiety as Perkins's “#1 active problem[;]” and (2) an August 2015 RFC assessment completed by Dr. Verma, describing anxiety as a limitation on Perkins's ability to work. DE 11 at 9; see also DE 11-2 at 3 (Williams Treatment Note); R. at 311-18 (Verma RFC Assessment). Perkins contends that “much of Mr. Williams's treatment notes during the relevant period [supporting treatment for anxiety] ․ were destroyed by his prior employer” due to a document retention policy. DE 11 at 9; see also DE 11-1 (J. Marsillett Declaration) (stating that hospital does not keep records past ten years, “so the only records they would have for [Perkins] would be from 2013 to present and that all others are shredded”).

42 U.S.C. § 405(u) instructs the Commissioner to “immediately redetermine the entitlement of individuals to monthly insurance benefits ․ if there is reason to believe that fraud or similar fault was involved in the application of the individual for such benefits[.]” In Hicks, the Sixth Circuit acknowledged that “plaintiffs may have been prejudiced by the SSA's delays” in initiating redetermination hearings but rejected the notion that the delays precluded the Agency from holding redetermination hearings at all. See Hicks, 909 F.3d at 813. The court reasoned that other “ ‘[r]emedial tools’ are likely available ․ such as, for instance, requiring the government to implement greater procedural protections.” Id. (first alteration in original) (quoting State Farm Fire & Cas Co. v. U.S. ex rel. Rigsby, 580 U.S. 26, 137 S. Ct. 436, 444, 196 L.Ed.2d 340 (2016)). This means, through a due process prism, at least, that the “government must, at a minimum, proffer some actual basis for believing that the plaintiffs' evidence is fraudulent; and the plaintiff must have an opportunity to rebut the Government's factual assertions before a neutral decisionmaker.” Sexton v. Comm'r of Soc. Sec., 2024 WL 1994918, at *3 (6th Cir. May 6, 2024) (internal quotation marks omitted) (quoting Hicks, 909 F.3d at 799). The Commissioner specifically formulated an AR to account for process post-remand. See Soc. Sec. R. 22-1p, 2022 WL 2533116, at *6 [hereinafter SSR 22-1p]. To this point, no court has invalidated that rubric.

Consistent with Hicks, Perkins was afforded adequate procedural protections at the May 2023 redetermination hearing. First, the February 2016 treatment note that Perkins argues the ALJ should have considered is not even in the administrative record. Put simply, because this evidence was not presented to the ALJ, the Court cannot consider it in “deciding whether to uphold, modify, or reverse the ALJ's decision.” Cline v. Comm'r or Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996); see also 42 U.S.C. § 405(g). “[C]onsideration of new evidence may be appropriate on remand if the claimant can show that the new evidence ‘is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.’ ” Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016) (quoting 42 U.S.C. § 405(g)). However, here, the treatment note pre-dates the May 2023 redetermination hearing, and Perkins offers no reason for his failure to produce the evidence at that hearing. At the hearing, he did not object to the record or contend that there was missing documentation. See R. at 452. Thus, remand for further consideration of the February 2016 treatment note is not warranted under any theory.

Concerning Dr. Verma's RFC determination, the ALJ gave it proper consideration. Social Security Ruling 22-1p indicates that the ALJ must “consider the claim only through the date of the final determination or decision on the beneficiary's or recipient's application for benefits or payments (i.e., the date of the original favorable determination or decision).” SSR 22-1p. That said, ALJs consider evidence “relevant to the issues [to be decided] during a redetermination.” Id. The SSA's Hearings, Appeals, and Litigation Law Manual (“HALLEX”) provides that, as to § 405(u), the “SSA can consider any new and material evidence that does not involve fraud or similar fault and is related to the period being determined.” HALLEX I-1-3-25; see also SSR 22-1p, at *6 (“We will consider evidence relevant to the issues we decide during a redetermination. For example, we will consider evidence that postdates the original date of the favorable determination or decision if that evidence relates to the period at issue in the redetermination.”). “New and material” evidence is evidence that was not part of the record as of the date of the determination and “relates to the period on or before the date of the determination or decision[.]” HALLEX I-2-9-40. The ALJ cannot “develop evidence about new medical conditions or impairments arising after the date of the original favorable determination or decision.” SSR 22-1p, at *6.

