Diane S. P. v. Berryhill (379 F. Supp. 3d 498, 2019)

Mark S. Davis, Chief United States District Judge

Plaintiff, Diane S. P. ("Plaintiff"), with the assistance of counsel, brought this action seeking judicial review of the final decision of the Acting Commissioner of the Social Security Administration ("Commissioner") denying her claims for disability insurance benefits and supplemental security income. The case was referred to a United States Magistrate Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) & (C) and Rule 72(b) of the Federal Rules of Civil Procedure, as well as Rule 72 of the Local Rules of this Court, for a Report and Recommendation ("R & R").

On January 23, 2019, the Magistrate Judge assigned to this case issued a detailed R & R recommending that Plaintiff's second motion for summary judgment be denied, and that the Commissioner's cross-motion for summary judgment be granted. ECF No. 39. By copy of the R & R, each party was advised of the right to file written objections, and on February 6, 2019, the Court received Plaintiff's Objections to the R & R. ECF No. 40. After obtaining a briefing extension, the Commissioner filed its response on March 6, 2019. ECF No. 43. As set forth below, after reviewing relevant portions of the record and performing a de novo review of all objected-to portions of the R & R, and after performing a "clear error" review of all other portions of the R & R, the Court ADOPTS the findings and recommendations set forth in the Magistrate Judge's detailed and well-reasoned R & R.

Briefly addressing Plaintiff's objections, the majority of the first subpart of Plaintiff's first objection is not really an "objection" because it argues, consistent with the Magistrate Judge's ruling, that "issue exhaustion" in a Social Security case is not mandated by statute or regulation. As for the remainder of Plaintiff's associated argument, which challenges the Magistrate Judge's analysis distinguishing the instant case from Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), this Court adopts the Magistrate Judge's analysis. Such analysis highlights the fact that although issue exhaustion is not required by statute or regulation, a finding supported by Sims, the regulations provide procedures both for raising "as applied" constitutional challenges before the ALJ and for challenging the specific ALJ assigned to a specific Social Security case. ECF No. 39, at 521-24.

The second subpart of Plaintiff's first objection contends that because the Social Security administrative claims process is "non-adversarial," the Magistrate Judge erred by finding that a court-imposed issue exhaustion requirement is appropriate. While this Court acknowledges that the rationale for issue exhaustion is less compelling in non-adversarial proceedings, when balancing all relevant considerations, including the multiple Social Security regulations indicating that a claimant "should" or "must" raise issues before the ALJ as soon as practicable, as well as efficiency interests, this Court agrees with the findings in the R & R, and countless prior and subsequent federal district court decisions, holding that court-imposed issue exhaustion is appropriate in the Social Security context, at least with respect to appointments clause challenges. See ECF No. 39, at 524-25 (citing cases); Bennett v. Berryhill, No. 2:17cv520, 2019 WL 1104186, at *7-11 (E.D. Va. Feb. 15, 2019), report and recommendation adopted, 2019 WL 1102203 (E.D. Va. Mar. 8, 2019). In this Court's view, Plaintiff's arguments focusing on the non-adversarial nature of Social Security proceedings are undercut in large part by the fact that a challenge to the ALJ's capacity, at least in the form at issue here, is a matter that the ALJ has no occasion to identify as part of his or her role investigating the merits-facts. Moreover: (1) Social Security regulations provide an express procedure for challenging, at the earliest opportunity, the assigned ALJ; and (2) "[t]he Supreme Court has never indicated that [appointment] challenges must be heard regardless of [forfeiture]," but instead "the Court has proceeded on a case-by-case basis, determining whether the circumstances of the particular case warrant excusing the failure to timely object." In re DBC, 545 F.3d 1373, 1380 (Fed. Cir. 2008) (citing Freytag v. Comm'r, 501 U.S. 868, 879, 893, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991) ).

Here, there are no case-specific circumstances that warrant excusing Plaintiff's failure to timely raise an appointment challenge during the administrative process, with the Supreme Court case on which Plaintiff now seeks to rely arising from the review of a published appellate decision issued several months prior to Plaintiff's hearing before the ALJ. See Lucia v. S.E.C., --- U.S. ----, 138 S.Ct. 2044, 2055, 201 L.Ed.2d 464 (2018) ("[O]ne who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case is entitled to relief.") (emphasis added) (internal quotation marks and citation omitted). Moreover, excusing Plaintiff's failure to timely raise such claim would incentivize "sandbagging," an approach where a litigant benefits from "suggesting or permitting, for strategic reasons," that the administrative body "pursue a certain course" (here, continuing with the assigned ALJ without opposition during either the initial hearing or the administrative appeal), "and later-if the outcome is unfavorable [as it was here]-claiming that the course followed was reversible error" because the initial administrative adjudicator lacked capacity to issue a ruling. Freytag, 501 U.S. at 895, 111 S.Ct. 2631 (Scalia, J., concurring in part). Accordingly, for the reasons explained in greater detail in the R & R, the judicial doctrine of issue exhaustion is appropriately applied to the appointment's challenge in this case, and there is no reason to excuse Plaintiff's non-compliance. See Sims, 530 U.S. at 117, 120 S.Ct. 2080 (Breyer, J., dissenting) ("I assume the plurality would not forgive the requirement that a party ordinarily must raise all relevant issues before the ALJ."); cf. Sayre v. Chater, 113 F.3d 1232, 1997 WL 232305, at *2 (4th Cir. 1997) (table) (finding, in an unpublished opinion decided prior to Sims, that an "assignment of error" was waived in a Social Security case where there was "nothing in the record to suggest that [the claimant] provided either the ALJ or the Appeals Council with the opportunity to consider" such challenge); Freytag, 501 U.S. at 894-95, 111 S.Ct. 2631 (Scalia, J., concurring in part) ("No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.") (citation omitted).

