23-7715-cv Flinton v. Comm’r of Soc. Sec.
In the United States Court of Appeals For the Second Circuit ___________________________________________
August Term, 2024 Argued: December 4, 2024 Decided: July 2, 2025
Docket No. 23-7715-cv ___________________________________________
MOLLIE MARIE FLINTON,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee. * ___________________________________________
Appeal from the United States District Court for the Southern District of New York ___________________________________________
Before: LYNCH, NARDINI, and LEE, Circuit Judges.
Plaintiff-Appellant Mollie Marie Flinton appeals from a judgment entered on September 11, 2023, in the United States District Court for the Southern District of New York (Gary R. Jones, Magistrate Judge), granting a motion for judgment on the pleadings in favor of Defendant-Appellee Commissioner of Social Security (the “Commissioner”). Upon review, we hold that pursuant to Lucia v. SEC, 585 U.S.
* The Clerk of Court is respectfully directed to amend the case caption as set forth above. 237 (2018), Flinton is entitled to a new plenary hearing on her disability benefits before a different, properly appointed Administrative Law Judge (“ALJ”).
ALJ Mark Solomon had not been properly appointed when he first conducted a hearing regarding Flinton’s Social Security application and issued a March 2018 decision denying her benefits. Yet, after the United States District Court for the Southern District of New York (Lorna G. Schofield, District Judge) remanded Flinton’s case on the merits to the Social Security Administration (“SSA”) for a new hearing in 2020, Flinton appeared again before ALJ Solomon for a hearing in August 2021. Although, by this time, ALJ Solomon’s appointment had been ratified by the Commissioner to comply with the Constitution’s Appointments Clause, Lucia required that Flinton’s application be heard by a different adjudicator.
Because the agency did not provide Flinton with the remedy Lucia mandates in these circumstances, we hold that ALJ Solomon rendered the Commissioner’s final decision in violation of the Appointments Clause. Accordingly, without reaching the merits of Flinton’s Social Security application, we VACATE the district court’s decision with instructions to REMAND the matter to the Commissioner for a de novo hearing on Flinton’s disability benefits claim before a different, validly appointed ALJ. ___________________________________________
DAVID F. CHERMOL, Chermol & Fishman, LLC, Philadelphia, PA (Daniel S. Jones, Law Office of Charles E. Binder & Harry J. Binder, LLP, New York, NY, on the brief), for Plaintiff-Appellant.
ILAN STEIN (Benjamin H. Torrance, on the brief), Assistant United States Attorneys, for Damian Williams, United States Attorney for the Southern District of New York, New York, NY, for Defendant-Appellee. ___________________________________________
2 EUNICE C. LEE, Circuit Judge:
Plaintiff-Appellant Mollie Marie Flinton appeals from a judgment entered
on September 11, 2023, in the United States District Court for the Southern District
of New York (Gary R. Jones, Magistrate Judge), granting a motion for judgment on
the pleadings in favor of Defendant-Appellee Commissioner of Social Security (the
“Commissioner”). Upon review, we hold that pursuant to Lucia v. SEC, 585 U.S.
237 (2018), Flinton is entitled to a new plenary hearing on her disability benefits
before a different, properly appointed Administrative Law Judge (“ALJ”).
ALJ Mark Solomon had not been properly appointed when he first
conducted a hearing regarding Flinton’s Social Security application and issued a
March 2018 decision denying her benefits. Yet, after the United States District
Court for the Southern District of New York (Lorna G. Schofield, District Judge)
remanded Flinton’s case on the merits to the Social Security Administration
(“SSA”) for a new hearing in 2020, Flinton appeared again before ALJ Solomon for
a hearing in August 2021. Although, by this time, ALJ Solomon’s appointment
had been ratified by the Commissioner to comply with the Constitution’s
Appointments Clause, Lucia required that Flinton’s application be heard by a
different adjudicator.
Because the agency did not provide Flinton with the remedy Lucia mandates
3 in these circumstances, we hold that ALJ Solomon rendered the Commissioner’s
final decision in violation of the Appointments Clause. Accordingly, without
reaching the merits of Flinton’s Social Security application, we VACATE the
district court’s decision with instructions to REMAND the matter to the
Commissioner for a de novo hearing on Flinton’s disability benefits claim before a
different, validly appointed ALJ.