Consistent with the above standards, at the redetermination hearing, ALJ Eiler stated that she would “consider any evidence that is new, material and related to the period at issue.” R. at 448. Indeed, ALJ Eiler's opinion dedicated a paragraph to Dr. Verma's RFC determination. See id. at 434. Though the ALJ ultimately afforded the RFC determination “little weight[,]” this was because (1) the evidence post-dated the relevant time period; and (2) “there is no evidence of medical impairments during the relevant time period[,]” i.e., the RFC assessment did not relate to the period at issue. Id. To be sure, Perkins's initial disability report makes no mention of anxiety, only listing “ringing ears” and a “skin disorder” as the illnesses, injuries, or conditions limiting his ability to work. Id. at 215. Further, outside of the 2015 RFC assessment, Perkins himself does not point to any documents in the record that support that he had anxiety during the relevant period. Though he argues that this is because the pertinent records were destroyed due to an office retention policy, see DE 11 at 9, the lone proof that these records even potentially existed is Perkins's conclusory testimony. Nothing from provider Williams or anything from the contemporaneous papers supports that proposition. Further, other documents in the administrative record suggest that Perkins did not suffer from anxiety during the relevant period. For example, Perkins's “Medical Providers List” names thirteen different providers, including Williams, that Perkins saw between 1997 and 2015. R. at 266-67. The list also indicates the reason(s) Perkins saw each provider; there is no mention of anxiety. See id. Other documents pre-and post-dating the relevant period (excluding Dr. Huffnagle's tainted report) either make no mention of anxiety or expressly note that Perkins did not have anxiety. See, e.g., id. at 307 (April 4, 2011 record describing mood as “neutral” rather than “happy[,]” “sad[,]” or “anxious”); 356 (February 10, 2009 record indicating no psychiatric history); 393 (November, 19 2012 record noting “negative” for anxiety); 1060 (July 24, 2004 record, marking “normal” for “[d]epression/[a]nxiety/[m]ood [s]wings”); 1105 (January 17, 2004 record marking “[c]alm” and “[c]ooperative” but not “[a]nxious” under “psychological/emotional”). In sum, substantial evidence supports that Dr. Verma's RFC determination, from far after the original claim, does not relate to the relevant period. A redetermination proceeding, governed by 42 U.S.C. § 405(u), is meant to be an efficient way to react to perceived fraud. It is not an initial decision or determination; rather, it is a second consideration of an original determination suspected to be tainted. It would be illogical to think that, under the text—which hinges on the merits of the original application, per § 405(u)³ —the redetermination would include assessment of records with no linkage to the conditions at issue in the original period. SSR 22-1 captures this and rationally draws the decisional line at the original application period.

Perkins cites no case, regulation, or statute supporting that an ALJ should consider documents outside of the relevant period absent a relationship to that period. He only references a January 9, 2023 settlement agreement from a different case also involving victims of Conn, Johnson v. Kijakazi, No. 7:19-CV-70-REW, where the SSA agreed to “consider current impairments, not just those that existed at the time of the original allowance” in a “modified redetermination process[.]” DE 20 at 1 (Notice of Supplemental Authority); 20-1 (Johnson v. Kijakazi Settlement Agreement). However, that agreement also expressly states that “[n]o provision of this settlement agreement shall be construed or cited in this action or in any other action under the Social Security Act as a waiver of any defense, jurisdictional or non-jurisdictional, that Defendant or SSA may have in that action.” DE 20-1 at 4. As discussed above, generally, an ALJ cannot “develop evidence about new medical conditions or impairments arising after the date of the original favorable determination or decision.” SSR 22-1p, at *6. Given the record and the absence of other supporting authority, on this deferential standard of review, the Court will not remand based on a recent settlement in an entirely separate action. Perkins also claims that the ALJ erred in failing to seek a new and separate medical expert opinion after Perkins “asked the agency to provide such an opinion[.]” DE 11 at 9. He submits that this additional procedural protection is warranted post-Hicks because a medical expert opinion could help “determine the ‘etiology or course of a disease and how it may affect the claimant's ability to engage in work activities at pertinent points in time.’ ” Id. at 10 (quoting HALLEX I-2-5-34(A)(2)). The Commissioner asserts that in 2011, Dr. Kathleen M. Monderewicz conducted a “[t]horough examination” of Perkins, rendering a distinct, post-remand medical expert opinion unnecessary in this case. DE 16 at 16.

