Rager v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER by Magistrate Judge H. Brent Brennenstuhl on 9/9/2020: The final decision of the Commissioner is REVERSED, and this case is REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), to the Commissioner for a new hearing before an Administrative Law Judge other than the Administrative Law Judge who presided of Plaintiffs original hearing. cc: counsel (JM)
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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
BOWLING GREEN DIVISION
CIVIL ACTION NO. 1:19-CV-00140-HBB
SHEILA A. RAGER
ANDREW SAUL, COMMISSIONER
SOCIAL SECURITY ADMINISTRATION
Before the Court is the complaint (DN 1) of Sheila A. Rager (APlaintiff@) seeking judicial
review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the
Plaintiff (DN 17) and Defendant (DN 20) have filed a Fact and Law Summary. For the reasons
that follow, the final decision of the Commissioner is REVERSED and this case is REMANDED,
pursuant to sentence four of 42 U.S.C. § 405(g), to the Commissioner for a new hearing before an
Administrative Law Judge other than the Administrative Law Judge who presided of Plaintiff’s
Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, the parties have consented to the
undersigned United States Magistrate Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of judgment, with direct review by the
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Sixth Circuit Court of Appeals in the event an appeal is filed (DN 13). By Order entered February
10, 2020 (DN 14), the parties were notified that oral arguments would not be held unless a written
request therefor was filed and granted. No such request was filed.
FINDINGS OF FACT
On January 20, 2015, Plaintiff protectively filed an application for Disability Insurance
Benefits (Tr. 14, 256-60, 261-65). Plaintiff alleged that he became disabled on October 8, 2013
as a result of psoriatic arthritis, osteoarthritis, degenerative disc disease, multiple disc bulges,
bilateral facet hypertrophy, radiculopathy, fibromyalgia, and anxiety (Tr. 14, 313).
Administrative Law Judge Jerry Faust (AALJ@) conducted a video hearing from St. Louis Missouri
(Tr. 14, 41-44). Plaintiff and her counsel, Paul Neil Kerr, II, participated from Bowling Green,
Kentucky (Id.). Barbara A. Holmes, an impartial vocational expert, testified during the hearing
In a decision dated June 21, 2018, the ALJ evaluated this adult disability claim pursuant to
the five-step sequential evaluation process promulgated by the Commissioner (Tr. 14-30). The
ALJ noted that Plaintiff last met the insured status requirements of the Social Security Act on
March 13, 2017 (Tr. 16). At the first step, the ALJ found Plaintiff did not engaged in substantial
gainful activity from her alleged onset date of October 8, 2013 through her date last insured of
March 31, 2017 (Tr. 17). At the second step, the ALJ determined that that through the date last
insured, Plaintiff had the following severe impairments: cervical degenerative disc disease status
post spinal fusion; thoracic and lumbar degenerative disc disease; psoriatic arthritis; bilateral hip
degenerative joint disease; neuropathy; obesity; generalized anxiety disorder; depressive disorder;
and panic disorder (Tr. 17, Finding No. 3).
The ALJ also determined that several other
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impairments are Anon-severe@ within the meaning of the regulations (Tr. 17). Although the record
contains notations of a diagnosis of fibromyalgia, the ALJ concluded it is not a medically
determinable impairment because the documentation in record does not satisfy the criteria set forth
in Social Security Ruling 12-2p (Tr. 17-18).
At the third step, the ALJ concluded that Plaintiff does not have an impairment or
combination of impairments that meets or medically equals one of the listed impairments in
Appendix 1 (Tr. 18, Finding No. 4). In reaching this conclusion, the ALJ specifically considered
the criteria for Listings 1.02, 1.04, 12.04, and 12.06 (Tr. 18).
At the fourth step, the ALJ found that, through the date last insured, Plaintiff had the
residual functional capacity (RFC) to perform a range of sedentary work because she could
occasionally climb ramps and stairs; could never climb ladders, ropes, or scaffolds; could
frequently balance; could occasionally stoop, kneel, crouch and crawl; could have no more than
occasional exposure to extreme cold, humidity, vibration, and hazards such as unprotected heights,
dangerous unshielded machinery, open water and flames, and commercial driving; could perform
simple, routine, repetitive tasks in a relatively static environment within frequent changes; and
could have superficial (meaning no negotiation, no confrontation, no arbitration, no mediation,
and no supervision of others and no persuasion of others) interaction with others (Tr. 21, Finding
No. 5). Additionally, the ALJ relied on testimony from the vocational expert to find, through the
date last insured, Plaintiff could not perform any of her past relevant work (Tr. 28, Finding No. 6).
The ALJ proceeded to the fifth step where he considered Plaintiff=s residual functional
capacity, age, education, and past work experience as well as testimony from the vocational expert
(Tr. 29-30). The ALJ found that Plaintiff is capable of performing a significant number of jobs
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that exist in the national economy (Id.). Therefore, the ALJ concluded that Plaintiff was not under
a Adisability,@ as defined in the Social Security Act, at any time from October 8, 2013, the alleged
onset date, through March 31, 2017, the date last insured (Tr. 30).
Plaintiff timely filed a request for the Appeals Council to review the ALJ=s decision (Tr.
243-55). The Appeals Council denied Plaintiff=s request for review (Tr. 1-5).