BACKGROUND
In August 2015, Flinton applied for Social Security disability insurance and
supplemental security income benefits, alleging that she had mental health
disabilities since March 2015, when a psychotic episode caused her to be
hospitalized for twenty days with a diagnosis of schizophrenia not otherwise
specified. Approximately seven weeks after she applied, upon initial review, the
SSA denied benefits. Flinton requested an administrative hearing to contest the
denial and appeared before ALJ Mark Solomon in December 2017.
On March 5, 2018, ALJ Solomon determined that Flinton was not disabled
for the purposes of the Social Security Act. The ALJ noted that Flinton had been
diagnosed with various mental health disorders but had, at the time, been in
treatment only “for generalized anxiety disorder.” Cert. Admin. R. at 111. The
ALJ concluded that Flinton’s impairments did not equate to the severity of any of
4 the listings in 20 C.F.R. part 404, subpart P, appendix 1 (also known as the “Listing
of Impairments”) that would have compelled a finding of disability. Instead,
accounting for non-exertional limitations associated with her symptoms, the ALJ
found that Flinton had the residual functional capacity (“RFC”) to perform jobs
that exist in significant numbers in the national economy, thus precluding her from
benefits. On March 26, 2018, Flinton timely appealed ALJ Solomon’s decision to
the SSA Appeals Council.
In June 2018, as Flinton’s administrative appeal was pending, the Supreme
Court issued its decision in Lucia v. SEC, holding that the ALJs of the Securities
and Exchange Commission (“SEC”) are “Officers of the United States” within the
purview of the Constitution’s Appointments Clause. See 585 U.S. at 241 (citing
U.S. Const. art. II, § 2, cl. 2). Specifically, because ALJs are “inferior officers,” the
Appointments Clause permits “[o]nly the President, a court of law, or a head of
department” to appoint them to their positions. Id. at 244 & n.3. Because the
SEC ALJ that “decided Lucia’s case” had done so “without the kind of
appointment the Clause requires”—the ALJ had been appointed by SEC staff
members rather than the Commission itself—the Court remanded Lucia’s case to
be heard by a different, constitutionally appointed adjudicator. Id. at 251.
Apprehending Lucia’s implications for Social Security disability
5 adjudications, “on July 16, 2018, the Acting Commissioner of Social Security
ratified the appointments of [SSA] ALJs and approved those appointments as her
own.” Social Security Ruling 19-1p, 84 Fed. Reg. 9582, 9583 (Mar. 15, 2019) (“SSR
19-1p”).
In January 2019, the SSA Appeals Council denied Flinton’s request for
review. On March 6, 2019, pursuant to 42 U.S.C. § 405(g), Flinton commenced a
civil action in the Southern District of New York to seek review of the
Commissioner’s final decision. Nine days later, on March 15, 2019, the SSA
issued additional guidance to the Appeals Council that upon a “timely-raised
Appointments Clause challenge,” it should vacate ALJ decisions that predate
ratification and generally “remand the case to an ALJ other than the ALJ who
issued the [prior] decision.” Id. at 9583. As pertinent to the present appeal, the
parties do not dispute that ALJ Solomon had been unconstitutionally appointed at
the time of the December 2017 hearing and the March 2018 decision, thereby
rendering his denial of Flinton’s disability benefits invalid.
But despite the Supreme Court’s pronouncement one year earlier in Lucia
and the SSA’s guidance weeks into Flinton’s federal lawsuit, Flinton did not raise
an Appointments Clause claim before the district court. Instead, she contended
that the ALJ’s decision was “legally erroneous and not supported by substantial
6 evidence.” Flinton v. Berryhill, No. 19-cv-02054, 2020 WL 5634462, at *19 (S.D.N.Y.
Sept. 4, 2020) (internal quotation marks omitted), report and recommendation adopted
sub nom. Flinton v. Saul, 2020 WL 5634321 (S.D.N.Y. Sept. 21, 2020).