Plaintiff's second and third objections attack the Magistrate Judge's ruling on the substance of the ALJ's merits-based disability determination. ECF No. 40, at 9-10. Having conducted a de novo review of such challenges, for the reasons stated in the R & R, and for those articulated in the Commissioner's response to Plaintiff's objections, this Court adopts the Magistrate Judge's analysis without further comment.

In summary, the R & R is hereby ADOPTED , Plaintiff's motion for summary judgment is DENIED , ECF No. 31, and the Commissioner's motion for summary judgment is GRANTED , ECF No. 36.

The Clerk is requested to forward a copy of this Final Order to all counsel of record.

IT IS SO ORDERED.

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA

Newport News Division

DIANE S. P., Plaintiff,

v.

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

ACTION NO. 4:17cv143

Diane S.P. ("plaintiff") brought this action, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a decision of the Acting Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying her claim for a period of disability and disability insurance benefits ("DIB") under Title II of the Social Security Act, as well as her claim for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.

An order of reference assigned this matter to the undersigned. ECF No. 10. Pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B), Rule 72(b) of the Federal Rules of Civil Procedure, and Local Civil Rule 72, it is hereby recommended that plaintiff's second motion for summary judgment (ECF No. 31 ) be DENIED as to counts one and two and that the Commissioner's motion for summary judgment (ECF No. 36 ) be GRANTED as to counts one and two.

I. PROCEDURAL BACKGROUND

Plaintiff, Diane S.P., filed applications for disability insurance benefits and Supplemental Security Income on September 9, 2013, alleging that she became disabled on June 24, 2013, due to severe headaches, severe back pain, high blood pressure, high cholesterol, gastro-esophageal reflux disease ("GERD"), and asthma. R. 68-69, 176-85. Following the state agency's denial of these claims, both initially and upon reconsideration, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). R. 68-109, 134-39.

ALJ Irving A. Pianin heard the matter on December 12, 2016, and issued a decision denying benefits on January 19, 2017. R. 16-24, 29-52. On October 16, 2017, the Appeals Council denied plaintiff's request for review of the ALJ's decision. R. 1-5. Therefore, the ALJ's decision stands as the final decision of the Commissioner for purposes of judicial review. See 42 U.S.C. §§ 405(h), 1383(c)(3) ; 20 C.F.R. §§ 404.981, 416.1481.

Having exhausted all administrative remedies, plaintiff filed a complaint with this Court on December 15, 2017. ECF No. 3. The Commissioner answered on March 9, 2018. ECF No. 8. In response to the Court's order, the parties filed motions for summary judgment, with supporting memoranda, on April 19 and May 17, 2018, respectively. ECF Nos. 11, 15-16, 17-18. Plaintiff replied to the Commissioner's summary judgment motion on May 26, 2018. ECF No. 19.

Following the Supreme Court's ruling in Lucia v. SEC , --- U.S. ----, 138 S.Ct. 2044, 201 L.Ed.2d 464 (2018), plaintiff filed a motion seeking leaving to amend the complaint to allege that the ALJ who presided over her hearing was not properly appointed in compliance with the Appointments Clause of the Constitution. ECF Nos. 20, 22. The United States opposed plaintiff's motion for leave to amend. ECF No. 23. The Court granted plaintiff leave to amend and she filed an amended complaint on October 23, 2018. ECF Nos. 25-26.

After the parties withdrew their prior motions for summary judgment, the Court entered a new briefing order on November 6, 2018. ECF Nos. 28-30. The parties filed new motions for summary judgment, with supporting memoranda including arguments addressing plaintiff's Appointments Clause challenge, on December 6 and January 7, 2019, respectively. ECF Nos. 31-32, 36-37. Plaintiff replied to the Commissioner's summary judgment motion on January 18, 2019. ECF No. 38. As neither party has indicated special circumstances requiring oral argument, the case is deemed submitted for a decision.

II. RELEVANT FACTUAL BACKGROUND

A. Background Information and December 12, 2016 Hearing Testimony by Diane S.P.

Born in 1965, plaintiff completed her high school education, and was 48 years old as of the alleged onset date of disability of June 24, 2013. R. 33, 178. Although married, plaintiff lived alone at the time of the hearing before the ALJ. R. 33, 178-79.

