# MacFarlane v. Commissioner of Social Security

> District Court, M.D. Florida · March 25, 2020

URL: https://www.frixlaw.com/law-library/cases/10104806

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** March 25, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10104806

## How later opinions describe it (automated extraction)

- holding that a plaintiff is entitled to relief when raising a timely challenge to the constitutional validity of the appointment of an officer adjudicating the case

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION

LINDA SUE MACFARLANE,

Plaintiff,

v. Case No: 2:18-cv-724-FtM-NPM

COMMISSIONER OF SOCIAL
SECURITY,

Defendant.

OPINION AND ORDER
Plaintiff seeks judicial review of the final decision of the Commissioner of the Social
Security Administration (“SSA”) denying her claim for a period of disability and disability
insurance. The Commissioner filed the Transcript and a Supplemental Transcript of the
proceedings (hereinafter referred to as “Tr.” followed by the appropriate page number),
and the parties filed a Joint Memorandum (Doc. 26). For the reasons set out herein, the
decision of the Commissioner is AFFIRMED pursuant to § 405(g) of the codified Social
Security Act, 42 U.S.C. § 301 et seq.
I. Social Security Act Eligibility and the ALJ Decision
A. Eligibility
The law defines disability as the inability to do any substantial gainful activity by
reason of any medically determinable physical or mental impairment that can be expected
to result in death or that has lasted or can be expected to last for a continuous period of
not less than twelve months. 42 U.S.C. §§ 416(i), 423(d)(1)(A), 1382c(a)(3)(A); 20
C.F.R. §§ 404.1505, 416.905. The impairment must be severe, making the claimant
unable to do her previous work or any other substantial gainful activity that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3); 20 C.F.R. §§ 404.1505 -
404.1511, 416.905 - 416.11.
B. Procedural History
On August 7, 2016, Plaintiff filed an application for a period of disability and

disability insurance benefits. (Tr. at 76). Plaintiff asserted an onset date of April 11,
2008, but later amended it to January 1, 2009. (Id. at 363, 368). Plaintiff’s application
was denied initially on February 23, 2016, and on reconsideration on May 3, 2016. (Id.
at 76, 87). Administrative Law Judge Duane D. Young (“ALJ”) held a hearing on October
27, 2017. (Id. at 358-88). The ALJ issued an unfavorable decision on February 16,
2018. (Id. at 21-31). The ALJ found Plaintiff not to be under a disability at any time from
January 1, 2009, the alleged onset date, through December 31, 2015, the date last
insured. (Id. at 31).
On August 30, 2018, the Appeals Council denied Plaintiff’s request for review. (Id.
at 1-5). Plaintiff then filed a Complaint (Doc. 1) with this Court on October 30, 2018, and

the case is ripe for review. The parties consented to proceed before a United States
Magistrate Judge for all proceedings. (See Doc. 20).
C. Summary of the ALJ’s Decision
An ALJ must perform a five-step sequential evaluation to determine if a claimant
is disabled. Packer v. Comm’r of Soc. Sec., 542 F. App’x 890, 891 (11th Cir. 2013) (citing
Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999)). The five-step process determines
whether the claimant: (1) is performing substantial gainful activity; (2) has a severe
impairment; (3) has a severe impairment that meets or equals an impairment specifically
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) can perform his past relevant
work; and (5) can perform other work of the sort found in the national economy. Phillips
v. Barnhart, 357 F.3d 1232, 1237-40 (11th Cir. 2004). The claimant has the burden of
proof and persuasion through step four and then the burden of proof shifts to the
Commissioner at step five. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987); Hines-

Sharp v. Comm’r of Soc. Sec., 511 F. App’x 913, 915 n.2 (11th Cir. 2013).
The ALJ found that Plaintiff last met the insured status requirements on December
31, 2015. (Tr. at 25). At step one of the evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity during the period from her alleged onset date of
January 1, 2009, through her date last insured of December 31, 2015. (Id.). At step
two, the ALJ determined that Plaintiff suffered from the following severe impairments
through the date last insured: “bilateral knee osteoarthritis and mild aortic insufficiency
(20 [C.F.R. §] 404.1520(c)).” (Id.). At step three, the ALJ determined that through the
date last insured, Plaintiff did not have an impairment or combination of impairments that
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. pt.

