Taylor v. Saul

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF NORTH CAROLINA

CHARLOTTE DIVISION

CIVIL ACTION NO. 3:18-CV-00553-KDB

D AWN M. TAYLOR,

Plaintiff,

v. ORDER

ANDREW SAUL, Commissioner,

Social Security Administration,1

Defendant.

THIS MATTER is before the Court on Plaintiff Dawn M. Taylor’s Motion for Summary

Judgment (Doc. No. 13) and Defendant’s Motion for Summary Judgment (Doc. No. 17), as well

as the parties’ briefs and exhibits. Plaintiff, through counsel, seeks judicial review of an

unfavorable administrative decision on her application for a period of disability and disability

insurance benefits.

Having reviewed and considered the written arguments, administrative record, and

applicable authority, and for the reasons set forth below, the Court finds that Defendant’s decision

to deny Plaintiff’s Social Security benefits requires a remand to gather additional evidence and

further explain the evidence in support of the ALJ’s conclusion that the claimant did not establish

a period of disability or entitlement to disability insurance benefits. Accordingly, the Court will

GRANT Plaintiff’s Motion for Summary Judgment, DENY Defendant’s Motion for Summary

Judgement, REVERSE the Commissioner’s decision, and REMAND this matter for further

proceedings consistent with this Order.

1 Andrew M. Saul is now the Commissioner of Social Security and is substituted as a party pursuant

to Fed. R. Civ. P. 25(d).

I. BACKGROUND

Taylor filed a Title II application for a period of disability and disability insurance benefits

on July 10, 2014, alleging disability beginning August 14, 2013. Her claim was denied at the initial

level on January 28, 2015 and upon reconsideration on April 6, 2015. (Tr. 59, 77). She had a hearing

before ALJ Susan Poulos (the “ALJ”) who denied the application in a decision on June 19, 2017.

(Tr. 80-97). Taylor then filed for a review of the ALJ’s decision with the Appeals Council, which

denied review on May 18, 2018. (Tr. 104). The ALJ’s decision stands as the final decision of the

Commissioner, and Taylor has now requested judicial review in this Court pursuant to 42 U.S.C. §

405(g).

For the reasons stated below, the Court remands the decision of the Commissioner for

further proceedings.

II. THE COMMISSIONER’S DECISION

The ALJ used the required five-step sequential evaluation process established by the Social

Security Administration to determine if Taylor had a “disability” under the law during the relevant

period.2 The Fourth Circuit has described the five-steps as follows:

[The ALJ] asks whether the claimant: (1) worked during the purported period of disability;

(2) has an impairment that is appropriately severe and meets the duration requirement; (3)

has an impairment that meets or equals the requirements of a listed impairment and meets

the duration requirement; (4) can return to her past relevant work; and (5) if not, can

perform any other work in the national economy.

Radford v. Colvin, 734 F.3d 288, 290-91 (4th Cir. 2013) (paraphrasing 20 C.F.R. §§

404.1520(a)(4), 416.920(a)(4)). The claimant has the burden of production and proof in the first

2 For the purposes of title II of the Act, “disability” means “the inability to do any substantial

gainful activity [SGA] by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 20 C.F.R. § 404.1505(a).

four steps. Pearson v. Colvin, 810 F.3d 204, 207 (4th Cir. 2015). However, at the fifth step, the

Commissioner must prove that the claimant is able to perform other work in the national economy

despite her limitations. See id.; see also 20 C.F.R. § 416.960(c)(2) (explaining that the

Commissioner has the burden to prove at the fifth step “that other work exists in significant

numbers in the national economy that [the claimant] can do”).

The ALJ found at step one of the sequential evaluation that Plaintiff had not engaged in

SGA during the period from August 14, 2013 through the date of her decision.3 (Tr. 16). At step

two, the ALJ determined that Plaintiff had two severe, medically determinable impairments,

specifically “fibromyalgia and osteoarthritis.” (Tr. 85). With respect to fibromyalgia, the ALJ

wrote:

The undersigned has reviewed the claimant's fibromyalgia in accordance with SSR

12-2p. After carefully reviewing the treatment notes, the undersigned finds that this

is a severe medically determinable impairment. Dr. Lapp described clinical findings

which meet the American College of Rheumatology criteria for fibromyalgia. The

claimant has a history of widespread pain. Her examinations showed that she had

at least 11 positive tender points on both sides of the body and above and below the

waist.

Id.