Before the alleged onset of her disability, plaintiff last worked on a part-time basis in 2015 and 2016 at an assisted living facility, where she helped with cooking, dishwashing, and resident laundry. R. 34-36. Previously in 2013, plaintiff worked full-time as a patient-service representative, checking them in for doctor's appointments. R. 37-38.

Plaintiff reported suffering from back pain, neck pain, knee pain, severe headaches, fatigue, asthma and bronchitis, numbness in her fingers and hands, arm pain and manipulation problems, and GERD. R. 38, 40, 45-48. She described having continuous pain on both sides of her back and occasional shooting pain down the back of her legs. R. 45. She also reported having stiffness and neck pain that radiated into her back. R. 46. Plaintiff also said that constant swelling and pain in her knees, dating back many years, made it painful to walk and necessitated bracing herself to avoid falls. R. 45.

Plaintiff also testified that bilateral hand and finger numbness (two to three times per week for varying time periods) caused difficulty in moving her fingers and shooting pain "up and down [her] arm[s]." R. 46-47. Plaintiff also reported an inability to raise her arms above an unspecified height. R. 38.

Plaintiff also stated that severe headaches left her unable to focus in her last job. R. 46 (noting also that she had yet to be tested for such headaches). With respect to GERD, plaintiff testified that reflux causes her to be sick at the first meal of every day. R. 48-49. Finally, while noting that she suffers from asthma and bronchitis, plaintiff admitted that she smokes "maybe one or two cigarettes a day." R. 40.

Plaintiff testified that the foregoing impairments precluded work and her pain has worsened since she last worked. R. 38, 46-47 (noting this caused her to voluntarily stop working). She reported that the pain interfered with sleep, caused extreme fatigue, and led her to spend most of her days lying down, searching for a comfortable position. R. 47-48. Although previously prescribed Celebrex, plaintiff found it disagreeable and reverted to taking only ibuprofen. R. 39-40. She denied having back surgery and stated that she declined a doctor's suggestion for pain-killing injections for the back. R. 39. Although she tried physical therapy, plaintiff stopped after finding that it made her back "feel worse." Id. At the time of the hearing, plaintiff was not receiving any other treatments. Id.

With respect to daily activities, plaintiff testified that she laundered, cooked, cleaned, and did housework and chores for herself, "in spells," and with the aid of her sisters. R. 43. Although fearful of falling in the shower, plaintiff said she performs personal care tasks, including bathing, showering, and dressing. R. 44. When not otherwise engaged, plaintiff mostly spends her days watching television and alternating between sitting and lying down. R. 43. When leaving home, plaintiff said that either her son or a friend drives her to the store, doctor's visits, or other locations. Id. She denied venturing out alone, due to fear of having another heart attack. R. 44. At stores, plaintiff moves about using a motorized cart and seeks assistance with loading and unloading her cart and car. R. 43-44.

With respect to her exertional abilities, plaintiff said that, due to back trouble, she can lift and carry items weighing no more than five pounds. R. 41. Back pain also limits her ability to sit to an "hour or less." R. 41-42. Plaintiff said she can stand for roughly five to ten minutes before needing to sit. R. 42. Although she used to use a cane, plaintiff reported that she currently held onto furniture, walls, and rails when moving about and going up and down stairs. Id. Plaintiff was uncertain how far she could walk, but stated she could walk "a few steps from ... [her] doorway to the parking lot to [her] car." Id.

On October 23, 2013, plaintiff completed an adult disability report. R. 188-97. In it, she traced her painful conditions back to 2003 and said they worsened over time, until in 2013 she no longer could work. R. 189 (reporting she was fired in 2013, after being ill and having two surgeries). She also reported being treated for GERD, high blood pressure, asthma, and high cholesterol and reported taking five prescription medications, in addition to over-the-counter pain medicine. R. 191, 194, 197.

On November 3, 2013, plaintiff completed an adult function report, which, in substantial part, matches plaintiff's hearing testimony. R. 251-58. Plaintiff also reported: (1) sleeping, at most, four to five hours per night; (2) using chairs to avoid standing when washing dishes, cooking, and bathing; (3) driving when free of neck pain, but mostly relying upon others for transportation; (4) going out three to four days per week, when feeling up to it; (5) keeping track of her own medications; (6) handling money and taking care of her own finances; (7) having hobbies such as reading, watching TV, listening to music, and playing games on the computer; (8) performing no yard work; and (9) having fallen several times in her first floor, handicapped apartment. R. 251-56. Plaintiff described her social activities as spending time with family and talking on the phone. R. 255 (noting she also used to sing in a gospel group). Plaintiff checked boxes indicating her conditions limited her both physically and mentally. R. 256 (listing affected functions as lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, stair climbing, memory, and concentration). Aside from using reading glasses, and an electric cart when shopping, plaintiff reported using no other assistive devices, including a cane. R. 254, 257. She reported that she could walk 200 feet, at which point she experiences back pain and leg numbness and needs to rest. R. 256. She reported that constant back pain limited her ability to move about outside of the home and caused her to be forgetful and affected her concentration. R. 256-58.

