Opinion
No. 5:19-CV-499-FL
08-07-2020
ANNA TALLEY, Plaintiff/Claimant, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
MEMORANDUM AND RECOMMENDATION
This matter is before the court on the parties' cross-motions for judgment on the pleadings [DE-27, -34] pursuant to Fed. R. Civ. P. 12(c). Claimant Anna Talley ("Claimant") filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the denial of her applications for a period of disability and Disability Insurance Benefits ("DIB"). Claimant responded to Defendant's motion, and the time for filing a reply has expired. [DE-36]. Accordingly, the pending motions are ripe for adjudication. Having carefully reviewed the administrative record and the motions and memoranda submitted by the parties, it is recommended that Claimant's Motion for Judgment on the Pleadings be allowed, Defendant's Motion for Judgment on the Pleadings be denied, and the case be remanded to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
I. STATEMENT OF THE CASE
Claimant protectively filed an application for a period of disability and DIB on April 28, 2016, alleging disability beginning October 31, 2012. (R. 911, 1188-89). Her claim was denied initially and upon reconsideration. (R. 911, 1052-88). A hearing before the Administrative Law Judge ("ALJ") was held on July 9, 2018, at which Claimant, represented by counsel; a witness; and a vocational expert ("VE") appeared and testified. (R. 955-1051). On October 24, 2018, the ALJ issued a decision denying Claimant's request for benefits.) (R. 908-48).
Claimant then requested a review of the ALJ's decision by the Appeals Council and submitted additional evidence as part of her request. (R. 8-207, 219-852, 854-67, 870-907, 1163-87). The Appeals Council found that some of the additional evidence did not show a reasonable probability that it would change the outcome of the decision, and it found that the rest of the additional evidence did not relate to the period at issue. (R. 2). The Appeals Council denied Claimant's request for review on September 4, 2019. (R. 1-7). Claimant then filed a complaint in this court seeking review of the now-final administrative decision.
II. STANDARD OF REVIEW
The scope of judicial review of a final agency decision regarding disability benefits under the Social Security Act ("Act"), 42 U.S.C. § 301 et seq., is limited to determining whether substantial evidence supports the Commissioner's factual findings and whether the decision was reached through the application of the correct legal standards. See Coffman v. Bowen, 829 F.2d 514, 517 (4th Cir. 1987). "The findings of the Commissioner . . . as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g). Substantial evidence is "evidence which a reasoning mind would accept as sufficient to support a particular conclusion." Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966). While substantial evidence is not a "large or considerable amount of evidence," Pierce v. Underwood, 487 U.S. 552, 565 (1988), it is "more than a mere scintilla . . . and somewhat less than a preponderance." Laws, 368 F.2d at 642. "In reviewing for substantial evidence, [the court should not] undertake to re-weigh conflicting evidence, make credibility determinations, or substitute [its] judgment for that of the [Commissioner]." Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001) (quoting Craig v. Chater, 76 F.3d 585, 589 (4th Cir. 1996), superseded by regulation on other grounds, 20 C.F.R. § 416.927(d)(2)). Rather, in conducting the "substantial evidence" inquiry, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale in crediting the evidence. Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
III. DISABILITY EVALUATION PROCESS
The disability determination is based on a five-step sequential evaluation process as set forth in 20 C.F.R. § 404.1520 under which the ALJ is to evaluate a claim:
The claimant (1) must not be engaged in "substantial gainful activity," i.e., currently working; and (2) must have a "severe" impairment that (3) meets or exceeds [in severity] the "listings" of specified impairments, or is otherwise incapacitating to the extent that the claimant does not possess the residual functional capacity to (4) perform . . . past work or (5) any other work.Albright v. Comm'r of the SSA, 174 F.3d 473, 475 n.2 (4th Cir. 1999). "If an applicant's claim fails at any step of the process, the ALJ need not advance to the subsequent steps." Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir. 1995) (citation omitted). The burden of proof and production during the first four steps of the inquiry rests on the claimant. Id. At the fifth step, the burden shifts to the ALJ to show that other work exists in the national economy which the claimant can perform. Id.