404, subpt. P, app. 1 (20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526). (Id. at 27).
At step four, the ALJ determined that “[a]fter careful consideration of the entire
record, the undersigned finds that, through the date last insured, the claimant had the
residual functional capacity to perform sedentary work as defined in 20 [C.F.R. §]
404.1567(a).” (Id. at 28). The ALJ determined through the date last insured, Plaintiff
was capable of performing her past relevant work as a court reporter and also found that
this work did not require the performance of work-related activities precluded by Plaintiff’s
RFC. (Id. at 31).
II. Analysis
A. Standard of Review
The scope of this Court’s review is limited to determining whether the ALJ applied
the correct legal standard, McRoberts v. Bowen, 841 F.2d 1077, 1080 (11th Cir. 1988),

and whether the findings are supported by substantial evidence, Richardson v. Perales,
402 U.S. 389, 390 (1971). The Commissioner’s findings of fact are conclusive if
supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is more
than a scintilla—that is, the evidence must do more than merely create a suspicion of the
existence of a fact, and must include such relevant evidence as a reasonable person
would accept as adequate to support the conclusion. Foote v. Chater, 67 F.3d 1553,
1560 (11th Cir. 1995) (citing Walden v. Schweiker, 672 F.2d 835, 838 (11th Cir. 1982);
Richardson, 402 U.S. at 401).
When the Commissioner’s decision is supported by substantial evidence, the
district court will affirm, even if the court would have reached a contrary result as finder

of fact, and even if the court finds “the evidence preponderates against” the
Commissioner’s decision. Edwards v. Sullivan, 937 F.2d 580, 584 n.3 (11th Cir. 1991);
Barnes v. Sullivan, 932 F.2d 1356, 1358 (11th Cir. 1991). The district court must view
the evidence as a whole, taking into account evidence favorable as well as unfavorable
to the decision. Foote, 67 F.3d at 1560; accord Lowery v. Sullivan, 979 F.2d 835, 837
(11th Cir. 1992) (court must scrutinize the entire record to determine reasonableness of
factual findings).
B. Issues on Appeal
On appeal, Plaintiff raises the following five issues, as stated by the parties:
(1) Whether the ALJ properly found Plaintiff could perform her past
relevant work and, thus, properly did not proceed to step five of the
sequential evaluation process and apply the medical-vocational grids
(the “Grids”).

(2) Whether substantial evidence support the ALJ’s evaluation of
Plaintiff’s reported symptoms including fecal urgency, in assessing
her severe impairments and RFC.
(3) Whether the ALJ properly developed the record, including evidence
of Plaintiff’s alleged upper extremity impairments.
(4) Whether the ALJ properly classified Plaintiff’s past relevant work.
(5) Whether Plaintiff is entitled to remand for a new hearing and decision
by a Constitutionally-appointed ALJ or whether Plaintiff forfeited her
appointments clause challenge to the ALJ’s decision.
(Tr. at 11, 14, 19, 26, 30). Based upon a review of the issues raised, the Court addresses

these issues out of turn and begins with issues two and three and then turns to the other
arguments.
C. ALJ’s Evaluation of the Severity of Plaintiff’s Reported Symptoms
Plaintiff argues the ALJ failed to find Plaintiff’s fecal urgency a severe impairment
and to include related limitations in the RFC. (Doc. 26 at 14). Plaintiff claims the ALJ
conflated Plaintiff’s fecal incontinence impairment with Plaintiff’s fecal urgency symptoms.
(Id.). The Commissioner argues the ALJ’s step two findings are supported by substantial
evidence. (Id. at 15). The Commissioner also argues substantial evidence supports the
ALJ’s assessment of Plaintiff’s RFC and that her subjective complaints, including her
alleged fecal urgency symptoms were not support by the evidence of record. (Id. at 16).
In the Eleventh Circuit, “[n]othing requires that the ALJ must identify, at step two,
all of the impairments that should be considered severe.” Heatly v. Comm’r of Soc. Sec.,

382 F. App’x 823, 825 (11th Cir. 2010). Instead, the ALJ is only required to consider a
claimant’s impairments in combination, whether severe or not. Id. If any impairment or
combination of impairments qualifies as “severe,” step two is satisfied and the claim
advances to step three. Gray v. Comm’r of Soc. Sec., 550 F. App’x 850, 852 (11th Cir.
2013) (citing Jamison v. Bowen, 814 F.2d 585, 588 (11th Cir. 1987)). “[B]eyond the
second step, the ALJ must consider the entirety of the claimant’s limitations, regardless
of whether they are individually disabling.” Griffin v. Comm’r of Soc. Sec., 560 F. App’x
837, 841-42 (11th Cir. 2014) (internal citations omitted).
Here, the ALJ found Plaintiff suffered from the following severe impairments:
“bilateral knee osteoarthritis and mild aortic insufficient.” (Tr. at 25). Thus, the ALJ