B. Relevant Medical Evidence

1. Treatment at Community Free Clinic and Hampton Roads Neurological & Spine Specialists

Plaintiff began treatment at the Community Free Clinic in Newport News, Virginia, dating back to 2009. R. 533-35 (noting chief complaints as knee swelling, back pain, and morning stomach issues) 546, 550.

In 2013, the clinic treated plaintiff on January 21 and February 4, for coughing, vomiting, headaches, and general weakness, and for lab results follow-up. R. 413-14. On August 8, 2013, when seen at the clinic for medication re-fills for hypertension, hyperlipidemia, and GERD, plaintiff reported that increasing back pain (10/10) was affecting her ability to work, and the clinic ordered an MRI and told her to take over-the-counter pain relievers. R. 412. A physical examination revealed tenderness upon palpitation at the sacroiliac joint, positive findings for flexion, abduction, and external rotation, and reduced lumbar flexion. Id.

On September 12, 2013, plaintiff returned to the clinic to review her MRI results and said she was in "extreme pain." R. 778. The MRI impressions were:

1. Advanced facet arthropathy at L4-5 resulting in mild anterolisthesis. There is uncovered disc and a right posterior disc protrusion mildly distorting the right ventral dural sac.

2. Advanced facet arthropathy L3-4. A small annular fissure is present at this level also.

3. Small round lesion right lateral kidney, nonspecific though possibly a cyst.

4. Epidural lipomatosis L5-S1.

R. 381-82.

Following referral from the clinic, R. 778, plaintiff received treatment from Dr. Jackson Salvant, Jr., at Hampton Roads Neurosurgical & Spine Specialists on September 23, 2013. R. 389-91. During this visit, plaintiff reported a history of low back pain that was getting worse and was exacerbated by standing, walking, and movements requiring bending and twisting. R. 389. She reported the pain radiated into the buttock, right leg, thigh, and calf, and had numbness and tingling in her right foot. Id. Plaintiff also reported having neck pain that radiated into her right shoulder, with "occasional numbness and tingling in the right hand affecting" her fingers. Id.

Dr. Salvant's physical exam revealed, among other things: (1) "significant pain to palpitation along the lumbar spine"; (2) "limited flexion and extension secondary to pain"; (3) "negative straight-leg raise bilaterally"; (4) "normal strength at the hip flexors, knee flexors and extensors, dorsiflexion, and plantar flexion"; (5) "pain with range of motion of the neck"; (6) "equal grip strength"; (7) "equal" and "5/5" "deltoids, biceps, [and] triceps strength"; and (8) "hypoactive reflexes in the upper and lower extremities with no Hoffman response and no ankle clonus." Id.

Consistent with the MRI, Dr. Salvant assessed plaintiff with lumbar degenerative disc disease L3-L4 and L4-L5, grade 1 spondylolisthesis of L4 and L5, and right-sided disc herniation at L4-L5. Id. For treatment, he prescribed Feldene, physical therapy for the lower back and neck twice a week for eight weeks, and, in the absence of improvement, epidural injections. R. 390-91. When plaintiff returned six weeks later, she advised that she could not afford Feldene and that transportation difficulties impacted her ability to regularly attend physical therapy. R. 392. A physical exam revealed results consistent with the prior one, except for noting plaintiff's slow and antalgic gait. Id. Dr. Salvant prescribed a cheaper anti-inflammatory (Mobic ) and directed plaintiff to schedule an epidural steroid injection, if the medication failed to provide relief. Id. As discussed below, plaintiff did not return to see Dr. Salvant until April 7, 2016. R. 739.

Follow-up examinations at the clinic on December 3 and 17, 2013, reference plaintiff's morbid obesity and the need for weight loss, but contain no significant findings about back, neck, hip, and arm/hand pain. R. 776-77 (stating that patient "voice[d] no other complaints" on December 17).

Plaintiff next treated with a clinic nurse practitioner on May 22, 2014, when she complained of knee pain and sought a note supporting her desired move to a handicapped apartment. R. 592 (noting prescriptions received from the emergency room on May 3, 2014 for the same complaints went unfilled for financial reasons). She received prescriptions for Neurontin and Celebrex. R. 593.

On July 3, 2014, plaintiff treated with a clinic nurse practitioner and reported having severe pain ("7/10") in her arthritic knees that was only somewhat relieved by Celebrex and Neurontin. R. 773-75 (noting also that plaintiff sought a "housing accommodation form" for a one-story apartment and reported difficulty sleeping due to neighborhood crime). A physical exam revealed bilateral knee tenderness and swelling. R. 774. The nurse practitioner assessed plaintiff with morbid obesity, arthritis at multiple sites, GERD, hypertension, and tobacco use disorder (noting she was an "every day smoker"). R. 773-74. Plaintiff was "strongly encouraged" to lose weight and quit smoking and to continue taking medications for her other conditions, while waiting to be seen by an orthopedist. R. 774.