When assessing the severity of mental impairments, the ALJ must do so in accordance with the "special technique" described in 20 C.F.R. § 404.1520a(b)-(c). This regulatory scheme identifies four broad functional areas in which the ALJ rates the degree of functional limitation resulting from a claimant's mental impairment(s): understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. Id. § 404.1520a(c)(3). The ALJ is required to incorporate into his written decision pertinent findings and conclusions based on the "special technique." Id. § 404.1520a(e)(3).
In this case, Claimant alleges the following errors: (1) the ALJ insufficiently analyzed Listing 14.06, (2) the ALJ did not adequately account for Claimant's migraines in the RFC, and (3) the ALJ's appointment did not comply with the Appointments Clause. Pl.'s Mem. [DE-28] at 13-21.
IV. ALJ'S FINDINGS
Applying the above-described sequential evaluation process, the ALJ found Claimant "not disabled" as defined in the Act. At step one, the ALJ found Claimant had not engaged in substantial gainful employment from October 31, 2012, the alleged onset date, to September 30, 2018, the date last insured. (R. 913). Next, the ALJ determined Claimant had the following severe impairments: bilateral shoulder and right knee dysfunction; degenerative joint disease of the bilateral shoulders, status post surgery; degenerative joint disease of the right knee; stress fractures of the bilateral lower extremities; plantar fasciitis and plantar fascial fibromatosis; right hip trochanteric bursitis; iliotibial band syndrome; Ehlers-Danlos syndrome ("EDS"); degenerative disc disease of the lumbar spine; asthma; hypertension; migraine headaches; obesity; chronic pain syndrome; depressive disorder; anxiety disorder; and posttraumatic stress disorder ("PTSD"). Id. The ALJ also found Claimant had nonsevere impairments of bilateral wrist cysts, status post removal; left ankle sprain; lupus anticoagulant disorder; hypermetropia; myalgia; gastroesophageal reflux disease ("GERD"); allergic rhinitis; pes planus; and neoplasm of the skin. (R. 914). However, at step three, the ALJ concluded these impairments were not severe enough, either individually or in combination, to meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. 915-17). Applying the technique prescribed by the regulations, the ALJ found that Claimant's mental impairments have resulted in a mild limitation in understanding, remembering, or applying information and moderate limitations in interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. (R. 916-17).
Prior to proceeding to step four, the ALJ assessed Claimant's RFC, finding Claimant had the ability to perform sedentary work requiring the following limitations:
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 404.1567(a); S.S.R. 96-9p, 1996 WL 374185, at *3 (July 2, 1996). "Occasionally" generally totals no more than about 2 hours of an 8-hour workday. "Sitting" generally totals about 6 hours of an 8-hour workday. S.S.R. 96-9p, 1996 WL 374185, at *3. A full range of sedentary work includes all or substantially all of the approximately 200 unskilled sedentary occupations administratively noticed in 20 C.F.R. Part 404, Subpart P, Appendix 2, Table 1. Id. --------
occasionally push/pull and operate foot controls with the right lower extremity; occasionally climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel, and crouch; never crawl; frequently reach, handle objects and finger bilaterally; occasional exposure to extreme heat and vibration; occasional exposure to pulmonary irritants such as dust, odors, fumes, and gases and to poorly ventilated areas; and occasional exposure to unprotected heights, hazardous machinery or hazardous moving parts. The claimant was limited to jobs that could be performed while using a handheld assistive device, a cane, required at all times when walking and the contralateral upper extremity could be used to lift and carry up to exertional limits. The claimant's work was limited to simple, routine and repetitive tasks, but not at a production rate pace; simple work-related decisions; occasional interaction with the public; and frequent interaction with co-workers and supervisors. She would be off task no more than 10% of the time in an 8-hour workday, in addition to normal breaks (with normal breaks defined as a 15 minute morning and afternoon break and a 30 to 60 minute lunch break).(R. 918-39). In making this assessment, the ALJ found Claimant's statements about her limitations not entirely consistent with the medical and other evidence. (R. 920).
