United States District Court, E.D. Michigan, Southern Division
Honorable Terrence G. Berg Judge
REPORT AND RECOMMENDATION ON CROSS-MOTIONS FOR
SUMMARY JUDGMENT [ECF NOS. 11, 14]
ELIZABETH A. STAFFORD UNITED STATES MAGISTRATE JUDGE
Leonard Cecil Stallings appeals the final decision of
defendant Commissioner of Social Security (Commissioner),
which denied his application for disability income benefits
(DIB) under the Social Security Act. Both parties have filed
summary judgment motions, and Stallings filed a reply motion,
referred to this Court for a report and recommendation under
28 U.S.C. § 636(b)(1)(B). The Court
• Stallings' motion [ECF No. 11] be
• the Commissioner's motion [ECF No.
14] be DENIED; and
• the Commissioner's decision be REMANDED
FOR FURTHER CONSIDERATION under sentence four of 42
U.S.C. § 405(g).
Stallings' Background and Disability Application
October 5, 1954, Stallings was 61 years old on the date of
application. [ECF No. 9-5, Tr. 179]. He alleges an amended
disability onset date of February 1, 2014. [ECF No. 9-2, Tr.
32-33]. Stallings was insured for DIB until June 30, 2017.
[ECF No. 11, PageID.543].
hearing on November 8, 2017, during which Stallings and a
vocational expert (VE) testified, the ALJ found that
Stallings was not disabled. [ECF No. 9-2, Tr. 29-55]. The
Appeals Council denied review, making the ALJ's decision
the final decision of the Commissioner. [Id., Tr.
1-4]. Stallings timely filed for judicial review. [ECF No.
1]. It is undisputed that Stallings raised no Appointments
Clause challenge before the Commissioner.
APPOINTMENTS CLAUSE CHALLENGE
Court will begin by addressing Stallings' argument that
his case should be remanded for a de novo
administrative hearing because the ALJ was not properly
appointed according to the Appointments Clause. U.S. Const.,
Art. II, § 2, cl. 2. Stallings' argument flows from
Lucia v. SEC, 138 S.Ct. 2044, 2051 (2018), which
held that ALJs are “Officers of the United
States” under the Appointments Clause, and thus must be
appointed by “the President, a court of law, or a head
dictates that a party making “a timely challenge to the
constitutional validity of the appointment of an officer who
adjudicates his case is entitled to relief.”
Id. at 2055. Although Lucia specifically
addressed only Security and Exchange Commission ALJs, the
Solicitor General has acknowledged that the Supreme
Court's holding encompassed all ALJs, and the Acting
Commissioner of Social Security ratified the appointment of
its ALJ's in July 2018 to address any Appointments Clause
deficiency going forward. Page v. Comm'r of Soc.
Sec., 344 F.Supp.3d 902, 903 (E.D. Mich. 2018). And
here, the Commissioner does not argue that the ALJ was
properly appointed at the time of Stallings' hearing; it
contends only that Stallings has forfeited this claim for
relief by failing to present it at the administrative level.
[See ECF No. 14, PageID.584].
contends that forfeiture is inappropriate here because the
ALJ lacked legal authority to address questions of
constitutionality. [ECF No. 11, PageID.560-61]. He cites
Jones Bros., Inc. v. Sec'y of Labor, in which
the court excused the forfeiture of the Appointments Clause
claim, reasoning that it could not “fault a petitioner
for failing to a raise a facial constitutional challenge in
front of an administrative body that could not entertain
it.” 898 F.3d 669, 674 (6th Cir. 2018). And Stallings
cited Bizarre v. Berryhill, which departed from the
“emerging consensus” by finding: (1) the ALJs
were not granted the power to resolve constitutional
challenges; (2) claimants may, but are not required, to raise
Appointments Clause issues before the Appeals Council; and
(3) the Social Security Administration does not have a
statute mandating forfeiture. 364 F.Supp.3d 418 (M.D. Pa.
2019). The court in Bizarre highlighted the fact
that “[its] disagreement breaks from the emerging
consensus of federal courts.” Id. at 420.
emerging consensus, including in this district, is that a
party has forfeited an Appointment Clause claim if it is not
raised at the administrative level. See Fortin v.
Comm'r of Soc. Sec., 372 F.Supp.3d 558 (E.D. Mich.
2019) (collecting cases) (holding that objections to
administrative agency proceedings must be made “while
[the agency] has the opportunity for correction in order to
raise issues reviewable by the courts”). Given that
consensus, Stallings' Appointments Clause challenge
cannot be sustained.
THE ALJ'S DECISION
Court will next address Stallings' argument that the ALJ
erred in ...