The ALJ then found at step three that Plaintiff did not have any impairment or combination

of impairments that met or medically equaled the severity of one of the conditions in the Listing

of Impairments at 20 C.F.R. Pt. 404, Subpt. P, App. 1 (Tr. 88). In so concluding, the ALJ

specifically found that Taylor’s impairments did not meet the requirements of Listing 1.02

(involving disorders of muscles and ligaments) or 14.06 (involving undifferentiated and mixed

connective tissue disease).

3 Plaintiff remained insured through December 31, 2018.

After step three, the ALJ determined Taylor’s residual functional capacity (“RFC”) and

discussed why she came to that conclusion. (Tr. 89-96). The ALJ found that Taylor had the RFC

to perform light work, as defined in 20 C.F.R. §§ 404.1567(b), as follows:

After careful consideration of the entire record, the undersigned finds that the

claimant has the residual functional capacity to perform light work (lift and carry

20 pounds occasionally and 10 pounds frequently, as defined in 20 CFR

404.1567(b)), except that she can only occasionally climb ladders, ropes or

scaffolds. She can frequently climb ramps and stairs. She can occasionally stoop,

kneel, crouch and crawl. She should have a sit/stand option with the ability to

alternate between the two positions approximately twice per hour without losing

productivity.

(Tr. 89).

The ALJ then found at step four that Taylor is unable to perform her past relevant work as

a rural mail carrier or mail carrier supervisor. (Tr. 96). Finally, at step five, the ALJ found that

Plaintiff — given her age (49 at the alleged date of disability onset), high school education, work

experience and RFC — could perform jobs that existed in significant numbers in the national

economy, such as a “marker,” “information clerk,” and “toll collector.” (Tr. 97). Accordingly, the

ALJ concluded that Taylor “has not been under a disability, as defined in the Social Security Act,

at any time from August 14, 2013, the alleged onset date, through [June 19, 2017, the date of the

ALJ’s decision].” (Tr. 97).

III. LEGAL STANDARD

The Social Security Act, 42 U.S.C. § 405(g) and § 1383(c)(3), limits this Court’s review

of a final decision of the Commissioner to: (1) whether substantial evidence supports the

Commissioner’s decision, Richardson v. Perales, 402 U.S. 389, 390, 401 (1971); and (2) whether

the Commissioner applied the correct legal standards. Hays v. Sullivan, 907 F.2d 1453, 1456 (4th

Cir. 1990); see also Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1992) (per curiam). The District

Court does not review a final decision of the Commissioner de novo. Smith v. Schweiker, 795 F.2d

343, 345 (4th Cir. 1986); King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979); Blalock v.

Richardson, 483 F.2d 773, 775 (4th Cir. 1972).

The Social Security Act provides that “[t]he findings of the [Commissioner] as to any fact,

if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). In Smith v. Heckler,

782 F.2d 1176, 1179 (4th Cir. 1986) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)),

the Fourth Circuit defined “substantial evidence” thus:

Substantial evidence has been defined as being “more than a scintilla and do[ing]

more than creat[ing] a suspicion of the existence of a fact to be established. It means

such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.

See also Seacrist v. Weinberger, 538 F.2d 1054, 1056-57 (4th Cir. 1976) (“We note that it is the

responsibility of the [Commissioner] and not the courts to reconcile inconsistencies in the medical

evidence.”).

The Fourth Circuit has long emphasized that it is not for a reviewing court to weigh the

evidence again, nor to substitute its judgment for that of the Commissioner, assuming the

Commissioner’s final decision is supported by substantial evidence. Hays, 907 F.2d at 1456; see

also Smith, 795 F.2d at 345; Blalock, 483 F.2d at 775. Indeed, this is true even if the reviewing

court disagrees with the outcome—so long as there is “substantial evidence” in the record to

support the final decision below. Lester v. Schweiker, 683 F.2d 838, 841 (4th Cir. 1982).

IV. DISCUSSION

Taylor raises four arguments in requesting that this Court remand her claim for further

consideration. First, she argues that the ALJ did not give sufficient weight to the opinions of her

treating physicians. Second and third, she alleges that the ALJ did not accurately assess the

limitations imposed by her impairments and thus the RFC does not accurately reflect those

limitations. And, finally, Taylor claims that the ALJ’s decision cannot stand because the ALJ was

improperly appointed in violation of the “Appointments Clause” of the United States Constitution.