At step four, the ALJ concluded Claimant did not have the RFC to perform the requirements of her past relevant work as an animal caretaker, routine office clerk, animal technician, dispatcher, or police officer. (R. 939). Nonetheless, at step five, upon considering Claimant's age, education, work experience, and RFC, the ALJ determined Claimant was capable of adjusting to the demands of other employment opportunities that existed in significant numbers in the national economy through the date last insured. (R. 940-41).
V. DISCUSSION
A. The ALJ erred in discussing Listing 14.06.
Claimant contends the ALJ did not sufficiently analyze whether her impairments meet Listing 14.06 in accordance with Radford v. Colvin, 734 F.3d 288, 295 (4th Cir. 2013). Pl.'s Mem. [DE-28] at 13-16. The Listings consist of impairments, organized by major body systems, that are deemed sufficiently severe to prevent a person from doing any gainful activity. 20 C.F.R. § 404.1525(a). Therefore, if a claimant's impairments meet or medically equal a listing, that fact alone establishes that the claimant is disabled. Id. § 404.1520(d). An impairment meets a listing if it satisfies all the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); S.S.R. 83-19, 1983 WL 31248, at *2 (Jan. 1, 1983) (rescinded in part). The burden of demonstrating that an impairment meets a listing rests on the claimant. Hall v. Harris, 658 F.2d 260, 264 (4th Cir. 1981).
When "there is at least conflicting evidence in the record" as to whether a claimant satisfies a listing, the ALJ must explain his determination that the claimant's impairment does not meet or exceed the listing. Radford, 734 F.3d at 295. The ALJ cannot "summarily conclude" that a listing is not satisfied because "insufficient legal analysis makes it impossible for a reviewing court to evaluate whether substantial evidence supports the ALJ's findings." Id.
Listing 14.06 describes undifferentiated and mixed connective tissue disease. 20 C.F.R. § 404, subpt. P, app. 1, § 14.06. Undifferentiated and mixed connective tissue disease is defined in § 14.00(D)(5) as:
a. General. This listing includes syndromes with clinical and immunologic features of several autoimmune disorders, but which do not satisfy the criteria for any of the specific disorders described. For example, you may have clinical features of SLE and systemic vasculitis, and the serologic (blood test) findings of rheumatoid arthritis.Id. § 14.00(D)(5). Additionally, Listing 14.06 requires:
b. Documentation of undifferentiated and mixed connective tissue disease. Undifferentiated connective tissue disease is diagnosed when clinical features and serologic (blood test) findings, such as rheumatoid factor or antinuclear antibody (consistent with an autoimmune disorder) are present but do not satisfy the criteria for a specific disease. Mixed connective tissue disease (MCTD) is diagnosed when clinical features and serologic findings of two or more autoimmune diseases overlap.
A. Involvement of two or more organs/body systems, with:Id. § 14.06.
1. One of the organs/body systems involved to at least a moderate level of severity; and
2. At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss).
or
B. Repeated manifestations of undifferentiated or mixed connective tissue disease, with at least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss) and one of the following at the marked level:
1. Limitation of activities of daily living.
2. Limitation in maintaining social functioning.
3. Limitation in completing tasks in a timely manner due to deficiencies in concentration, persistence, or pace.
In discussing the Listings, the ALJ wrote, "As documented in the record (1F-38F) and described in this decision, the evidence does not establish: . . ." and recited the requirements of Listing 14.06, among others. (R. 915-16). The ALJ did not discuss specific evidence in that portion of the decision. Id. Accordingly, Claimant contends, the ALJ did not sufficiently analyze Listing 14.06 in accordance with Radford. Pl.'s Mem. [DE-28] at 13-16. Defendant responds that the ALJ was not required to explain his rationale because there is no viable argument that Claimant meets Listing 14.06. Def.'s Mem. [DE-35] at 6-10.
