Gagliardi v. Soc. Sec. Admin.

• Citation: 441 F.Supp.3d 1284
• Decision Date: 28 February 2020
• Docket Number: Case No. 18-cv-62106-BLOOM/Valle
• Court: U.S. District Court — Southern District of Florida
• Parties: Pia GAGLIARDI, Plaintiff, v. SOCIAL SECURITY ADMINISTRATION, Defendant.

441 F.Supp.3d 1284

Pia GAGLIARDI, Plaintiff,

v.SOCIAL SECURITY ADMINISTRATION, Defendant.

Case No. 18-cv-62106-BLOOM/Valle

United States District Court, S.D. Florida.

Signed February 28, 2020

ORDER

BETH BLOOM, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant's Motion for Summary Judgment, ECF No. [23] ("Defendant's Motion"), and Plaintiff's Motion to Declare Social Security Administration Administrative Law Judges Unconstitutional as Violating the Appointments Clause & Remand for a New Administrative Hearing, ECF No. [30] ("Plaintiff's Motion") (collectively, the "Motions"). The Motions were previously referred to the Honorable Alicia O. Valle, United States Magistrate Judge, for Report and Recommendation, ECF No. [5]. On January 17, 2020, Judge Valle issued a Report and Recommendation, ECF No. [35] ("R&R"), recommending that (i) Defendant's Motion be granted, (ii) Plaintiff's Motion be denied, and (iii) the Administrative Law Judge's Decision ("ALJ's Decision") be affirmed. See ECF No. [35]. The R&R advised the parties that objections to the R&R must be filed within fourteen (14) days. Id. at 29. On January 31, 2020, Plaintiff filed her Objection to Report and Recommendation to District Judge, ECF No. [36] ("Plaintiff's Objections"). Defendant did not file any objections, but it responded in opposition to Plaintiff's Objections on February 14, 2020. See ECF No. [37] ("Defendant's Response").

The Court has carefully considered the R&R, Plaintiff's Objections, Defendant's Response, the record in this case, the applicable law, and is otherwise fully advised. Moreover, the Court has conducted a de novo review of the R&R in light of Plaintiff's Objections. See Williams v. McNeil , 557 F.3d 1287, 1291 (11th Cir. 2009) (citing 28 U.S.C. § 636(b)(1) ); Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006) ("Where a proper, specific objection to the magistrate judge's report is made, it is clear that the district court must conduct a de novo review of that issue."). For the reasons set forth below, the Court finds Judge Valle's R&R to be well-reasoned and the analysis to be correct.

I. BACKGROUND

The Court adopts Judge Valle's description of the administrative history and record below, ECF No. [35] at 2, 5-8, and incorporates it by reference herein.

In the R&R, Judge Valle determined that Plaintiff's Appointments Clause challenge was untimely, id. at 9-13, the ALJ properly evaluated Plaintiff's testimony, id. at 13-18, the ALJ properly weighed the medical opinions of Drs. Barnett, Issa, Mihm, Laboy, and Mungul, id. at 18-27, and the ALJ properly relied on the Vocational Expert's testimony, id. at 27-28. Plaintiff objects to each of these conclusions, but the bulk of Plaintiff's Objections is directed to the Appointments Clause issue. Specifically, Plaintiff maintains that she did not forfeit her Appointments Clause challenge by failing to raise it during the administrative proceedings. She claims that there is no issue exhaustion requirement in the social security context, there is no judicially created exhaustion requirement for the Social Security Administration's ("SSA") Appeals Council, SSA claimants can bypass administrative review and be heard by a district court, and due process and equitable considerations favor allowing the Appointments Clause challenge to proceed, such as the futility exception and the importance of safeguarding constitutional provisions. ECF No. [36] at 3-16. Regarding the other objections, Plaintiff contends that the ALJ improperly discredited Plaintiff's treating physicians' opinions while improperly affording excess weight to Defendant's physicians, the ALJ improperly discredited Plaintiff's testimony, and the SSA did not meet its burden to show Plaintiff can sustain employment. See id. at 16-21.

Defendant's Response, in turn, asserts that the R&R correctly determined that Plaintiff waived her Appointments Clause claim, correctly found the ALJ had properly weighed the medical opinions, and correctly found the ALJ had properly discounted Plaintiff's subjective complaints. ECF No. [37].

II. LEGAL STANDARD

Plaintiff does not object to Judge Valle's recitation of the standard for judicial review of a final decision by the Commissioner of the Social Security Administration, which, in any event, is correct.¹ See ECF No. [35] at 2-3. Judicial review of the ALJ's Decision is limited to whether " ‘it is supported by substantial evidence and based on proper legal standards.’ " Crawford v. Comm'r , 363 F.3d 1155, 1158 (11th Cir. 2004) (quoting Lewis v. Callahan , 125 F.3d 1436, 1439 (11th Cir. 1997) ). " ‘Substantial evidence is more than a scintilla and is such relevant evidence as a reasonable person would accept as adequate to support a conclusion.’ " Id. (quoting Lewis , 125 F.3d at 1439 ); accord Hale v. Bowen , 831 F.2d 1007, 1011 (11th Cir. 1987) (substantial evidence is "more than a mere scintilla, but less than a preponderance") (internal quotation and citation omitted). A court, however, " ‘may not decide the facts anew, reweigh the evidence, or substitute [its] judgment for that of the [ALJ].’ "

