Fisher v. Comm'r of Soc. Sec.

404 F.Supp.3d 1156

Diane FISHER, Plaintiff

v.COMMISSIONER OF SOCIAL SECURITY, Defendant

Case No. 3:18CV1708

United States District Court, N.D. Ohio, Western Division.

Filed September 6, 2019

ORDER

James G. Carr Sr., U.S. District Judge

This is a Social Security appeal. Plaintiff Diane Fisher appeals the Commissioner's decision denying her application for benefits.

Fisher applied for Social Security benefits on September 22, 2015. (Doc. 15 at PageID # 329). The Commissioner denied her application, and Fisher requested a hearing before an administrative law judge (ALJ). (Doc. 15 at PageID # 117).

In a December 6, 2017 decision (Doc. 15 at PageID # 114), the ALJ rejected Fisher's claim. The ALJ determined that Fisher suffers from three severe impairments – degenerative disc disease, plantar fasciitis, and obesity – but that she retains the residual functional capacity (RFC) to perform sedentary work with restrictions.¹

(Id. at PageID #119-21). Within this RFC, the ALJ concluded, Fisher can perform her past relevant work as a bill collector and telephone solicitor. (Id. at PageID #127).

Fisher appealed, and, on May 25, 2018, the Appeals Council upheld the ALJ's decision. (Id. at PageID #102).

Pending is Magistrate Judge Kathleen B. Burke's Report and Recommendation, which recommends that I affirm the denial of benefits. (Doc. 25). Fisher has filed objections. (Doc. 27).

On de novo review of the R&R, see 28 U.S.C. § 636(b)(1), I sustain the objections in part and overrule them in part, adopt the R&R in part and reject it in part, and remand the Commissioner's decision.

Discussion

Fisher argues that the ALJ 1) was not properly appointed under the Constitution and 2) committed reversible error in giving little weight to four treating physician opinions.

I. Fisher's Appointments Clause Challenge Was Untimely

Under the Appointments Clause of the Constitution, "Congress may ... vest the Appointment of ... Officers [of the United States] ... as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments." U.S. Const. art. II, § 2, cl. 2.

On June 21, 2018, the Supreme Court in Lucia v. Securities & Exchange Commission , ––– U.S. ––––, 138 S.Ct. 2044, 2055, 201 L.Ed.2d 464 (2018), held that SEC "ALJs are ‘Officers of the United States’ subject to the Appointments Clause." "The Lucia opinion and its preceding circuit split prompted questions about whether all administrative agencies must appoint ALJs under the Appointments Clause." Gilbert v. Comm'r of Soc. Sec. , 391 F. Supp. 3d 745, 748 (N.D. Ohio 2019) (Carr, J.). In turn, Social Security claimants began appealing benefits denials on Appointments Clause grounds. E.g. , id. ; see also Harris v. Berryhill , 2019 WL 3431750, *1 (W.D. Tenn.) (collecting cases).

A. Fisher Failed to Exhaust Her Appointments Clause Challenge

In her August 15, 2018 complaint, Fisher voiced her Appointments Clause challenge for the first time. (Doc. 7). The magistrate judge determined that, because Fisher did not exhaust the Appointments Clause issue at the agency level, her objection is untimely. (Doc. 25 at 12-13).

I agree with the magistrate judge.

"[O]ne 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, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995). In Lucia, supra , 138 S.Ct. at 2055, the court deemed petitioner's challenge timely because he raised it "before the Commission, and continued pressing [it] in the Court of Appeals and th[e Supreme] Court." "But neither the Supreme Court nor the Sixth Circuit has set a stopwatch time at which Appointments Clause challenges become untimely." Gilbert, supra , 391 F.Supp.3d at 749.

Fisher, like the Gilbert plaintiff, argues that Sims v. Apfel , 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (1952), rendered administrative exhaustion unnecessary. (Doc. 27 at 2-3).

I rejected that argument in Gilbert , 391 F.Supp.3d at 748-50, and I do so again here.

In Sims, supra , 530 U.S. at 112, 120 S.Ct. 2080, the Supreme Court held that a Social Security claimant may bring issues before a court even if the claimant failed to exhaust them before the Appeals Council. The Court so held because "Social Security proceedings are inquisitorial rather than adversarial[,]" and, therefore, the reason for requiring exhaustion – that is, the extent to which administrative actions mirror judicial proceedings – "is at its weakest in this area." Id.

Gilbert , 391 F.Supp.3d at 749.

But " ‘[w]hether a claimant must exhaust issues before the ALJ’ – or before the agency, generally – was ‘not before’ the Court in Sims , 530 U.S. at 107, 108, 120 S.Ct. 2080." Gilbert , supra , 391 F.Supp.3d at 749.