found Plaintiff met the requirements at step two and continued with the sequential
evaluation. (Id. at 25-27).
In addition, as long as the ALJ considered Plaintiff’s severe impairments in
combination with Plaintiff’s non-severe impairments – including her alleged fecal
incontinence and fecal urgency – any potential error is harmless. See Griffin, 560 F.
App’x at 841-42.
In the decision, the ALJ discussed both Plaintiff’s fecal incontinence and fecal
urgency complaints. (Id. at 26). The ALJ noted that Plaintiff testified that she had fecal
urgency one or more times per day, up to three times per day. (Id.). The ALJ found:
The claimant argued at the hearing that this significantly
impaired her ability to perform her past work. However, the
claimant’s arguments as to severity are undermined by her
own testimony that her incontinence has improved over time
with a decreased frequency of only a few times per year. The
record reflects a specialist visit for her complaints in June of
2014 (Exhibit 3F/18). An ultrasound performed as part of the
exam found no anal sphincter defect, although the sphincter
is thin and she had lower than expected resting and squeezing
pressures (Exhibit 3F/l9). However, the treatment protocol
was conservative, recommending dietary modifications, a
fiber supplement, and a recommendation for physical therapy
to strengthen her sphincter muscles (Exhibit 3F/l9).
Further, the medical evidence of record (MER) does not
support the severity of her alleged symptoms. All that is
available in the record about her problem with urgency is her
testimony. There are no medical records supporting the
extent of problems she alleges in her testimony. There are
no medical records where she complains of urgency to
establish a history of this being an ongoing problem that would
tend to support her claim for disability. There is only one
medical record after January 1, 2009 that marginally deals
with this issue.
(Id.). The Court finds that the ALJ did not conflate Plaintiff’s allegations of fecal
incontinence with fecal urgency, but instead addressed them separately.
In addition, the ALJ noted Plaintiff failed to cite any evidence other than her own
testimony concerning fecal urgency. To establish disability based on testimony of pain
or other symptoms, a plaintiff’s showing must satisfy a two-pronged test: “(1) evidence of
an underlying medical condition; and (2) either (a) objective medical evidence confirming
the severity of the alleged pain; or (b) that the objectively determined medical condition
can reasonably be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284
F.3d 1219, 1225 (11th Cir. 2002) (citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir.
1991)).
The only tangential medical evidence of record is a visit to UCSF Medical Center
on June 4, 2014. (Id. at 328-30). Plaintiff saw Ankit Sarin, M.D. for complaints of
intermittent fecal incontinence and fecal urgency. (Id. at 328). Dr. Sarin assessed
Plaintiff with fecal incontinence and did not mention fecal urgency. (Id. at 329). Dr.

Sarin recommended dietary modifications and physical therapy to address Plaintiff’s
incontinence issues. (Id. at 329). This medical evidence does not support Plaintiff’s
subjective complaints of fecal urgency, and Plaintiff has not established that she has an
impairment that could reasonably produce her symptoms. Further, Plaintiff has not
established that she had an ongoing problem with fecal urgency from the onset date to
the date last insured. The Court finds that even if the ALJ erred in not finding Plaintiff’s
fecal urgency a severe impairment, the error is harmless because the ALJ considered all
of Plaintiff’s impairments whether severe or not in determining Plaintiff’s RFC.
Accordingly, the Court finds that the ALJ’s decision as to this issue is supported by
substantial evidence.

D. ALJ’s Development of the Record as to Plaintiff’s Alleged Upper
Extremity Impairment
Plaintiff argues the ALJ failed to develop the record concerning Plaintiff’s left upper
extremity impairments and erred in failing to order a consultative examination or otherwise
develop the record. (Doc. 26 at 23). The Commissioner argues the ALJ in this case
was not required to further develop the record before deciding that Plaintiff was not
disabled. (Id.). The Commissioner contends Plaintiff provided no evidence that she
received treatment for any condition related to her left arm and shoulder during the
relevant time period. (Id. at 24-25).
A plaintiff bears the burden of proving she is disabled and is responsible “for
producing evidence in support of h[er] claim.” Ellison v. Barnhart, 355 F.3d 1272, 1275
(11th Cir. 2003) (citing 20 C.F.R. § 416.912(a)). However, an ALJ “has a basic duty to
develop a full and fair record.” Id. (citing 20 C.F.R. § 416.912(d)).1 This duty applies
whether or not the claimant is represented by counsel. Brown v. Shalala, 44 F.3d 931,