Perkins, as the claimant, bears the burden of proving disability. See 20 C.F.R. § 404.1512(a). Accordingly, Perkins, “not the ALJ, shoulders the principal burden to gather evidence showing disability.” Winans v. Comm'r of Soc. Sec., No. 5:22-CV-01793, 2023 WL 7622634, at *3 (N.D. Ohio Nov. 15, 2023). SSA regulations authorize ALJs to order a consultative examination, see 20 C.F.R. § 404.1517, but “do not require an ALJ to refer a claimant to a consultative specialist[,]”⁴ Landsaw v. Sec'y of Health & Hum. Servs., 803 F.2d 211, 214 (6th Cir. 1986). “An ALJ has discretion to determine whether further evidence, such as additional testing or expert testimony, is necessary[,]” Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001), and should request a medical expert opinion only when “necessary to enable the [ALJ] to make the disability decision[,]” Landsaw, 803 F.2d at 214 (emphasis in original) (quoting Turner v. Califano, 563 F.2d 669, 671 (5th Cir. 1997)); see also 20 C.F.R. § 404.1517 (“If your medical sources cannot or will not give us sufficient medical evidence about your impairment for us to determine whether you are disabled or blind, we may ask you to have one or more physical or mental examinations or tests.”). The Sixth Circuit has expressly stated that it is not an abuse of discretion for an ALJ to deny “a request for additional expert testimony when there [is] sufficient evidence in the record for the ALJ to evaluate the claimant.” Griffith v. Comm'r of Soc. Sec., 582 F. App'x 555, 562 (6th Cir. 2014) (first citing Foster, 279 F.3d at 356; then citing Landsaw, 803 F.2d at 214).

Here, because there is minimal, if any, evidence suggesting that Perkins suffered from scoliosis, anxiety, and depression during the relevant period, the ALJ could make an informed decision without an additional medical expert opinion.⁵ See Winans, No. 5:22-CV-01793, 2023 WL 7622634, at *4 (“[T]here is so little evidence of back and joint problems that the ALJ could determine that those problems were not disabling even without a consultative examination or other medical opinion.”). As previously noted, Perkins's disability report only lists “ringing ears” and a “skin disorder” as the illnesses, injuries, or conditions limiting his ability to work. R. at 215. The Court has already discussed the absence of evidence of anxiety during the relevant period. As to scoliosis, though the record indicates that Perkins complained of back pain in 1999, it does not suggest a scoliosis diagnosis. See R. at 1072 (1999 record noting back and shoulder pain but “prevertebral soft tissues and alignment of the cervical spine is within normal limits”). No other portion of the record indicates a scoliosis diagnosis during the relevant period. Indeed, on January 17, 2004, Perkins sought treatment for ringing in his ears, but reported “[n]o other physical complaints.” Id. at 1102. In 2011, four years after closure of the relevant period, Dr. Monderewicz examined Perkins. See R. at 320. Dr. Monderewicz reviewed Perkins's medical records provided by the Kentucky Disability Determination Division and did not list scoliosis (or any back problems) under his medical history. See id. at 321. An examination of Perkins's neck and back were “normal[,]” and Dr. Monderewicz noted that Perkins has no limitations with “sitting, standing, walking, bending, squatting, kneeling, crawling, lifting, or carrying.” Id. at 323, 25. Further, medical records from November 11, 2012 and July 25, 2015 indicate that Perkins reported no back pain. Id. at 1178, 1190. The record first mentions scoliosis on July 28, 2015—over eight years after the relevant period—stating that Perkins has “mild dextroscoliosis[.]” R. at 1209.

Though there is some evidence of depression post-determination, nothing in the record establishes that Perkins suffered from this condition during the relevant period. Dr. Monderewicz noted on August 17, 2011 that Perkins has a history of depression. See id. at 320. However, Dr. Monderewicz did not specify when this diagnosis occurred, and nothing else in the record supports a depression diagnosis during the relevant period. See R. at 1105 (January 17, 2004 medical record stating N/A for depression); 1060 (July 26, 2004 record stating “normal” for depression); id. at 1178 (November 19, 2012 record stating negative for depression); id. at 1190 (July 25, 2015 medical record stating negative for depression). In sum, there is a lack of evidence supporting that Perkins had anxiety, depression, or scoliosis during the relevant period. The absence of support “is substantial evidence for the ALJ's finding that [Perkins] failed to meet his burden of proving disability” meaning that “the ALJ was not required to seek another medical opinion in these circumstances.” Winans, No. 5:22-CV-01793, 2023 WL 7622634, at *4.