A. The Opinions of the Treating Physicians, Plaintiff’s Limitations and

the RFC

Taylor argues that the ALJ erred in giving only “partial weight” to the opinions of her

treating physicians Dr. Garcia, Dr. Alexanian and Dr. Talip. Also, she argues that the ALJ’s

assessment of the severity of her symptoms and limitations is not properly supported and the RFC

fails to reflect the full scope of the limitations imposed by her impairments.

1. The Opinions of the Treating Physicians

Because Taylor’s claim was filed prior to March 27, 2017, the treating physician rule

applies. Under both the Commissioner’s Regulations and Fourth Circuit law, a treating physician’s

opinion is entitled to controlling weight “if it is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in

the record.” Mastro v. Apfel, 270 F.3d 171, 178 (4th Cir. 2001); see 20 C.F.R. § 404.1527(d)(2)

(2002). Therefore, “if a physician’s opinion is not supported by clinical evidence or if it is

inconsistent with other substantial evidence, it should be accorded significantly less weight.”

Mastro, 270 F.3d at 178 (citing Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996)).

After evaluating Dr. Garcia, Dr. Alexanian and Dr. Talip’s opinions and the record, the

ALJ accorded the opinions only partial weight as follows:

The undersigned only assigns partial weight to Dr. Garcia's responses on the form

because his findings are not consistent with his own medical records, he is not a

specialist, and his findings were so extreme as to appear implausible, especially

because they were inconsistent with the claimant's admission of her abilities just a

few months earlier that she could lift up to 20 pounds….

…

Dr. Alexanian, of the same family medicine practice, completed a medical source

statement provided by the claimant's attorney in April 2015 as well…. He qualified

his responses at the end by stating that the above responses were answered based

on input from the claimant and therefore they were subjective. He stated that for a

more objective measurement, he recommended a formal functional evaluation. The

claimant never had one. Dr. Alexanian's responses indicated the claimant

subjectively stated could frequently lift and carry up to 5 pounds and occasionally

up to 10 pounds but never more than that. The undersigned notes that this is half

the amount she told Dr. Huynh she was capable of lifting just three months prior,

and therefore the undersigned does not find these responses persuasive or very

reliable. Dr. Alexanian completed the source statement similar to how Dr. Garcia

did and continued to qualify his responses stating they were based on the claimant's

report (Exhibit 19F). For the same reasons given above for Dr. Garcia's assessment,

and especially for the reason he qualified the statement as being reflective of the

claimant's subjective reports, the undersigned gives only partial weight to his

opinion.

…

Exhibit 23F contains another form provided by the claimant's attorney for Dr. Talip

to fill out. It states her most recent exam was June 2, 2016 and that he saw her every

3 months, but again, this is not corroborated by the evidence submitted by the

claimant and her attorney. The claimant's attorney pre-filled in the date 8/14/2013

as the date the claimant's symptoms started, yet Dr. Talip did not see the claimant

before 2015. He stated that the claimant had at least 11 positive tender points upon

physical examination and listed the pertinent areas. He also indicated the claimant

had a slew of symptoms, signs or co-occurring conditions, which were not reflected

in his treatment notes in review of systems. He indicated the claimant could not lift

or carry any weight, not even 0 to 5 pounds, and other extremely restrictive findings

(Exhibit 23F). The undersigned has assigned partial weight to these findings

because they are not consistent with Dr. Talip's medical records, which, as

discussed above, only objectively documented "diffuse tender points," rather than

the specific points he indicated on the questionnaire. Furthermore, his findings

about her functional abilities were not consistent with her testimony about her

admitted abilities. Generally, it is not clear how Dr. Talip came to his conclusion

based on the 3 visits he saw the claimant for, the few trials and errors in medications

tried by both him and other physicians, and the claimant's admitted daily activities.

(Tr. 93-94).

The Court finds that the ALJ’s decision to accord only “partial weight” to the opinions of

these physicians is supported by substantial evidence, including the inconsistent and/or

contradictory findings discussed above. However, each of Taylor’s long-term treating physicians,

Drs. Garcia and Alexanian, and Dr. Talip, her treating rheumatologist, imposed limitations that

would preclude competitive work, concluding that as a result of her pain, fatigue and other

symptoms she was unable to sit for an hour and stand and/or walk for an hour in an eight-hour

work day; would need to avoid continuous sitting; had significant limitations in her ability to lift,

carry, grasp, handle, and reach; would frequently have pain, fatigue, or other symptoms severe

enough to interfere with her attention and concentration; would need to take unscheduled breaks;

and would be absent more than three times a month. (Tr. 560-564, 565-571 and 604-608).

