Wilson v. Berryhill

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION DONNA MARIE WILSON, ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 1:17-00531-N ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) Defendant. ) ORDER This action is before the Court on the Motion for Order of Remand (Doc. 20) filed by Plaintiff Donna Marie Wilson. The Defendant Commissioner of Social Security (“the Commissioner”) has timely filed a response (Doc. 22) in opposition to the motion, and Wilson has timely filed a reply (Doc. 23) to the response. The motion is now under submission. Wilson’s present motion asserts that her case must be remanded to the Commissioner for a new hearing because the Administrative Law Judge who issued an unfavorable decision on her application 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 Lucia v. SEC, 138 S. Ct. 2044 (2018). In response, the Commissioner argues that Wilson forfeited this claim by failing to raise it at the administrative level.1 In

1 The Commissioner expressly declines to argue whether Social Security ALJs are “Officers of the United States” subject to the Appointments Clause (see Doc. 22 at 2 reply, Wilson, while conceding that she did not raise her Appointments Clause challenge at the administrative level, argues that she was not required to do so in order to preserve that claim for judicial review, and alternatively that the Court

should exercise its discretion to excuse any forfeiture of the claim. For the reasons stated in Abbington v. Berryhill, No. CV 1:17-00552-N, 2018 WL 6571208 (S.D. Ala. Dec. 13, 2018), the Court finds that Wilson has forfeited her Appointments Clause challenge by failing to first raise it before the Social Security Administration, and Wilson has not shown sufficient cause to excuse the forfeiture. Accordingly, Wilson’s Motion for Order of Remand (Doc. 20) is DENIED.2 DONE and ORDERED this the 14th day of December 2018.

/s/ Katherine P. Nelson KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

n.1), and the Court expresses no opinion on that issue.

2 With the consent of the parties, the Court has designated the undersigned Magistrate Judge to conduct all proceedings in this civil action, in accordance with 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73, and S.D. Ala. GenLR 73. (See Docs. 17, 19).