Opinion
No. 7:19-CV-120-FL
03-26-2020
SEAN CHRISTOPHER TALLON, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-14, -16] pursuant to Fed. R. Civ. P. 12(c). Claimant Sean Christopher Tallon ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of his application for a period of disability and Disability Insurance Benefits ("DIB"). The time for filing responsive briefs has expired, and the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be denied, Defendant's Motion for Judgment on the Pleadings be allowed, and the final decision of the Commissioner be affirmed.
I. STATEMENT OF THE CASE
Claimant filed applications for a period of disability and DIB on May 27, 2015, alleging disability beginning February 6, 2013. (R. 16, 311-14). The claim was denied initially and upon reconsideration. (R. 16, 210-47). A hearing before the Administrative Law Judge ("ALJ") was held on February 15, 2018, at which Claimant, represented by a non-attorney; a witness for Claimant; and a vocational expert ("VE") appeared and testified. (R. 162-209). On May 29, 2018, the ALJ issued a decision denying Claimant's request for benefits. (R. 13-34). The Appeals Council denied Claimant's request for review on May 9, 2019. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the ALJ's appointment did not comply with the Appointments Clause. Pl.'s Mem. [DE-15] at 3-7.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment from the alleged onset date of February 6, 2013 through the date last insured of September 30, 2016. (R. 18). Next, the ALJ determined Claimant had the following severe impairments: degenerative disk disease of the cervical spine, status post-fusion; hypertension; affective disorders; anxiety disorder; post-traumatic stress disorder; borderline personality disorder; and obesity. (R. 18-19). The ALJ also found Claimant had nonsevere impairments of osteoarthritis, left foot degenerative changes, recurrent sinusitis and cellulitis of the nose, hearing loss, and congestive heart failure NYHA class I. (R. 19). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 19-21). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in moderate limitations in understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 20).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform light work requiring the following limitations:
Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If an individual can perform light work, he or she can also perform sedentary work, unless there are additional limiting factors such as the loss of fine dexterity or the inability to sit for long periods of time. 20 C.F.R. § 404.1567(b).
He is unable to perform overhead lifting. He should never climb ladders, ropes, or scaffolds. He should avoid unprotected heights or hazardous machinery that requires strict attention to avoid injury. He should be around no more than moderate noise. He is able to understand, remember and carry out simple routine tasks at no more than a semi-rapid pace. He is unable to work with the general public. Communications must be face to face with no over the phone work. He is able to work in proximity to but not coordination with co-workers. He is able to adapt to
routine changes in the workplace.(R. 21-27). In making this assessment, the ALJ found Claimant's statements about his limitations not fully consistent with the medical and other evidence in the record. (R. 22).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of his past relevant work. (R. 27). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant is capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (R. 27-28).
V. DISCUSSION
Claimant contends that remand is appropriate because the ALJ's appointment did not comply with the Appointments Clause. Pl.'s Mem. [DE-15] at 3-7. The Commissioner counters that Claimant's failure to challenge the ALJ's appointment during the administrative proceeding before the agency forfeited any Appointments Clause claim. Def.'s Mem. [DE-17] at 3-12.
