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Christy A. L. v. Saul

United States District Court, D. Maine

June 19, 2019

CHRISTY A. L., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security, [1] Defendant


          John H. Rich III United States Magistrate Judge.

         This Social Security Disability (“SSD”) and Supplemental Security Income (“SSI”) appeal raises the question of whether the administrative law judge (“ALJ”) supportably found the plaintiff capable of performing work existing in significant numbers in the national economy. The plaintiff seeks remand on the bases that the ALJ lacked the legal authority to decide this case because she was improperly appointed and, in any event, she erred in weighing the opinion evidence and evaluating the plaintiff's testimony concerning her symptoms and limitations. See Itemized Statement of Specific Errors (“Statement of Errors”) (ECF No. 19) at 5-12. I reject the plaintiff's challenge to the ALJ's authority, find no reversible error on her part, and, accordingly, recommend that the court affirm the commissioner's decision.

         Pursuant to the commissioner's sequential evaluation process, 20 C.F.R. §§ 404.1520, 416.920; Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), the ALJ found, in relevant part, that the plaintiff met the insured status requirements of the Social Security Act through December 31, 2019, Finding 1, Record at 15; that she had the severe impairments of diabetes mellitus type II, recurrent uterine fibroids, chronic obstructive pulmonary disease (“COPD”), anxiety, bipolar disorder, attention deficit hyperactivity disorder (“ADHD”), and obesity, Finding 3, id. at 16; that she had the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except that she could only lift and carry up to 20 pounds occasionally and 10 pounds frequently, required an option to sit or stand at her discretion throughout the workday, could only occasionally climb ramps or stairs, could never be subjected to ladders, ropes, scaffolds, unprotected heights, fumes, gases, or extreme temperatures, required a low-stress, non-production-paced environment with only occasional interaction with the public, and could be expected to be off task for up to 10 percent of the workday, Finding 5, id. at 19; that, considering her age (39 years old, defined as a younger individual, on her alleged disability onset date, April 30, 2014), education (at least high school), work experience (transferability of skills immaterial), and RFC, there were jobs existing in significant numbers in the national economy that she could perform, Findings 7-10, id. at 25; and that she, therefore, had not been disabled from April 30, 2014, her alleged onset date of disability, through the date of the decision, September 6, 2017, Finding 11, id. at 26-27. The Appeals Council declined to review the decision, id. at 1-3, making the decision the final determination of the commissioner, 20 C.F.R. §§ 404.981, 416.1481; Dupuis v. Sec'y of Health & Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

         The standard of review of the commissioner's decision is whether the determination made is supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Manso-Pizarro v. Sec'y of Health & Human Servs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, the determination must be supported by such relevant evidence as a reasonable mind might accept as adequate to support the conclusion drawn. Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981).

         The ALJ reached Step 5 of the sequential evaluation process, at which stage the burden of proof shifts to the commissioner to show that a claimant can perform work other than her past relevant work. 20 C.F.R. §§ 404.1520(g), 416.920(g); Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Goodermote, 690 F.2d at 7. The record must contain substantial evidence in support of the commissioner's findings regarding the plaintiff's RFC to perform such other work. Rosado v. Sec'y of Health & Human Servs., 807 F.2d 292, 294 (1st Cir. 1986).

         I. Discussion

         A. Appointments Clause Challenge

         The plaintiff first contends that remand is warranted because the ALJ who decided his case lacked the authority to do so pursuant to Lucia v. Sec. & Exch. Comm'n, 138 S.Ct. 2044, 2055 (2018). See Statement of Errors at 5-8. In Lucia, the Supreme Court concluded that ALJs at the Securities and Exchange Commission (“SEC”) were officers of the United States subject to appointment pursuant to the Appointments Clause of the United States Constitution, entitling the petitioner, who had timely challenged the validity of the ALJ's appointment before the SEC, to a new hearing before a different, constitutionally appointed ALJ. See Lucia, 138 S.Ct. at 2055.

         The plaintiff acknowledged that she had not raised any objection to the ALJ's lack of authority pursuant to the Appointments Clause during administrative proceedings and that several courts had summarily rejected an identical challenge in the Social Security context on the basis that the claimant had forfeited the point by failing to raise it before the ALJ. See Statement of Errors at 6-7. However, she urged this court to follow Muhammad v. Berryhill, CIVIL ACTION No. 18-172 (E.D. Pa. Nov. 2, 2018) (rec. dec.) (copy attached as ECF No. 19-2 to Statement of Errors), in which a United States Magistrate Judge had recommended that a Social Security claimant's bid for remand on the same basis be allowed to proceed despite his failure to raise the point at the administrative level. See id. at 6-8. As the commissioner observes, see Statement of Supplemental Authority (ECF No. 27), on May 23, 2019, the United States District Court for the Eastern District of Pennsylvania overruled that recommended decision, see Muhammad, F.Supp.3d, CIVIL ACTION NO. 18-172, 2019 WL 2248694 (E.D. Pa. May 23, 2019), undermining the plaintiff's request for remand on this basis as articulated in her statement of errors.