934 (11th Cir. 1995).
An ALJ is not required to order a consultative examination “as long as the record
contains sufficient evidence for the administrative law judge to make an informed
decision.” Ingram v. Comm’r of Soc. Sec., 496 F.3d 1253, 1269 (11th Cir. 2007). In
addition, a plaintiff must show prejudice before a court will find that a plaintiff’s “‘right to
due process has been violated to such a degree that the case must be remanded to the
Secretary for further development of the record.’” Brown, 44 F.3d at 934-35 (quoting
Kelley v. Heckler, 761 F.2d 1538, 1540 (11th Cir. 1985)). To determine if prejudice
exists, the Court must assess whether the record contains evidentiary gaps that result in
unfairness or clear prejudice. Id. at 935 (citing Smith v. Schweiker, 677 F.2d 826, 830

(11th Cir. 1982)).
Plaintiff cites to one medical record to support her argument. (Doc. 26 at 19).
Plaintiff visited Contra Costa Cardiology Medical Group on July 7, 2008. (Tr. at 283). In
obtaining a medical history from Plaintiff, Agustin J. Argenal, M.D. reported that Plaintiff
“[h]as had recurrent [left] arm + shoulder pain. Needs M.R.I. Unable to do job as court
reporter.” (Id.). Plaintiff characterized this medical record as Dr. Argenal having made

1 See 20 C.F.R. § 404.1545(a)(3) (“before we make a determination that you are not
disabled, we are responsible for developing your complete medical history, including
arranging for a consultative examination(s) if necessary, and making every reasonable
effort to help you get medical reports from your own medical sources.”).
this statement. (Doc. 26 at 19). But instead, Dr. Argenal reported this information as
told to him by Plaintiff, and this record alone is not substantial evidence to support this
alleged limitation. And nevertheless, the ALJ took note of Plaintiff’s claim that she
suffered from neck and shoulder pain with left arm numbness. (Tr. at 26). And the ALJ

noted Plaintiff produced no objective medical evidence during the relevant time period to
support her allegations. (Id.). The ALJ reasoned:
The claimant alleged she had “repetitive stress syndrome”
and “many EEGs and tests.” However, the claimant could
provide no objective medical evidence to support her
allegations. A review of the MER failed to find evidence to
support her subjective complaints. There is no etiology for
her alleged condition in the evidence submitted for this claim,
with the claimant failing to show any medically acceptable
evidence including signs, symptoms, and laboratory findings
to support the diagnosis. The claimant raised her subjective
complaints to her cardiologist in July of 2008 and again in
2009. However, the cardiologist merely recited in the record
her statements and confined treatment to her cardiac issues.
There was no diagnosis or treatment performed for her
alleged symptoms (Exhibit 2F/21-22).
(Id.). Plaintiff has not demonstrated that there is a gap in the medical evidence of record
that warrants a consultative examination. Plaintiff has not indicated that there are
medical records during the relevant time period that support her claim of limitations
concerning her neck and left upper extremity. “Therefore, it is pure speculation that a
consultative examination would support the plaintiff’s allegations of disability.” Correa v.
Colvin, No. 8:15-CV-461-T-TGW, 2016 WL 7334642, at *5 (M.D. Fla. Mar. 18, 2016). In
addition, at the hearing, Plaintiff’s representative stated there are no other medical
records or documents that the ALJ would need to render a decision. (Id. at 362). The
Court finds the ALJ fully developed the record and was not required to obtain a
consultative examination. Further, the Court finds the ALJ’s decision is supported by
substantial evidence.
E. Past Relevant Work
Plaintiff argues the requirements of the job of court reporter exceed Plaintiff’s

abilities due to her upper-extremity limitations. (Doc. 26 at 11). Plaintiff also points to
the vocational expert’s testimony that an individual who needs to take unscheduled
breaks of 5 to 7 minutes, one to three times per day, could not work as a court reporter.
(Id. a 12). Based on these limitations, Plaintiff contends she is unable to perform her
past relevant work as a court reporter. (Id.). The Commissioner argues Plaintiff failed
to show that she has additional limitations not included in her RFC. (Id. at 13). In
addition, the Commissioner argues that based on Plaintiff’s RFC, the vocational expert
testified that Plaintiff is able to perform her past relevant work as normally performed at
the sedentary-exertional level. (Id.).
“The residual functional capacity is an assessment, based upon all of the relevant

