Fortin v. Comm'r of Soc. Sec.

• Decision Date: 29 March 2019
• Docket Number: Case Number 18-10187
• Citation: 372 F.Supp.3d 558
• Parties: Joseph A. FORTIN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Eastern District of Michigan

372 F.Supp.3d 558

Joseph A. FORTIN, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

Case Number 18-10187

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

Signed March 29, 2019

Jason M. Turkish, Ryan Thomas Kaiser, Nyman Turkish PC, Southfield, MI, for Plaintiff.

Amy C. Bland, Luis A. Pere, Social Security Administration, Boston, MA, Vanessa Miree Mays, U.S. Attorney's Office, Detroit, MI, for Defendant.

OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, AFFIRMING THE FINDINGS OF THE COMMISSIONER, AND DISMISSING COMPLAINT

DAVID M. LAWSON, United States District Judge

The plaintiff filed the present action seeking review of the Commissioner's decision denying his claim for disability benefits under Title II of the Social Security Act. The case was referred to United States Magistrate Judge Elizabeth A. Stafford under 28 U.S.C. § 636(b)(1)(B) and E.D. Mich. LR 72.1(b)(3). Thereafter, the plaintiff filed a motion for summary judgment to reverse the decision of the Commissioner and remand the case for an award of benefits or for further consideration by the administrative law judge (ALJ). The defendant filed a motion for summary judgment requesting affirmance of the decision of the Commissioner. The plaintiff then filed a supplemental brief arguing that the ALJ's appointment violated the Appointments Clause, U.S. Const. Art. II, § 2, cl. 2, and therefore he is entitled to a remand for a new hearing before a different, properly-appointed ALJ. Magistrate Judge Stafford filed a report on February 1, 2019 recommending that the plaintiff's motion for summary judgment be granted on that ground, and the matter should be remanded for a fresh administrative hearing. Judge Stafford recommended in the alternative that the Court grant the Commissioner's motion for summary judgment and affirm the decision of the Commissioner if the Court disagrees with the proposed resolution of the Appointments Clause issue. Both sides filed timely objections and responses.

I.

The plaintiff, who is now 66 years old, filed his application for disability insurance benefits on October 21, 2014, when he was 62. In the application that is the subject of the present appeal, the plaintiff alleged a disability onset date of March 13, 2014. The plaintiff was involved in an automobile accident on his disability onset date and a second collision in December 2014. The plaintiff alleged disability due to spinal fusion

of cervical vertebrae, right shoulder rotator cuff surgery, multiple breaks to his left arm and wrist, and back and hip pain.

The plaintiff's application for disability benefits was denied initially on December 23, 2014. He timely filed a request for an administrative hearing, and on July 19, 2016, the plaintiff appeared before ALJ Timothy J. Christensen. ALJ Christensen, it appears, was appointed from a pool of applicants maintained by the Office of Personnel Management, see Menoken v. McGettigan , 273 F.Supp.3d 188, 192 (D.D.C. 2017), and not by a head of a department.

On September 28, 2016, ALJ Christensen issued a written decision in which he found that the plaintiff was not disabled. On November 28, 2017, the Appeals Council denied the plaintiff's request for review of the ALJ's decision. The plaintiff then filed his complaint seeking judicial review.

ALJ Christensen reached his conclusion that the plaintiff was not disabled by applying the five-step sequential analysis prescribed by the Secretary in 20 C.F.R. § 404.1520(a). He found that the plaintiff had not engaged in substantial gainful activity since March 13, 2014 through the date he was last insured of December 31, 2014 (step one); the plaintiff suffered from spine disorder

and dysfunction of the major joints, impairments which were "severe" within the meaning of the Social Security Act (step two); and that none of those impairments alone or in combination met or equaled a listing in the regulations (step three).

Before proceeding further, the ALJ determined that the plaintiff retained the functional capacity (RFC) to perform light work, except that the plaintiff: (1) cannot engage in occasional "postural" such as bending and stooping; (2) can only frequently handle and grasp with the left upper extremity; (3) cannot reach overhead with the left, non-dominant upper extremity; and (4) would be off-task for less than 10 percent of the workday.

