MEMORANDUM
HENRY S. PERKIN, Magistrate Judge.
Sarah Ann Flynn ("Plaintiff") seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner of the Social Security Administration ("the Commissioner") denying her claim for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. In her request for review, Plaintiff raises three claims, one which is premised on Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018), that the administrative law judge ("ALJ") who decided her case was not appointed in compliance with the Appointments Clause of the U.S. Constitution. Pl.'s Br. and Statement of Issues in Support of Request for Review, pp.3; Pl.'s Reply Br. at 1-8 (ECF Nos. 10, 14). Defendant argues that Plaintiff forfeited this claim by not challenging the ALJ's appointment in the agency proceeding. Def. Br. at 5-15 (ECF No. 13). After careful review, and following the Third Circuit decision on January 23, 2020 in Cirko v. Comm'r of Soc. Sec. and Bizarre v. Comm'r of Soc. Sec., ___ F.3d ___, 2020 WL 370832 (3d Cir. Jan. 23, 2020), and for the reasons set forth below, the Court finds that the ALJ was improperly appointed under the Constitution and Plaintiff did not forfeit her Appointments Clause claim. Therefore, Plaintiff's request for review is granted, and this matter will be remanded to the Commissioner for further proceedings in accordance with the following memorandum.
I. BACKGROUND
Plaintiff filed for DIB on November 19, 2014 and for SSI on January 25, 2017, alleging disability since July 1, 2012.2 (Tr. 21, 91, 103, 249-256, 268-276) Plaintiff asserted that she became disabled on that date due to depression, anxiety, epilepsy, vertigo, blindness of the left eye, asthma, and gastroesophageal reflux disease (GERD). (Tr. 91, 94-96.)
Plaintiff's application for DIB was denied at the initial level on February 26, 20153, and she filed a timely request for a hearing before an Administrative Law Judge ("ALJ") on March 17, 2015. (Tr. 21, 91-103, 111-112.) Plaintiff's SSI claim was escalated to the hearing level without an initial disposition. (Tr. 21.) A hearing was held before ALJ Stuart Gaffreau on March 1, 2017, and Plaintiff, represented by counsel, appeared and testified. (Tr. 40-90.) On April 25, 2017, ALJ Gaffreau issued an unfavorable decision, finding that Plaintiff was not disabled. (Tr. 18-39.) The Appeals Council denied Plaintiff's request for review on November 19, 2018. (Tr. 1-6.) Thus, the ALJ's decision became the final decision of the agency.
Plaintiff initiated a civil action on December 11, 2018, seeking judicial review of the Commissioner's decision. (ECF No. 2.) Plaintiff's request for review was filed April 24, 2019. (ECF No. 10.) The Commissioner filed his response on June 6, 2019, and Plaintiff filed a reply brief on June 12, 2019. (ECF Nos. 13, 14.) The parties consented to the jurisdiction of a United States Magistrate Judge to conduct all proceedings in this case, pursuant to 28 U.S.C. § 636(c), including entry of final judgment. See ECF No. 3, ¶ 2 (Notice of Commissioner's General Consent); ECF No. 6 (Plaintiff's Consent Form).
On July 10, 2019, Defendant filed an unopposed motion to stay the case pending a decision from the Third Circuit in Cirko and Bizarre on the Appointments Clause challenge presented by Plaintiff. (ECF. No. 15.) This Court granted Defendant's stay and ordered the matter be put in suspense on October 7, 2019. (ECF No. 17.)
II. DISCUSSION
Plaintiff's Appointments Clause challenge is that the ALJ did not have the authority to issue a disability determination because he was an inferior officer not appointed pursuant to the Constitution. Plaintiff's argument is based upon the Supreme Court's decision in Lucia v. SEC, 138 S.Ct. 2044 (2018), that ALJs in the Securities and Exchange Commission ("SEC") exercised "significant discretion" in carrying out "important functions" and were therefore required under the Appointments Clause, U.S. Const. art. II, § 2, cl. 2, to be appointed by the President, a court of law, or a head of department. Id. at 2053 (citation omitted). Because the SEC ALJs were not so appointed, the petitioner there was entitled to a new hearing before a different constitutionally appointed ALJ. Id. at 2055. The Court held that Lucia's argument was timely because it was raised on appeal before the Commission, in the Court of Appeals and before the Supreme Court. Id. at 2049, 2055.
When Lucia was decided on April 23, 2018, SSA ALJs were appointed from a pool of applicants maintained by the Office of Personnel Management. Menoken v. McGettigan, 273 F.Supp.3d 188, 192 (2017). Following the Lucia decision, the President signed an Executive Order on July 10, 2018 directing the hiring of ALJs by individual agencies and not the OPM central pool. Exec. Order No. 13, 843, 83 Fed, Reg. 32755 (July 10, 2018). That Order prospectively changed the appointment process of ALJs, but did not affect the status of previously appointed ALJs. Id. In response to Lucia, the Acting Commissioner of Social Security reappointed the Agency's administrative judges under her own authority on July 16, 2018.
Certain disability claimants were challenging the Social Security Agency's denial of their claims in District Court when Lucia was decided, and although they had not previously raised an Appointments Clause claim, they immediately demanded new hearings on the ground that the Agency's ALJs were unconstitutionally appointed. Because neither the Supreme Court nor the Third Circuit had addressed whether the Lucia decision was applicable to Social Security ALJs, courts within this Circuit were divided on this issue. The Third Circuit recently held, however, that Social Security disability claimants may raise Appointments Clause challenges in federal court without having exhausted those claims before the Agency.4 The Court remanded the cases for hearings before constitutionally appointed ALJs other than those who presided over the claimants' first hearings. See Cirko v. Comm'r of Soc. Sec. and Bizarre v. Comm'r of Soc. Sec., ___ F.3d ___, 2020 WL 370832 (3d Cir. Jan. 23, 2020).
Like the claimants in Cirko and Bizarre, Plaintiff presented her Appointments Clause claim to this Court at the first briefing opportunity after Lucia was decided. The remedy for an Appointments Clause violation is a new hearing before a properly appointed ALJ other than the ALJ who decided Plaintiff's case. Id. Plaintiff's remaining two claims in this appeal will not be addressed because the improperly-appointed ALJ was powerless to resolve those claims. Lucia, 138 S.Ct. at 2055. Accordingly, by an implementing Order that follows, Plaintiff's case will be remanded for assignment to a different, constitutionally appointed ALJ to hold a new hearing and issue a decision.