On May 9, 2015, the nurse practitioner again treated plaintiff, who sought medication refills and followed up after emergency room treatment for shingles. R. 770-72 (also complaining of malaise, a left ear earache, and back and joint pain, swelling, stiffness, and arthritis ). A physical exam revealed otalgia, myringitis, and a bulging typmpanic membrane, as well as localized back/flank pain (8/10), apparently mostly associated with shingles. R. 770. The nurse practitioner assessed plaintiff with new otitis media (not otherwise specified), new herpes zoster, and unchanged morbid obesity, hypercholesterolemia, and hypertension. R. 770-72 (prescribing Cipro Otic and refilling Gabapentin and continuing prior medications).

On July 28, 2015, the clinic treated plaintiff to follow-up on complaints of chest pain and a recent visit to the emergency department at the Riverside Regional Medical Center ("Riverside RMC") from July 19-21, 2015. R. 758-69. While plaintiff denied continuing chest pain and related symptoms, she sought a prescription for itchiness and associated open sores and medication refills stemming from the emergency treatment. R. 758. The nurse practitioner's physical exam found skin lesions and sores, but no cardiovascular and musculoskeletal abnormalities. R. 759 (listing plaintiff's gait and station as normal). She assessed plaintiff with improved herpes zoster, deteriorating atopic dermatitis, improved myocardial infarction-non-ST elevation, and with unchanged hypertension and prescribed medications, as appropriate. R. 759.

On August 13, 2015, plaintiff followed up at the clinic with Dr. Mark Clark, who noted the absence of "any angina-like chest pain," but continued complaints about a rash on her back, hands, arms, and legs. R. 756. Other than noting her morbid obesity, Dr. Clark's physical examination revealed no abnormal findings and he directed her to continue with prior medications and referred her to a dermatologist. R. 756-57.

When plaintiff returned to the clinic on September 22, 2015, she complained of the continuing rash, as well as back and knee pain, which had "been painful for [some time]." R. 753 (noting patient found that physical therapy aggravated her pain). The nurse practitioner continued the prior cardiac and dermatitis assessments, prescribed new medications for the rash, and directed taking ibuprofen for knee and back pain. R. 754.

On October 1 and November 18, 2015, Dr. Clark again treated plaintiff. R. 749-52. These treatment notes primarily refer to plaintiff's rash and indicate that Dr. Clark suspected that it was induced by medication. R. 751. After advised to discontinue use of one drug, the rash appeared to subside, but plaintiff continued to have itching. R. 749.

During a February 11, 2016 follow-up visit with Dr. Clark, he noted that the rash had improved, but plaintiff was complaining of lower left back pain that radiated down her right leg, with some right leg numbness that interfered with sleep. R. 746. Dr. Clark's neurological, musculoskeletal exam notes reported "decreased sensation and strength right leg." Id. Dr. Clark assessed plaintiff with lumbar radiculopathy and referred plaintiff for an orthopedic examination. R. 747.

Plaintiff underwent another lumbar MRI on February 26, 2016. R. 743-44. The exam revealed:

1. Severe hypertrophic facet arthropathy at the L3-L4, L4-L5, and L5-S1 levels[, along with (a) small posterior disc protrusion and mild canal narrowing and mild to moderate bilateral neural foraminal stenosis at L3-L4; (b) broad-based posterior disc protrusion and mild canal narrowing and mild bilateral neural foraminal stenosis at L4-L5; and (c) severe hypertrophic facet arthropathy, with minimal posterior disc protrusion, and no significant canal stenosis or nerve root impingement at L5-S1].

2. Grade 1 anterolisthesis L4 on L5 and to a lesser degree L3 on L4.

3. Mild degenerative disc disease with small broad-based posterior disc protrusions at the L3-L4 and L4-L5 levels.

R. 743-44; see R. 620-21.

In a follow-up with Dr. Salvant on April 7, 2016, in which plaintiff complained of chronic, aching pain, including neck pain, he noted her prior 2013 evaluation for the same problems, namely "lower back pain radiating into the legs ... right leg pain symptoms going down the leg, pain in the buttock and in the back, pain in the shoulder, occasional tingling in the right hand, and some neck pain." R. 739. Dr. Salvant compared the results of the 2013 and recent 2016 MRIs and described them as "identical" and involving "spondylolisthesis L4-5 and facet arthropathy L3-4 ...., disc protrusions at L3-4 and L4-5 ...." Id. He noted prescribing anti-inflammatory medication and sending plaintiff to physical therapy in 2013, as well as her failures to take the medication (due to cost), to pursue physical therapy, and to return for treatment, in disregard of his recommendations. Id.

Dr. Salvant's 2016 examination found plaintiff's lumbar spine area unremarkable and noted that, while minimally positive on the right side for the straight-leg test, he attributed this to "bad arthritis in her right knee." Id. He found she exhibited "[n]ormal strength and reflex activity ... bilaterally without sensory deficits" and an abnormal gait, due to an inability to comfortably bear weight on her right knee. Id. Dr. Salvant noted plaintiff received treatment for knee pain from others, had received an injection, and declined to take recommended anti-inflammatories. R. 741. Although plaintiff declined a proposed epidural steroid injection, Dr. Salvant ordered one hoping that she might change her mind. Id. Dr. Salvant noted that morbid obesity precluded spinal surgical intervention at that time. Id. Instead, he opined that, if plaintiff agreed to the epidural injection, she could then "work diligently on a weight loss program and exercise in order to perhaps have something definitive done about her spine sometime later down the road." Id. In the meantime, he issued a one-time prescription for Norco to assist temporarily with sleeping, with the understanding that it would not be renewed. Id.