In a comprehensive report and recommendation cataloging ALJ Solomon’s
missteps, Magistrate Judge Debra Freeman recommended granting Flinton’s
motion for judgment on the pleadings and remanding to the ALJ to, inter alia,
consider additional treatment records, reconsider the weight assigned to various
medical opinions, seek clarification to resolve perceived inconsistencies,
reevaluate Flinton’s subjective complaints, and reassess Flinton’s RFC. Within
weeks, District Judge Lorna G. Schofield adopted the recommendation.
Accordingly, in November 2020, the Appeals Council vacated the March 2018
decision and remanded with instructions to afford Flinton an opportunity for a
new hearing, to complete the record, and to issue a new decision.
Upon remand, ALJ Solomon—now with an appointment ratified by the
Commissioner to be compliant with Lucia—conducted a second hearing with
respect to Flinton’s claims in August 2021. On November 1, 2021, the ALJ issued
his second decision, this time determining that Flinton had been disabled during
the closed period of March 2, 2015, to March 9, 2016. Specifically, the ALJ found
that Flinton had met the criteria in the Listing of Impairments at the time of her
7 onset date because of her marked limitations in various functional domains,
including social interaction, concentration, and adaptability. But the ALJ
concluded that Flinton’s impairments “medically improved” after March 9, 2016,
such that she did “not meet or equal [the] listing and limits” identified in the
regulation and had an RFC that would permit her to work in the national
economy. Cert. Admin. R. at 1021. Flinton promptly appealed the unfavorable
portion of the ALJ’s decision to the Appeals Council on the merits; she did not
raise any contentions under the Appointments Clause. On August 1, 2022, after
considering and rejecting Flinton’s exceptions to the decision, the Appeals Council
declined to assume jurisdiction, making ALJ Solomon’s November 1, 2021 decision
the Commissioner’s final decision.
In October 2022, Flinton once again sought judicial review and initiated the
present civil action, primarily contending that: (1) “the ALJ’s assessment of the
medical opinion was flawed,” (2) “the ALJ’s credibility analysis” was deficient,
and (3) the SSA had violated the Appointments Clause by assigning her case to
ALJ Solomon on remand because she was “entitled to a new hearing before a
different ALJ.” Flinton v. Comm'r of Soc. Sec., No. 22-cv-08418, 2023 WL 5917660,
at *4 (S.D.N.Y. Sept. 11, 2023). Magistrate Judge Gary R. Jones, presiding by
consent, rejected Flinton’s arguments and affirmed the ALJ’s decision. First, the
8 district court noted that the ALJ’s decision permissibly discounted the medical
opinions that indicated a greater degree of limitation after the end of the closed
period. Second, the district court found that the ALJ’s decision to discount
Flinton’s subjective complaints was supported by substantial evidence, given
inconsistencies revealed by the treatment record. Lastly, the district court
concluded that remanding the case to a new ALJ was unnecessary in Flinton’s
circumstances.
With respect to the Appointments Clause challenge, the district court
acknowledged that although Flinton “did not initially contest ALJ Solomon’s
appointment,” id. at *10, the Supreme Court’s decision in Carr v. Saul, 593 U.S. 83
(2021), permitted her to challenge an ALJ’s appointment “for the first time in
federal court” without requiring administrative exhaustion. 593 U.S. at 95. But,
in the district court’s view, Lucia did not “create a bright line rule” that every
Appointments Clause violation necessitates a hearing before a new ALJ. Flinton,
2023 WL 5917660, at *11. Rather, the district court concluded that because ALJ
Solomon received the case on remand after a merits-based vacatur and then did
not reach the same conclusions in the second decision as the first, the “main
concern animating the remedy fashioned in Lucia”—that the ALJ would
perfunctorily “reach all the same judgments” on remand—was not implicated.
9 Id. (internal quotation marks omitted).
On November 8, 2023, Flinton timely filed a notice of appeal.
DISCUSSION
On appeal, Flinton contends that ALJ Solomon’s second disability decision
is infected by an uncured constitutional violation stemming from the first
determination because she was not provided with a hearing before a different,
constitutionally appointed ALJ in accordance with Lucia. The Commissioner
counters that there is no Appointments Clause violation before us because ALJ
Solomon “had been properly appointed by the time of the decision now under
review.” Appellee’s Br. at 46. Assuming that there was a constitutional
violation, the Commissioner additionally contends that remand would not be
required since the original decision was vacated on the merits, thereby allaying
any concern that ALJ Solomon would simply rubber-stamp his prior decision.