The ALJ is solely responsible for assessing a claimant’s RFC. 20 C.F.R. §§ 404.1546(c)

& 416.946(c). However, in making that assessment, the ALJ must consider the functional

limitations resulting from the claimant’s medically determinable impairments. Social Security

Ruling (“SSR”) 96-8p. The ALJ must also “include a narrative discussion describing how the

evidence supports each conclusion, citing specific medical facts . . . and nonmedical evidence.”

Id. Although the ALJ properly explained why she gave the treating physicians’ opinions only

partial weight, she did not explain at all how the limitations reflected in their opinions that she did

credit were reflected in the RFC. See Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (“remand

may be appropriate . . . where an ALJ fails to assess a claimant’s capacity to perform relevant

functions, despite contradictory evidence in the record, or where other inadequacies in the ALJ’s

analysis frustrate meaningful review,” (quoting Cichocki v. Astrue, 729 F.3d 172, 177 (2d Cir.

2013)).

In other words, to provide an RFC that can be meaningfully reviewed the ALJ must do

more that simply point out “inconsistencies” in the treating physician’s opinions. She must explain

how her conclusion that the claimant can in fact do sustained “light work” sufficient to regularly

work in a job over an eight hour day follows from the portion of the medical and testimonial

evidence to which she gave weight or that she found to be “consistent” or credible. For example,

while the ALJ persuasively noted that the doctors’ limitation on carrying or lifting weight in any

amount was inconsistent with Taylor’s testimony that she had lifted up to 20 pounds (“but would

pay for it”), the ALJ did not discuss how the credible medical evidence supports a conclusion that

Taylor could “occasionally” – i.e., up to one-third of an eight hour day – lift and carry 20 pounds

or “frequently” lift and carry 10 pounds.

Therefore, the Court concludes that while the ALJ’s decision to give partial weight to the

opinions of the treating physicians should be affirmed, the decision must be remanded for the ALJ

to further explain how the partial weight given to the limitations in those opinions is reflected in

the RFC.

2. Plaintiff’s Limitations and the RFC

Plaintiff has the burden of establishing her RFC by showing how her impairments affect

her functioning. See 20 C.F.R. §§404.1512(c) & 416.912(c); see also, e.g., Stormo v. Barnhart,

377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion . . . to demonstrate RFC remains on

the claimant, even when the burden of production shifts to the Commissioner at step five.”);

Plummer v. Astrue, No. 5:11-cv-06-RLV-DSC, 2011 WL 7938431, at *5 (W.D.N.C. Sept. 26,

2011) (Memorandum and Recommendation) (“The claimant bears the burden of providing

evidence establishing the degree to which her impairments limit her RFC.”) (citing Stormo),

adopted, 2012 WL 1858844 (May 22, 2102), aff’d, 487 F. App’x 795 (4th Cir. Nov. 6, 2012).

Moreover, “there is no rigid requirement that the ALJ specifically refer to every piece of

evidence in his decision.” Reid v. Comm’r Soc. Sec., 769 F.3d 861, 865 (4th Cir. 2014) (internal

quotations omitted) (citation omitted). “While the ALJ must evaluate all of the evidence in the

case record, the ALJ is not required to comment in the decision on every piece of evidence in the

record, and the ALJ’s failure to discuss a specific piece of evidence is not an indication that the

evidence was not considered.” Brewer v. Astrue, No. 7:07-cv-00024, 2008 WL 4682185, at *3

(E.D.N.C. Oct. 21, 2008) (citing to Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995); Black v.

Apfel, 143 F.3d 383, 386 (8th Cir. 1998); Dyer v. Barnhart, 395 F.3d 1206, 1211 (11th Cir. 2005)).

Nevertheless, as discussed above, the RFC must be adequately supported by and consistent with

the record evidence.

As with the treating physicians’ opinions, the Court finds that on remand the ALJ should

further discuss or take evidence on several issues raised by Taylor in her motion. First, after the

ALJ determined that Plaintiff had the “severe, medically determinable impairment[]” of

osteoarthritis, she did not discuss it further in relation to the RFC or otherwise. Defendant contends

that Taylor’s impairments related to her osteoarthritis effectively overlapped her fibromyalgia

impairments and were thus taken into account in the ALJ’s ruling. However, again, this is not

clearly stated in the ALJ’s opinion and should be the subject of explicit consideration by the ALJ

on remand.