On May 12, June 23, July 14, and October 13, 2016, plaintiff saw Dr. Clark for regular office visits. R. 731-38. During these visits, she continued to complain of lower back pain on her left side, which radiated down her right leg and caused some numbness, but refused epidural steroid injection "out of fear." R. 731, 733, 735, 737. Dr. Clark also treated plaintiff for complaints of a continuing (but improving) skin rash, a left ankle sprain (on June 23), and for headaches (on June 23). Id. Dr. Clark continued plaintiff on her prior medications (other than the Norco ) and encouraged her to lose weight and stop smoking. R. 732, 734, 736, 738.

2. Treatment at Riverside Regional Medical Center

On March 20, 2014, plaintiff went to the emergency room at Riverside RMC complaining of lower back pain, with sciatica down the right leg, and "flaring" hives. R. 571, 577. A history taken from plaintiff indicates that her back condition was "[u]sually controlled by muscle relaxant and pain meds." R. 577 (noting that patient was unable to refill Flexeril and Vicodin ). A nurse noted that plaintiff complained of severe back pain and associated right leg pain and numbness, due to going up and down apartment stairs. R. 580. While plaintiff complained of trouble walking, the nurse noted she "walked into the room without any apparent issues ...." Id. Treatment notes indicate the presence of "[c]urrently ... moderate" symptoms, "localized to the back." R. 577. A physical exam found, among other things: (1) normal neck range of motion and absence of tenderness; and (2) a normal back, with the exception of L5 (right) paraspinal tenderness/spasm. R. 578 (noting "[n]o focal neurological deficits on examin[ation]"). The treating physician diagnosed plaintiff with sciatica and a rash and prescribed Motrin, Flexeril, Norco, Atarax, and a hydrocortisone cream. R. 578-79.

On May 3, 2014, plaintiff returned to the emergency room complaining of bilateral knee pain that began one month earlier. R. 570, 584, 601. A physical exam, including of plaintiff's neck and upper and lower extremities, revealed normal findings. R. 602. While ambulating, plaintiff exhibited a limp and an unsteady gait. R. 585. X-rays revealed the existence of degenerative joint disease in the knees. R. 585, 587-88. The right knee x-ray revealed "[m]oderate medial and lateral compartment, and severe patellofemoral compartment osteoarthritis." R. 587. The left knee x-ray revealed "[t]ricompartmental degenerative changes, most prominent in the patellofemoral compartment, compatible with osteoarthritis." R. 588. Upon discharge, plaintiff was directed to see her doctor concerning arthritis and weight loss, received a prescription for diclofenac, and was observed "ambulating without assistance, driving self." R. 584-85.

On August 9, 2014, plaintiff returned to the emergency room complaining of back and left leg pain, but was ambulatory and exhibited a steady gait. R. 623, 625. A physical exam of plaintiff's back revealed normal inspection, normal range of motion, limited by pain, and paraspinal tenderness in the lower back. R. 624. The lower extremity exam also revealed normal range of motion and listed back and lower left extremity pain with movement. Id. After treatment, plaintiff was discharged with prescriptions for Flexeril, Naprosyn, and Norco, and told to follow up with her doctor for weight loss assistance. R. 624-25.

On December 5, 2014, plaintiff's cervical spine was x-rayed to assess for cervical radiculopathy. R. 614. The reviewing radiologist noted "[d]egenerative disk changes at C5-6" and "[s]traightening of the normal cervical lordosis which may reflect muscle spasm." Id. On January 16, 2015, plaintiff's received hip x-rays. R. 615. The reviewing radiologist found no evidence of fracture or dislocation, but noted the presence of "[m]ild to moderate osteoarthritic change." Id.

Plaintiff received treatment at the emergency room on March 4, March 22, May 30, July 4, August 24, and October 23, 2015, and received treatment for abdominal pain and right upper quadrant pain radiating to her back, shingles, post-shingles neuropathy, and rashes. R. 629-37, 645-49, 652-55, 657-60, 692-95, 704-07. On March 4, 2015, plaintiff complained of right upper quadrant pain, radiating to her back during the prior week. R. 629, 634 (rating pain as 9/10). A physical exam conducted on March 4 revealed mostly normal findings, except for continued midline to upper back tenderness and mild abdominal tenderness to the right upper quadrant. R. 630. Physical exams conducted on March 22 and May 30, 2015 revealed normal range of neck motion and the exam on March 22 also revealed normal range of back motion, without tenderness, and normal inspection and range of motion for the upper and lower extremities. R. 646, 653; but see R. 654 (noting patient complaint of right side and right upper leg pain). A physical exam conducted on July 4 also revealed normal range of neck motion and normal lower extremity findings. R. 658. A physical exam on October 23 found normal inspection and range of motion for upper and lower extremities. R. 704-706 (noting patient complained of lower back and right knee pain). Discharge notes for five of these visits list plaintiff as driving herself home, R. 635, 654, 660, 694, 707, and the fifth indicated a friend was driving, R. 648; see R. 699 (noting family driving after August 28, 2015 visit).

