GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

REPORT & RECOMMENDATION

GARY R. JONES, UNITED STATES MAGISTRATE JUDGE

In August of 2018, Plaintiff Jacqueline O. applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Chermol & Fishman, LLC, Daniel Hersh Fishman, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

This case was referred to the undersigned for a report and recommendation on May 2, 2022. The parties submitted a Joint Stipulation in lieu of Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 20). For the following reasons, it is recommended that the Commissioner of Social Security should be granted judgment on the pleadings and that this case should be dismissed.

I. BACKGROUND

A. Administrative Proceedings

Plaintiff applied for benefits on August 22, 2018, alleging disability beginning January 20, 2017. (T at 110-112, 179-83, 210). Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on October 28, 2019, before ALJ Martha Bower. (T at 60). Plaintiff appeared with an attorney and testified. (T at 63-73). The ALJ also received testimony from Estelle Hutchinson, a vocational expert. (T at 7-376).

B. ALJ's Decision

On December 11, 2019, the ALJ issued a decision denying the application for benefits. (T at 22-42). The ALJ found that Plaintiff had not engaged in substantial gainful activity since January 20, 2017 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2023 (the date last insured). (T at 28).

The ALJ concluded that Plaintiff's major depressive disorder and post-traumatic stress disorder were severe impairments as defined under the Act. (T at 28). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 29).

At step four of the sequential analysis the ALJ determined that Plaintiff retained the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels, with the following non-exertional limitations: she is limited to understanding, remembering, and carrying out simple tasks; she is limited to object-oriented tasks; and she can have only occasional work-related interactions with co-workers, supervisors, and the general public. (T at 31).

The ALJ concluded that Plaintiff could not perform her past relevant work as a police officer. (T at 36). However, considering Plaintiff's age (36 on the alleged onset date), education (at least high school, able to communicate in English), work experience, and RFC, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 36). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between January 20, 2017 (the alleged onset date) and December 11, 2019 (the date of the ALJ's decision). (T at 37-38).

On January 28, 2021, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-7).

C. Procedural History

Plaintiff commenced this action, by and through her counsel, by filing a Complaint on March 22, 2021. (Docket No. 1). The parties, through counsel, filed a Joint Stipulation in lieu of motions for judgment on the pleadings on April 18, 2022. (Docket No. 22). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.

II. APPLICABLE LAW

A. Standard of Review

“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).

The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotations omitted).

“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

B. Five-Step Sequential Evaluation Process

Under the Social Security Act, a claimant is disabled if he or she lacks the ability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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. § 423(d)(1)(A).

A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential analysis:

1. The Commissioner considers whether the claimant is currently engaged in substantial gainful activity.

2. If not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities.

3. If the claimant has a “severe impairment,” the Commissioner must ask whether, based solely on medical evidence, claimant has an impairment listed in Appendix 1 of the regulations. If the claimant has one of these enumerated impairments, the Commissioner will automatically consider him disabled, without considering vocational factors such as age, education, and work experience.

4. If the impairment is not “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.

5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.

The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).

III. DISCUSSION

Plaintiff raises four main arguments. First, Plaintiff challenges the ALJ's RFC determination. Second, Plaintiff asserts that the ALJ erred in assessing the medical opinion evidence. Third, Plaintiff argues that the ALJ's step two analysis was flawed as it concerned her physical impairments. Fourth, Plaintiff raises a constitutional challenge to the Commissioner's decision. The Court will address each argument in turn.

A. RFC

A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”).

As noted above, the ALJ determined that Plaintiff retained the RFC to perform a full range of work at all exertional levels, with the following non-exertional limitations: she is limited to understanding, remembering, and carrying out simple tasks; she is limited to object-oriented tasks; and she can have only occasional work-related interactions with co-workers, supervisors, and the general public. (T at 31).

Plaintiff argues that this RFC determination is inconsistent with the ALJ's finding at Step Three of the sequential evaluation that she had moderate limitation in adapting or managing herself. (T at 30). In other words, Plaintiff contends that the RFC analysis is flawed because the ALJ did not explain how she accounted for Plaintiff's moderate limitation in adapting or managing herself.

This Court finds Plaintiff's argument unavailing. “The determination of the step three factors of impairment are distinct from the determination of RFC .. ..” Richard B. v. Comm'rof Soc. Sec., No. 1:20-CV-00585-MJR, 2021 WL 4316908, at *6 (W.D.N.Y. Sept. 23, 2021)(citing Whipple v. Astrue, 479 Fed.Appx. 367, 369 (2d Cir. 2012) (summary order)(“The regulations make clear that [the step three] factors are only to be applied in determining the severity of a mental impairment ... not a claimant's RFC, which is relevant to the guidelines' fourth and fifth steps”).

