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Nguyen v. Saul

United States District Court, E.D. Pennsylvania

July 31, 2019

TONY VAN NGUYEN
v.
ANDREW M. SAUL,[1] Commissioner of Social Security Administration

          MEMORANDUM OF DECISION9

          THOMAS J. RUETER, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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”).

         Plaintiff 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.

         I. FACTUAL AND PROCEDURAL HISTORY

         Plaintiff filed an application for DIB on March 23, 2015, alleging disability beginning February 15, 2011. (R. 228-34, 251-56.)[2] 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 following findings:

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)).

(R. 94-101.)

         Plaintiff 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).

         In his 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.”).[3] 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.)

         District 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 ¶ 4.

         In 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.

         11. ...


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