At step four, the ALJ found that the plaintiff's RFC allowed him to perform the duties required for his past relevant work as a program planner, which was performed at the sedentary exertional level. Based on those findings, the ALJ did not proceed to the fifth step and concluded that the plaintiff was not disabled within the meaning of the Social Security Act.

The plaintiff raised three arguments in his motion for summary judgment regarding the ALJ's assessment of his RFC. He said that the ALJ should have adopted a more restrictive RFC based on the plaintiff's upper extremity limitations; the ALJ improperly discounted the opinions of the plaintiff's treating physician regarding his limitations; and the ALJ did not consider the side effects of the plaintiff's medications in formulating the RFC. In a supplemental brief, the plaintiff for the first time challenged the validity of ALJ Christensen's appointment and requested a remand and a de novo hearing before a different ALJ.

The magistrate judge suggested that the constitutional challenge had merit. She recommended, on that basis, that the case be remanded for a new hearing before a different ALJ.

Alternatively, the magistrate judge rejected each of the plaintiff's merits arguments. She concluded that the ALJ appropriately accorded little weight to the opinion of the plaintiff's treating physician, based on the absence of clinical or diagnostic evidence and in light of the conservative treatment the plaintiff received following his car accidents. The magistrate judge then found that the ALJ did not err by crafting a less restrictive RFC based on the plaintiff's conservative treatment during the relevant period, his continued ability to drive and shop, and the consulting physician's opinion that the plaintiff required no manual restrictions for his left upper extremity. And lastly, the magistrate judge concluded, contrary to the plaintiff's contention, that the ALJ considered the side effects of the plaintiff's pain medication and specifically noted that the plaintiff's ability to drive was inconsistent with his claim that his medication's side effects, including drowsiness, prevented him from performing light work.

II.

Both parties filed objections to the report and recommendation. The filing of timely objections to a report and recommendation requires the court to "make a de novo determination of those portions of the report or specified findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1) ; see also United States v. Raddatz , 447 U.S. 667, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980) ; United States v. Walters , 638 F.2d 947 (6th Cir. 1981). This de novo review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

"The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately," Walters , 638 F.2d at 950, enabling the court "to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute," Thomas v. Arn , 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). As a result, " ‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.’ " McClanahan v. Comm'r of Soc. Sec. , 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231 , 829 F.2d 1370, 1373 (6th Cir. 1987) ).

A. Commissioner's Objection

The Commissioner objects to the magistrate judge's recommendation that the Court remand the case for a de novo hearing to remedy the Appointments Clause violation. The foundation of the magistrate judge's recommendation was Lucia v. S.E.C. , ––– U.S. ––––, 138 S.Ct. 2044, 201 L.Ed.2d 464 (2018), where the Supreme Court addressed an Appointments Clause challenge in a case originating with the Securities and Exchange Commission (SEC). ALJs who heard administrative proceedings under the Securities and Exchange Act of 1934 were appointed not by the Commission itself, but by SEC staff members. 138 S.Ct. at 2049. The Court held that those ALJs were "Officers of the United States" within the meaning of the Appointments Clause, and therefore must be appointed as that Clause prescribes. Id. at 2054. Because the ALJ's were "inferior Officers," Congress could vest authority for their appointment "in the President alone, in the Courts of Law, or in the Heads of Departments." Id. at 2050 (quoting U.S. Const. Art. II, § 2, cl. 2 ). Although the Court believed that the Commission was a "Head[ ] of Department[ ]," SEC staff members were not. Therefore, the Court concluded, the ALJ was not properly appointed, and Lucia was entitled to a new hearing before a different and properly-appointed ALJ. Id. at 2055.

The Commissioner here does not quarrel with the argument that ALJ Christensen was improperly appointed in violation of the Appointments Clause. She also concedes "that ‘one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case’ is entitled to relief." Lucia , 138 S.Ct. at 2055 (quoting Ryder v. United States, 515 U.S. 177, 182-83, 115 S.Ct. 2031, 132...