Opinion
17-cv-7962 (PMH) (AEK)
09-01-2021
TIFFANY C. HULING, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
ANDREW E. KRAUSE UNITED STATES MAGISTRATE JUDGE
TO: THE HONORABLE PHILIP M. HALPERN, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on November 9, 2017. ECF No. 5. The order of reference was reassigned to the undersigned on October 15, 2020.
On October 16, 2017, pro se Plaintiff Tiffany C. Huling brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied her application for disability insurance benefits under Title II of the Social Security Act. ECF No. 2. The Commissioner filed a motion for judgment on the pleadings on April 16, 2018. See ECF Nos. 12-13. Despite multiple reminders and sua sponte extensions from the Court, see ECF Nos. 14 &16, Plaintiff did not respond to the Commissioner's motion.
On April 22, 2021, the Supreme Court issued a decision in Carr v. Saul, 141 S.Ct. 1352 (2021), in which it held that applicants for Social Security disability benefits who had hearings conducted, and/or decisions issued, by an administrative law judge (“ALJ”) whose appointment was not in accordance with the Appointments Clause of the U.S. Constitution were not required to administratively exhaust their Appointments Clause challenges during proceedings before the Social Security Administration (“SSA”) before raising such challenges for the first time in federal court.
In light of the Carr decision, and to promote efficiency and judicial economy, this Court issued an order on May 10, 2021 directing the parties to meet and confer regarding whether this case should to be remanded to the Commissioner for a new hearing before a constitutionally appointed ALJ different from the ALJ who previously heard and adjudicated Plaintiff's claim for benefits. See ECF No. 18. Plaintiff was ordered to submit a letter on or before June 1, 2021 setting forth whether or not she believed the case should be remanded, and the Commissioner was authorized to submit a response, if necessary, on or before June 8, 2021. Id. Plaintiff did not submit anything in response to the May 10, 2021 order. On June 8, 2021, counsel for the Commissioner submitted a letter which reported that the parties had met and conferred earlier that day, and that counsel for the Commissioner had “explained to plaintiff the contents of the Court's [May 10, 2021] Order and that she was asked to decide whether she wanted to request remand of her case.” ECF No. 20. As set forth in the June 8 letter, “Plaintiff indicated that she took no position as to whether she wanted remand, ” and in response, Defendant at that time did “not take any position as to whether this case should be remanded pursuant to the Supreme Court's holding in Carr.” Id.
On August 9, 2021, the Court issued another order in an effort to ascertain the parties' clear preferences with respect to a potential remand on the basis of the Appointments Clause issue. See ECF No. 21. The Court subsequently received a letter from Bertha Bell, Plaintiff's mother, dated August 20, 2021. See ECF No. 22. Ms. Bell explained that Plaintiff had been hospitalized on July 23, 2021, and while she recently had been released from the hospital, Plaintiff had not yet returned to the home and Plaintiff and Ms. Bell share. Id. Nevertheless, Ms. Bell indicated that “[o]n behalf of her daughter, ” she was “asking the Court to please have [Plaintiff's] case remanded for further proceedings.” Id. In response, counsel for the Commissioner wrote to the Court on August 23, 2021 to report that the Commissioner “does not object to remand in this case in light of the holding in Carr.” ECF No. 23.
Ms. Bell's letter states that Plaintiff was discharged on “Wednesday afternoon 7/18, ” but because the letter is dated August 20, 2021, and Plaintiff apparently was admitted to the hospital on July 23, 2021, the Court interprets this portion of the letter to mean that Plaintiff was discharged on Wednesday, August 18, 2021 (i.e., 8/18).
While the Court very much appreciates Ms. Bell's effort to respond to the August 9, 2021 order on Plaintiff's behalf, because Plaintiff is proceeding pro se and Ms. Bell does not appear to be an attorney authorized to act for her daughter for purposes of this litigation, the Court cannot accept Ms. Bell's letter as a definitive indication of Plaintiff's wishes.
The underlying cases that eventually led to the issuance of the Carr decision were prompted by the Supreme Court's June 21, 2018 decision in Lucia v. SEC, 138 S.Ct. 2044 (2018), which held that ALJs within the Securities and Exchange Commission had been unconstitutionally appointed because these ALJs were “Officers of the United States, ” rather than simply employees of the federal government, and under the Appointments Clause, only the President, courts of law, or heads of departments may appoint such officers. Art. II, § 2, cl. 2; Lucia, 138 S.Ct. at 2051-54; see Carr, 141 S.Ct. at 1357. Because “[o]ther staff members, rather than the Commission proper, selected” the SEC ALJs, the Lucia Court determined that those selections violated the Appointments Clause. Lucia, 138 S.Ct. at 2051-54.
On July 16, 2018, shortly after Lucia was decided, the Acting Commissioner of the SSA attempted to “address any Appointments Clause questions involving Social Security claims” by “ratif[ying] the appointments” of all SSA ALJs and “approv[ing] those appointments as her own.” See 84 Fed. Reg. 9583 (2019). It is clear from the administrative record filed in this case that the underlying ALJ hearing was conducted, and the ALJ decision issued, prior to the July 16, 2018 ratification date. See ECF No. 9 at 29-58 (ALJ Hearing held on April 5, 2016), 10-28 (ALJ Hearing Decision issued on June 29, 2016). Consequently, the Appointments Clause issue raised in Carr is also applicable in this matter.
