Opinion
Case No: 6:18-cv-1375-Orl-GJK
05-03-2019
DAVID A. RODRIGUEZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Copies furnished to: W. Patrick Westerfield, Esq. Law Office of Clint Curtis & Associates, P.A. 7217 E. Colonial Drive, Suite 113 Orlando, Florida 32807 Maria Chapa Lopez United States Attorney John F. Rudy, III Assistant United States Attorney 400 N. Tampa St. Suite 3200 Tampa, Florida 33602 Christopher G. Harris, Regional Chief Counsel, Atlanta John C. Stoner, Deputy Regional Chief Counsel Megan E. Gideon, Branch Chief Jillian Nelson, Assistant Regional Counsel Social Security Administration Office of the General Counsel, Region IV Atlanta Federal Center 61 Forsyth Street, S.W., Suite 20T45 Atlanta, Georgia 30303 The Honorable Edward E. Evans U.S. Administrative Law Judge c/o Office of Disability Adjudication and Review SSA ODAR Hearing Ofc 3207 N. Cypress St. Wichita, Kansas 67226-4005
REPORT AND RECOMMENDATION
David A. Rodriguez (the "Claimant"), appeals from a final decision of the Commissioner of Social Security (the "Commissioner"), denying his application for Supplemental Security Income benefits. Doc. Nos. 1, 27. Claimant alleges a disability onset date of September 1, 2013. R. 189-90. Claimant argues that the Administrative Law Judge's ("ALJ") decision should be reversed because the ALJ did not have authority to decide the case as he was not properly appointed pursuant to the Appointments Clause. It is recommended that the ALJ's final decision be AFFIRMED.
I. ANALYSIS
Claimant argues that the ALJ did not have authority to issue a decision in this case because he was not properly appointed under the Appointments Clause. Doc. No. 27 at 3-5. The Commissioner argues that Claimant did not timely raise this argument at some point prior to appealing to this Court and that this issue cannot be raised for the first time on appeal. Doc. No. 27 at 5-14, 18-19. In response, Claimant argues that he was not required to raise this claim prior to presenting it to this Court. Doc. No. 27 at 14-18.
The Appointments Clause of the U.S. Constitution lays out the permissible methods of appointing "Officers of the United States." Art. II, § 2, cl. 2. Administrative Law Judges, such as those who serve the Commissioner and conduct review hearings, are subject to the Appointments Clause and are distinct from regular government employees. See Lucia v. S.E.C., 138 S. Ct. 2044, 2055 (2018). As an Officer of the United States, an ALJ for the Commissioner must be properly appointed under the Appointments Clause and only a properly appointed officer can render decisions in Social Security cases. See id. --------
This issue was addressed and resolved in an order granting in part Commissioner's Second Amended Motion for Partial Dismissal, or in the Alternative, for Partial Summary Judgment. Doc. Nos. 16, 24, 28. In its Order, issued after de novo review of a Report and Recommendation issued by the undersigned, the Court concluded that Claimant was required to raise his Appointments Clause challenge at some point during his administrative proceedings to preserve judicial review of the issue and he has admittedly failed to do so. Doc. No. 28 at 1-2. The motion for partial summary judgment on the issue of the timeliness of Claimant's Appointments Clause challenge was granted and summary judgment was entered in favor of the Commissioner on that issue. As Claimant raises no other arguments to support reversal of the ALJ's decision other than his Appointment Clause challenge, it is recommended that the decision of the Commissioner be affirmed.
II. CONCLUSION.
For the reasons stated above, it is RECOMMENDED that:
1. The final decision of the Commissioner be AFFIRMED; and
2. The Clerk be directed to enter judgment for Commissioner and close the case.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. Failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. 11th Cir. R. 3-1.
DONE AND ORDERED in Orlando, Florida, on May 3, 2019.
/s/_________
GREGORY J. KELLY
UNITED STATES MAGISTRATE JUDGE Copies furnished to: W. Patrick Westerfield, Esq.
Law Office of Clint Curtis & Associates, P.A.
7217 E. Colonial Drive, Suite 113
Orlando, Florida 32807 Maria Chapa Lopez
United States Attorney
John F. Rudy, III
Assistant United States Attorney
400 N. Tampa St.
Suite 3200
Tampa, Florida 33602 Christopher G. Harris, Regional Chief Counsel, Atlanta
John C. Stoner, Deputy Regional Chief Counsel
Megan E. Gideon, Branch Chief
Jillian Nelson, Assistant Regional Counsel
Social Security Administration
Office of the General Counsel, Region IV
Atlanta Federal Center
61 Forsyth Street, S.W., Suite 20T45
Atlanta, Georgia 30303 The Honorable Edward E. Evans
U.S. Administrative Law Judge
c/o Office of Disability Adjudication and Review
SSA ODAR Hearing Ofc
3207 N. Cypress St.
Wichita, Kansas 67226-4005