“As a result, a finding at steps two or three does not automatically translate to an identical finding at step four.” Chappell v. Comm'r of Soc. Sec., 2020 U.S. Dist. LEXIS 69640, at *18, 2020 WL 1921222 (W.D.N.Y. Apr. 21, 2020); see also generally McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014).

Moreover, an ALJ can account for moderate mental impairments, including moderate (or even marked) impairment in the claimant's ability to adapt and manage herself, through an RFC containing non-exertional limitations such as those found by the ALJ here. See, e.g., Platt v. Comm'r of Soc. Sec., No. 20 CIV. 8382 (GWG), 2022 WL 621974, at *7 (S.D.N.Y. Mar. 3, 2022); Patricia K. v. Comm'r of Soc. Sec., No. 5:20-CV-37 (ATB), 2020 WL 7490323, at *15 (N.D.N.Y. Dec. 21, 2020); Hill v. Comm'r of Soc. Sec., No. 18-CV-1161L, 2020 WL 836386, at *4 (W.D.N.Y. Feb. 20, 2020).

For these reasons the Court finds no error in this aspect of the ALJ's decision.

B. Medical Opinion Evidence

“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).

In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff's application for benefits was filed after that date, the new regulations apply here.

The ALJ no longer gives “specific evidentiary weight to medical opinions,” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).

Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).

Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “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 administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).

In the present case, Dr. Brian M. Quail, an examining neuropsychologist, completed a clinical diagnostic neuropsychological evaluation in 2017. Dr. Quail performed a series of tests and assessments, finding, inter alia, that Plaintiff had “some mild difficulties” with respect to “sustained attentional capacity,” demonstrated “a significant degree of anxiety, depression, and stress,” and was experiencing “emotional symptoms” that were “presently interfering with her ability to more efficiently tap into her available cognitive resources in attention and memory.” (T at 606, 608). Dr. Quail diagnosed post-traumatic stress disorder and post-concussive injury but did not provide a function-by-function analysis of Plaintiff's work-related limitations. (T at 609).

The ALJ did not address Dr. Quail's evaluation. Plaintiff argues that this was an error that warrants remand. The Court finds this argument unavailing. “An ALJ need not recite every piece of evidence that contributed to the decision, so long as the record ‘permits us to glean the rationale of an ALJ's decision.'” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013)(quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)).

While it would have been preferable for the ALJ to reference Dr. Quail's evaluation, (a) the record amply permits us to glean the rationale underlying the ALJ's assessment of Plaintiff's mental limitations and (b) that assessment is supported by substantial evidence.

As discussed above, Dr. Quail did not provide a function-by-function analysis of Plaintiff's work-related limitations. To the extent Dr. Quail speaks more generally about Plaintiff's symptoms, his evaluation is consistent with the ALJ's assessment of mild memory and attention impairment. Dr. Quail also indicated some difficulties related to Plaintiff's anxiety, depression, and stress, which the ALJ addressed via the limitations in the RFC determination (i.e., simple tasks involving only occasional interactions with coworkers, supervisors, and public). (T at 31).

In November of 2018, Dr. M. Momot-Baker, a non-examining State Agency review physician, opined that Plaintiff could “understand and remember work procedures, maintain adequate attention and concentration to sustain a routine and complete work-like tasks, engage in basic interactions to meet work-related needs, and adapt to basic changes and make routine decisions ....” (T at 92).

Dr. Glenn Bromley performed a consultative psychiatric evaluation in October of 2018. Plaintiff displayed a labile affect; mixture of anxious, dysthymic, and euthymic mood; intact memory skills; mildly impaired attention and concentration; average cognitive functioning; fair insight; and good judgment. (T at 452). Dr. Bromley assessed no limitation in Plaintiff's ability to understand, remember, and apply simple directions or use reason and judgment to make work-related decisions. (T at 453). He opined that Plaintiff was mildly limited in her ability to understand, remember, and carry out complex directions and interact appropriately with supervisors, coworkers, and the public. (T at 453). Dr. Bromley opined that Plaintiff had moderate limitation in her ability to sustain an ordinary work routine and work attendance, along with moderate to marked limitation in her ability to regulate emotions, control behavior, and maintain well-being. (T at 453).

Dr. Bromley believed that Plaintiff's “anxiety and emotional lability symptoms would preclude her from working in a position such as armed law enforcement,” but found it “unclear if the same symptoms would completely preclude her from doing other types of work.” (T at 454).