CONCLUSIONS OF LAW
Standard of Review
Review by the Court is limited to determining whether the findings set forth in the final
decision of the Commissioner are supported by Asubstantial evidence,@ 42 U.S.C. § 405(g); Cotton
v. Sullivan, 2 F.3d 692, 695 (6th Cir. 1993); Wyatt v. Sec’y of Health & Human Servs., 974 F.2d
680, 683 (6th Cir. 1992), and whether the correct legal standards were applied. Landsaw v. Sec’y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). ASubstantial evidence exists when
a reasonable mind could accept the evidence as adequate to support the challenged conclusion,
even if that evidence could support a decision the other way.@ Cotton, 2 F.3d at 695 (quoting
Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)). In reviewing a
case for substantial evidence, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Cohen v. Sec’y of Health & Human Servs., 964
F.2d 524, 528 (6th Cir. 1992) (quoting Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).
As previously mentioned, the Appeals Council denied Plaintiff=s request for review of the
ALJ=s decision (Tr. 1-5). At that point, the ALJ=s decision became the final decision of the
Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a); see 42 U.S.C. § 405(h) (finality
of the Commissioner’s decision). Thus, the Court will be reviewing the ALJ’s decision and the
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evidence that was in the administrative record when the ALJ rendered the decision. 42 U.S.C. §
405(g); 20 C.F.R. § 404.981; Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996);
Cotton v. Sullivan, 2 F.3d 692, 695-696 (6th Cir. 1993).
The Commissioner’s Sequential Evaluation Process
The Social Security Act authorizes payment of Disability Insurance Benefits and
Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II
Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term
Adisability@ is defined as an
[I]nability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than twelve (12)
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a),
416.905(a); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Abbott v. Sullivan, 905 F.2d 918, 923
(6th Cir. 1990).
The Commissioner has promulgated regulations setting forth a five-step sequential
evaluation process for evaluating a disability claim. See AEvaluation of disability in general,@ 20
C.F.R. §§ 404.1520, 416.920. In summary, the evaluation proceeds as follows:
Is the claimant engaged in substantial gainful activity?
Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to do basic work activities?
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Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Does the claimant have the residual functional capacity to
return to his or her past relevant work?
Does the claimant’s residual functional capacity, age,
education, and past work experience allow him or her to
perform a significant number of jobs in the national
Here, the ALJ denied Plaintiff=s claim at the fifth step.
The Appointments Clause Challenge
1. Arguments of the Parties
Plaintiff argues her case was adjudicated by an improper and unconstitutionally appointed
Administrative Law Judge and should be remanded for a new hearing with a different and
constitutionally appointed Administrative Law Judge (DN 17-2 PageID # 1908-11, citing Lucia v.
S.E.C., __ U.S. __, 138 S.Ct. 2044, 2051 (2018)). Plaintiff points out that the Agency has
acknowledged its Administrative Law Judges as inferior officers that were not constitutionally
appointed when, on July 16, 2018, Nancy Berryhill approved all appointments as her own (Id.
citing Emergency Message EM-18003 REV 2). 1
Plaintiff asserts that she can raise her
Appointments Clause challenge before the Court despite failing to raise it before the Agency (Id.
citing Cirko on behalf of Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 152-59 (3d Cir. 2020)).
Defendant argues that Plaintiff has forfeited her Appointments Clause claim because she
never raised it before the Agency (DN 20 PageID # 1932-43).
1 Emergency Message EM-18003 REV 2, available at
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acknowledges that only two Circuits have addressed the issue, and they reached opposite
conclusions (Id. citing Carr v. Comm’r of Soc. Sec., __F.3d __, 2020 WL 3167896 (10th Cir. June
15, 2020) (claimant forfeits challenge because it was not raised before the Agency ); Cirko, 948
F.3d at 152-59 (claimant does not need to present challenge before the Agency)). Defendant
points out that numerous district courts in the Western District of Kentucky have rejected such
Appointments Clause challenges where the plaintiff failed to raise the issue during the
administrative proceedings (Id.).
Last week, the Sixth Circuit addressed the question whether six claimants must have raised
their Appointments Clause challenges before the Administrative Law Judge in order to preserve
their challenges for judicial review. See Ramsey v. Comm’r of Soc. Sec., __ F.3d __, 2020 WL
5200979, at *2 (6th Cir. Sept. 1, 2020). The Sixth Circuit noted the Third Circuit held that issue
exhaustion of an Appointments Clause challenge is not required in Social Security proceedings.
Id. (citing Cirko, 948 F.3d at 159). The Sixth Circuit also noted that the Tenth and Eighth Circuits
disagreed. Ramsey, 2020 WL 5200979, at *2 (citing Carr, 961 F.3d 1267, and Davis v. Comm’r
of Soc. Sec., 963 F.3d 790 (8th Cir. 2020)).
The Sixth Circuit found Cirko to be the best reasoned and most persuasive opinion and
agreed with Cirko that exhaustion of Appointments Clause challenges in this particular
administrative scheme is not required. Ramsey, 2020 WL 5200979, at *2. Thus, the Sixth
Circuit held “that a claimant does not forfeit an Appointments Clause challenge in a Social Security
proceeding by failing to raise that claim before the agency.” Id. at *7. The Sixth Circuit vacated
the judgments of the district courts and remanded the six cases to the Social Security
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Administration for new hearings before Administrative Law Judges other than the Administrative
Law Judges who presided over the claimants’ original hearings. Id. at *8.
Considering the Sixth Circuit’s holding in Ramsey, this Court concludes that Plaintiff did
not forfeit her Appointments Clause challenge in the Social Security proceeding by failing to raise
her claim before the ALJ and Appeals Council. Further, in light of this conclusion, it is not
necessary to address Plaintiff’s challenges to the ALJ’s RFC determination.
IT IS HEREBY ORDERED that the final decision of the Commissioner is REVERSED,
and this case is REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), to the
Commissioner for a new hearing before an Administrative Law Judge other than the
Administrative Law Judge who presided of Plaintiff’s original hearing.
September 9, 2020
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