In Carr, the Court explained that “[l]ike the SEC ALJs at issue in Lucia, SSA ALJs had been selected by lower level staff rather than appointed by the head of the agency.” 141 S.Ct. at 1357. In the cases underlying Carr, “[t]he Commissioner did not dispute that the ALJs who decided petitioners' cases were unconstitutionally appointed, but contended instead that petitioners had forfeited their Appointments Clause challenges by failing to raise them before the agency.” Id. The Supreme Court rejected the Commissioner's argument, and held that no issueexhaustion requirement should be imposed on petitioners' Appointments Clause claims. Id. at 1362. The Court determined that “[t]aken together, the inquisitorial features of SSA ALJ proceedings, the constitutional character of petitioners' claims, and the unavailability of any remedy make clear that adversarial development of the Appointments Clause issue simply did not exist (and could not exist) in petitioners' ALJ proceedings.” Id. (quotation marks and alteration omitted). Thus, where “claimants are not required to exhaust certain issues in administrative proceedings to preserve them for judicial review, claimants who raise those issues for the first time in federal court are not untimely in doing so.” Id.
In response to this Court's orders identifying the Appointments Clause issue and giving pro se Plaintiff an opportunity to seek remand on that basis, the Court was informed by Plaintiff's mother than Plaintiff requests remand. See ECF No. 22. While this is not the clearest possible statement of Plaintiff's intention to raise an Appointments Clause challenge in this federal court proceeding, it is a sufficient indicator of the Plaintiff's potential interest in asserting this argument for the Court to apply Carr to the instant matter. This is particularly appropriate here given that the Commissioner “does not object to remand in this case in light of the holding in Carr.” ECF No. 23. Accordingly, in light of Carr, remand is warranted in this matter on the ground that the ALJ who heard and decided Plaintiff's case at the administrative review level was not properly appointed pursuant to the U.S. Constitution at the time of the hearing and decision.
While the Carr Court did not address the question of what should happen to any of the underlying matters upon remand to the SSA, the Lucia Court provided a specific remedy regarding the ALJ who should be assigned to hear a case returned to the agency based on an Appointments Clause challenge. In Lucia, the Court concluded not only that the “appropriate remedy for an adjudication tainted with an appointments violation is a new hearing before a properly appointed official, ” but also that the remanded case must be heard by an ALJ other than the one who originally presided over the matter, “even if he has by now received (or receives sometime in the future) a constitutional appointment.” Lucia, 138 S.Ct. at 2055 (quotation marks omitted). Because the prior ALJ had “already both heard Lucia's case and issued an initial decision on the merits . . . [h]e cannot be expected to consider the matter as though he had not adjudicated it before. To cure the constitutional error, another ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled.” Id.
While a number of factors make the ALJ adjudication process considerably different at the SSA than at the SEC, this principle remains the same: the ALJ who previously heard and decided Plaintiff's case and issued an initial decision on the merits cannot be expected to consider the matter as though it had not been adjudicated before, and the matter therefore should be assigned to a different, properly appointed ALJ for review upon remand. Multiple courts in this District have followed Lucia and ordered remand for a hearing before a new, properly appointed ALJ when remanding cases with similar Appointments Clause issues. See, e.g., James v. Saul, No. 17-cv-6023 (KMK) (AEK), 2021 WL 3375625, at *2 (S.D.N.Y. Apr. 29, 2021) (collecting cases), adopted sub nom. James v. Kijakazi, 2021 WL 3036077, at *2 (S.D.N.Y. July 15, 2021).
For example, at the time of the Lucia decision, the SEC had five ALJs. Lucia, 138 S.Ct. at 2049. By contrast, the SSA “employ[s] more ALJs than all other Federal agencies combined, and [SSA] ALJs issue hundreds of thousands of decisions each year, ” 84 Fed. Reg. 9583. Moreover, unlike the SEC example, there is no “Commission” at the SSA that could step in to adjudicate a case remanded for further proceedings.
In accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) and Local Rule 7.2 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, copies of these cases, which are only available by electronic database, shall be simultaneously delivered to pro se Plaintiff along with this Report and Recommendation.
Because Carr dictates that this case be remanded to the SSA for further proceedings based on the Appointments Clause issue, the Commissioner's arguments that the ALJ's decision was supported by substantial evidence, see ECF No. 13 at 16-24, need not be addressed at this time. Nothing herein is intended to foreclose the Commissioner from reasserting any of these arguments at a later juncture, if, upon remand, Plaintiff is again denied benefits.
For all of these reasons, I respectfully recommend: (i) that the Commissioner's motion for judgment on the pleadings, ECF No. 12, be terminated as moot; (ii) that this case be REMANDED to the Commissioner for further proceedings before a properly appointed ALJ; and (iii) that upon remand, this case be assigned to a different ALJ than the one who conducted the original hearing and issued the original agency decision. I further recommend that the Clerk of the Court be instructed to enter judgment in Plaintiff's favor, directing remand.