We review a district court’s determination of “constitutional challenges” de
novo. Guo Qi Wang v. Holder, 583 F.3d 86, 90 (2d Cir. 2009). The question before
this Court is whether Flinton’s second disability adjudication—by the then
constitutionally-appointed ALJ Solomon—was still marred by the prior
Appointments Clause violation, since Flinton did not receive Lucia’s remedy of a
hearing before a different ALJ. We answer that question in the affirmative,
10 joining the Fourth and Ninth Circuits and parting ways with the Eleventh Circuit.
We explain our reasoning below. 1
I. The Appointments Clause & Social Security Adjudications
The Appointments Clause delineates two paths for appointing “Officers of
the United States.” U.S. Const. art. II, § 2, cl. 2. Only the President “shall
nominate, and by and with the Advice and Consent of the Senate, shall appoint”
principal officers. Id. But as to “inferior Officers,” “Congress may by Law vest
the Appointment . . . in the President alone, in the Courts of Law, or in the Heads
of Departments.” Id. The Appointments Clause not only serves as “a bulwark
against one branch aggrandizing its power at the expense of another,” Ryder v.
United States, 515 U.S. 177, 182 (1995), but also “preserves another aspect of the
Constitution’s structural integrity by preventing the diffusion of the appointment
power,” Freytag v. Comm’r, 501 U.S. 868, 878 (1991).
In Lucia, the Supreme Court held that SEC ALJs are inferior officers subject
to the Appointments Clause’s requirements, rather than “simply employees of the
Federal Government.” 585 U.S. at 244, 251. The Lucia Court reasoned that the
SEC’s ALJs: (1) “hold a continuing office established by law”; (2) “have all the
1 Because we find that the district court erred in its assessment of Flinton’s Appointments Clause challenge and thus vacate and remand for a new hearing on that basis, we do not reach the merits of the ALJ’s November 2021 decision.
11 authority needed to ensure fair and orderly adversarial hearings” with “nearly all
the tools of federal trial judges”; and (3) have “last-word capacity” to “issue
decisions containing factual findings, legal conclusions, and appropriate
remedies” on behalf of the SEC. Id. at 247–49. Because the ALJs wield “extensive
powers,” id. at 241, they could not be considered “lesser functionaries” exempt
from the Appointments Clause, id. at 245 (quoting Buckley v. Valeo, 424 U.S. 1, 126
n.162 (1976) (per curiam)).
As inferior officers, SEC ALJs could be appointed only by the “President,”
“Courts of Law,” or “Heads of Departments.” U.S. Const. art. II, § 2, cl. 2. Yet,
the ALJ Lucia appeared before had been selected by staff members rather than the
“[SEC] proper.” Lucia, 585 U.S. at 241. Because Lucia timely challenged the
constitutional validity of his adjudicator’s appointment, he was “entitled to relief.”
Id. at 251. As for the relief warranted, the Supreme Court declared “that the
‘appropriate’ remedy for an adjudication tainted with an appointments violation
is a new ‘hearing before a properly appointed’ official.” Id. at 251 (quoting Ryder,
515 U.S. at 183, 188).
The Lucia Court went a step further to hold that the new hearing could not
be conducted by the ALJ who had previously heard Lucia’s case, “even if [the ALJ]
has by now received (or receives sometime in the future) a constitutional
12 appointment,” because that ALJ “cannot be expected to consider the matter as
though he had not adjudicated it before.” Id. at 251. The majority disagreed
with Justice Breyer’s contention in his partial dissent that having the same ALJ,
after a constitutionally ratified appointment, “preside once again would not
violate the structural purposes that . . . the Appointments Clause serves.” Id. at
267 (Breyer, J., concurring in the judgment in part and dissenting in part).
