United States District Court, S.D. Alabama, Southern Division
F. BIVINS UNITED STATES MAGISTRATE JUDGE.
action is before the Court on Plaintiff George Adam
Newbill's (hereinafter “Plaintiff”) Motion
for Order of Remand, the Defendant Commissioner of Social
Security (hereinafter “the Commissioner”)'s
response in opposition to the motion, and Plaintiff's
response. (Docs. 22, 26, 27). Upon consideration, the Court
finds that Plaintiff's Motion for Order of Remand (Doc.
22) is due to be DENIED.
protectively filed his application for supplemental security
income benefits on June 16, 2014, alleging disability
beginning December 1, 2013, based on hepatitis C,
tonsillitis, stomach acid, weight loss, stomach ulcers, and
seizures. (Doc. 12 at 137, 139, 167). Plaintiff's
application was denied by notice dated October 3, 2014.
(Id. at 84-88). Upon timely request, he was granted
an administrative hearing before Administrative Law Judge
Laura Robinson (hereinafter “ALJ”) on February
29, 2016. (Id. at 52). Plaintiff attended the
hearing with his counsel and provided testimony related to
his claims. (Id. at 54-63). On May 26, 2016, the ALJ
issued an unfavorable decision finding that Plaintiff is not
disabled. (Id. at 18-35). A second decision
unfavorable to Plaintiff was issued by the ALJ on August 24,
2016.(See id. at 5; Doc. 13 at 1). The
Appeals Council denied Plaintiff's request for review on
July 15, 2017. (Doc. 12 at 5-10). Therefore, the ALJ's
decision dated August 24, 2016 became the final decision of
the Commissioner. (Id. at 5).
exhausted his administrative remedies, Plaintiff timely filed
the present civil action. (Doc. 1). After the parties filed
their respective Social Security briefs, Plaintiff filed the
instant Motion for Order of Remand on August 16, 2018. (Doc.
22). Plaintiff argues that his case must be remanded to the
Commissioner for a new hearing because the ALJ who issued an
unfavorable decision on his applications for Social Security
benefits should be considered an “Officer of the United
States” who was not properly appointed in accordance
with the Appointments Clause of Article II, Section 2 of the
United States constitution, based on the reasoning in the
United States Supreme Court's recent decision in
Lucia v. S.E.C., 138 S.Ct. 2044 (June 21, 2018). In
Lucia, the Supreme Court held that ALJs for the
Securities and Exchange Commission (“SEC”) are
“Officers of the United States, ” and are
therefore subject to the Appointments Clause. 138 S.Ct. at
2055. Plaintiff contends that the same reasoning applies to
ALJs who adjudicate Social Security claims. (Doc. 22 at 1-2).
response, the Commissioner expressly declines to address
whether Social Security ALJs are “Officers of the
United States” subject to the Appointments Clause.
(Doc. 26 at 2 n.1). Additionally, the Commissioner makes no
argument that the ALJ who decided Plaintiff's case was
constitutionally appointed at the time of Plaintiff's
administrative hearing. Instead, the Commissioner argues that
Plaintiff has forfeited his Appointments Clause challenge
because he failed to raise the issue at the administrative
level. For the reasons set forth below, the Court agrees with
Appointments Clause provides that the President:
Shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint Ambassadors, other public Ministers and
Consuls, Judges of the [S]upreme Court, and all other
Officers of the United States, whose Appointments are not
herein otherwise provided for, and which shall be established
by Law: but the Congress may by Law vest the Appointment of
such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of
U.S. Const. art. II, § 2, cl. 2.
who makes a timely challenge to the constitutional validity
of the appointment of an officer who adjudicates his case is
entitled to a decision on the merits of the question and
whatever relief may be appropriate if a violation indeed
occurred.” Ryder v. United States, 515 U.S.