I therefore determined that the Gilbert claimant's "argument ‘overextends Sims 's limited holding.’ " Id. (quoting Hutchins v. Berryhill , 376 F. Supp. 3d 775, 779 (E.D. Mich. 2019) ). Fisher likewise stretches Sims beyond its limits.

Moreover, " Sims is distinguishable." Gilbert , supra , 391 F.Supp.3d at 749. The Sims claimant "challenged how the ALJ evaluated the evidence, so her objections could not materialize until the ALJ issued a decision." 530 U.S. at 105-06, 120 S.Ct. 2080. But, here, as in Gilbert , supra , 391 F.Supp.3d at 749, "the grounds for [Fisher's] Appointments Clause challenge arose when SSA assigned the ALJ to her claim. Accordingly, [Fisher] had an opportunity, not available in Sims , to voice her objection."

B. Exhaustion Was Not Futile

"A court may excuse a plaintiff from exhaustion where ‘it would be futile.’ " Gilbert , supra , 391 F.Supp.3d at 749 (quoting Hill v. Blue Cross & Blue Shield , 409 F.3d 710, 717 (6th Cir. 2005) ).

Fisher argues that, here, exhaustion was futile because "[n]either the ALJ nor the Appeals Council was competent to decide the Appointments Clause issue, given the directives issued by Defendant that the issue would not be considered administratively." (Doc. 27 at 3-4). Presumably, the "directives" Fisher references are SSA's instructions in its January 30, 2018 emergency message, EM-18003 (Doc. 16-1). EM-18003 instructed ALJs to "acknowledge" Appointments Clause objections and note them on decision records but barred the Appeals Council from "acknowledge[ing], mak[ing] findings related to, or otherwise discuss[ing] Appointments Clause issue[s]." (Doc. 16-1).

"[T]he crucible of administrative review ensures that the petitioner's case presents a true constitutional dispute before the Judiciary steps in to decide those weighty issues." Jones Bros., Inc. v. Sec'y of Labor , 898 F.3d 669, 676 (6th Cir. 2018). "Administrative exhaustion is thus typically required so long as there is the ‘possibility of some relief for the action complained of,’ even if it is not the petitioner's preferred remedy." Id. (quoting Booth v. Churner , 532 U.S. 731, 738, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) ).

In Jones Brothers, Inc. , supra , the Sixth Circuit held that the exhaustion requirement applied to petitioners' Appointments Clause challenge before the Mine Commission. 898 F.3d at 672, 674 (citing 30 U.S.C. § 823(b) ). The court offered the following hypothetical to demonstrate the futility exception:

Imagine an alternative Mine Act that said, "the Chief Administrative Law Judge shall appoint two administrative law judges to adjudicate borrow pit enforcement actions." If administrative law judges are inferior officers, the Commission would have no way to cure the constitutional violation. The Mine Commission is bound by the Mine Act, and there is no permissible way to interpret that hypothetical statute in a manner consistent with the Appointments Clause. In that setting, it would be futile to bring that claim to the Commission and senseless for an Article III court to enforce forfeiture.

Id. at 677.

Accordingly, "[w]hat matters ... is [whether] the [agency] was fully suited to entertain the claim and remedy any error at the time" of administrative review. Id.

Gilbert , supra , 391 F.Supp.3d at 749-51.

The agency was fully suited to address Fisher's challenge.

"The Supreme Court has offered good reasons why a seemingly rigid agency policy against a litigant's position should not excuse the requirement to raise objections at the administrative level[.]" Fortin v. Comm'r of Soc. Sec. , 372 F. Supp. 3d 558, 566 (E.D. Mich. 2019) (quoting United States v. L.A. Tucker Truck Lines , 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) ).

[T]he Commission is obliged to deal with a large number of like cases. Repetition of the objection in them might lead to a change of policy, or, if it did not, the Commission would at least be put on notice of the accumulating risk of wholesale reversals being incurred by its persistence. 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.

L.A. Tucker Truck Lines , 344 U.S. at 37, 73 S.Ct. 67.

The Court in L.A. Tucker Truck Lines , supra , 344 U.S. at 37, 73 S.Ct. 67, "rejected an argument that internal policy requiring the agency to reject Administrative Procedure Act appointments challenges rendered exhaustion futile[.]" Gilbert , supra , 391 F.Supp.3d at 750.

Accordingly, in Gilbert , supra , 391 F.Supp.3d at 750-51, I held that EM-18003 did not excuse claimant from exhausting her Appointments Clause challenge. The same conclusion applies here.

Finally, Fisher asks me to excuse exhaustion by adopting the reasoning in Bizarre v. Berryhill , 364 F. Supp. 3d 418 (M.D. Pa. 2019). (Doc. 27 at 5-6).

I decline that invitation.

The court in Bizarre , supra , 364 F. Supp. 3d at 420, applying Freytag v. Commissioner of Internal Revenue , 501 U.S. 868, ...