The record indicates that there is at least conflicting evidence that Claimant meets Listing 14.06. In February 2015, Claimant was assessed with possible Ehlers-Danlos Syndrome ("EDS"), a connective tissue disorder. (R. 2787). Her symptoms were spontaneous, heavy bleeding; stretchy, soft skin; several joint subluxations/dislocations; widened surgical scars; local anesthetic resistance; hypermobility in all joints; muscle fatigue, soreness, and stiffness; chronic headaches; and easy bruising. Id.
On September 21, 2015, Claimant was evaluated for EDS. (R. 2371). Dr. Jonathan Berg concluded that "it is possible that she has a form of Ehlers-Danlos syndrome," and he referred Claimant to genetic testing to determine her sub-type of EDS. (R. 2372). The results of the genetic testing indicated "no disease causing mutation." (R. 2253). However, in February 2016, Dr. Berg wrote:
Ms. Talley's constellation of symptoms including joint hypermobility, recurrent dislocations, and minor wound healing problems, as well as her physical examination findings, indicates that she is affected with a connective tissue disorder in the Ehlers-Danlos syndrome spectrum. Ms. Talley has had four surgeries for a shoulder dislocation, which required special suturing and steristrip applications to adequately heal. Ms. Talley's symptoms began in early childhood, and her wound healing problems lend further support to this diagnosis.(R. 2251). In May 2017, an MRI indicated "Posterior subluxation of the humeral head which may be due to a capsular laxity related to Ehlers-Danlos syndrome." (R. 3184). In June 2017, Dr. Claude Moorman wrote that Claimant does have EDS. (R. 2565). In January 2018, Dr. Arun Ganesh diagnosed Claimant with EDS, (R. 3293), and in June 2018, Dr. Melanie Mintzer and Dr. Allison Mikel both noted that Claimant was diagnosed with EDS, (R. 3354, 3367). The ALJ also concluded that EDS is one of Claimant's severe impairments. (R. 914). Accordingly, there is at least conflicting evidence that Claimant has a connective tissue disorder.
Defendant argues that Claimant does not meet the testing requirements of 14.00(D)(5) because she does not have serologic findings indicating an undifferentiated connective tissue disease or a mixed connective tissue disease. Def.'s Mem. [DE-35] at 7-8. While Claimant's genetic testing did not indicate a disease-causing mutation, (R. 2253), the ALJ did not mention 14.00(D)(5). Instead, the ALJ found only that Claimant does not meet the requirements of Listing 14.06. (R. 916). Even if the ALJ concluded that Claimant does not meet the requirements of 14.06 because she lacks the testing described in 14.00(D)(5), the complete lack of discussion of 14.00(D)(5) renders the court unable to evaluate whether substantial evidence supports that finding. See Radford, 734 F.3d at 295.
Additionally, there is at least conflicting evidence as to whether Claimant meets Listing 14.06(A), which describes "Involvement of two or more organs/body systems, with: (1) One of the organs/body systems involved to at least a moderate level of severity; and (2) At least two of the constitutional symptoms or signs (severe fatigue, fever, malaise, or involuntary weight loss)." 20 C.F.R. § 404, subpt. P, app. 1, § 14.06. The record indicates that Claimant has hyperelastic skin, easy bruising, difficulty healing from wounds, severe fatigue, and malaise. Pl.'s Mem. [DE-28] at 15; (R. 903, 1526, 1540, 2475, 2787, 2820, 2858, 2868, 2949-50, 3355, 3357, 3368). Because there is at least conflicting evidence in the record that Claimant meets Listing 14.06(A), the ALJ erred in failing to compare that listing to the specific facts of Claimant's case. See Radford, 734 F.3d at 295; Simpson v. Saul, No. 1:18-CV-747, 2019 WL4141057, at *6 (M.D.N.C. Aug. 30, 2019) (finding that the ALJ erred in failing to adequately consider whether the claimant's EDS met Listing 14.06). Accordingly, remand is warranted for the ALJ to more thoroughly discuss Listing 14.06.