177, 182-83 (1995). Accord Lucia, 138 S.Ct. at 2055
(“This Court has held that ‘one 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, 515 U.S.
at 182-83). In Ryder, the petitioner was an enlisted
Coast Guard member challenging his conviction by
court-martial. Ryder, 515 U.S. at 179. The
petitioner appealed his conviction to the Coast Guard Court
of Military Review, and raised for the first time, before
that Court, an Appointments Clause challenge to the
composition of that court. Id. After the Court of
Military Review rejected his Appointments Clause challenge
and largely affirmed his conviction, the petitioner appealed
to the United States Court of Military Appeals, which agreed
that two of the three judges on the Court of Military Review
panel had been appointed in violation of the Appointments
Clause, but nevertheless affirmed the petitioner's
conviction on the ground that the actions of these judges
were valid de facto. Id. at 179-80.
certiorari review, the Supreme Court reversed the Court of
Military Appeals, and held that it had “erred in
according de facto validity to the actions of the
civilian judges of the Coast Guard Court of Military
Review.” Id. at 188. The Court concluded that
the petitioner had timely raised his Appointment Clause
challenge, and was thus entitled to a hearing before a
properly appointed panel of the Court of Military Review.
Id. The Court emphasized that the petitioner
“challenged the composition of the Coast Guard Court of
Military Review while his case was pending before that
court on direct review” and “raised his
objection to the judges' titles before those very judges
and prior to their action on his case.” Id. at
182. (emphasis added)
involved a situation more analogous to Social Security
disability adjudications, where an ALJ issues a decision
which is then subject to review by a higher administrative
body prior to judicial review. In Lucia, the Court,
citing Ryder's “timely challenge”
holding, held that the petitioner had made such a timely
challenge to the appointment of the SEC ALJ who heard his
case when “[h]e contested the validity of [the
ALJ's] appointment before the Commission, and continued
pressing that claim in the Court of Appeals and [the Supreme]
Court[, ]” Lucia, 138 S.Ct. at 2055, even
though the petitioner had not raised the challenge to the ALJ
himself. See id. at 2050 (“On appeal to the
SEC, Lucia argued that the administrative proceeding was
invalid because [the ALJ] had not been constitutionally
unifying feature of both Ryder and Lucia
appears to be that in both cases, each petitioner first
raised his Appointment Clause challenge to the entity
utilizing the deficiently appointed officials. Although the
Eleventh Circuit has yet to apply Lucia to a social
security case, the majority of courts within this circuit
have interpreted the Supreme Court's holding to mean
that, in the context of social security disability
proceedings, an Appointments Clause challenge must be raised
“before the ALJ's decision becomes final, ”
at the administrative level. Gary v. Comm'r of Soc.
Sec., 2018 U.S. Dist. LEXIS 222662, at *18-19 (M.D. Fla.
Nov. 30, 2018) (citing Stearns v. Berryhill, 2018
U.S. Dist. LEXIS 156758, 2018 WL 4380984, at *5 (N.D. Iowa
Sept. 14, 2018) and Page v. Comm'r Soc. Sec.,
344 F.Supp.3d 902, 2018 WL 5668850, at *3 (E.D. Mich. 2018)
(“As of this date, the courts that have considered the
issue have unanimously rejected attacks on the validity of
the ALJ's appointment under Lucia brought under
42 U.S.C. 405(g) where the claimant failed to make a
constitutional challenge at the administrative
level.”)). Any challenge to the constitutional validity
of the ALJ's appointment that was not first raised at the
administrative level is rejected as untimely. Gary,
2018 U.S. Dist. LEXIS 222662, at *19; Montgomery v.
Berryhill, 2018 U.S. Dist. LEXIS 210738, at *1-2 (S.D.
Ala. Dec. 14, 2018) (citing Abbington v. Berryhill,
2018 U.S. Dist. LEXIS 210000, 2018 WL 6571208, at *18 (S.D.
Ala. Dec. 13, 2018) (“[T]he undersigned finds that
Abbington has forfeited her Appointments Clause challenge to
the ALJ who heard her case by failing to raise that challenge
before the Social Security Administration, and Abbington has
not shown sufficient cause to excuse the
forfeiture.”)); Wilson v. Berryhill, 2018 U.S.
Dist. LEXIS 210737, at *1-2 (S.D. Ala. Dec. ...