On June 5, 2016, plaintiff drove herself to the emergency room, after reportedly slipping on steps and twisting her back the day before. R. 709 (complaining of back and left ankle pain), 711. A physical exam revealed mild swelling and slight tenderness on the left ankle and paraspinal tenderness on the lower back, with otherwise normal findings, normal strength, and range of motion for the neck, back, and upper and lower extremities. R. 710. After an x-ray showed no fracture or dislocation, R. 714, plaintiff's ankle was placed in a splint, she was prescribed crutches and Norco, and she was discharged to drive herself home. R. 711-13.

3. Medical Source Statement

On October 20, 2016, Dr. Mark Clark of Community First Clinic completed a medical source statement. R. 715-16. He reported plaintiff's diagnoses as lumbar radiculopathy, morbid obesity, hypertension, asthma, hyperlipidemia, and an "old myocardial infarction" and assigned her a "fair" prognosis. R. 715 (noting that her "cardiac condition" does not limit her ability to work). Dr. Clark reported plaintiff could walk less than one block before experiencing low back and leg pain. Id. He advised it was "unknown" how long she could continuously stand without pain but that "she cannot stand for long." Id. He advised plaintiff could rarely lift and carry less than ten pounds and that she could stand/walk for about two hours, and could sit at least six hours, without breaks during an eight-hour workday. R. 716. He estimated that plaintiff would need four unscheduled breaks per workday, but apparently not due to any cardiac problems. Id. Finally, although noting plaintiff was not a malingerer, Dr. Clark indicated that plaintiff failed to follow recommendations to lose weight and pursue physical therapy. Id.

C. Hearing Testimony of Vocational Expert Edith Edwards

At the hearing before the ALJ, vocational expert ("VE") Edith Edwards also testified. R. 49-51. VE Edwards reviewed plaintiff's work history and characterized her two most recent positions as: (1) a food service worker/laundry worker, described in the Dictionary of Occupational Titles ("DOT"), as medium, unskilled work; and (2) a medical clerk (described by plaintiff as a patient service representative), involving sedentary, semi-skilled work at the specific vocational preparation (SVP) 4 level. R. 49-50. In response to the ALJ's hypothetical questions concerning the availability of jobs for a person of plaintiff's age, education, and past work experience, who could perform only sedentary work not requiring more than two hours of standing or walking in an eight-hour work day, who could perform no more than occasional postural activities without climbing or exposure to heights or other environmental hazards, VE Edwards confirmed that such a profile would support work as a patient service representative/medical clerk "consistent with the DOT and the [selected characteristics of occupations] for that job." R. 50; see R. 51 (repeating that her testimony was "consistent with information contained in the DOT"). If that hypothetical person frequently needed to lie down during the work day due to back, neck, and knee problems, VE Edwards said no work would be available. R. 50-51. VE Edwards also opined that, if such person need to regularly take unscheduled breaks of unknown duration, there would also be no work available. R. 51.

III. THE ALJ's DECISION

To evaluate plaintiff's claim of disability, the ALJ followed the sequential five-step analysis set forth in the SSA's regulations for determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520(a), 416.920(a). Specifically, the ALJ considered whether plaintiff: (1) was engaged in substantial gainful activity; (2) had a severe impairment; (3) had an impairment that meets or medically equals a condition within the SSA's listing of official impairments; (4) had an impairment that prevents her from performing any past relevant work in light of her residual functional capacity; and (5) had an impairment that prevents her from engaging in any substantial gainful employment. R. 17-24.

The ALJ found that plaintiff met the insured requirements of the Social Security Act through December 31, 2018, and she had not engaged in substantial gainful activity since June 24, 2013, her alleged onset date of disability. R. 18.

At steps two and three, the ALJ found that plaintiff had the following severe impairments: (a) back disorder; (b) neck disorder; (c) bilateral knee osteoarthritis ; (d) obesity ; (e) hypertension ; (f) asthma ; and (g) osteoarthritis of the bilateral hips. R. 19. The ALJ classified any additional impairments as non-severe, because they responded to medication or required no significant medical treatment, failed to continuously exist for twelve months, or did not otherwise continuously impose functional limitations. Id. The ALJ further determined that plaintiff's severe impairments, either singly or in combination (along with her other conditions), failed to meet or medically equal the severity of one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1, as required for a finding of disability at step three. Id.

The ALJ next found that plaintiff possessed the RFC to perform sedentary work, see 20 C.F.R. §§ 404.1567(a), 416.967(a), subject to the limitations that she: (a) "stand and/or walk for no more than 2 hours in an 8-hour workday"; (b) be limited to "no more than occasional postural movements"; (c) "avoid exposure to excessive environmental conditions"; and (d) engage in "no climbing ... or exposure to heights or hazards." R. 20. Based upon this RFC assessment, the ALJ determined at step four that plaintiff could return to her past relevant work as a patient service representative or medical clerk. R. 23-24. Accordingly, the ALJ found that plaintiff was not disabled from June 24, 2013 through the date of the ALJ's decision and was ineligible for a period of disability, DIB, or SSI benefits. R. 24.

