Opinion
CIVIL ACTION NO. 3:18-CV-01496
04-09-2020
TAMMIE SUE GONDER, Plaintiff, v. ANDREW SAUL, Defendant.
(MANNION, D.J.)
() REPORT AND RECOMMENDATION
Plaintiff Tammie Sue Gonder ("Plaintiff") brings this action under sections 205 and 1631 of the Social Security Act, 42 U.S.C. §§ 405(g), 1383(c)(3) (incorporating 42 U.S.C. § 405(g) by reference), seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff's applications for disability insurance benefits and supplemental security income under Titles II and XVI of the Act. (Doc. 1). In her supplemental brief in support of review, Plaintiff argued that the matter should be vacated and remanded for rehearing before a properly appointed administrative law judge (ALJ) in accordance with Lucia v. S.E.C., 138 S. Ct. 2044 (2018); (Doc. 23). The matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommendation pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure.
The Supreme Court's decision in Lucia held that S.E.C. Administrative Law Judges were "Officers of the United States" within the meaning of the Appointments Clause of the United States Constitution, U.S. Const. art. II, § 2, cl. 2, and therefore should have been appointed by either the President, a court of law, or the Department head. Since the S.E.C. ALJ was not properly appointed, the Supreme Court held that to "cure the constitutional error, another ALJ . . . must hold the new hearing to which [the plaintiff] is entitled." Lucia, 138 S. Ct. at 2055.
Plaintiff's administrative hearing was held on February 24, 2017, and the ALJ's decision denying her applications was issued on May 23, 2018. Both occurred before the Acting Commissioner of Social Security ratified the appointment of all Social Security ALJs. See Soc. Sec. Ruling 19-1p; Titles II & XVI: Effect of the Decision in Lucia v. Sec. & Exch. Comm'n (Sec) on Cases Pending at the Appeals Council, SSR 19-1P (S.S.A. Mar. 15, 2019), 2019 WL 1324866, at *2 (providing background about the Supreme Court's decision in Lucia and the Social Security Administration's response to it). The Commissioner does not dispute that ALJ Richard E. Guida was not properly appointed when he heard and decided Plaintiff's case. Instead, the Commissioner argues that Plaintiff failed to exhaust her challenge under the Appointments Clause at the administrative level before raising the issue in federal court. (Doc. 22, at 2-3).
On June 19, 2019, the Commissioner moved for a stay of these proceedings pending the Third Circuit's disposition of a consolidated appeal concerning "the question whether claimants for Social Security disability benefits must exhaust Appointments Clause challenges before the very administrative law judges [] whose appointments they are challenging." Cirko ex rel. Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020); (Doc. 24). The Court granted the Commissioner's motion and ordered these proceedings conditionally stayed pending the Cirko appeal. (Doc. 30). The Third Circuit decided Cirko on January 23, 2020, holding, "[b]ecause both the characteristics of the Social Security Administration [] review process and the rights protected by the Appointments Clause favor resolution of such claims on the merits, . . . exhaustion is not required in this context . . . ." Cirko ex rel. Cirko, 948 F.3d at 152. On March 26, 2020, the Third Circuit denied the government's petition for rehearing en banc, and a final mandate was issued on April 3, 2020. Cirko v. Berryhill, No. 19-1772 (3d Cir.), ECF Nos. 77, 78-1; Bizarre v. Berryhill, No. 19-1773 (3d Cir.), ECF Nos. 71, 72-1. In light of Cirko, the Court is compelled to remand Plaintiff's case for rehearing before a properly appointed ALJ.
For the foregoing reasons, IT IS RESPECTFULLY RECOMMENDED that:
1. The Commissioner's decision to deny Plaintiff's applications for benefits be VACATED.
2. The case be REMANDED for rehearing before a properly appointed ALJ other than the ALJ who presided over Plaintiff's first administrative hearing.
3. Final judgment be issued in favor of Plaintiff.
4. The Clerk of the Court close this case.
Dated: April 9, 2020
BY THE COURT
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 9, 2020.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Dated: April 9, 2020
/s/ _________
KAROLINE MEHALCHICK
United States Magistrate Judge