As to Perkins's tinea versicolor and tinnitus, the record was fully developed and provided sufficient facts from which the ALJ could make an informed determination. Cf. McGee v. Weinberger, 518 F.2d 330, 332 (5th Cir. 1975) (remanding for further inquiry, including a psychiatric examination, because claimant's doctor was unable to establish the cause of the claimant's edema). The record supports that Perkins suffered from both conditions during the relevant period. See R. at 432-33 (“In March 2006, [Perkins] attended evaluation for a rash ․ He was diagnosed with tinea versicolor[.]”); id. at 433 (“[In November 2006, Perkins] reported worsening hearing loss in his left ear with ringing in both ears ․ He was diagnosed with moderate mixed, primarily sensorineural hearing loss in both ears.”); see also id. at 274 (November 27, 2006 medical record stating that Perkins complained of “his hearing ․ getting worse especially in his left ear with ringing in both ears” and diagnosing him with “[m]oderate mixed, primarily sensorineural hearing loss in both ears”); id. at 1058 (April 5, 2006 medical record stating that “KOH prep was ordered and obtained, which was positive” and that the impression was tinea versicolor). Further, Dr. Monderewicz examined Perkins in August 2011, thoroughly addressing his tinnitus. See id. at 320-25. Accordingly, given the medical documentation of both conditions, the ALJ did not err in declining to seek a medical expert opinion concerning Perkins's medical condition, including but not limited to tinnitus or tinea versicolor.

Hicks does not suggest that a redetermination delay should presume a meritorious disability claim. Here, Perkins has failed to show that proffered altered procedures would have yielded anything. As to records outside the relevant period, ALJ Eiler was willing to and did consider any that pertained to the period at issue, including post-period documents meeting the threshold. The Court also notes that in April 2019, the SSA fully adjudicated whether Perkins was disabled from July 7, 2007 through October 9, 2015. See R. at 519-32 (April 25, 2019 Unfavorable Decision). There, the SSA concluded that Perkins was not disabled for that period. See id. That finding encompassed much of the proof/providers that Perkins now seeks to have considered. See id. at 528 (considering documentation from Williams from August 2015 and February 2017); id. at 529 (considering Dr. Verma's 2015 RFC Assessment). Perkins did not appeal, and that decision is final. As to Perkins's claim that a new expert medical opinion was necessary, given the dearth of evidence supporting disability, there simply was no justification for that request. Remand, accordingly, is not warranted.

b. Dr. Verma's Opinion

Perkins also argues that the ALJ committed reversible error by failing to credit Dr. Verma's RFC assessment without the process and “good reasons” required by the treating physician rule. DE 11 at 11, 14. In response, the Commissioner argues that the ALJ “reasonably gave [the opinion] little weight” because the opinion was from August 2015, did not relate to the relevant period, and consisted of “check-box forms,” which are “inherently less persuasive than more supported and explained opinions[.]” DE 16 at 16-17.

20 C.F.R. § 404.1527(c) sets forth the process for weighing medical opinions. “The source of the opinion ․ dictates the process by which the Commissioner accords it weight.” Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). “As a general matter, an opinion from a medical source who has examined a claimant is given more weight than that from a source who has not performed an examination (a ‘nonexamining source’), and an opinion from a medical source who regularly treats the claimant (a ‘treating source’) is afforded more weight than that from a source who has examined the claimant but does not have an ongoing treatment relationship (a ‘nontreating source’)[.]” Id. (internal citations omitted); see also Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). A treating source opinion must be given “controlling weight” if the opinion (1) “is well-supported by medically acceptable clinical and laboratory diagnostic techniques” and (2) “is not inconsistent with the other substantial evidence in [the] case record.” Gayheart, 710 F.3d at 376 (alteration in original); 20 C.F.R. § 404.1527(c)(2).

“[A] finding that a treating source medical opinion ․ is inconsistent with the other substantial evidence in the case record means only that the opinion is not entitled to ‘controlling weight,’ not that the opinion should be rejected.” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009) (internal quotation marks omitted) (alterations in original) (quoting Soc. Sec. R. 96-2p, 1996 WL 374188, at *4 [hereinafter SSR 96-2p]). When “discounting treating physicians' opinions,” ALJs must provide good reasons, i.e., “reasons that are ‘sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.’ ” Rogers, 486 F.3d at 242–43 (quoting SSR 96-2p, at *5).

Dr. Verma examined Perkins on August 13, 2015, and completed a physical medical assessment on August 20, 2015. See R. at 311-18. In that assessment, Dr. Verma opined that Perkins is able to stand/walk for a total of two hours in an eight-hour workday (thirty minutes without interruption); sit for a total of four hours in an eight-hour work day (one hour without interruption); occasionally crouch; never climb, balance, stoop, kneel, or crawl; occasionally reach, handle, and feel; never push/pull; frequently see and speak and never hear. See id. at 312-14. Dr. Verma also determined that Perkins should be limited to occasional exposure to moving machinery, temperature extremes, chemicals, dust, humidity, and vibration; should never be exposed to heights, noise, and fumes; had poor ability to deal with the public, use judgment, interact with supervisors, deal with work stresses, function independently, and maintain attention/concentration; had a poor ability to understand, remember, and carry out detailed, but not complex job instructions; and had fair ability to understand, remember, and carry out simple job instructions. Id. at 315-17. Finally, Dr. Verma opined that Perkins has a good ability to maintain personal appearance, and a fair ability to behave in an emotionally stable manner, relate predictably in social situations, and demonstrate reliability. Id. at 317.

