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Stallings v. Commissioner of Social Social Security

United States District Court, E.D. Michigan, Southern Division

July 31, 2019

LEONARD CECIL STALLINGS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          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

         Plaintiff 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 RECOMMENDS that:

• Stallings' motion [ECF No. 11] be GRANTED;
• 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).

         I. BACKGROUND

         A. Stallings' Background and Disability Application

         Born 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].

         After a 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.

         II. ANALYSIS

         A. APPOINTMENTS CLAUSE CHALLENGE

         The 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 of department.”

         Lucia 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].

         Stallings' 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.

         The 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.

         B. THE ALJ'S DECISION

         The Court will next address Stallings' argument that the ALJ erred in ...


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