Diane S. P. v. Berryhill, Action No. 4:17cv143

• Decision Date: 21 March 2019
• Docket Number: Action No. 4:17cv143
• Citation: 379 F.Supp.3d 498
• Parties: DIANE S. P., Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Eastern District of Virginia

379 F.Supp.3d 498

DIANE S. P., Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

Action No. 4:17cv143

United States District Court, E.D. Virginia, Newport News Division.

Signed March 21, 2019

FINAL ORDER

Mark S. Davis, Chief United States District Judge

Plaintiff, Diane S. P. ("Plaintiff"), with the assistance of counsel, brought this action seeking judicial review of the final decision of the Acting Commissioner of the Social Security Administration ("Commissioner") denying her claims for disability insurance benefits and supplemental security income. The case was referred to a United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) & (C) and Rule 72(b) of the Federal Rules of Civil Procedure, as well as Rule 72 of the Local Rules of this Court, for a Report and Recommendation ("R & R").

On January 23, 2019, the Magistrate Judge assigned to this case issued a detailed R & R recommending that Plaintiff's second motion for summary judgment be denied, and that the Commissioner's cross-motion for summary judgment be granted. ECF No. 39. By copy of the R & R, each party was advised of the right to file written objections, and on February 6, 2019, the Court received Plaintiff's Objections to the R & R. ECF No. 40. After obtaining a briefing extension, the Commissioner filed its response on March 6, 2019. ECF No. 43. As set forth below, after reviewing relevant portions of the record and performing a de novo review of all objected-to portions of the R & R, and after performing a "clear error" review of all other portions of the R & R, the Court ADOPTS the findings and recommendations set forth in the Magistrate Judge's detailed and well-reasoned R & R.

Briefly addressing Plaintiff's objections, the majority of the first subpart of Plaintiff's first objection is not really an "objection" because it argues, consistent with the Magistrate Judge's ruling, that "issue exhaustion" in a Social Security case is not mandated by statute or regulation. As for the remainder of Plaintiff's associated argument, which challenges the Magistrate Judge's analysis distinguishing the instant case from Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), this Court adopts the Magistrate Judge's analysis.¹ Such analysis highlights the fact that although issue exhaustion is not required by statute or regulation, a finding supported by Sims, the regulations provide procedures both for raising "as applied" constitutional challenges before the ALJ and for challenging the specific ALJ assigned to a specific Social Security case.² ECF No. 39, at 521–24.

The second subpart of Plaintiff's first objection contends that because the Social Security administrative claims process is "non-adversarial," the Magistrate Judge erred by finding that a court-imposed issue exhaustion requirement is appropriate. While this Court acknowledges that the rationale for issue exhaustion is less compelling in non-adversarial proceedings, when balancing all relevant considerations, including the multiple Social Security regulations indicating that a claimant "should" or "must" raise issues before the ALJ as soon as practicable, as well as efficiency interests, this Court agrees with the findings in the R & R, and countless prior and subsequent federal district court decisions, holding that court-imposed issue exhaustion is appropriate in the Social Security context, at least with respect to appointments clause challenges. See ECF No. 39, at 524–25 (citing cases);³ Bennett v. Berryhill, No. 2:17cv520, 2019 WL 1104186, at *7-11 (E.D. Va. Feb. 15, 2019), report and recommendation adopted, 2019 WL 1102203 (E.D. Va. Mar. 8, 2019). In this Court's view, Plaintiff's arguments focusing on the non-adversarial nature of Social Security proceedings are undercut in large part by the fact that a challenge to the ALJ's capacity, at least in the form at issue here, is a matter that the ALJ has no occasion to identify as part of his or her role investigating the merits-facts. Moreover: (1) Social Security regulations provide an express procedure for challenging, at the earliest opportunity, the assigned ALJ; and (2) "[t]he Supreme Court has never indicated that [appointment] challenges must be heard regardless of [forfeiture]," but instead "the Court has proceeded on a case-by-case basis, determining whether the circumstances of the particular case warrant excusing the failure to timely object." In re DBC, 545 F.3d 1373, 1380 (Fed. Cir. 2008) (citing Freytag v. Comm'r, 501 U.S. 868, 879, 893, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) ).