The Court finds no reversible error in the ALJ's handling of Dr. Verma's opinion. An ALJ must evaluate medical opinions. See 20 C.F.R. § 404.1527(c) (“Regardless of its source, we will evaluate every medical opinion we receive.”). That happened; the opinion was certainly not cursorily or blindly rejected. See R. at 434. Judge Eiler expressly considered Dr. Verma's opinion but gave it “little weight” because it was produced outside the relevant period and there was “no evidence of mental impairments during the relevant time period.” R. at 434.

While Perkins takes issue with the fact that the ALJ did not “recognize Dr. Verma as [his] treating physician[,]” DE 11 at 14, the nature and extent of the relationship does not support such a characterization. First, Perkins does not claim, and the record does not otherwise support, that Dr. Verma treated him at any time during the relevant period. Cf. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004) (“The ALJ's summary dismissal of DeWys's opinion fails to meet the requirement that the ALJ ‘give good reasons’ for not giving weight to a treating physician. It is uncontested that Dr. DeWys was Wilson's treating physician, and the record appears to make clear that Dr. DeWys treated Wilson during the period that he alleged he was disabled. To state that Dr. DeWys's opinion ‘may be an accurate assessment,’ followed by a bald statement of the issue that the ALJ must ultimately resolve, can hardly amount to ‘giving good reasons’ for rejecting Dr. DeWys's opinion.”). In fact, there is no indication of any ongoing treatment relationship, pre-or post-relevant period. Dr. Verma examined Perkins on August 13, 2015, post-relevant period, and one week before producing the report. See R. at 311. The nature and extent of the treatment relationship appears to be a one-off examination, rendering Dr. Verma a non-treating source, a category afforded less weight than a treating source. See Gayheart, 710 F.3d at 375. Simply put, “the regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.” Id. (quoting Soc. Sec. R. 96–6p, 13 1996 WL 374180, at *2).⁶

The ALJ also afforded Dr. Verma's opinion little weight because there was “no evidence of mental impairments during the relevant time period.” R. at 434. This conclusion is supported by substantial evidence. As the Court explained above, the record does not sufficiently support that Perkins suffered from anxiety or depression during the relevant period. While Perkins claims that it is “unfair to discredit [Dr. Verma's] opinion because the old records of Mr. Perkins's treatment for his mental impairments are not available[,]” DE 11 at 12, the fact remains that Dr. Verma's opinion is not accompanied by any explanation or support. The “opinion” is, in reality, a check-box form lacking any explanation or analysis. The Sixth Circuit has “declined to give significant weight to rudimentary indications that lack an accompanying explanation.” Hernandez v. Comm'r of Soc. Sec., 644 F. App'x 468, 474 (6th Cir. 2016); see also Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993) (“Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best.”). Indeed, here, the form instructed the provider to “[i]dentify the particular medical findings (i.e., physical exam findings, laboratory test results, history, symptoms including pain) which support your assessment of any limitations that the above individual may have” and explained “[i]t is important that you relate any particular findings to any assessed limitation(s) in the above individual's capacity” and that “the usefulness of your assessment depends in large part on the extent to which you do this.” R. at 312. Despite those instructions, spaces on the form directing the provider to provide support are, for the most part and where pertinent, blank. Id. at 316-17. Dr. Verma only vaguely references an “attached orthopedic report” for support. Id. at 315. In short, the ALJ determined that Dr. Verma's opinion was generated outside the relevant period, was incompatible with other evidence regarding Perkins's alleged mental impairments, and lacked any persuasive supporting explanation. Substantial evidence supports the ALJ's decision to give this opinion limited weight.

c. Constitutional Authority

Finally, Perkins challenges the constitutional authority of the Agency decisionmakers. See DE 11 at 14. He first contends that the ALJs “who issued the July 13, 2015 order vacating [his] award were likely hired in violation of the Appointments Clause.” DE 11 at 15. The Commissioner submits that “the time for challenging the Appeal's Council's 2015 order has long passed” and that Perkins received “[a] decision by a properly appointed ALJ[.]” DE 16 at 20.