Second, the ALJ appeared to put significant weight on the fact that there is no record of

Taylor receiving medical care for almost six months after she quit her job as a mail carrier,

concluding this was “very inconsistent with her allegations of the severity of her symptoms.” (Tr.

90). However, the ALJ did not raise this issue at the hearing so Taylor did not have an opportunity

to respond to the ALJ’s concern with an explanation. Specifically, Taylor suggests in her brief that

her lack of medical insurance was responsible for the delay. See Tr. 421 (note of Dr. Alexanian at

the relevant time stating: “[Taylor] currently does not have insurance and therefore makes it

difficult to proceed with further evaluations but she is waiting [for] a new insurance and will let

me know at that time we will initiate those evaluations”). Therefore, on remand the ALJ should

allow Taylor to present her explanation for the delay in seeking medical care and reconsider the

weight given to the timing of her medical appointments in light of that explanation.

Finally, among other the issues raised by Plaintiff that the ALJ should consider on remand,4

Plaintiff alleges that the ALJ did not fully consider her documented “neck and shoulder” pain in

failing to include any restrictions on lifting or reaching in the RFC.5 Taylor cites to multiple reports

of neck and shoulder pain in the record from 2012 through 2017. Dr. Talip diagnosed degenerative

joint disease of the cervical spine in May 2015, noting the MRI and Taylor’s pain in her neck and

arms, muscular pain in her upper extremities, numbness and pain in her middle fingers and toes.

In August 2016 she had pressure point pain in her back and neck, and in March 2017 she had

arthralgias in her fingers, and Dr. Lapp detected cuff [likely rotator cuff] pain “at 75-80 torr

(normal is > 140 torr, a sign of severe allodynia [severe pain from a simple touch]),” “tense traps

[likely trapezius muscles]” and paradoxical elevation of the right shoulder, sacro-iliac joint

tenderness, and multiple tender points. In sum, given this record and the absence of a detailed

explanation of why the ALJ did not impose any limitations in light of these examinations, the

ALJ’s reliance on the Agency’s non-examining consultant, who last reviewed the record in April

2015 and did not have the opportunity to review the physicians’ subsequent records, needs, at a

minimum, further consideration on remand.

By ordering remand pursuant to sentence four of 42 U.S.C. § 405(g), the Court does not

forecast a decision on the merits of Taylor’s application for disability benefits. See Patterson v.

4 These issues include the ALJ’s assessment of Taylor’s daily activities. See Doc. 14 at 14-18;

Woods v. Berryhill, 888 F.3d 686, 695 (4th Cir. 2018) (“An ALJ may not consider the type of

activities a claimant can perform without also considering the extent to which she can perform

them.” (emphasis in original) (citations omitted)).

5 The “light work” that the ALJ found that Taylor could do (such as being a toll collector) might

require her to reach or handle objects frequently.

Comm’r of Soc. Sec. Admin., 846 F.3d 656, 663 (4th Cir. 2017). “Under § 405(g), ‘each final

decision of the Secretary [is] reviewable by a separate piece of litigation,’ and a sentence-four

remand order ‘terminate[s] the civil action’ seeking judicial review of the Secretary’s final

decision.” Shalala v. Schaefer, 509 U.S. 292, 299 (1993) (alternation in original) (emphasis

omitted) (quoting Sullivan v. Finkelstein, 496 U.S. 617, 624-25 (1990)).

B. The Appointments Clause

Based on the authority of Lucia v. SEC, 138 S.Ct. 2044 (2018), which found that certain

Administrative Law Judges of the Securities and Exchange Commission are “officers of the

United States” subject to the Appointments Clause of the U.S. Constitution, Plaintiff argues that

the ALJ’s decision denying her social security claim should be remanded because the ALJ had not

been constitutionally appointed. Id. at 2055. (“So what relief follows? This Court has held that the

‘appropriate’ remedy for an adjudication tainted with an appointments violation is a new ‘hearing

before a properly appointed official.’”)

However, Defendant argues in response that in Lucia the Supreme Court specifically

limited the entitlement of a party to relief to those “who make[] a timely challenge to the

constitutional validity of the appointment of [the] officer who adjudicates her case … .” Id.

Therefore, according to Defendant, because Taylor failed to object to the ALJ’s appointment at

any time in the administrative proceedings below he cannot challenge the appointment of the ALJ

in this Court. See United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (holding

that parties may not wait until they are in court to raise a statutory “defect in the . . . appointment”

of the official who issued the agency’s initial decision); Elgin v. Dep’t of Treasury, 567 U.S. 1, 23

(2012) (plaintiff required to exhaust constitutional claim to administrative agency before seeking

review in federal court).