evidence, of a claimant’s remaining ability to do work despite [her] impairments.” Lewis
v. Callahan, 125 F.3d 1436, 1440 (11th Cir. 1997). In other words, an individual’s RFC
is her ability to do physical and mental work activities on a sustained basis despite
limitations secondary to her established impairments. Delker v. Comm’r of Soc. Sec.,
658 F. Supp. 2d 1340, 1364 (M.D. Fla. 2009). In determining a claimant’s RFC, the ALJ
must consider all the relevant evidence of record. Barrio v. Comm’r of Soc. Sec., 394 F.
App’x 635, 637 (11th Cir. 2010). However, the Eleventh Circuit has consistently held
that “the claimant bears the burden of proving that he is disabled, and consequently, he
is responsible for producing evidence in support of his claim.” Ellison v. Barnhart, 355
F.3d 1272, 1276 (11th Cir. 2003).
The Court found in the prior sections that the ALJ’s determination of Plaintiff’s RFC
is supported by substantial evidence. The RFC does not include additional limitations

for the left upper extremity or require breaks every 5 to 7 minutes, one to three times per
day. When the ALJ presented a hypothetical to the vocational expert that included the
limitation to sedentary work activity, the vocational expert testified that Plaintiff is able to
perform her past relevant work as a court reporter with this limitation as it is generally
performed. (Id. at 381-82). Even if the ALJ added additional limitations of avoiding
kneeling, crouching, crawling, climbing, and push/pull with the bilateral lower extremities,
the vocational expert testified that Plaintiff was capable of performing her past relevant
work. (Id. at 382).
The Court finds the ALJ’s determination that Plaintiff is capable of performing her
past relevant work as a court reporter is supported by substantial evidence.

F. Classification of Plaintiff’s Past Relevant Work
Plaintiff argues her past relevant work is a composite job of court reporter and
bindery operator. (Doc. 26 at 26). Plaintiff claims that in addition to her position as a
court reporter, she also described her job duties as including printing, binding, and
transporting work to the appeals office. (Id.). The Commissioner argues that although
Plaintiff may have performed a few tasks that are not included in the DOT job description,
she could still perform the job of court reporter as generally performed in the national
economy. (Id. at 29).
At the fourth step of the sequential evaluation, the burden lies with Plaintiff to show
that she cannot return to her past relevant work as she actually performed it or as it is
performed in the general economy. Levie v. Comm’r of Soc. Sec., 514 F. App’x 829, 830
(11th Cir. 2013); Battle v. Astrue, 243 F. App’x 514, 522 (11th Cir. 2007); Waldrop v.

Comm’r of Soc. Sec., 379 F. App’x 948, 953 (11th Cir. 2010). Even though the burden
lies with Plaintiff, the ALJ must consider all duties of Plaintiff’s past relevant work and
evaluate Plaintiff’s ability to perform that work in spite of her impairments. Levie, 514 F.
App’x at 830.
The analysis differs when a plaintiff’s past relevant work qualifies as a composite
job. Smith v. Comm’r of Soc. Sec., 743 F. App’x 951, 954 (11th Cir. 2018). A composite
job is one that has “‘significant elements of two or more occupations and, as such, [has]
no counterpart in the DOT.’” Id. (quoting SSR 82-61 at *2). For past relevant work to
qualify as a composite job, the main duties of the past relevant work must include multiple
DOT occupations as described by the plaintiff. Id. (citing Program Operations Manual

System (“POMS”) DI 25005.020). “When the claimant’s previous work qualifies as a
composite job, the ALJ must consider the particular facts of the individual case to consider
whether the claimant can perform [her] previous work as actually performed.” Id. (citing
SSR 82-61 at *2).
In the instant case, to show that Plaintiff’s past relevant was a composite job of
both a court reporter and a bindery operator, Plaintiff had to establish that printing,
binding, and transporting were one of the main duties as a court reporter. Plaintiff’s
representative stated at the hearing that Plaintiff’s “entire past work history has been as
a court reporter.” (Tr. at 362). Plaintiff described her job as spending “95% of my time
in criminal court and I took the proceedings and transcribed them into a booklet form and
filed them with the State.” (Id. at 369). In her work history report, Plaintiff stated that
she took a verbatim record of court proceedings and transcribed them for appeals. (Id.
at 196-97). She also stated that she printed, bound, and transported the transcripts.