         Prior to oral argument, the plaintiff also submitted a statement of authorities citing four cases deciding this issue in her favor, three in the context of Social Security appeals. See Statement of Supplemental Authorities (ECF No. 25) (citing, inter alia, Bizarre v. Berryhill, 364 F.Supp.3d 418 (M.D. Pa. 2019), appeal docketed, No. 19-1773 (3d Cir. Apr. 17, 2019), Cirko ex rel. Cirko v. Berryhill, CIVIL ACTION NO. 1:17-CV-680, 2019 WL 1014195 (M.D. Pa. Mar. 4, 2019), appeal docketed, No. 19-1772 (3d Cir. Apr. 10, 2019), and Mann v. Berryhill, 4:18-CV-3022, 2018 WL 6421725 (D. Neb. Dec. 6, 2018)). Those authorities do not sufficiently swing the pendulum in her favor.

         In Bizarre, the United States District Court for the Middle District of Pennsylvania held that the plaintiff/claimant was not “required to raise his [Appointments Clause] constitutional claim before the ALJ or the Appeals Council in the first instance” but that, even if there was “an administrative exhaustion requirement for Appointments Clause challenges in every case, the nature of the Social Security Administration and its review process, combined with the general preference for disposition of such constitutional questions by federal courts rather than federal agencies, support an exercise of our discretion under Freytag [v. Comm'r of Internal Revenue, 501 U.S. 868 (1991), ] to remand this case for rehearing before a constitutionally appointed ALJ.” Bizarre, 364 F.Supp.3d at 425. In Cirko, decided the same day, the court incorporated by reference its reasoning in Bizarre. See Cirko, 2019 WL 1014195, at *1.

         The Bizarre court acknowledged that, in so ruling, it had “part[ed] with the majority of district courts to confront this issue[.]” Bizarre, 364 F.Supp.3d at 424 n.4. However, it noted that it was “not alone in finding merit in this approach[, ]” a proposition for which it cited Mann and three then-pending recommended decisions, including Muhammad. Id. (citing Fortin v. Comm'r of Soc. Sec., Civil Action No. 18-10187, 2019 WL 421071 (E.D. Mich. Feb. 1, 2019) (rec. dec.), Muhammad (rec. dec.), and ECF No. 12, Godschall v. Comm'r of Soc. Sec., No. 2:18-1647 (E.D. Pa. Nov. 2, 2018) (rec. dec.)). The recommended decisions in Fortin and Godschall, like that in Muhammad, since have been rejected either in toto or insofar as they bear on the issue of the need to raise an Appointments Clause issue at the administrative level. See Fortin, 372 F.Supp.3d 558, 562-68 (E.D. Mich. 2019), appeal docketed, No. 19-1581 (6th Cir. May 24, 2019); ECF No. 23, Godschall (E.D. Pa. May 23, 2019) (incorporating by reference court's reasoning in Muhammad).

         While, insofar as appears, neither the First Circuit nor any other United States Court of Appeals has to date weighed in on this issue in a Social Security context, “[t]he vast majority of [United States district] courts” recently have ruled “that a social security claimant may not raise an appointments clause challenge for the first time upon appeal to a federal court.” Peterman v. Berryhill, Civil Action No. 18-13751, 2019 WL 2315016, at *11 (D.N.J. May 31, 2019). These courts have roundly and persuasively rejected arguments similar to those made by the plaintiff here that, (i) pursuant to Sims v. Apfel, 530 U.S. 103 (2000), a Social Security claimant need not exhaust issues at the administrative level to raise them on appeal, (ii) pursuant to Freytag, any forfeiture should be excused, and (iii) it makes little sense to require a Social Security claimant to raise this issue before an ALJ who is powerless to resolve it. Compare, e.g., Muhammad, 2019 WL 2248694, at *2-7; Fortin, 372 F.Supp.3d at 562-68; Peterman, 2019 WL 2315016, at *11-12 with Statement of Errors at 6-8. In the absence of controlling authority, I recommend that the court adopt this reasoning and reject the plaintiff's request for remand on this basis.[3]

         B. Challenge to Weighing ...

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