Under the Appointments Clause, only “the President, a court of law, or a head of department” may appoint inferior “Officers of the United States.” Lucia v. SEC, 585 U.S. 237, 138 S. Ct. 2044, 2051, 201 L.Ed.2d 464 (2018) (citing U.S. Cont. art 11, § 2, cl. 2). If “none of those actors” names such an officer to their position, then the appointment is unconstitutional. Id. at 2050. In 2018, the Supreme Court concluded that Securities and Exchange Commission (“SEC”) ALJs were “Officers” subject to the Appointments Clause, meaning that their appointment by SEC staff violated the Constitution. See id. at 2053-54. Like SEC ALJs, pre-Lucia, SSA ALJs were appointed by SSA staff. See Carr v. Saul, 593 U.S. 83, 141 S. Ct. 1352, 1357, 209 L.Ed.2d 376 (2021). In response to Lucia, on July 16, 2018, “the SSA's Acting Commissioner pre-emptively ‘address[ed] any Appointments Clause questions involving Social Security claims’ by ‘ratif[ying] the appointments’ of all SSA ALJs and ‘approv[ing] those appointments as her own.’ ”⁷ Id. at 1357 (alterations in original) (quoting 84 Fed. Reg. 9583 (2019)).

Citing Lucia, Perkins argues that “the Commissioner's belated action is that post hoc ratification does not cure existing Appointments Clause violations.” DE 11 at 15. However, this argument ignores the remedy set out in Lucia: “a new ‘hearing before a properly appointed’ official.” Lucia, 138 S. Ct. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 115 S. Ct. 2031, 2033, 132 L.Ed.2d 136 (1995)); see also id. at 2055 n.5 (“[O]ur Appointments Clause remedies are designed not only to advance those purposes directly, but also to create ‘[ ]incentive[s] to raise Appointments Clause challenges.’ We best accomplish that goal by providing a successful litigant with a hearing before a new judge.” (alterations in original) (quoting Ryder, 115 S. Ct. at 2033)). Here, after the 2015 decision, ALJ Eiler—who Perkins concedes was hired consistent with the Appointments Clause—held a redetermination hearing regarding the claims. See DE 11 at 15-16. Thus, even if the Court were to conclude that the ALJs rendering the 2015 decision were unconstitutionally appointed, the available remedy—a new hearing by a properly appointed official—already occurred.

Perkins also claims that ALJ Eiler's 2023 decision was nonetheless impacted by the (tainted, appointments wise) 2015 decision because that decision “defin[ed] the ‘relevant period[.]’ ” DE 11 at 16. However, the Appeals Council vacated the 2015 decision in 2020, prior to Judge Eiler's redetermination hearing. See R. at 557 (“Therefore, the Appeals Council vacates the hearing decision dated December 29, 2015, and remands this case to an Administrative Law Judge for further proceedings consistent with the court order.”). “[W]hen the Appeals Council vacates and remands a decision, the decision is no longer a ‘final decision’ requiring deference.” Janet H. v. Kijakazi, No. 4:21-CV-00011-HBB, 2022 WL 3146310, at *4 (W.D. Ky. Aug. 5, 2022) (quoting Fawn L.H. v. Kijakazi, 3:20-CV-00606, 2022 WL 3039387, at *5 (W.D. Ky. Aug. 1, 2022)). Accordingly, ALJ Eiler “was not required to rely on, or even consider” the 2015 decision because “it was not a final decision.” Fawn L.H., 3:20-CV-00606, 2022 WL 3039387, at *5. Indeed, there is nothing in ALJ Eiler's opinion to suggest that, in defining the relevant period, she relied on the vacated 2015 decision. See generally R. at 426-37. Further, as discussed thoroughly above, SSA authority and procedure supports, as Judge Eiler proceeded, that the relevant period is September 30, 2005 through July 6, 2007. See, e.g., SSR 22-1p, at *6 (“We will consider the claim only through the date of the final determination or decision on the beneficiary's or recipient's application for benefits or payments (i.e., the date of the original favorable determination or decision).”); HALLEX I-2-9-40 (explaining that, to consider evidence generated outside of the relevant period, the evidence must “relate[ ] to the period on or before the date of the determination or decision” (emphasis added)). As such, Perkins's Appointments Clause argument is unavailing.

Perkins also argues that ALJ Eiler is “improperly protected” from removal “by double ‘for cause’ protection.” DE 11 at 16. The Commissioner asserts that Perkins's separation of powers argument fails because ALJs “perform adjudicative rather than enforcement or policymaking functions.” Id. at 22 (internal quotation marks omitted) (quoting Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 130 S. Ct. 3138, 3160 n.10, 177 L.Ed.2d 706 (2010)).