Winschel v. Comm'r , 631 F.3d 1176, 1178 (11th Cir. 2011) (internal quotation marks and citations omitted); accord Packer v. Comm'r, Soc. Sec. Admin. , 542 F. App'x 890, 891 (11th Cir. 2013) ("[W]e may not reweigh the evidence or substitute our judgment for that of the ALJ.") (citing Dyer v. Barnhart , 395 F.3d 1206, 1210 (11th Cir. 2005) ). "A clearly articulated credibility finding with substantial supporting evidence in the record will not be disturbed by a reviewing court." Foote v. Chater , 67 F.3d 1553, 1562 (11th Cir. 1995). Even if evidence preponderates against the ALJ's Decision, a court must affirm "if the decision is supported by substantial evidence." Bloodsworth v. Heckler , 703 F.2d 1233, 1239 (11th Cir. 1983) (citing 42 U.S.C. § 405(g) ). The R&R properly states the legal and regulatory standards an ALJ must employ in making a determination as to eligibility for supplemental security income benefits. See ECF No. [35] at 3-5. Through this lens, the Court addresses Plaintiff's Objections.

III. DISCUSSION

A. Plaintiff waived her Appointments Clause challenge

The gist of Plaintiff's Appointments Clause argument is that the ALJ was unconstitutionally appointed, and the Court therefore must remand her case to be heard by a different and constitutionally appointed ALJ. In support of this argument, Plaintiff relies heavily on Lucia v. S.E.C. , ––– U.S. ––––, 138 S. Ct. 2044, 201 L.Ed.2d 464 (2018), Sims v. Apfel , 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), and Cirko on behalf of Cirko v. Comm'r of Soc. Sec. , 948 F.3d 148 (3d Cir. 2020) for the proposition that there is no issue exhaustion requirement in the social security context.²

The Eleventh Circuit has not yet addressed the issue of whether the failure to raise the Appointments Clause challenge in the SSA administrative proceedings forfeits the claim. However, the Eleventh Circuit, relying upon Lucia , has recently declined to excuse a petitioner's forfeiture of its Appointments Clause argument in which it did not timely challenge the validity of the ALJ's appointment. See Pharmacy Doctors Enters., Inc. v. Drug Enforcement Admin. , 789 F. App'x 724, 727-29 (11th Cir. 2019) (concluding that petitioner "has forfeited its Appointments Clause challenge" because "arguments based on the Appointments Clause are nonjurisdictional and therefore subject to the ordinary rules of forfeiture") (citing Freytag v. C.I.R. , 501 U.S. 868, 893-94, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) (Scalia, J., concurring in part and concurring in judgment)).

Moreover, federal courts within Florida routinely have interpreted Lucia to mean that, in the context of social security proceedings, an Appointments Clause challenge must be raised before the ALJ's decision becomes final at the administrative level. See, e.g. , Perez v. Berryhill , No. 18-20760-CV, 2019 WL 1405642, at *4-5 (S.D. Fla. Mar. 28, 2019) (rejecting as untimely claimant's Appointments Clause argument where claimant did not raise the issue either during the proceedings before the ALJ or to the Appeals Council) (relying on Lucia , 138 S. Ct. at 2055 and Ryder v. United States , 515 U.S. 177, 182-83, 115 S.Ct. 2031, 132 L.Ed.2d 136 (1995) ); Parker v. Berryhill , No. 18-14349-CIV, 2019 WL 3097511, at *10-11 (S.D. Fla. July 15, 2019) (rejecting same argument, explaining that "[a]lthough the Eleventh Circuit has yet to decide this issue, the courts within this circuit have held that an Appointments Clause challenge, in the context of social security disability proceedings, is nonjurisdictional and must be raised at the administrative level," and noting that Sims "does not stand for Plaintiff's argument that an SSA claimant may raise issues for the first time in federal court"); Lopez v. Berryhill , No. 18-20626-CV, 2019 WL 1429632, at *5-7 (S.D. Fla. Mar. 29, 2019) (explaining that if plaintiff "truly wished to raise an Appointments Clause challenge, Lucia and Ryder require[d] her to have done so either during the proceedings before [the] ALJ ... or to the Appeals' Council after the ALJ issued his decision"). See also Jones v. Berryhill , No. 4:18CV503-CAS, 2019 WL 2583157, at *7-8 (N.D. Fla. June 21, 2019) (finding that claimant forfeited her Appointments Clause challenge by failing to raise it at any point during the administrative process, and commenting that "post- Sims cases have found that although Sims held that a Plaintiff need not exhaust an issue before the Appeals Council, the Court ‘specifically left open the question of whether an issue is waived if it is not raised in the administrative hearing’ "); Valle-Roman v. Comm'r of Soc. Sec. , No. 6:18-CV-1158-ORL-TBS, 2019 WL 1281171, at *2 (M.D. Fla. Mar. 20, 2019) (holding that plaintiff's failure to raise Appointments Clause issue at the administrative level is "fatal" to her claim because "[a]ny...