United States District Court, D. Maine
REPORT AND RECOMMENDED DECISION
C. Nivison U.S. Magistrate Judge
seeks judicial review of Defendant's final administrative
decision on Plaintiff's application for supplemental
income benefits under Title XVI of the Social Security Act.
At the administrative level, Defendant found that although
Plaintiff has severe impairments consisting of degenerative
disc disease and depression, Plaintiff retains the functional
capacity to perform substantial gainful employment.
Defendant, therefore, denied Plaintiff's request for
disability benefits. In addition to contesting certain
findings of the Administrative Law Judge (ALJ), Plaintiff
challenges the authority of the ALJ to decide Plaintiff's
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
administrative decision and remand the matter for further
contends that pursuant to the Supreme Court's decision in
Lucia v. S.E.C., 585 U.S., 138 S.Ct. 2044, 201
L.Ed.2d 464 (2018),  remand is appropriate because the ALJ who
denied his claim was not appointed in accordance with the
Appointments Clause of the United States Constitution.
Defendant acknowledges that given the date of the ALJ's
decision,  if Plaintiff timely raised the challenge
to the ALJ's appointment, remand is warranted. Defendant,
however, maintains that Plaintiff waived his ability to
challenge the authority of the ALJ to decide his claim.
statement of errors, Plaintiff in part argued that under
Lucia, the ALJ lacked the authority to decide the
case. (Statement of Errors at 11-12, ECF No. 11.) Plaintiff
asserted that he challenged the ALJ's appointment in an
April 26, 2019, letter to the Appeals Council asking the
Appeals Council to reconsider its denial of Plaintiff's
appeal. (Id. at 12.)
December 8, 2019, the day before oral argument on
Plaintiff's appeal to this Court, Plaintiff filed a copy
of a letter he asserts his counsel filed with the Appeals
Council on July 26, 2018, the day on which he filed his
appeal before the Council, in which letter Plaintiff's
counsel challenged the authority of the ALJ based on
Lucia. The letter was not included in the
administrative record filed by Defendant. Plaintiff's
counsel maintains that he noticed the document was not in the
record when preparing for oral argument. (Plaintiff's
Supplemental Memorandum of Law at 3, ECF No. 22.) According
to Defendant, a review of the available electronic case
management systems revealed that although a supplemental
document was filed by Plaintiff after the filing of his brief
to the Appeals Council, the document was not recorded in the
system. (Defendant's Supplemental Memorandum at 2, ECF
District and in many other districts, a party is deemed to
have waived the ability to challenge the authority of the
presiding ALJ under Lucia if the challenge is not
raised at the administrative level. See Christy A.L. v.
Saul, No. 2:18-cv-00260-JDL, 2019 WL 2524776, at *2-3
(D. Me. June 19, 2019); see also Peterman v.
Berryhill, Civil Action No. 18-13751, 2019 WL 2315016,
at *11 (D. N.J. May 31, 2019) (collecting cases). Consistent
with the authority in this District, therefore, if Plaintiff
did not timely raise the issue before the Appeals Council,
Plaintiff's ability to challenge the authority of the ALJ
would be waived.
record establishes that Plaintiff raised the issue before the
Appeals Council prior to the Appeals Council's decision
on the appeal, which decision is dated April 8, 2019. (R. 1 -
4.) Although Plaintiff's July 26, 2018, letter was not
located among the electronic filings, one can reasonably
conclude that the letter is the supplemental document
Defendant identified as filed but not recorded in the
electronic case management system.
nevertheless contends that Plaintiff waived his ability to
rely on the July 26, 2018, letter to the Appeals Council
because he did not cite the letter in his request for
reconsideration before the Appeals Council, he did not
request that the administrative record be supplemented to
include the letter, he did not reference the letter in his
statement of errors, and he failed to raise the issue until
the day before the oral argument before this Court.
(Defendant's Supplemental Memorandum at 2-3.)
correctly notes that generally in this District, an argument
that is not raised in a statement of errors is waived.
Plaintiff, however, specifically included his challenge to
the ALJ's authority in his statement of errors.
(Statement of Errors at 11-12.) While Plaintiff did not
reference the July 26, 2018, letter in his statement of
errors, Plaintiff is not prohibited from citing at oral
argument additional evidence of record that might support his
failure to ensure that the July 26, 2018, letter was part of
the administrative record also does not preclude Plaintiff
from asserting the argument in this Court. First, given the
number of documents in the administrative record of most
social security cases, to foreclose a party from relying on a
document that was presented at the administrative level, but
inadvertently omitted from the record filed with the district
court, would be unreasonable. In addition, the record lacks
any evidence to suggest that Plaintiff was aware the document
was not part of the administrative record and decided for
strategic purposes to wait until oral argument to apprise the
Court and Defendant of the document.
Plaintiff challenged the authority of the ALJ before a final
administrative decision was issued and did not otherwise
waive his ability to assert the challenge in this Court.
Defendant acknowledges that under the facts of this case, if
Plaintiff properly challenged the ALJ's authority at the
administrative level, the Court should remand the matter.
(Defendant's Supplemental ...