In Lucia v. Sec. & Exch. Comm'n, the Supreme Court considered whether ALJs within the Securities and Exchange Commission ("SEC") were "Officers of the United States" and subject to the Appointments Clause, which requires appointment of such officers by only the President, a court of law, or a head of department. — U.S. —, 138 S. Ct. 2044, 2051 (2018) (citing Const. art. II, § 2, cl. 2). The Court decided that the ALJ was, in fact, an "officer" and that his appointment was unconstitutional because it was made by an SEC staff member rather than one of the constitutionally permissible entities. Id. at 2055. Finally, the court concluded that because Lucia made a timely challenge to the validity of the ALJ's appointment before the SEC and in subsequent litigation, he was entitled to a new hearing before a properly appointed official. Id. ("'[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case' is entitled to relief.") (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
Here, there is no evidence in the record that Claimant challenged the ALJ's appointment in the administrative proceeding before the SSA. Claimant raised this issue for the first time before the court, and, therefore, his challenge is untimely. See Lucia, 138 S. Ct. at 2055 (finding Lucia's challenge was timely because he challenged the ALJ's appointment before the SEC and continued to pursue his claim in court). The Fourth Circuit Court of Appeals has yet to address this issue. Many courts, including courts in this district and in the Middle and Western districts of North Carolina, have considered post-Lucia Appointments Clause challenges to Social Security ALJ appointments and have rejected attacks on the validity of the ALJ's appointment if the claimant failed to challenge it at the administrative level. See Hofler v. Saul, No. 2:18-CV-50-BO, 2020 WL 1229937, at *2 (E.D.N.C. Mar. 12, 2020) (holding that the claimant waived her Appointments Clause argument because she "failed to raise any challenge to the ALJ's appointment at any point in the administrative proceedings") (citations omitted); Taylor v. Saul, No. 3:18-CV-00553-KDB, 2019 WL 6972845, at *7 (W.D.N.C. Dec. 18, 2019) (finding forfeiture of Appointments Clause claim); Love v. Saul, No. 1:18CV448, 2019 WL 5065064, at *15-18 (M.D.N.C. Oct. 9, 2019) (finding forfeiture); Shoemaker v. Saul, No. 7:18-CV-116-FL, 2019 WL 4580381, at *1 (E.D.N.C. Sept. 20, 2019) (finding forfeiture) (citing Graham v. Berryhill, No. 7:18-CV-22-FL, 2019 WL 1270933 (E.D.N.C. Jan. 10, 2019), adopted by 2019 WL 1270933 (E.D.N.C. Mar. 19, 2019)); see also Edwards v. Berryhill, No. 3:18-CV-615-JAG, 2019 WL 2619542, at *4 (E.D. Va. June 6, 2019) (finding forfeiture); Abbington v. Berryhill, No. CV 1:17-00552-N, 2018 WL 6571208, at *2 (S.D. Ala. Dec. 13, 2018) ("In addressing Appointment Clause challenges to Social Security ALJs since Lucia was decided, numerous district courts have held that a claimant forfeits such a challenge by failing to raise it at the administrative level.") (collecting cases); Nickum v. Berryhill, No. 17-2011-SAC, 2018 WL 6436091, at *6 (D. Kan. Dec. 7, 2018) (finding forfeiture and collecting cases). However, other courts, including the Third Circuit Court of Appeals and some courts within this district, have decided the issue differently. See Morse-Lewis v. Saul, No. 2:18-CV-48-D, 2020 WL 1228678, at *4 (E.D.N.C. Mar. 12, 2020) (finding no forfeiture) (citing Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 153 (3d Cir. 2020)); Bradshaw v. Berryhill, No. 5:18-CV-100-RN, 2019 WL 1510953, at *11 (E.D.N.C. Mar. 26, 2019) (finding no forfeiture), appeal docketed, No. 19-1531 (4th Cir. May 17, 2019); Probst v. Berryhill, No. 5:18-CV-130-JG, 2019 WL 1749135, at *8 (E.D.N.C. Mar. 22, 2019) (finding no forfeiture), appeal docketed, No. 19-1529 (4th Cir. May 17, 2019). But see, e.g., Berns v. Saul, No. C18-2068-LTS, 2020 WL 1330432, at *7 (N.D. Iowa Mar. 23, 2020) (finding forfeiture and declining to follow Cirko); Honeycutt v. Saul, No. 3:18-CV-509-CRS, 2020 WL 1430475, at *4-5 (W.D. Ky. Mar. 23, 2020) (finding forfeiture and declining to follow Cirko); Gagliardi v. Soc. Sec. Admin., No. 18-CV-62106, 2020 WL 966595, at *4 (S.D. Fla. Feb. 28, 2020) (finding forfeiture and declining to follow Cirko). The undersigned continues to find persuasive the line of cases finding that a claimant's failure to timely challenge the ALJ's appointment before the SSA is a bar to this court's review of the issue on appeal from the Commissioner's decision. See Bailey v. Saul, No. 1:18-CV-00371-FDW, 2020 WL 1429240, at *4-6 (W.D.N.C. Mar. 19, 2020) (acknowledging Cirko but finding forfeiture). Accordingly, Claimant has forfeited any challenge to the ALJ's appointment by failing to raise it below.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-14] be DENIED, Defendant's Motion for Judgment on the Pleadings [DE-16] be ALLOWED, and the decision of the Commissioner be affirmed.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until April 9, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir. 1985).
Submitted, this the 26th day of March, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge