United States District Court, N.D. Ohio, Western Division
G. CARR SR. U.S. DISTRICT JUDGE
a Social Security appeal. Plaintiff Diane Fisher appeals the
Commissioner's decision denying her application for
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).
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. (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).
appealed, and, on May 25, 2018, the Appeals Council upheld
the ALJ's decision. (Id. at PageID #102).
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).
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.
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.
Fisher's Appointments Clause Challenge Was
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.
21, 2018, the Supreme Court in Lucia v. Securities &
Exchange Commission, ---U.S. ----, 138 S.Ct. 2044, 2055
(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.,
--- F.Supp.3d ----, 2019 WL 2281247, at *1 (N.D. Ohio) (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
Fisher Failed to Exhaust Her Appointments Clause
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).
with the magistrate judge.
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, 2019 WL 2281247 at *2.
like the Gilbert plaintiff, argues that Sims v.
Apfel, 530 U.S. 103 (1952), rendered administrative
exhaustion unnecessary. (Doc. 27 at 2-3).
rejected that argument in Gilbert, 2019 WL 2281247
at *2-*3, 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, 2019 WL 2281247 at *2.
“‘[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.” Gilbert, supra, 2019 WL
2281247 at *2.
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.