B. The ALJ did not err in discussing Claimant's headaches.
Claimant contends the ALJ did not sufficiently account for her headaches in formulating the RFC. Pl.'s Mem. [DE-28] at 16-18. Specifically, Claimant argues that the ALJ erred in not finding that she would be absent two to three days per month and in failing to include accommodations in the RFC for lying down and avoiding light and noise when her migraines occur. Id. at 17.
An individual's RFC is the capacity she possesses despite the limitations caused by physical or mental impairments. 20 C.F.R. § 404.1545(a)(1); see also S.S.R. 96-8p, 1996 WL 374184, at *1 (July 2, 1996). "[T]he residual functional capacity 'assessment must first identify the individual's functional limitations or restrictions and assess his or her work-related abilities on a function-by-function basis, including the functions' listed in the regulations." Mascio v. Colvin, 780 F.3d 632, 636 (4th Cir. 2015) (quoting S.S.R. 96-8p). The RFC is based on all relevant medical and other evidence in the record and may include a claimant's own description of limitations arising from alleged symptoms. 20 C.F.R. § 404.1545(a)(3); see also S.S.R. 96-8p, 1996 WL 374184, at *5.
Where a claimant has numerous impairments, including non-severe impairments, the ALJ must consider their cumulative effect in making a disability determination. 42 U.S.C. § 423(d)(2)(B); see Hines v. Brown, 872 F.2d 56, 59 (4th Cir. 1989) ("[I]n determining whether an individual's impairments are of sufficient severity to prohibit basic work related activities, an ALJ must consider the combined effect of a claimant's impairments.") (citations omitted). The ALJ has sufficiently considered the combined effects of a claimant's impairments when each is separately discussed by the ALJ and the ALJ also discusses a claimant's complaints and activities. Baldwin v. Barnhart, 444 F. Supp. 2d 457, 465 (E.D.N.C. 2005) (citations omitted). The RFC assessment "must include a discussion of why reported symptom-related functional limitations and restrictions can or cannot reasonably be accepted as consistent with the medical and other evidence" and also "must include a narrative discussion describing how the evidence supports each conclusion, citing specific medical facts (e.g., laboratory findings) and nonmedical evidence (e.g., daily activities, observations)." S.S.R. 96-8p, 1996 WL 374184, at *7; see also Clifford v. Apfel, 227 F.3d 863, 872 (7th Cir. 2000) (observing that the ALJ "must build an accurate and logical bridge from the evidence to his conclusion").
The ALJ recounted Claimant's testimony that she had migraines two or three times per week around her alleged onset date but at the time of the hearing, they occurred two to three times per month. (R. 919). Claimant stated that "they last about two to four hours on average, but can last for days." Id. She rated the pain as a nine or ten out of ten, and stated that she experiences nausea and has sensitivity to light. Id. The ALJ concluded that "Claimant's alleged migraine frequency and severity are not consistent with or supported by the objective medical evidence." (R. 928). He summarized Claimant's 2012 neurology visit with Dr. Singaravelu Jagadeesan in which she reported daily intractable headaches, nausea, photophobia, position exaggeration, and severe headaches three to four times per month. (R. 929). Dr. Jagadeesan adjusted Claimant's medications. Id. In March 2013, Claimant reported migraines once or twice per week and headaches every other day, and Dr. Jagadeesan adjusted her medications because she was trying to become pregnant. Id. In February 2015, Claimant reported a migraine that lasted three days. Id. In June 2015, she complained of a migraine and reported to her primary care physician that she was only taking Tylenol; she was prescribed additional medications. Id. In April 2016, Claimant reported general headaches, and she was prescribed eyeglasses. (R. 929-30). The ALJ also discussed Dr. Mintzer's opinion in which she opined that Claimant would not be able to work while suffering a headache. (R. 935-36).
The ALJ thoroughly discussed the evidence regarding Claimant's migraines, explained his decision, and cited substantial evidence in support of the RFC determination. It is not the role of the court to re-weigh the evidence. Mastro, 270 F.3d at 176. Rather, the court's review is limited to whether the ALJ analyzed the relevant evidence and sufficiently explained his or her findings and rationale. Sterling Smokeless Coal Co., 131 F.3d at 439-40. The ALJ did so here; accordingly, substantial evidence supports the RFC in regards to Claimant's migraines, and the ALJ did not err.
