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Harold v. Saul

United States District Court, E.D. Pennsylvania

November 13, 2019

MONICA HAROLD, Plaintiff,
v.
ANDREW M. SAUL,[1] Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          RICHARD A. LLORET U.S. MAGISTRATE JUDGE.

         Monica 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. 15).[2] 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.[3] Def. Br. at 4-12 (Doc. No. 16).

         After 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.

         Because 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.

         PROCEDURAL HISTORY

         Ms. 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.

         Ms. 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. 26-35.[4]

         Ms. 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.[5]

         DISCUSSION

         A. This case must be decided de novo by a properly appointed ALJ.

         The 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), [6] my memorandum opinion in Ready v. Berryhill, No. 18-4289 (E.D. Pa. April 30, 2019), [7]and in other opinions.[8] 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.

         I find 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 Council.

         However, 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 relief).

         Since I 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 ...


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