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Fisher v. Commissioner of Social Security

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

September 6, 2019

Diane Fisher, Plaintiff
Commissioner of Social Security, Defendant



         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.


         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 (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 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, 2019 WL 2281247 at *2.

         Fisher, like the Gilbert plaintiff, argues that Sims v. Apfel, 530 U.S. 103 (1952), rendered administrative exhaustion unnecessary. (Doc. 27 at 2-3).

         I 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.

         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.” Gilbert, supra, 2019 WL 2281247 at *2.

         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. ...

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