C. Claimant waived her Appointments Clause argument by failing to raise it below.
Claimant contends that remand is appropriate because the ALJ's appointment did not comply with the Appointments Clause. Pl.'s Mem. [DE-28] at 19-21. The Commissioner contends Claimant's failure to challenge the ALJ's appointment during the administrative proceeding before the agency forfeited any Appointment Clause claim. Def.'s Mem. [DE-35] at 12-23.
In Lucia v. Sec. & Exch. Comm'n, the Supreme Court considered whether ALJs within the Securities and Exchange Commission ("SEC") were "Officers of the United States" and subject to the Appointments Clause, which requires appointment of such officers by only the President, a court of law, or a head of department. — U.S. —, 138 S. Ct. 2044, 2051 (2018) (citing Const. art. II, § 2, cl. 2). The Court decided that the ALJ was, in fact, an "officer" and that his appointment was unconstitutional because it was made by an SEC staff member rather than one of the constitutionally permissible entities. Id. at 2055. Finally, the court concluded that because Lucia made a timely challenge to the validity of the ALJ's appointment before the SEC and in subsequent litigation, he was entitled to a new hearing before a properly appointed official. Id. ("'[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.") (quoting Ryder v. United States, 515 U.S. 177, 182-83 (1995)).
Here, there is no evidence in the record that Claimant challenged the ALJ's appointment in the administrative proceeding before the SSA. Claimant raised this issue for the first time before the court, and, therefore, her challenge is untimely. See Lucia, 138 S. Ct. at 2055 (finding Lucia's challenge was timely because he challenged the ALJ's appointment before the SEC and continued to pursue his claim in court). The Fourth Circuit Court of Appeals has yet to address this issue. See Davis v. Saul, 963 F.3d 790, 795 (8th Cir. 2020) (holding that claimants waive an Appointments Clause argument by failing to raise it before the ALJ); Carr v. Comm'r, SSA, 961 F.3d 1267, 1276 (10th Cir. 2020) (same). Many courts, including courts in this district and in the Middle and Western districts of North Carolina, have considered post-Lucia Appointments Clause challenges to Social Security ALJ appointments and have rejected attacks on the validity of the ALJ's appointment if the claimant failed to challenge it at the administrative level. See Hofler v. Saul, No. 2:18-CV-50-BO, 2020 WL 1229937, at *2 (E.D.N.C. Mar. 12, 2020) (holding that the claimant waived her Appointments Clause argument because she "failed to raise any challenge to the ALJ's appointment at any point in the administrative proceedings") (citations omitted); Taylor v. Saul, No. 3:18-CV-00553-KDB, 2019 WL 6972845, at *7 (W.D.N.C. Dec. 18, 2019) (finding forfeiture of Appointments Clause claim); Love v. Saul, No. 1:18CV448, 2019 WL 5065064, at *15-18 (M.D.N.C. Oct. 9, 2019) (finding forfeiture); Shoemaker v. Saul, No. 7:18-CV-116-FL, 2019 WL 4580381, at *1 (E.D.N.C. Sept. 20, 2019) (finding forfeiture) (citing Graham v. Berryhill, No. 7:18-CV-22-FL, 2019 WL 1270933 (E.D.N.C. Jan. 10, 2019), adopted by 2019 WL 1270933 (E.D.N.C. Mar. 19, 2019)); see also Edwards v. Berryhill, No. 3:18-CV-615-JAG, 2019 WL 2619542, at *4 (E.D. Va. June 6, 2019) (finding forfeiture); Abbington v. Berryhill, No. CV 1:17-00552-N, 2018 WL 6571208, at *2 (S.D. Ala. Dec. 13, 2018) ("In addressing Appointment Clause challenges to Social Security ALJs since Lucia was decided, numerous district courts have held that a claimant forfeits such a challenge by failing to raise it at the administrative level.") (collecting cases); Nickum