United States District Court, E.D. Pennsylvania
RICHARD A. LLORET U.S. MAGISTRATE JUDGE.
Harold was denied Social Security benefits by the decisions
of an Administrative Law Judge (“ALJ”) and the
Appeals Council. Ms. Harold contends that these unfavorable
decisions were reached in error. Pl. Br. at 2-9 (Doc. No.
Before delving into Ms. Harold's argument about whether
she is disabled, I must first address her claim that the
presiding ALJ's appointment was improper under the
Appointments Clause of the Constitution. Id. at 3-6
(citing to Lucia v. SEC, 138 S.Ct. 2044 (2018)). The
Commissioner of Social Security (“the
Commissioner”) argues that Ms. Harold forfeited this
claim by not challenging the ALJ's appointment in the
agency proceeding below. Def. Br. at 4-12 (Doc. No. 16).
careful review, I find that the ALJ was improperly appointed
under the Constitution, and that Ms. Harold did not forfeit
her Appointments Clause claim because it would have been
futile for her to raise it before the agency. Therefore, Ms.
Harold's request for review is granted, and this matter
is remanded to the Commissioner for further proceedings in
accordance with the opinion that follows.
I am remanding the case based on the Lucia claim, it
may be unnecessary for me to address Ms. Harold's other
claim, that the ALJ erred by granting less weight to a
treating physician on the basis of improper reasoning.
Nevertheless, to expedite the processing of this case in the
event of appeal, I find that the ALJ erred in his review of
the treating physician's report. I therefore order that
the matter be remanded for further review by a
Constitutionally appointed ALJ, consistent with this opinion.
Harold filed a claim for disability insurance benefits on
January 16, 2015. Administrative Record (“R.”)
196. She alleged an onset date of July 8, 2014. Id.
Ms. Harold alleges both physical and mental severe
impairments. R. 44. Her physical impairments alleged include
fibromyalgia; post-total thyroidectomy and lymph node
dissection and right thyroid lobectomy, due to metastatic
papillary carcinoma; lateral epicondylitis and tendinosis;
lumbar degenerative disc disease with disc protrusion at L5
through S1; left knee degenerative disc disease; bilateral
trigger finger problems with both the thumbs and middle
finger. Her mental impairments include post-traumatic stress
disorder (“PTSD”); generalized anxiety disorder;
and major depressive disorder. R. 44-45.
Harold's claim initially was denied on March 9, 2015. R.
158. Ms. Harold subsequently requested an administrative
hearing. R. 165-66. At the hearing, held on July 14, 2017,
Ms. Harold and Bruce Martin, a vocational expert, testified.
R. 42-74. On August 8, 2017, the ALJ issued an opinion,
finding Ms. Harold did not have a disability. R.
Harold requested that the Appeals Council review the
ALJ's decision. R. 187. The Appeals Council denied her
request by order dated August 9, 2018, making the
Commissioner's decision to deny benefits final on that
date. R. 3-9. This appeal followed.
This case must be decided de novo by a properly
reasons for my conclusion are set forth at some length in my
report and recommendation in Perez v. Berryhill, No.
18-1907 (E.D. Pa. Jan. 7, 2019),  my memorandum opinion in
Ready v. Berryhill, No. 18-4289 (E.D. Pa. April 30,
2019), and in other opinions. I find that
the ALJ that presided over Ms. Harold's claim was not
properly appointed under the Appointments Clause and that Ms.
Harold was not required to raise the issue before the agency.
Furthermore, even if plaintiffs are, as a general matter,
required to exhaust issues before the agency, it would have
been futile for her to raise the Appointments Clause
challenge at the agency level, thus excusing her from not
raising the claim earlier.
that the analysis in Perez, Ready, and the
other opinions mentioned above applies in this case, even
though the Appeals Council decision in this instance was
issued after the Commissioner had ratified the
appointment of the Social Security Administration
(“SSA”) ALJs. The Commissioner ratified the
appointment of the SSA ALJs on July 16, 2018. EM-18003 REV 2,
Important Information Regarding Possible Challenges to the
Appointment of Administrative Law Judges in SSA's
Administrative Process-Update (effective August 6, 2018). The
Appeals Council decision, in this case, was dated August 1,
2018. R. 4-7. This means that there were ALJs available,
prior to the Appeals Council's decision, who may have
been properly appointed, and therefore provided a possible
avenue for relief had the issue been raised to the Appeals
the SSA's policy at the time of the Appeals Council
decision did not permit a constitutional remedy: “As
challenges to the constitutionality of the appointment of
SSA's ALJs are outside the purview of the administrative
adjudication, the [Appeals Council] will not
acknowledge, make findings related to, or otherwise discuss
the Appointments Clause issue.” See EM-18003
REV, Important Information Regarding Possible Challenges to
the Appointment of Administrative Law Judges in SSA's
Administrative Process-Update (effective date June 25, 2018)
(emphasis in original) (this Emergency Message was revised on
August 6, 2018, after the issuance of the Appeals Council
decision in this case). Therefore, had Ms. Harold made an
Appointments Clause objection to the Appeals Council, it
still would have been futile because the SSA would not have
taken any action to remedy the constitutional defect.
See, e.g. Arthrex, Inc. v. Smith & Nephew, 2019
WL 5616010, *11, ___ F.3d ___, (Fed. Cir. 2019),
(constitutional challenge to the appointment of the PTAB
judges was futile at the Board level and therefore Arthrex
did not forfeit the claim by failing to make that argument to
the Board which had no authority to provide any meaningful
issued my last memorandum opinion on this issue in
Ready, on April 30, 2019, the thoughtful decision in
Muhammad v. Berryhill, 381 F.Supp.3d 462 (E.D.Pa.
2019) has been published, in which the court affirmed the
Commissioner, finding that the plaintiff had waived his
Appointments Clause claim by failing to raise it before the
ALJ. Because the decision in Muhammad considered in
detail many of the reasons that have motivated courts to
reject the Commissioner's arguments on the ...