ARMSTRONG v. COMMISSIONER OF SOCIAL SECURITY

Filing 17

OPINION. Signed by Judge Stanley R. Chesler on 5/21/2020. (dam, )

Case 2:19-cv-04606-SRC Document 17 Filed 05/21/20 Page 1 of 2 PageID: 837

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
EARL CHARLES ARMSTRONG,
:
:
Plaintiff, :
:
v.
:
:
COMMISSIONER OF
:
SOCIAL SECURITY,
:
Defendant. :
:
:

Civil Action No. 19-4606 (SRC)

OPINION

CHESLER, District Judge
This matter comes before the Court on the appeal by Plaintiff Earl Charles Armstrong
(“Plaintiff”) of the final decision of the Commissioner of Social Security (“Commissioner”)
determining that he was not disabled under the Social Security Act (the “Act”). This Court
exercises jurisdiction pursuant to 42 U.S.C. § 405(g) and, having considered the submissions of
the parties without oral argument, pursuant to L. CIV. R. 9.1(b), finds that the Commissioner’s
decision will be vacated and remanded.
In brief, this appeal arises from Plaintiff’s application for disability benefits, alleging
disability beginning May 27, 2015. A hearing was held before ALJ Jennifer Pustizzi (the
“ALJ”) on January 23, 2018, and the ALJ issued an unfavorable decision on April 23, 2018,
finding that Plaintiff had not been disabled during the period in question. After the Appeals
Council denied Plaintiff’s request for review, the ALJ’s decision became the Commissioner’s
final decision, and Plaintiff filed this appeal.

Case 2:19-cv-04606-SRC Document 17 Filed 05/21/20 Page 2 of 2 PageID: 838

On appeal, Plaintiff challenges the Commissioner’s decision on several grounds, but this
Court need only reach the one argument that succeeds: pursuant to Lucia v. S.E.C., 138 S.Ct.
2044 (2018), the ALJ who decided Plaintiff’s case was not properly appointed under the
Appointments Clause. On October 1, 2019, at the Commissioner’s request, this case was stayed
pending the Third Circuit’s decision in the consolidated Bizarre and Cirko appeals. After the
Third Circuit decided Cirko, obo Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020),
and after the Third Circuit denied a petition for a rehearing en banc, this case is ready for
decision. The stay is lifted.
In opposition to Plaintiff’s Lucia argument, the Commissioner argued that Plaintiff had
failed to raise his Appointments Clause challenge at any point in the administrative process, and
therefore had forfeited his claim, because asserting the challenge for the first time on appeal does
not constitute a “timely challenge” under Lucia. In Cirko, the Third Circuit directly addressed
this question, and held that claimants for Social Security disability benefits need not exhaust
Appointments Clause challenges before the administrative law judges whose appointments they
are challenging. Id. at 152. Pursuant to Cirko, the Commissioner’s objection fails, and
Plaintiff’s argument succeeds. Pursuant to Lucia, the ALJ who decided Plaintiff’s case was not
properly appointed under the Appointments Clause. Plaintiff’s appeal will be granted, and the
decision of the Commissioner will be vacated; the case will be remanded so that Plaintiff may
obtain “a new hearing before a different constitutionally appointed ALJ.” Cirko, 948 F.3d at
152.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: May 21, 2020
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