In a footnote, the majority explained that “Appointments Clause remedies
are designed not only to advance [structural] purposes directly, but also to create
incentives to raise [such] challenges.” Id. at 251 n.5 (alterations adopted) (internal
quotation marks omitted). A hearing before a new ALJ would best achieve that
goal, “especially” because the prior adjudicator—whose decision had been
vacated on Appointments Clause grounds—“would have no reason to think he
did anything wrong on the merits.” Id. The Lucia Court acknowledged that its
holding does not mean “that a new officer is required for every Appointments
Clause violation,” but explained that the remedy presumptively applies where
“other ALJs (and the Commission) are available to hear [the] case on remand,” and
might not apply if “there is no substitute decisionmaker.” Id.
After Lucia, the Commissioner conceded that the SSA ALJs’ appointments
had been constitutionally infirm, ratified their positions, and provided that
13 “claimants who had raised an Appointments Clause challenge” before the agency
would receive “fresh review by a properly appointed adjudicator” but those that
had “not objected . . . in their administrative proceedings would receive no relief.”
Carr, 593 U.S. at 86–87 (citing SSR 19-1p). In April 2021, the Supreme Court
disagreed with this issue-exhaustion requirement and held that an Appointments
Clause challenge may be raised by a Social Security applicant “for the first time in
federal court.” Id. at 95.
Carr did not address a procedural posture exactly like Flinton’s. Under
Carr, Flinton would not have been untimely had she raised the Appointments
Clause issue before the district court, even if she forwent doing so before the SSA
ALJ or Appeals Council. See id. Here, however, Flinton did not bring that claim
in her first civil action despite filing the action nine months after Lucia’s
pronouncement. Nevertheless, we do not address whether Flinton forfeited her
constitutional challenge by waiting to raise her Appointments Clause claim until
her second federal lawsuit because the Commissioner did not raise that defense
before the district court or on appeal. See Wood v. Milyard, 566 U.S. 463, 474 (2012)
(finding waiver of a defense that a litigant “refrain[ed] from interposing”); cf.
K & R Contractors, LLC v. Keene, 86 F.4th 135, 145 (4th Cir. 2023) (finding that “[an
agency] . . . waived [a petitioner’s] forfeiture” because it was not raised “as a
14 ground for denying the petition” for review).
Before turning to the merits of Flinton’s Appointments Clause challenge, we
first note that the aftermath of Lucia and Carr has led to a circuit split (and
disagreement among district courts within our Circuit) as to whether “there is an
Appointments Clause violation at all” if an SSA ALJ who rendered an invalid
original decision decides a disability adjudication on remand after receiving a
constitutionally proper appointment. Raper v. Comm’r of Soc. Sec., 89 F.4th 1261,
1270–73 (11th Cir. 2024), cert. denied sub nom. Raper v. O’Malley, __ U.S. __, 145 S.
Ct. 984 (2024); see also Sandell v. Kijakazi, No. 21-cv-4226, 2023 WL 6308050, at *3
(E.D.N.Y. Sept. 28, 2023) (collecting cases).
On the one hand, the Fourth Circuit and the Ninth Circuit have both held
that a Social Security claimant is “entitled to an independent decision issued by a
different ALJ if a timely challenged ALJ decision is ‘tainted’ by a pre-ratification
ALJ decision.” Cody v. Kijakazi, 48 F.4th 956, 963 (9th Cir. 2022); see also Brooks v.
Kijakazi, 60 F.4th 735, 742 (4th Cir. 2023).
In Cody, the Ninth Circuit reasoned that “[r]equiring a remand and hearing
before a new ALJ . . . supports the two remedial aims identified by Lucia:” (1)
promoting the constitutional structure and design of the Appointments Clause;
and (2) encouraging claimants to raise Appointments Clause violations since,
15 “[w]ithout a remand to a new ALJ, claimants like Cody would see little benefit in
defending the constitutional requirement.” 48 F.4th at 962. Even though Cody
challenged the “post-ratification” decision, he was, under Lucia, “entitled to relief
from any ‘adjudication tainted with an appointments violation.’” Id. (quoting
Lucia, 585 U.S. at 251 (emphasis added by Cody)). Because the ALJ in Cody’s
instance had “copied verbatim parts of the 2017 decision into her 2019 decision,”
Cody’s application had evidently not been given a “fresh look” and the post-
ratification decision had been obviously marked by prejudgment. Id. at 962–63.
