Opinion
No. 3:18-cv-01385
04-03-2020
ROBIN A. HEISERMAN, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
(BRANN, J.)
() REPORT AND RECOMMENDATION
The plaintiff, Robin A. Heiserman, brought this action under 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Acting Commissioner of Social Security denying her claim for disability insurance benefits under Title II of the Social Security Act.
Among other grounds for appeal, Heiserman contends that the Administrative Law Judge ("ALJ") who heard and decided her case was not properly appointed under the Appointments Clause of the United States Constitution, U.S. Const. art. II, § 2, cl. 2, and therefore she is entitled to a remand for rehearing of her case before a constitutionally appointed ALJ. The plaintiff's administrative hearing was held on August 24, 2016, which occurred prior to July 16, 2018, the date when the Acting Commissioner ratified the appointment of ALJs and approved their appointments as her own to address any Appointments Clause questions involving social security benefits claims. See Soc. Sec. Ruling 19-1p, 2019 WL 1324866, at *2; see also U.S. Soc. Sec. Admin., EM-180003 REV 2 (Feb. 6, 2019), available at https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM.
In light of the Supreme Court's decision in Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018), and the Third Circuit's recent decision in Cirko ex rel. Cirko v. Commissioner of Social Security, 948 F.3d 148 (3d Cir. 2020), we recommend that the Commissioner's decision be VACATED and REMANDED for rehearing before a different, constitutionally appointed ALJ. See Lucia, 138 S. Ct. at 2055; Cirko, 948 F.3d at 159-60. We further recommend that JUDGMENT be entered in favor of the plaintiff, and that the Clerk be directed to mark this case as CLOSED. Dated: April 3, 2020
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge ROBIN A. HEISERMAN, Plaintiff, v. ANDREW SAUL, Acting Commissioner of Social Security, Defendant. NOTICE
Andrew Saul was sworn in as Commissioner of Social Security on June 17, 2019. He is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d). See also Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g)(action survives regardless of any change in the person occupying the office of Commissioner of Social Security). The caption in this case is amended to reflect this change. --------
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated April 3, 2020. Any party may obtain a review of the Report and Recommendation pursuant to Local 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.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: April 3, 2020
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge