ORDER
KATHERINE P. NELSON, Magistrate Judge.
This action is before the Court on the Motion for Order of Remand (Doc. 18) filed by Plaintiff Betty A. Abbington. The Defendant Commissioner of Social Security ("the Commissioner") has timely filed a response (Doc. 24) in opposition to the motion, Abbington has timely filed a reply (Doc. 25) to the response, and the motion is now under submission. (See Doc. 23). Upon consideration, the Court finds that Abbington's motion (Doc. 18) is due to be DENIED.1
Abbington's present motion asserts that her case must be remanded to the Commissioner for a new hearing because the Administrative Law Judge ("ALJ") who issued an unfavorable decision on her applications for Social Security benefits should be considered an "Officer of the United States" who was not properly appointed in accordance with the Appointments Clause of Article II, Section 2 of the United States constitution, based on the reasoning in the United States Supreme Court's recent decision in Lucia v. SEC, 138 S.Ct. 2044 (2018). In response, the Commissioner argues that Abbington forfeited this claim by failing to raise it at the administrative level. The Court agrees.2
"[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to a decision on the merits of the question and whatever relief may be appropriate if a violation indeed occurred." Ryder v. United States, 515 U.S. 177, 182-83 (1995) (emphasis added). Accord Lucia, 138 S. Ct. at 2055 ("This Court has held that `one 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, 515 U.S. at 182-83)). In Ryder, petitioner Ryder was an enlisted Coast Guard member challenging his conviction by court-martial. Ryder, 515 U.S. at 179. Ryder appealed his conviction to the Coast Guard Court of Military Review, raising an Appointments Clause challenge to the composition of that court for the first time on a request for rehearing. Id. After the Court of Military Review rejected his Appointments Clause challenge and largely affirmed his conviction, Ryder appealed to the United States Court of Military Appeals, which agreed that two of the three judges on the Court of Military Review panel had been appointed in violation of the Appointments Clause, but nevertheless affirmed Ryder's conviction on the ground that the actions of these judges were valid de facto. Id. at 179-80.3
On certiorari review, the Supreme Court reversed the Court of Military Appeals, holding that the lower court had "erred in according de facto validity to the actions of the civilian judges of the Coast Guard Court of Military Review." Ryder, 515 U.S. at 188. In finding that Ryder had timely raised his Appointment Clause challenge, thus "entitl[ing him] to a hearing before a properly appointed panel of" the Court of Military Review, the Court noted that Ryder "challenged the composition of the Coast Guard Court of Military Review while his case was pending before that court on direct review" and "raised his objection to the judges' titles before those very judges and prior to their action on his case." Id. at 182.
Lucia involved a situation more analogous to Social Security disability adjudications, in which an ALJ issues a decision that is then subject to appellate review by a higher administrative body prior to judicial review. In that case, the Court, citing Ryder's "timely challenge" holding, held that the petitioner had made such a timely challenge to the appointment of the Securities and Exchange Commission ALJ who heard his case when "[h]e contested the validity of [the ALJ]'s appointment before the Commission, and continued pressing that claim in the Court of Appeals and th[e Supreme] Court[,]" Lucia, 138 S. Ct. at 2055, even though the petitioner had not raised the challenge to the ALJ himself. See id. at 2050 ("On appeal to the SEC, Lucia argued that the administrative proceeding was invalid because [the ALJ] had not been constitutionally appointed.").4
The commonality between Ryder and Lucia is that both petitioners first raised their Appointments Clause challenges to the entities utilizing the deficiently appointed official or officials.5 On the other hand, in Freytag v. Commissioner of Internal Revenue, 501 U.S. 868 (1991), the Court, at least implicitly, determined that the petitioners had waived their Appointments Clause challenge to special trial judges appointed by the United States Tax Court by "not only by failing to raise a timely objection to the assignment of their cases to a special trial judge, but also by consenting to the assignment[,]" despite later raising the challenge in the circuit court of appeals. 501 U.S. at 872, 878.6
Citing Lucia, the Ninth Circuit Court of Appeals has held, albeit in an unpublished decision, that petitioners forfeited an Appointments Clause challenge to an SEC hearing officer's decision "by failing to raise it in their briefs or before the agency." Kabani & Co., Inc. v. U.S. Sec. & Exch. Comm'n, 733 F. App'x 918, 919 (9th Cir. 2018) (emphasis added) (citing Lucia, 138 S. Ct. at 2055). 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.7
Here, Abbington concedes that her Appointment Clause challenge was not raised at any point during her administrative proceedings. Nevertheless, Abbington argues that, under the reasoning of Sims v. Apfel, 530 U.S. 103 (2000), the judicially-imposed rule that an Appointments Clause challenge must be "timely" raised does not apply to administrative proceedings in Social Security disability determinations.8 In Sims, the majority opinion first explained general "issue exhaustion" principles as follows:
The basis for a judicially imposed issue-exhaustion requirement is an analogy to the rule that appellate courts will not consider arguments not raised before trial courts. As the Court explained in Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 S.Ct. 1037 (1941):
"Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity to introduce evidence. And the basic reasons which support this general principle applicable to trial courts make it equally desirable that parties should have an opportunity to offer evidence on the general issues involved in the less formal proceedings before administrative agencies entrusted with the responsibility of fact finding." Id., at 556, 61 S.Ct. 719.
As we further explained in [United States v.] L.A. Tucker Truck Lines, [344 U.S. 33, 73 S.Ct. 67, 97 S.Ct. 54 (1952),] courts require administrative issue exhaustion "as a general rule" because it is usually "appropriate under [an agency's] practice" for "contestants in an adversary proceeding" before it to develop fully all issues there. 344 U.S., at 36-37, 73 S.Ct. 67. (We also spoke favorably of issue exhaustion in Unemployment Compensation Comm'n of Alaska v. Aragon, 329 U.S. 143, 154-155, 67 S.Ct. 245, 91 S.Ct. 136 (1946), without relying on any statute or regulation, but in that case the waived issue had not been raised before the District Court, see id., at 149, 155, 67 S.Ct. 245.)
But, as Hormel and L.A. Tucker Truck Lines suggest, the desirability of a court imposing a requirement of issue exhaustion depends on the degree to which the analogy to normal adversarial litigation applies in a particular administrative proceeding. Cf. McKart v. United States, 395 U.S. 185, 193, 89 S.Ct. 1657, 23 L. Ed. 2d 194 (1969) (application of doctrine of exhaustion of administrative remedies "requires an understanding of its purposes and of the particular administrative scheme involved"). . . . Where the parties are expected to develop the issues in an adversarial administrative proceeding, it seems to us that the rationale for requiring issue exhaustion is at its greatest. Hormel, L.A. Tucker Truck Lines, and Aragon each involved an adversarial proceeding. See Hormel, supra, at 554, 556, 61 S.Ct. 719; L.A. Tucker Truck Lines, supra, at 36, 73 S.Ct. 67; Aragon v. Unemployment Compensation Comm'n of Alaska, 149 F.2d 447, 449-452 (C.A. 9 1945), aff'd. in part and rev'd in part, 329 U.S. 143, 67 S.Ct. 245, 91 S.Ct. 136 (1946). (In Hormel, we allowed an exception to the issue-exhaustion requirement. 312 U.S., at 560, 61 S.Ct. 719.) Where, by contrast, an administrative proceeding is not adversarial, we think the reasons for a court to require issue exhaustion are much weaker. More generally, we have observed that "it is well settled that there are wide differences between administrative agencies and courts," Shepard v. NLRB, 459 U.S. 344, 351, 103 S.Ct. 665, 74 L. Ed. 2d 523 (1983), and we have thus warned against reflexively "assimilat[ing] the relation of . . . administrative bodies and the courts to the relationship between lower and upper courts," FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 144, 60 S.Ct. 437, 84 S.Ct. 656 (1940).
Sims, 530 U.S. at 108-10. After considering these principles, a four-justice plurality of the Court then stated:
The differences between courts and agencies are nowhere more pronounced than in Social Security proceedings. Although "[m]any agency systems of adjudication are based to a significant extent on the judicial model of decisionmaking," 2 K. Davis & R. Pierce, Administrative Law Treatise § 9.10, p. 103 (3d ed.1994), the SSA is "[p]erhaps the best example of an agency" that is not, B. Schwartz, Administrative Law 469-470 (4th ed. 1994). See id., at 470 ("The most important of [the SSA's modifications of the judicial model] is the replacement of normal adversary procedure by . . . the `investigatory model'" (quoting Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1290 (1975))). Social Security proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits, see Richardson v. Perales, 402 U.S. 389, 400-401, 91 S.Ct. 1420, 28 L. Ed. 2d 842 (1971), and the Council's review is similarly broad. The Commissioner has no representative before the ALJ to oppose the claim for benefits, and we have found no indication that he opposes claimants before the Council. See generally Dubin, Torquemada Meets Kafka: The Misapplication of the Issue Exhaustion Doctrine to Inquisitorial Administrative Proceedings, 97 Colum. L. Rev. 1289, 1301-1305, 1325-1329 (1997).
The regulations make this nature of SSA proceedings quite clear. They expressly provide that the SSA "conduct[s] the administrative review process in an informal, nonadversary manner." 20 CFR § 404.900(b) (1999). They permit—but do not require—the filing of a brief with the Council (even when the Council grants review), § 404.975, and the Council's review is plenary unless it states otherwise, § 404.976(a). See also § 404.900(b) ("[W]e will consider at each step of the review process any information you present as well as all the information in our records"). The Commissioner's involvement in the Appeals Council's decision whether to grant review appears to be not as a litigant opposing the claimant, but rather just as an adviser to the Council regarding which cases are good candidates for the Council to review pursuant to its authority to review a case sua sponte. See §§ 404.969(b)-(c); Perales, supra, at 403, 91 S.Ct. 1420. The regulations further make clear that the Council will "evaluate the entire record," including "new and material evidence," in determining whether to grant review. § 404.970(b). Similarly, the notice of decision that ALJ's provide unsuccessful claimants informs them that if they request review, the Council will "consider all of [the ALJ's] decision, even the parts with which you may agree," and that the Council might review the decision "even if you do not ask it to do so." App. 25-27. Finally, Form HA-520, which the Commissioner considers adequate for the Council's purposes in determining whether to review a case, see § 422.205(a), provides only three lines for the request for review, and a notice accompanying the form estimates that it will take only 10 minutes to "read the instructions, gather the necessary facts and fill out the form." The form therefore strongly suggests that the Council does not depend much, if at all, on claimants to identify issues for review. Given that a large portion of Social Security claimants either have no representation at all or are represented by non-attorneys, see Dubin, supra, at 1294, n. 29, the lack of such dependence is entirely understandable.
Thus, the Hormel analogy to judicial proceedings is at its weakest in this area. The adversarial development of issues by the parties—the "com[ing] to issue," 312 U.S., at 556, 61 S.Ct. 719—on which that analogy depends simply does not exist. The Council, not the claimant, has primary responsibility for identifying and developing the issues. We therefore agree with the Eighth Circuit that "the general rule [of issue exhaustion] makes little sense in this particular context." Harwood [v. Apfel], 186 F.3d [1039,] 1042 [(8th Cir. 1999)].
Accordingly, we hold that a judicially created issue-exhaustion requirement is inappropriate. Claimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues.
Id. at 110-12.9
Assuming without deciding that the reasoning of Sims would permit an Appointments Clause challenge not raised at the Appeals Council level to still be "timely" under Ryder and Lucia,10 Sims expressly noted that "[w]hether a claimant must exhaust issues before the ALJ is not before us." 530 U.S. at 107. Unlike the Appeals Council's ability to review an ALJ's decision even if a claimant does not request it, an ALJ will only hold a hearing if a request is made, see 20 C.F.R. § 404.930(b), and the right to an ALJ hearing can be forfeit if one is not timely requested. Id. § 404.390(c). Unlike the cursory form request for Appeals Council review examined in Sims, which "strongly suggest[ed] that the Council does not depend much, if at all, on claimants to identify issues for review[,]" 530 U.S. at 112, a request for an ALJ hearing requires the claimant to provide, inter alia, "the reasons [the claimant] disagree[s] with the previous determination or decision" and a "statement of additional evidence to be submitted . . ." 20 C.F.R. § 404.933(a)(2)-(3). Unlike the "plenary review" exercised by the Appeals Council, which might even review portions of a decision with which a claimant agrees, generally "[t]he issues before the administrative law judge include all the issues brought out in the initial, reconsidered or revised determination that were not decided entirely in [the claimant's] favor[,]" Id. § 404.946(a), which can hardly be expected to include a constitutional challenge to the ALJ's authority.
While "[t]he administrative law judge or any party may raise a new issue[,]" even if "it arose after the request for a hearing and even though it has not been considered in an initial or reconsidered determination[,]" the ALJ is not required to consider new issues, and can only do so "if he or she notifies [the claimant] and all the parties about the new issue any time after receiving the hearing request and before mailing notice of the hearing decision." Id. § 404.946(b)(1). Moreover, the Social Security regulations appear to require an ALJ to withdraw from hearing a case on his or her own initiative only "if he or she is prejudiced or partial with respect to any party or has any interest in the matter pending for decision." Id. § 404.940. Otherwise, a claimant is required to "notify the administrative law judge at [the] earliest opportunity" if she objects to that ALJ conducting the hearing. Id. Considering the foregoing, and given that the "timely" Appointments Clause challenges in Ryder and Lucia were both first raised to the entities utilizing the deficiently appointed officials, the undersigned finds that Abbington was required to raise her Appointments Clause challenge at least to the ALJ for it to be a "timely challenge" on judicial review.11
Abbington also argues the forfeiture of her Appointments Clause challenge should be excused under the reasoning of Freytag.12 In that case, the Internal Revenue Commissioner argued that the petitioners had waived their right to assert this challenge, "not only by failing to raise a timely objection to the assignment of their cases to a special trial judge, but also by consenting to the assignment." Freytag, 501 U.S. at 878. The Court held that it could consider the merits of the challenge regardless of any such waiver, explaining:
This Court in the past . . . has exercised its discretion to consider nonjurisdictional claims that had not been raised below. See Grosso v. United States, 390 U.S. 62, 71-72, 88 S.Ct. 709, 715, 19 L. Ed. 2d 906 (1968); Glidden Co. v. Zdanok, 370 U.S. 530, 535-536, 82 S.Ct. 1459, 1464-1465, 8 L. Ed. 2d 671 (1962); Hormel v. Helvering, 312 U.S. 552, 556-560, 61 S.Ct. 719, 721-723, 85 S.Ct. 1037 (1941). Glidden expressly included Appointments Clause objections to judicial officers in the category of nonjurisdictional structural constitutional objections that could be considered on appeal whether or not they were ruled upon below:
"And in Lamar v. United States, 241 U.S. 103, 117-118, [36 S.Ct. 535, 539-540, 60 S.Ct. 912 (1916)], the claim that an intercircuit assignment . . . usurped the presidential appointing power under Art. II, § 2, was heard here and determined upon its merits, despite the fact that it had not been raised in the District Court or in the Court of Appeals or even in this Court until the filing of a supplemental brief upon a second request for review." Glidden, 370 U.S., at 536, 82 S. Ct., at 1465 (Harlan, J., announcing the judgment of the Court).
Like the Court in Glidden, we are faced with a constitutional challenge that is neither frivolous nor disingenuous. The alleged defect in the appointment of the Special Trial Judge goes to the validity of the Tax Court proceeding that is the basis for this litigation. It is true that, as a general matter, a litigant must raise all issues and objections at trial. But the disruption to sound appellate process entailed by entertaining objections not raised below does not always overcome what Justice Harlan called "the strong interest of the federal judiciary in maintaining the constitutional plan of separation of powers." Ibid. We conclude that this is one of those rare cases in which we should exercise our discretion to hear petitioners' challenge to the constitutional authority of the Special Trial Judge.
Id. at 878-79.
Abbington's constitutional challenge here is also "neither frivolous nor disingenuous." However, the undersigned is not convinced that this is "one of those rare cases" as in Freytag where forfeiture should be excused.13 First, regularly excusing forfeiture of Appointments Clause challenges under Freytag risks eroding the rule in Ryder, decided nearly four years after Freytag and recently reaffirmed in Lucia, that an Appointments Clause challenge must be "timely" to afford the challenger relief. Second, the undersigned notes that Freytag, Glidden, and Lamar all involved Appointments Clause challenges concerning entities of a more judicial nature than the Social Security Administration — the U.S. Tax Court in Freytag, and the U.S. courts of appeal and/or district courts in Glidden and Lamar. See United States v. Jones, 74 M.J. 95, 96 (C.A.A.F. 2015) ("Citing Ryder . . ., the Government urges that we treat the issue of Mr. Soybel's appointment [to the United States Air Force Court of Criminal Appeals] as forfeited by the failure of Appellant to raise the issue prior to petitioning this Court. The problem with this approach is that it ignores the consistent treatment of the de facto officer doctrine by the Supreme Court, which has drawn a distinction between deficiencies which are `merely technical' and may be forfeited if not timely raised, and those which `embod[y] a strong policy concerning the proper administration of judicial business,' which the Court will reach on direct review whether raised below or not." (quoting Glidden, 370 U.S. at 535-36)).
Finally, Ryder's rule that relief is due for "timely" challenges was created as an incentive "to raise Appointments Clause challenges with respect to questionable judicial appointments." Ryder, 515 U.S. at 182-83. Regularly permitting unsuccessful claimants to raise Appointments Clause challenges for the first time on judicial review, especially when the arguments underlying those challenges were available at the administrative level, would "encourage the practice of `sandbagging': suggesting or permitting, for strategic reasons, that the [adjudicative entity] pursue a certain course, and later—if the outcome is unfavorable—claiming that the course followed was reversible error." Freytag, 501 U.S. at 895 (Scalia, J., concurring in part and concurring in the judgment). Here, Freytag itself, decided in 1991, gave Abbington sufficient authority to raise the present Appointments Clause challenge at the administrative level.
Though Abbington claims that her challenge is brought under the reasoning of the recent Lucia decision, Lucia relied almost exclusively on Freytag's reasoning, noting that Freytag involved "adjudicative officials who are near-carbon copies of the [SEC]'s ALJs[,]" and that the "analysis there (sans any more detailed legal criteria) necessarily decides this case." Lucia, 138 S. Ct. at 2052.14 Lucia itself is hardly facially dispositive of whether Social Security ALJs are "Officers of the United States" subject to the Appointments Clause, and nowhere in her briefing does Abbington attempt to substantively compare Social Security ALJs to the SEC ALJ at issue in Lucia.15
Accordingly, the undersigned finds that Abbington has forfeited her Appointments Clause challenge to the ALJ who heard her case by failing to raise that challenge before the Social Security Administration, and Abbington has not shown sufficient cause to excuse the forfeiture. Thus, Abbington's Motion for Order of Remand (Doc. 18) is DENIED.
As directed in the Court's order dated August 22, 2018 (see Doc. 23 at 2), the Commissioner must file and serve her brief in accordance paragraphs 4 and 5 of the scheduling order (Doc. 5) no later than 30 days following the date of entry of this order.
ORDER and ORDERED.