The ALJ reviewed the treatment record, which contained generally unremarkable mental status findings, including good attention and concentration, speech and memory, and appropriate insight and judgment. (T at 33, 393, 395, 399, 401, 403, 411, 529, 541-42, 621-22, 624-25, 62829, 632-33, 638-40, 642-43, 647, 649, 650-52, 654, 658-59, 660-61, 66566, 671, 673-74, 683, 690-91, 694, 697, 706-707, 728-29, 733, 736, 73940, 742-43, 746-47). The ALJ also highlighted that Plaintiff performed a range of daily activities (including household chores and hobbies, as well as taking college classes) which evidenced the ability to sustain attention and manage her emotions sufficient to perform activities consistent with a limited range of simple work. (T at 33).

For these reasons the Court finds that the ALJ reached an RFC determination supported by substantial evidence, including an appropriate weighing of the opinions of the State Agency review physician and consultative examiner, along with a reasonable reading of the treatment record and Plaintiff's activities of daily living.

While it would have been preferable for the ALJ to have addressed Dr. Quail's evaluation, Dr. Quail's observations are generally consistent with, and do not materially undermine, the RFC determination, which, in turn, is supported by substantial evidence and should be sustained under the deferential standard of review applicable here. See Brault v. SSA, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)(“The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.”) (emphasis in original) (citation and internal quotation marks omitted); see also Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008)(“The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” (citation and internal quotation marks omitted); Trepanier v. Comm'r of SSA, 752 Fed.Appx. 75, 79 (2d Cir. 2018) (the ALJ may reach a determination that “does not perfectly correspond with any of the opinions of medical sources,” provided the overall assessment is supported by substantial evidence and consistent with applicable law).

C. Step Two Analysis

At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following are examples of “basic work activities”: “walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling ... seeing, hearing, and speaking ... [u]nderstanding, carrying out, and remembering simple instructions ... [u]se of judgment ... [r]esponding appropriately to supervision, co workers and usual work situations.” Gibbs v. Astrue, No. 07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(1) (5).

Although the Second Circuit has held that this step is limited to “screen[ing] out de minimis claims,” Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995), the “mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment” is not, by itself, sufficient to render a condition “severe.” Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995). Indeed, a “finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' which would have ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727 at *5 (E.D.N.Y. March 19,1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).

The ALJ found that Plaintiff's major depressive disorder and post-traumatic stress disorder were severe impairments. (T at 28). The ALJ recognized Plaintiff's cervical spine pain, thoracic spine pain, and post-concussive syndrome as medically determinable impairments, but found them to be non-severe. (T at 28).

There is no genuine issue regarding the fact that the ALJ's step two analysis was flawed as it related to Plaintiff's physical impairments.

The ALJ did not discuss the opinion of Dr. R. Reynolds, a non-examining State Agency review physician, who characterized Plaintiff's spine disorders as severe and opined that Plaintiff was limited to occasionally lifting/carrying 20 pounds; frequently lifting/carrying 10 pounds; and standing or walking for about 6 hours in an 8-hour workday. (T at 86, 89).

The ALJ found unpersuasive the opinion of Dr. Michael Healy, who performed a consultative examination in October of 2018 and assessed moderate limitation in Plaintiff's ability to stand, walk, bend, lift, and climb stairs. (T at 28, 517-20). The ALJ considered Dr. Healy's opinion “generally inconsistent with the overall record” (T at 28) but erred by failing to address the consistency between Dr. Healy's evaluation and Dr. Reynold's assessment.

The ALJ found “somewhat persuasive” the opinion of Dr. Robert Henkin, who completed a medical source statement in September of 2018 and opined that Plaintiff had no physical limitations. (T at 29, 433). Dr. Henkin, however, specializes in issues of taste and smell and treated Plaintiff for loss of taste, taste phantoms, loss of smell, and odor phantoms (T at 432). His statement apparently was intended to convey his opinion that Plaintiff had no physical limitations arising from her taste and smell issues, rather than expressing his view on her overall physical functioning. The ALJ did not appear to recognize or account for this.

The Court therefore concludes that the ALJ erred in assessing the record concerning Plaintiff's physical impairments. The ALJ's conclusion that Plaintiff had no severe physical impairments and could perform a full range of work at all exertional levels was not supported by substantial evidence.

Remand, however, is not appropriate if the ALJ committed harmless error, i.e., where the “application of the correct legal principles to the record could lead only to the same conclusion.” Zabala v. Astrue, 595 F.3d 402, 409 (2d Cir. 2010) (alteration omitted) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

That is what happened in this case. The ALJ's errors did not materially affect the ultimate disability determination. At step five, the ALJ concluded that Plaintiff could perform jobs that exist in significant numbers in the national economy. (T at 36). In making this determination, the ALJ, relying on the testimony of the vocational expert, identified four representative occupations that Plaintiff could perform. (T at 36-37). Three of the four representative occupations involved work at a light or sedentary exertional level. (T at 37).

