Anderson v. Berryhill

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN ANDERSON,

Plaintiff CIVIL ACTION NO. 3:18-2238

V.

: (JUDGE MANNION)

ANDREW M. SAUL",

Commissioner of Social Security, :

Defendant :

MEMORANDUM

Pending before the court is the September 10, 2019 report and

recommendation of Judge Schwab, (Doc. 23), recommending that the court

vacate the final decision of the Commissioner of Social Security which denied

the plaintiff's claim for Disability Insurance Benefits (“DIB”) under Title II of the

Social Security Act, (“Act”), and remand the case for rehearing before a

different, constitutionally appointed Administrative Law Judge (“ALJ”). 42

U.S.C. §§401-433, 1381-1383f. One of the claims that plaintiff raised, based

on Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018),

was that the ALJ (ALJ Wolfe) who decided his case was not appointed in

compliance with the Appointments Clause of the U.S. Constitution. U.S.

CONST. art. Il, §2, cl. 2. Plaintiff requests the court to remand his case to an

ALJ properly appointed under the Constitution for a new hearing. The

‘Andrew M. Saul was sworn in as Commissioner of Social Security on

June 17, 2019, and is automatically substituted as the defendant in this

action. See Fed.R.Civ.P. 25(d).

Commissioner filed objections to Judge Schwab's report. (Doc. 24). The

Commissioner argues that plaintiff waived this claim because he did not raise

it during the administrative proceedings.

Pursuant to a joint stipulation of the parties, the court stayed this case

pending the Third Circuit's decision in Cirko v. Comm’r of Soc. Sec. and

Bizarre v. Comm’r of Soc. Sec., — F.3d —, 2020 WL 370832 (3d Cir. Jan. 23,

2020). (Doc. 26).

After careful review and following the Third Circuit decision on January

23, 2020 in Cirko v. Comm’r of Soc. Sec. and Bizarre v. Comm’r of Soc. Sec.,

— F.3d —, 2020 WL 370832 (3d Cir. Jan. 23, 2020), and for the reasons

discussed below, the court finds that the ALJ was improperly appointed under

the Constitution and plaintiff did not forfeit his Appointments Clause claim.

Therefore, Judge Schwab's report will be ADOPTED and the Commissioner's

decision will be VACATED. Plaintiff's appeal will also be GRANTED, and this

case will be REMANDED to the Commissioner for a new hearing.

© STANDARD OF REVIEW

When objections are timely filed to the report and recommendation of

a magistrate judge, the district court must review de novo those portions of

the report to which objections are made. 28 U.S.C. §636(b)(1); Brown v.

Astrue, 649 F.3d 193, 195 (3d Cir. 2011). Although the standard is de novo,

the extent of review is committed to the sound discretion of the district judge,

and the court may rely on the recommendations of the magistrate judge to the

20

extent it deems proper. Rieder v. Apfel, 115 F.Supp.2d 496, 499 (M.D.Pa.

2000) (citing United States v. Raddatz, 447 U.S. 667, 676 (1980)).

For those sections of the report and recommendation to which no

objection is made, the court should, as a matter of good practice, “satisfy itself

that there is no clear error on the face of the record in order to accept the

recommendation.” Fed.R.Civ.P. 72(b), advisory committee notes; see also

Univac Dental Co. v. Dentsply Intern., Inc., 702 F.Supp.2d 465, 469 (2010)

(citing Henderson v. Carlson, 812 F.2d 874, 878 (3d Cir. 1987) (explaining

judges should give some review to every Report and Recommendation)).

Nevertheless, whether timely objections are made or not, the district court

may accept, not accept or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. §636(b)(1); Local

Rule 72.31.

i. DISCUSSION?

Judge Schwab's report only addressed the plaintiff's claim that ALJ

Wolfe was not properly appointed under the Appointments Clause and the

Commissioner's contention that plaintiff forfeited this claim by not raising it

during the administrative proceedings.

Recently, in Simmons on behalf of A.B. v. Saul, 2020 WL 470304, *2

*Plaintiff is represented by counsel in this case. The court notes that

since Judge Schwab stated the full procedural history of this case in her

report and since plaintiff did not object to it, the court will not repeat it herein.

(E.D.Pa. Jan. 29, 2020), the court explained:

Because neither the Supreme Court nor the Third Circuit had

addressed whether the Lucia decision was applicable to Social

Security ALJs, courts within this Circuit were divided on this issue.

The Third Circuit recently held, however, that Social Security

disability claimants may raise Appointments Clause challenges in

federal court without having exhausted those claims before the

Agency. The Court remanded the cases for hearings before

constitutionally appointed ALJs other than those who presided

over the claimants’ first hearings. See Cirko v. Comm’r of Soc.

Sec. and Bizarre v. Comm’r of Soc. Sec., — F.3d —, 2020 WL

370832 (3d Cir. Jan. 23, 2020). .

The court in Simmons, id. at n. 2, also noted that the Third Circuit

“limited its decision to issue exhaustion of Appointments Clause challenges.”

(citing Cirko v. Comm'r of Soc. Sec. and Bizarre v. Comm'r of Soc. Sec., —

F.3d ——, 2020 WL 370832, at *1 n.3 (3d Cir. Jan. 23, 2020)).

Thus, plaintiff can raise his Appointments Clause challenge despite not |.

exhausting this claim at the administrative level. See id. □

In light of Cirko and Bizarre, “[t]he remedy for an Appointments Clause

violation is a new hearing before a properly appointed ALJ other than the ALJ

who decided Plaintiff's case.” /d. As such, “Plaintiff[] [Anderson’s] case will be

remanded for assignment to a different, constitutionally appointed ALJ other

than ALJ [Wolfe] to hold a new hearing and issue a Decision as to Plaintiff's

claim for [DIB] benefits.”* /d. See also Dombrowski v. Saul, 2020 WL 5091 □□

(E.D.Pa. Jan. 30, 2020).

°There is no dispute that ALJ Wolfe was an officer under the

Appointments Clause, however, she was nota constitutionally appointed ALJ.

lil. CONCLUSION

Based on the foregoing, the STAY issued in this case, (Doc. 26), is

LIFTED. Judge Schwab's report and recommendation, (Doc. 23), is

ADOPTED, and the Commissioner's objections, (Doc. 24), are OVERRULED.

Further, plaintiffs appeal, (Doc. 1), is GRANTED and, the Commissioner’s

decision denying his application for DIB is VACATED. This case is

REMANDED to the Commissioner for a new hearing before a constitutionally

appointed ALJ, other than ALJ Wolfe. A separate order shall issue.

s/ Ualacky é. Wauuiou

‘United States District Judge

Dated: February 18, 2020