United States District Court, D. Maine
CHRISTY A. L., Plaintiff
ANDREW M. SAUL, Commissioner of Social Security,  Defendant
REPORT AND RECOMMENDED DECISION
H. Rich III United States Magistrate Judge.
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
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).
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).
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).
Appointments Clause Challenge
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.
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.
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.
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.
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).
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.
Challenge to Weighing ...