In addition to appointment powers, Article II grants the President “the power of ․ removal of executive officers—a conclusion confirmed by his obligation to take care that the laws be faithfully executed[.]” Myers v. United States, 272 U.S. 52, 47 S. Ct. 21, 41, 71 L.Ed. 160 (1926). The Supreme Court has outlined two exceptions to the President's removal power: (1) “expert agencies led by a group of principal officers removable by the President only for good cause[;]” and (2) “tenure protections to certain inferior officers with narrowly defined duties.” Seila Law LLC v. CFPB, 591 U.S. 197, 140 S. Ct. 2183, 2191-92, 207 L.Ed.2d 494 (2020). “These two exceptions ․ represent what up to now have been the outermost constitutional limits of permissible congressional restrictions on the President's removal power.” Id. at 2200 (internal quotation marks omitted).

In Free Enterprise Fund, the Supreme Court held that these “separate layers of protection” may not be combined. See Free Enter. Fund, 130 S. Ct. at 3147. In other words, the President may not be “restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States[.]” Id. While Free Enterprise Fund concerned dual-cause limitations on the removal of members of the Public Company Accounting Oversight Board (“PCAOB”), the Supreme Court anticipated that its holding may implicate the statutory removal protections for ALJs. See id. at 3160, n.10. Accordingly, the Court expressly stated that its holding “does not address that subset of independent agency employees who serve as [ALJs],” noting that “unlike members of the [PCAOB], many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions ․ or possess purely recommendatory powers.” Id. (internal citation omitted); see also Decker Coal Co. v. Pehringer, 8 F.4th 1123, 1132 (9th Cir. 2021) (“[T]he [Free Enterprise Fund] Court did not broadly declare all two-level for-cause protections for inferior officers unconstitutional. Rather, it stressed that the particular PCAOB-removal provisions presented an even more serious threat to executive control than an ordinary dual for-cause standard[.]” (internal quotation marks and citations omitted)).

Per 5 U.S.C. § 7521(a), the Commissioner may remove SSA ALJs “only for good cause established and determined by the Merit Systems Protection Board [(“MSPB”)] on the record after opportunity for hearing before the Board.” If the MSPB finds good cause exists to take the agency's requested action, “it authorizes but does not require the [SSA] to act” by removing the ALJ or imposing a “lesser penalty.” Soc. Sec. Admin. v. Levinson, 2023 MSPB 20 ¶¶ 37, 40 (July 12, 2023). Members of the MSPB “may be removed by the President only for inefficiency, neglect of duty, or malfeasance in office.” 5 U.S.C. § 1202(d).

Circuit courts “are divided about whether the dual for-cause limitations on the removal of ALJs—specifically 5 U.S.C. § 7521 and § 1202(d)—are constitutional.” K&R Contractors, LLC v. Keene, 86 F.4th 135, 148 (4th Cir. 2023); compare Pehringer, 8 F.4th at 1135 (finding removal restrictions on DOJ ALJs constitutional because “ALJs are judges who make decisions that are subject to vacatur by people without tenure protection. With this structure, the President continues to enjoy an ‘ability to execute the laws—by holding his subordinates accountable for their conduct,’ especially because these ALJs exercise only adjudicative power in the first instance and are not imposed on the President in this context” (internal citation omitted)) and Calcutt v. FDIC, 37 F.4th 293, 320 (6th Cir. 2022), rev'd on other grounds, 598 U.S. 623, 143 S. Ct. 1317, 215 L.Ed.2d 557 (2023) (“[W]e doubt Calcutt could establish a constitutional violation from the [FDIC] ALJ removal restrictions[.]”), with Jarkesy v. SEC, 34 F.4th 446, 464-65 (5th Cir. 2022) (finding removal restrictions on SEC ALJs unconstitutional because “SEC ALJs exercise considerable power over administrative case records by controlling the presentation and admission of evidence” and “two layers of insulation impedes the President's power to remove ALJs based on their exercise of the discretion granted to them”), affirmed on other grounds 22-859, ––– U.S. ––––, ––– S.Ct. ––––, ––– L.Ed.2d ––––, 2024 WL 3187811 (June 27, 2024). “Notwithstanding this debate, it is ‘a well-established principle governing the prudent exercise of this Court's jurisdiction that normally the Court will not decide a constitutional question if there is some other ground upon which to dispose of the case.’ ” Bond v. United States, 572 U.S. 844, 134 S. Ct. 2077, 2087, 189 L.Ed.2d 1 (2014) (quoting Escambia Cnty. v. McMillan, 466 U.S. 48, 104 S. Ct. 1577, 1579, 80 L.Ed.2d 36 (1984) (per curiam)).