In Brooks, the Fourth Circuit similarly found that a post-ratification decision
was constitutionally defective and rejected the argument that a “merits-based”
vacatur of an ALJ’s earlier decision, unlike one based only on an Appointments
Clause violation, obviated the need for the Lucia remedy because the ALJ could
not simply rubber stamp the original decision if it had been vacated on the merits.
60 F.4th at 743. First, the Fourth Circuit agreed with Brooks that the
“constitutional error” that existed pre-ratification was a “continuing violation that
infected” the same ALJ’s post-ratification decision, seeing as “Brooks never
received the requisite remedy.” Id. at 742. Next, the court explained that
whether or not a pre-ratification disability determination was subject to a “merits-
based vacatur simply is not relevant to Brooks’s Appointments Clause challenge”
16 because returning a case to the same adjudicator “does not fully eliminate the
problem identified by the Lucia Court that, on remand, the same ALJ would be
hard pressed to ‘consider the matter as though she had not adjudicated it before.’”
Id. at 743 (alteration adopted) (quoting Lucia, 585 U.S. at 251).
On the other hand, the Eleventh Circuit held, in Raper, that when there is a
merits-based vacatur of an ALJ’s decision, as opposed to one based solely on an
improper appointment, and the case is remanded to the same ALJ, now properly
appointed, there is “no live Appointments Clause violation” requiring remand to
a new ALJ. 89 F.4th at 1272. The Eleventh Circuit identified three reasons for
this conclusion. First, the prior decision is “void and has no legal effect.” Id.
Second, the Lucia remedy “served the purpose of encouraging claimants to raise
Appointments Clause challenges and was motivated by a concern that the old ALJ
would have no reason to think he did anything wrong on the merits,” and so does
not apply when those purposes are not at stake because the decision has been
vacated on the merits. Id. Third, the “entire judicial system works on the
premise that a judge can set aside his or her earlier decision and look at a case
anew,” given the long-standing practice of remanding district court decisions to
the same judge. Id.
For the reasons explained below, and in accord with the Fourth and Ninth
17 Circuits, our reading of Lucia compels a finding that Flinton has suffered an
unalleviated Appointments Clause violation and must be afforded a new hearing
before a different ALJ. We turn to the circumstances of the present appeal to
explain why.
I. Unremedied Appointments Clause Violation
Before us, the Commissioner first formalistically contends that “[t]his case
only concerns ALJ’s Solomon second decision,” which was issued by a then-
properly appointed ALJ, thus resulting in no actionable Appointments Clause
violation. Appellee’s Br. at 48. But the Commissioner is mistaken. “[T]he
entire administrative adjudication”—and ensuing federal litigation—started with
Flinton’s August 2015 application for benefits. See Brooks, 60 F.4th at 742 (internal
quotation marks omitted). After a constitutionally invalid pre-Lucia March 2018
determination was remanded on the merits post-Lucia, Flinton appeared again
before the same ALJ in August 2021. At that juncture, the prior “structural
constitutional error . . . remain[ed] in place.” Id. at 743.
In Lucia, the Supreme Court faced a scenario where the antecedent
Appointments Clause violation was readily apparent because the ALJ was and
continued to be improperly appointed throughout those proceedings. Here, the
SSA rectified the Appointments Clause violation by properly ratifying ALJ
18 Solomon’s appointment prior to his adjudication of Flinton’s claims on remand.
But the Supreme Court made clear that the remedy for any adjudication already
“tainted with an appointments violation” is (1) a de novo hearing before a “properly
appointed official,” and (2) that official cannot be the one who conducted the
original adjudication, even if “he has by now received (or receives sometime in the
future) a constitutional appointment.” 585 U.S. at 251. There would be no need
for the second component of the remedy if an Appointments Clause violation were
fully ameliorated by a plenary hearing before any properly appointed ALJ.
Since Lucia “did not carve out any exception to the remedy’s necessity for
situations where a constitutionally infirm ALJ decision has been vacated on a
merits-related issue,” Brooks, 60 F.4th at 743, we are not at liberty to create one here.
