Airall v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

LATOYA A., on behalf of N.C., Plaintiff, V. 5:19-CV-581 (DJS) COMMISSIONER OF SOCIAL SECURITY, Defendant.

APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP HOWARD OLINSKY, ESQ. Attorney for Plaintiff One Park Place _,| 300 South State Street, Suite 420 Syracuse, New York 13202 U.S. SOCIAL SECURITY ADMIN. NICOLE SONIA, ESQ. OFFICE OF REG’L GEN. COUNSEL REGION II Attorney for Defendant J.F.K. Federal Building - Room 625 Boston, Massachusetts 02203 DANIEL J. STEWART United States Magistrate Judge

ORDER Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security that Plaintiffs minor child was not disabled. Dkt. No. 1. Currently before the Court are Plaintiff's Motion for Judgment on the Pleadings and Defendant’s Motion for Judgment on the Pleadings. Dkt. Nos. 24 & 29. In support of Plaintiff's Motion, she raises two issues for review. One of the issues raised

is that the claim was adjudicated by an unconstitutionally appointed Administrative Law Judge. Dkt. No. 24, Pl.’s Mem. of Law, pp. 14-17. Defendant asserts that Plaintiff has forfeited any claim regarding the propriety of the ALJ’s appointment because the issue was not raised in any administrative proceeding prior to the commencement of this action. Dkt.

u| No. 29, Def.’s Mem. of Law, pp. 13-23. With respect to the issue of whether a plaintiff who fails to raise the propriety of the ALJ’s appointment prior to federal court forfeits the claim, there is currently a circuit split. Montes v. Saul, 2020 WL 6875301, at *4 (S.D.N.Y. Nov. 23, 2020) (discussing four conflicting circuit court decisions). The Supreme Court has granted certiorari to resolve the question. Davis v. Saul, No. 20-105, 2020 WL 6551772 (Nov. 9, 2020); Carr v. Saul,

_| No. 19-1442, 2020 WL 6551771 (Nov. 9, 2020). The Court hereby stays this proceeding pending the Supreme Court’s disposition of the appeals in Davis and Carr. ACCORDINGLY, this action is STAYED. Dated: December 30, 2020 Albany, New York Da vel J, Ste Nart) “ U.SMMfagistrate Judge