Here, Perkins asks the Court to reverse and remand the ALJ's decision “for a decision by proper adjudicators[.]” DE 11 at 17. However, even if the Court finds the applicable removal restriction unconstitutional, such a remedy is appropriate only if Perkins can demonstrate that “the statutory [removal] provision would clearly cause harm.” Collins v. Yellen, 594 U.S. 220, 141 S. Ct. 1761, 1788, 210 L.Ed.2d 432 (2021) (stating that a constitutional defect in the procedure for removing that officer—unlike a defect in his appointment—is “no basis for concluding” that the officer “lacked the authority to carry out the functions of the office”). “A party challenging an agency's past actions must ․ show how the unconstitutional removal provision actually harmed the party—for example, if the President would have removed the agency's head but for the provision or, alternatively, if the agency's head ‘might have altered his behavior in a way that would have benefited’ the party.” Kaufmann v. Kijakazi, 32 F.4th 843, 849 (9th Cir. 2022) (emphasis in original) (quoting Collins, 141 S. Ct. at 1789). Collins offers two examples: if “the President had attempted to remove [the officer] but was prevented from doing so by a lower court decision holding that he did not have ‘cause’ for removal[,]” or if “the President had made a public statement expressing displeasure with actions taken by [the officer] and had asserted that he would remove [him] if the statute did not stand in the way.” Collins, 141 S. Ct. at 1789.

Here, Perkins fails to offer support for his technical claim that the allegedly unconstitutional removal provision caused him harm. Perkins states, without further explanation, that “it is inherently impossible for [him] to prove the negative of how a more accountable agency would have handled his claim,” but “given outspoken support of political leaders for victims of Eric Conn ․ there is sufficient reason to believe that agency adjudicators' insulation harmed [him].” DE 11 at 16-17. It is unclear how misconduct by Conn—Perkins's initial lawyer—connects to the removal provision. And nothing in the record suggests that the Commissioner, who here defends the Eiler decision, attempted or desired to remove ALJ Eiler. Thus, regardless of whether the removal protections are constitutional, Perkins has failed to meaningfully assert any harm resulting from the allegedly unconstitutional structure, requiring the Court to deny his petition.

IV. Conclusion

The Court DENIES the appeal at issue in DE 11 and AFFIRMS Judge Eiler's decision under sentence four of 42 U.S.C. § 405(g). The Court will accordingly enter a separate judgment.

FOOTNOTES

1.   Perkins did not seek leave to file this document, as required by General Order 22-15. See DE 4 at 4 (“[P]ermission to file additional briefs may be granted only if good cause is shown.”). As such, the Court may properly disregard the filing. However, as explained below, its consideration does not impact the analysis.

2.   That is, those parts of the record relevant to the issues Perkins presents for review. The focus is on what the parties identified, not an unguided mining of the full record.

3.   The statute says redetermine the entitlement on reason to believe “fraud ․ was involved in the application of the individual[.]” § 405(u)(1)(A).

4.   HALLEX states that an ALJ must order a medical expert opinion where: (1) the Appeals Council or Federal court ordered such an opinion; (2) “[t]here is a question about the accuracy of medical test results reported[;]” or (3) “[t]he ALJ is considering finding that the claimant's impairment(s) medically equals a listing.” HALLEX I-2-5-34. Perkins does not argue that any of these circumstances existed.

5.   While Perkins contends that the ALJ did not provide an adequate explanation for rejecting his request for a medical expert opinion, he provides no support for the claim that SSA authority or process requires such an explanation. See DE 11 at 10. Though an ALJ must provide “good reasons” for discounting the opinion of a treating physician's opinion in the administrative record, see Soc. Sec. R. 96-2p, 1996 WL 374188, at *4, there is no indication that this extends to denying requests for a medical expert opinion.

6.   In 2017, the SSA amended regulations and altered the treating physician rule, applicable to all claims filed after March 27, 2017. See Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819 (Jan. 18, 2017). Perkins's claim pre-dates March 27, 2017 and thus arose under the treating physician rule.

7.   “[T]he mere fact that the commissioner ratified the ALJ's appointments in response to Lucia does not constitute an admission that the appointments prior to the ratification were unconstitutional or that Lucia's decision regarding SEC ALJ's is applicable to SSA ALJ[s].” Gothard v. Comm'r of Soc. Sec., No. 1:17-CV-13638, 2019 WL 396785, at *3 (E.D. Mich. Jan. 31, 2019).

Robert E. Wier, United States District Judge