Although the Eleventh Circuit notes that the Supreme Court anchored its
command in vindicating the Clause’s purpose and incentivizing litigants to raise
the issue, see Raper, 89 F.4th at 1272, we do not view those proffered rationales as
imposing preconditions for whether the remedy applies, see Lucia, 585 U.S. at 251
n.5. And since the remedy was not given to Flinton, the Appointments Clause
violation remains uncured.
For largely the same reasons, the Commissioner’s contention that the Lucia
remedy of remand to a different ALJ is unnecessary here because “the ALJ’s initial
19 decision was vacated on the merits, [so] there was ‘no danger that the ALJ would
lack notice of the deficiency in his earlier decision’” is a nonstarter. Appellee’s Br.
at 53 (quoting Raper, 89 F.4th at 1272). The Commissioner is right that ALJ
Solomon’s November 2021 decision did materially differ from his earlier
determination. Unlike his March 2018 decision that Flinton was not disabled, ALJ
Solomon found in November 2021 that Flinton was disabled and entitled to
benefits for at least a yearlong period. On this basis, the Commissioner contends
there is “no reason to think the ALJ did not take a fresh look at Flinton’s claim.”
Id. (internal quotation marks omitted). But despite the different outcome, we
cannot be certain that ALJ Solomon “consider[ed] the matter as though he had not
adjudicated it before.” Lucia, 585 U.S. at 251.
Lucia states that the remedy for an Appointments Clause violation is a
hearing before a different ALJ. The decision does not exempt merits-based
vacaturs and does not invite ex post scrutiny by federal courts to see if an ALJ’s
new determination is dissimilar enough from a prior assessment to be sufficiently
untainted. See id. Instead, Lucia compels that “[t]o cure the constitutional error,
another ALJ (or the [Commissioner]) must hold the new hearing to which [Flinton]
20 is entitled.” Id. at 251–52 (emphasis added). 2 We are bound by the Supreme
Court’s instructions.
Moreover, as Flinton convincingly argues, the notion that a disability
claimant who suffers only an Appointments Clause violation would receive a
different ALJ on remand, but one who suffers both a merits-based error and a
constitutional defect would “not be entitled to a different ALJ” creates a warped
“remedial framework” where the “claimant who suffered more violations . . .
would be accorded fewer remedies.” Appellant’s Reply Br. at 22 (emphasis
omitted); see also Brooks, 60 F.4th at 743 (“[I]t would border on absurd to ignore a
patent constitutional violation (and the remedy developed therefore) because of
evidentiary defects in the constitutionally flawed proceedings.”).
To be sure, the Ninth Circuit’s holding does appear to turn on assessing the
influence of the pre-ratification determination on the post-ratification decision.
Cody, 48 F.4th at 963 (“We thus hold that claimants are entitled to an independent
decision issued by a different ALJ if a timely challenged ALJ decision is ‘tainted’
2 The Commissioner argues that Lucia does permit this Court to “approve a remand to the same adjudicator” in certain scenarios. Appellee’s Br. at 51 n.6. But the Supreme Court offers only one situation where that is permitted—under the “rule of necessity,” which “kick[s] in” if “there is no substitute decisionmaker” because there is an “Appointments Clause problem . . . with the [agency] itself.” Lucia, 585 U.S. at 251 n.5. The Commissioner does not contend that that exception was triggered, and we decline to find another.
21 by a pre-ratification ALJ decision.”). We do not believe that such an ad hoc
exercise—with its attendant questions of when a decision is sufficiently tainted—
is necessary, since any post-ratification decision by the same ALJ is presumptively
tainted by the pre-ratification assessment of an applicant’s entitlement to disability
benefits. Therefore, like the Fourth Circuit, we hold that if the Lucia remedy has
not been awarded, despite a proper challenge in federal court, the applicant is
entitled to a new hearing before a different ALJ.
* * *
For the reasons set forth above, we remand this case to the Commissioner
with instructions to assign Flinton’s case to another validly appointed ALJ for a de
novo hearing regarding her disability benefits.
CONCLUSION
The judgment of the United States District Court for the Southern District of
New York is VACATED and the case is REMANDED to the Commissioner for
further proceedings consistent with this opinion.