United States District Court, E.D. Pennsylvania
MEMORANDUM OF DECISION9
J. RUETER, UNITED STATES MAGISTRATE JUDGE.
Tony Van Nguyen, filed this action pursuant to 42 U.S.C.
§ 405(g), seeking judicial review of the final decision
of the Commissioner of the Social Security Administration
(“Commissioner”) denying his claim for disability
insurance benefits (“DIB”) under Title II of the
Social Security Act (“Act”).
filed a Brief and Statement of Issues in Support of Request
for Review (“Pl.'s Br.”), defendant filed a
Response to Plaintiff's Request for Review
(“Def.'s Br.”), and plaintiff filed a reply
thereto (“Pl.'s Reply”). Additionally,
defendant filed a Motion to Stay (Doc. 21) and plaintiff
filed a Motion to Permit Withdrawal of Second Issue Presented
(Doc. 22). For the reasons set forth below, the Motion to
Permit Withdrawal of Second Issue Presented will be granted,
the Motion to Stay will be denied as moot, and
plaintiff's Request for Review will be granted.
FACTUAL AND PROCEDURAL HISTORY
filed an application for DIB on March 23, 2015, alleging
disability beginning February 15, 2011. (R. 228-34,
251-56.) Plaintiff's claim was denied initially
and he filed a timely request for a hearing. (R. 143-54,
165-71.) A hearing was held on February 13, 2017, before
Administrative Law Judge (“ALJ”) Jennifer
Spector. (R. 107-42.) Plaintiff, represented by counsel,
appeared and testified. Patricia Scott, a vocational expert
(“VE”), also appeared and testified. In a
decision dated May 3, 2017, the ALJ found that plaintiff was
not disabled under the Act. (R. 89-106.) The ALJ made the
1. The claimant last met the insured status requirements of
the Social Security Act on March 31, 2015.
2. The claimant did not engage in substantial gainful
activity during the period from his alleged onset date of
February 15, 2011 through his date last insured of March 31,
2015 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the
following severe impairments: chronic pancreatitis secondary
to alcoholism and paroxysmal arrhythmia (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525, 404.1526).
5. After careful consideration of the entire record, I find
that, through the date last insured, the claimant had the
residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) except that he could have never climbed
ladders, ropes, or scaffolds, occasionally climbed ramps and
stairs, and occasionally balanced, stooped, kneeled,
crouched, and/or crawled. The claimant must have avoided
concentrated exposure to humidity and pulmonary irritants
such as fumes, odors, dust, and gases.
6. Through the date last insured, the claimant was capable of
performing past relevant work as an office clerk. This work
did not require the performance of work-related activities
precluded by the claimant's residual functional capacity
(20 CFR 404.1565).
7. The claimant was not under a disability, as defined in the
Social Security Act, at any time from February 15, 2011, the
alleged onset date, through March 31, 2015, the date last
insured (20 C.F.R. 404.1520(f)).
filed a request for review of the decision of the ALJ that
was denied and the ALJ's decision became the final
decision of the Commissioner. (R. 1-6, 226-27.) Plaintiff
then filed the present claim, seeking judicial review of the
ALJ's decision pursuant to 42 U.S.C. § 405(g).
request for review of the ALJ's decision, relying on
Lucia v. S.E.C., 138 S.Ct. 2044 (2018), plaintiff
contended that the ALJ did not exercise lawful authority when
plaintiff's claim was denied because the ALJ was an
inferior officer who was not properly appointed pursuant to
the Appointments Clause of the United States Constitution.
(Pl.'s Br. at 9-13.) See U.S. Const., Art. II,
§ 2, cl. 2 (Congress may vest appointment of
“inferior Officers … in the President alone, in
the Courts of Law, or in the Heads of
Departments.”). In his response, defendant countered that
plaintiff forfeited his Appointments Clause claim because he
failed to assert this challenge during the administrative
proceedings. (Def.'s Br. at 6-14.)
courts in the Middle District of Pennsylvania issued two
decisions on March 4, 2019, each finding that the plaintiffs
in those cases had not waived their Appointments Clause
challenges by failing to raise them during the administrative
proceedings. See Cirko v. Berryhill, 2019 WL 1014195
(M.D. Pa. Mar. 4, 2019), appeal filed, No. 19-1772
(3d Cir. Apr. 10, 2019); Bizarre v. Berryhill, 364
F.Supp.3d 418 (M.D. Pa. 2019), appeal filed, No.
19-1773 (3d Cir. Apr. 17, 2019). On April 5, 2019, defendant
filed notices of appeal in those cases. On June 25, 2019,
defendant filed a Motion to Stay (Doc. 21) in the present
case, requesting that this case be stayed pending resolution
by the Third Circuit of Cirko and Bizarre.
Defendant averred that the pending appeals raise the same
legal issue presented in this case with respect to the
Appointments Clause challenge. See Mot. to Stay at
response, plaintiff filed a motion requesting permission to
withdraw his Appointments Clause challenge. See Doc.
22. In the Motion to Permit Withdrawal of Second Issue
Presented, plaintiff represents that defendant does not
oppose his motion and that a stay would not be necessary if
plaintiff's motion were granted. See id. at 1-2.
As such, the undersigned will grant plaintiff's Motion to
Permit Withdrawal of Second Issue Presented and will deny as
moot defendant's Motion to Stay. Furthermore, the court
will limit its discussion to the sole remaining issue
presented in plaintiff's request for review.