(Id.). Plaintiff testified she had no other work activity after the year 2000, other than court
reporting or doing her own transcriptions. (Id. at 370). Plaintiff did not introduce any
evidence as to how much time she spent doing the printing, binding, and transporting or
establish that these duties were a main duty of her job. The Court finds Plaintiff failed to
meet her burden of showing that her past relevant work as a court reporter was a
composite position. The Court also finds the ALJ’s decision that Plaintiff’s past relevant
work was as a court reporter is supported by substantial evidence.
G. Appointments Clause Challenge
Plaintiff argues that at the time of the hearing and on the date of the decision, the
ALJ was not properly appointed under the Constitution’s Appointments Clause and,

therefore, had no authority to render a decision in this matter, citing Lucia v. S.E.C., 138
S. Ct. 2044, 2055 (2018) (holding that a plaintiff is entitled to relief when raising a timely
challenge to the constitutional validity of the appointment of an officer adjudicating the
case) (emphasis added). (Doc. 26 at 30). Plaintiff further argues that the failure to raise
this issue before the ALJ and the Appeals Council is not fatal because exhaustion of this
issue is not required. (Id. at 32-33). The Commissioner disagrees. The Commissioner
argues that at no point in the administrative process did Plaintiff ever present an argument
that ALJs are inferior officers under the Appointments Clause. (Id. at 34-35). The
Commissioner claims that Plaintiff forfeited her right to raise this issue due to her failure
to assert this challenge before the agency at any point in the administrative process. (Id.
at 35).
This Court has repeatedly rejected the Appointments Clause argument presented
here. Huebert v. Comm’r of Soc. Sec., No. 2:18-CV-761-FTM-MAP, 2019 WL 5206065,

*5 (M.D. Fla. Oct. 16, 2019); Miaolino v. Com’r of Soc. Sec., No. 2:18-CV-494-FTM-UAM,
2019 WL 2724020, *6 (M.D. Fla. July 1, 2019); Valle-Roman v. Comm’r of Soc. Sec., No.
6:18-CV-1158-ORL-TBS, 2019 WL 1281171, *2 (M.D. Fla. Mar. 20, 2019). In a nutshell,
Lucia’s holding requires a “timely challenge to the constitutional validity of [an]
appointment” and having failed to timely raise this argument during the administrative
process, Plaintiff waived the issue. Huebert, 2019 WL 5206065, at *5 (citing United
States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (“holding that parties may
not wait until court to raise a statutory ‘defect in the … appointment’ of the official who
issued agency’s initial decision”); Elgin v. Dep’t of Treasury, 567 U.S. 1, 22, (2012)
(“plaintiff required to exhaust constitutional claim to administrative agency before seeking

review in federal court”)).
Plaintiff attempts to overcome the failure to exhaust this issue by relying on Sims
v. Apfel, 530 U.S. 103, 108-109 (2000). (Doc. 26 at 32). As explained by other courts,
Sims concerns only whether a claimant must present all relevant issues to the Appeals
Council to preserve them for judicial review, and the Supreme Court specifically stated
that the issue of whether a claimant must exhaust an issue before the ALJ was not before
the Court. Id. at 2083; see also Huebert, 2019 WL 5206065, at *5 (finding same);
Miaolino, 2019 WL 2724020, at *6-7 (finding same). Because the issue here is whether
Plaintiff timely challenged the appointment issue for the first time before this Court, Sims
is not applicable. Huebert, 2019 WL 5206065, at “5.
In sum, the Supreme Court in Lucia “did not make a blanket finding that all ALJs
are subject to the Appointments Clause, but only that SEC ALJs were so subject.” /d.
For these reasons, the Court finds Plaintiff's argument lacks merit.
lll. Conclusion
Upon consideration of the submissions of the parties and the administrative record,
the Court finds substantial evidence supports the ALJ’s decision and there was either no
error or no harmful error in the ALJ’s application of the correct legal standard.
Accordingly, it is hereby ORDERED:
The decision of the Commissioner is hereby AFFIRMED pursuant to sentence four
of 42 U.S.C. § 405(g). The Clerk of Court is directed to enter judgment accordingly,
terminate any pending motions and deadlines, and close the case.
DONE and ORDERED in Fort Myers, Florida on March 25, 2020.

Lida Ee La ell.
NICHOLAS P. MIZEL
UNITED STATES MAGISTRATE JUDGE

Copies furnished to:
Counsel of Record
Unrepresented Parties

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10104806. Public record. Not legal advice.