Application of the correct legal principles to the record leads to the conclusion that Plaintiff retained the RFC to perform work consistent with light or sedentary exertion. Dr. Reynolds, the State Agency review consultant, opined that Plaintiff could perform light work. (T at 89). Dr. Healy, the consultative examiner, assessed moderate limitation in Plaintiff's ability to stand, walk, bend, lift, and climb stairs. (T at 517-20). This is consistent with the ability to perform light work. See Gurney v. Colvin, No. 14-CV-688S, 2016 WL 805405, at *3 (W.D.N.Y. Mar. 2, 2016)(collecting cases); see also White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019); Gonzalez v. Comm'r of Soc. Sec., No. 21CIV800VBJCM, 2022 WL 3348386, at *12 (S.D.N.Y. May 27, 2022), report and recommendation adopted sub nom. Gonzalez v. Kijakazi, No. 21 CV 800 (VB), 2022 WL 3348525 (S.D.N.Y. Aug. 12, 2022).

The treatment record, as well as the examination conducted by Dr. Healy, contained generally unremarkable clinical findings, including normal gait, balance, coordinate, sensory function, and range of motion. (T at 2829, 330-31, 335-36, 338, 340, 352, 446, 518-19). During the administrative hearing, Plaintiff testified that she had ongoing back and neck pain but was not receiving any treatment for those issues. (T at 64). Her back pain was somewhat improved following breast reduction surgery and she had not participated in physical therapy since before the alleged onset date. (T at 65).

MRI reports from 2016 and 2019 (T at 43, 45) were submitted to the Appeals Council after the ALJ's decision. The Appeals Council found that there was no reasonable probability that these reports would change the ultimate disability determination decision, a conclusion supported by the treatment record and medical opinions discussed above. (T at 2).

Although the ALJ should have reviewed the evidence more carefully, a remand is not appropriate if it will not make any material difference in the ultimate outcome.

Here, for the reasons outlined above, “even if the ALJ had provided for limitations in Plaintiff's capacity to walk, stand, carry, or lift, [the ALJ] would still have found that she could perform work available in significant numbers in the national economy. That renders any error in the exertional RFC harmless.” Butler v. Comm'r of Soc. Sec., No. 18-CV-5293 (PGG)(SN), 2019 WL 4545639, at *11 (S.D.N.Y. Aug. 14, 2019), report and recommendation adopted, No. 18CIV5293PGGSN, 2019 WL 4534419 (S.D.N.Y. Sept. 18, 2019); see generally Akey v. Astrue, 467 Fed.Appx. 15, 17 (2d Cir. 2012) (“The ALJ's failure to include the limitation to unskilled and semi-skilled work is harmless because the only jobs the vocational expert identified were unskilled or semi-skilled.”).

In sum, because the record sufficiently supports the conclusion that Plaintiff could perform light or sedentary work, and because the ALJ identified light and sedentary jobs that exist in significant numbers in the national economy, the ALJ's errors were harmless and a remand is therefore not recommended.

D. Constitutional Challenge

Relying on the Supreme Court's decision in Seila Law LLC v. CFPB, 140 S.Ct. 2183, 2192 (2020), Plaintiff challenges the constitutional authority under which the Commissioner of Social Security adjudicated her claim for benefits.

This argument should be rejected for the reasons outlined by numerous courts in this Circuit (and across the country) who have considered and rejected identical arguments by other Social Security claimants. In sum, Plaintiff is not entitled to relief because “even assuming the Commissioner's statutory tenure protection [was] unconstitutional, [she] has not alleged facts which would entitle her to a remand for a new hearing or any other relief.” Betty Jean B. on behalf of L.J.B. v. Kijakazi, No. 6:21-CV-0125 (ML), 2022 WL 873827, at *6 (N.D.N.Y. Mar. 24, 2022); see also Platt v. Comm'r of Soc. Sec., No. 20 CIV. 8382 (GWG), 2022 WL 621974, at *5-*6 (S.D.N.Y. Mar. 3, 2022); Michael H. v. Comm'r of Soc. Sec., No. 1:20-CV-1466-DB, 2022 WL 768658, at *18 (W.D.N.Y. Mar. 14, 2022).

IV. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the Commissioner of Social Security should be GRANTED judgment on the pleadings and this case should be DISMISSED.

PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).