The Court agrees with the Defendant that Taylor’s “Appointments Clause” claim has been

forfeited by her failure to raise the issue earlier.6 A constitutional challenge under the

Appointments Clause is “nonjurisdictional,” and thus a party may forfeit its Appointments Clause

argument by failing to raise it. See, e.g., NLRB v. RELCO Locomotives, Inc., 734 F.3d 764, 795,

798 (8th Cir. 2013); see also, e.g., Freytag v. Commissioner, 501 U.S. 868, 878-79 (1991);

Freytag, 501 U.S. at 893-94 (Scalia, J., concurring in part) (“Appointments Clause claims, and

other structural constitutional claims, have no special entitlement to review. A party forfeits the

right to advance on appeal a nonjurisdictional claim, structural or otherwise, that he fails to raise

at trial.”).

Indeed, after Lucia, a number of courts have found that a challenge to the appointment of

an SSA ALJ must be raised in the administrative proceedings in order to preserve it for judicial

review. See, e.g., Order at 3, Garrison v. Berryhill, No. 1:17-cv-00302-FDW (W.D.N.C. Oct. 10,

2018), ECF No. 24; Order at 55-56, T. v. Comm’r of Soc. Sec’y Admin., No. 1:17-cv-00650-RGV

(N.D. Ga. Sept. 28, 2018), ECF No. 17; Order at 5, Williams v. Berryhill, No. 2:17-cv-87-KS-MTP

(S.D. Miss. Sept. 28, 2018), ECF No. 24; Davidson v. Comm’r of Soc. Sec’y, No. 2:16-cv-00102,

2018 WL 4680327, at *2 (M.D. Tenn. Sept. 28, 2018); Stearns v. Berryhill, No. C17-2031-LTS,

2018 WL 4380984, at *5-6 (N.D. Iowa Sept. 14, 2018); Iwan v. Comm’r of Soc. Sec’y, No. 17-

CV-97-LRR, 2018 WL 4295202, at *9 (N.D. Iowa Sept. 10, 2018) (“Because Iwan did not raise

her Appointments Clause challenge before the ALJ or Appeals Council, the court finds that she

has waived this issue.”); Hugues v. Berryhill, No. CV 17-3892-JPR, 2018 WL 3239835, at *2 n.2

6 Therefore, the Court need not address and expresses no opinion on the merits of Plaintiff’s

Appointments Clause argument.

(C.D. Cal. July 2, 2018) (“To the extent Lucia applies to Social Security ALJs, Plaintiff has

forfeited the issue by failing to raise it during her administrative proceedings.”).

That these cases consistently find a waiver and forfeiture under these circumstances is not

surprising. It is manifestly fair to all the parties and critical for the efficiency of the Social Security

administrative process to require a claimant to raise all issues – in particular issues related to the

authority and legitimacy of the hearing officer – as early as the challenge can be made. Plaintiff

is not entitled to sit on her hands, see how the ALJ rules on her claim and then, when she is

disappointed with the decision, raise the issue for the first time in her District Court appeal. In

sum, common sense notions of both fairness and efficiency strongly counsel against allowing a

Plaintiff to raise a constitutional challenge to the appointment of an ALJ for the first time on

appeal to the District Court.

Therefore, the Court finds that Taylor has waived and forfeited her constitutional claim

that the ALJ was not properly appointed and declines her request to remand the case on that

ground. See Lucia, 138 S. Ct. at 2055; L.A. Tucker, 344 U.S. at 37 (“Simple fairness to those who

are engaged in the tasks of administration, and to litigants, requires as a general rule that courts

should not topple over administrative decisions unless the administrative body not only has erred

but has erred against objection made at the time appropriate under its practice.”).

V. ORDER

Plaintiff’s Motion for Summary Judgment (Doc. No. 13) is GRANTED; Defendant’s

Motion for Summary Judgment (Doc. No. 17) is DENIED; and the Commissioner’s decision is

REVERSED. This matter is REMANDED for a new hearing pursuant to Sentence Four of 42

US.C. § 405(g).’

SO ORDERED.

Signed: December 18, 2019

| Burts LD. a

Kenneth D. Bell Vy,

United States District Judge i f

7 Sentence Four authorizes “a judgment affirming, modifying, or reversing the

decision ... with or without remanding the cause for a rehearing.” Sullivan, 496 U.S. 617, 625

(1990).

15