v. Berryhill, No. 17-2011-SAC, 2018 WL 6436091, at *6 (D. Kan. Dec. 7, 2018) (finding forfeiture and collecting cases). However, other courts, including the Third Circuit Court of Appeals and some courts within this district, have decided the issue differently. See Morse-Lewis v. Saul, No. 2:18-CV-48-D, 2020 WL 1228678, at *4 (E.D.N.C. Mar. 12, 2020) (finding no forfeiture) (citing Cirko v. Comm'r of Soc. Sec., 948 F.3d 148, 153 (3d Cir. 2020)); Bradshaw v. Berryhill, No. 5:18-CV-100-RN, 2019 WL 1510953, at *11 (E.D.N.C. Mar. 26, 2019) (finding no forfeiture), appeal docketed, No. 19-1531 (4th Cir. May 17, 2019); Probst v. Berryhill, No. 5:18-CV-130-JG, 2019 WL 1749135, at *8 (E.D.N.C. Mar. 22, 2019) (finding no forfeiture), appeal docketed, No. 19-1529 (4th Cir. May 17, 2019). But see, e.g., Berns v. Saul, No. C18-2068-LTS, 2020 WL 1330432, at *7 (N.D. Iowa Mar. 23, 2020) (finding forfeiture and declining to follow Cirko); Honeycutt v. Saul, No. 3:18-CV-509-CRS, 2020 WL 1430475, at *4-5 (W.D. Ky. Mar. 23, 2020) (finding forfeiture and declining to follow Cirko); Gagliardi v. Soc. Sec. Admin., No. 18-CV-62106, 2020 WL 966595, at *4 (S.D. Fla. Feb. 28, 2020) (finding forfeiture and declining to follow Cirko). The undersigned continues to find persuasive the line of cases finding that a claimant's failure to timely challenge the ALJ's appointment before the SSA is a bar to this court's review of the issue on appeal from the Commissioner's decision. See Bailey v. Saul, No. 1:18-CV-00371-FDW, 2020 WL 1429240, at *4-6 (W.D.N.C. Mar. 19, 2020) (acknowledging Cirko but finding forfeiture). Accordingly, Claimant has forfeited any challenge to the ALJ's appointment by failing to raise it below.
VI. CONCLUSION
For the reasons stated above, it is RECOMMENDED that Claimant's Motion for Judgment on the Pleadings [DE-27] be ALLOWED, Defendant's Motion for Judgment on the/Pleadings [DE-34] be DENIED, and the case be REMANDED to the Commissioner for further proceedings consistent with the Memorandum and Recommendation.
IT IS DIRECTED that a copy of this Memorandum and Recommendation be served on each of the parties or, if represented, their counsel. Each party shall have until August 21, 2020 to file written objections to the Memorandum and Recommendation. The presiding district judge must conduct his or her own review (that is, make a de novo determination) of those portions of the Memorandum and Recommendation to which objection is properly made and may accept, reject, or modify the determinations in the Memorandum and Recommendation; receive further evidence; or return the matter to the magistrate judge with instructions. See, e.g., 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Local Civ. R. 1.1 (permitting modification of deadlines specified in local rules), 72.4(b), E.D.N.C. Any response to objections shall be filed by within 14 days of the filing of the objections.
If a party does not file written objections to the Memorandum and Recommendation by the foregoing deadline, the party will be giving up the right to review of the Memorandum and Recommendation by the presiding district judge as described above, and the presiding district judge may enter an order or judgment based on the Memorandum and Recommendation without such review. In addition, the party's failure to file written objections by the foregoing deadline will bar the party from appealing to the Court of Appeals from an order or judgment of the presiding district judge based on the Memorandum and Recommendation. See Wright v. Collins , 766 F.2d 841, 846-47 (4th Cir.
1985).
Submitted, this the 7th day of August, 2020.
/s/_________
Robert B. Jones, Jr.
United States Magistrate Judge