Here, there are no case-specific circumstances that warrant excusing Plaintiff's failure to timely raise an appointment challenge during the administrative process, with the Supreme Court case on which Plaintiff now seeks to rely arising from the review of a published appellate decision issued several months prior to Plaintiff's hearing before the ALJ. See Lucia v. S.E.C., ––– U.S. ––––, 138 S.Ct. 2044, 2055, 201 L.Ed.2d 464 (2018) ("[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.") (emphasis added) (internal quotation marks and citation omitted).⁴ Moreover, excusing Plaintiff's failure to timely raise such claim would incentivize "sandbagging," an approach where a litigant benefits from "suggesting or permitting, for strategic reasons," that the administrative body "pursue a certain course" (here, continuing with the assigned ALJ without opposition during either the initial hearing or the administrative appeal), "and later—if the outcome is unfavorable [as it was here]—claiming that the course followed was reversible error" because the initial administrative adjudicator lacked capacity to issue a ruling. Freytag, 501 U.S. at 895, 111 S.Ct. 2631 (Scalia, J., concurring in part).⁵ Accordingly, for the reasons explained in greater detail in the R & R, the judicial doctrine of issue exhaustion is appropriately applied to the appointment's challenge in this case, and there is no reason to excuse Plaintiff's non-compliance. See Sims, 530 U.S. at 117, 120 S.Ct. 2080 (Breyer, J., dissenting) ("I assume the plurality would not forgive the requirement that a party ordinarily must raise all relevant issues before the ALJ."); cf. Sayre v. Chater, 113 F.3d 1232, 1997 WL 232305, at *2 (4th Cir. 1997) (table) (finding, in an unpublished opinion decided prior to Sims, that an "assignment of error" was waived in a Social Security case where there was "nothing in the record to suggest that [the claimant] provided either the ALJ or the Appeals Council with the opportunity to consider" such challenge); Freytag, 501 U.S. at 894-95, 111 S.Ct. 2631 (Scalia, J., concurring in part) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.") (citation omitted).

Plaintiff's second and third objections attack the Magistrate Judge's ruling on the substance of the ALJ's merits-based disability determination. ECF No. 40, at 9-10. Having conducted a de novo review of such challenges,⁶ for the reasons stated in the R & R, and for those articulated in the Commissioner's response to Plaintiff's objections, this Court adopts the Magistrate Judge's analysis without further comment.

In summary, the R & R is hereby ADOPTED , Plaintiff's motion for summary judgment is DENIED , ECF No. 31, and the Commissioner's motion for summary judgment is GRANTED , ECF No. 36.

The Clerk is requested to forward a copy of this Final Order to all counsel of record.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

DIANE S. P.,^* Plaintiff,

v.

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

ACTION NO. 4:17cv143

Diane S.P. ("plaintiff") brought this action, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a decision of the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying her claim for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, as well as her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.

An order of reference assigned this matter to the undersigned. ECF No. 10. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 72, it is hereby recommended that plaintiff's second motion for summary judgment (ECF No. 31 ) be DENIED as to counts one and two and that the Commissioner's motion for summary judgment (ECF No. 36 ) be GRANTED as to counts one and two.

I. PROCEDURAL BACKGROUND

Plaintiff, Diane S.P., filed applications for disability insurance benefits and Supplemental Security Income on September 9, 2013, alleging that she became disabled on June 24, 2013, due to severe headaches, severe back pain, high blood pressure

, high cholesterol, gastro-esophageal reflux disease ("GERD"), and asthma.¹ R. 68–69, 176–85. Following the state agency's denial of these claims, both initially and upon reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. 68–109, 134–39.

ALJ Irving A. Pianin heard the matter on December 12, 2016, and issued a decision denying benefits on January 19, 2017. R. 16–24, 29–52. On October 16, 2017, the Appeals Council denied plaintiff's request for review of the ALJ's decision. R. 1–5. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3) ; 20 C.F.R. §§ 404.981, 416.1481.

Having exhausted all administrative remedies, plaintiff filed a complaint with this Court on December 15, 2017. ECF No. 3. The...