IV. STANDARD OF REVIEW

In reviewing a Social Security disability decision, the Court is limited to determining whether the Commissioner applied the proper legal standard in evaluating the evidence and whether substantial evidence in the record supports the decision to deny benefits. 42 U.S.C.§ 405(g) ; Johnson v. Barnhart , 434 F.3d 650, 653 (4th Cir. 2005) (citing Craig v. Chater , 76 F.3d 585, 589 (4th Cir. 1996) ); Hays v. Sullivan , 907 F.2d 1453, 1456 (4th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938) ). It consists of "more than a mere scintilla of evidence[,] but may be somewhat less than a preponderance." Laws v. Celebrezze , 368 F.2d 640, 642 (4th Cir. 1966).

When reviewing for substantial evidence, the Court does not re-weigh conflicting evidence, make credibility determinations, or substitute its judgment for that of the Commissioner. Craig , 76 F.3d at 589 ; Hays , 907 F.2d at 1456. "Where conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the responsibility for that decision falls on the [Commissioner] (or the [Commissioner's] designate, the ALJ)." Craig , 76 F.3d at 589 (citing Walker v. Bowen , 834 F.2d 635, 640 (7th Cir. 1987) ). The Commissioner's findings as to any fact, if supported by substantial evidence, are conclusive and must be affirmed, unless the decision was reached by means of an improper standard or misapplication of the law. Coffman v. Bowen , 829 F.2d 514, 517 (4th Cir. 1987) (citing Myers v. Califano , 611 F.2d 980, 982 (4th Cir. 1980) ). Thus, reversing the denial of benefits is appropriate only if either (A) the record is devoid of substantial evidence supporting the ALJ's determination, or (B) the ALJ made an error of law. Coffman , 829 F.2d at 517.

V. ANALYSIS

A. Plaintiff forfeited her constitutional challenge to the appointment of the ALJ.

Plaintiff's motion for summary judgment begins by challenging the ALJ's authority to adjudicate her claim. Relying upon the Supreme Court's decision in Lucia v. SEC , --- U.S. ----, 138 S.Ct. 2044, 201 L.Ed.2d 464 (2018), plaintiff contends that the ALJ, as an "inferior officer" subject to the Appointments Clause of the Constitution rather than merely an employee, was required to be appointed by the Commissioner of Social Security. Pl.'s Mem. in Supp. of Mot. for Summ. J. (Pl.'s Mem.) 6-9, ECF No. 32. Because ALJ Pianin allegedly held no such appointment at the time he rejected plaintiff's disability claim, First Am. Compl. ("Compl."), ECF No. 26 at ¶ 10, plaintiff argues the decision was void and remand is required. Pl.'s Mem. at 9, 27.

Without addressing the ALJ's status as either an "inferior officer" or employee, the Commissioner argues that plaintiff forfeited any Appointments Clause claim by failing to raise it during the administrative process. Def.'s Mem. in Supp. of Mot. for Summ. J. ("Def.'s Mem.") 14, 15 n.4, ECF No. 37. This failure, the Commissioner contends, precludes plaintiff's untimely assertion of such a claim in federal court. Id. at 14.

1. A constitutional challenge premised on the Appointments Clause is nonjurisdictional.

The Appointments Clause of the Constitution specifies:

[The President] ... shall nominate and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the Supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law; but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or the in the Heads of Departments.

U.S. Const., art. II, § 2, cl. 2. Section 902(a)(1) of title 42, United States Code, provides for the appointment of a Commissioner of Social Security by the President, with the advice and consent of the Senate. 42 U.S.C. § 902(a)(1) ; see 42 U.S.C. § 901(a) (creating an independent, executive branch agency, the Social Security Administration). Section 902(a)(7) of title 42, United States Code, authorizes the Commissioner to assign duties and delegate authority to render decisions to such officers and employees deemed necessary. 42 U.S.C. § 902(a)(7). Section 3105 of title 5, United States Code, authorizes agencies, such as the SSA, to appoint as many administrative law judges "as are necessary for" holding hearings in accordance with the Administrative Procedure Act, 5 U.S.C. §§ 551 - 59, 701 - 06, 1305, 3105, 3344, 5372, 7521. 5 U.S.C. § 3105.

Section 405(g) of title 42, United States Code, authorizes judicial review of any final decision of the Commissioner of Social Security in federal district courts. 42 U.S.C. § 405(g). After an ALJ issues a decision, a disability claimant must decide whether to seek review from the Appeals Council. See 20 C.F.R. §§ 404.900(a)(4), 416.1400(a)(4). If a claimant foregoes such review, no final decision exists for purpose of judicial review, as the claimant failed to exhaust administrative remedies. See id. at §§ 404.900(b), 416.1400(b) ; Bowen v. City of New York , 476 U.S. 467, 482-83, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). If, as in this case, a claimant requests and the Appeals Council denies review, the ALJ's decision becomes the final decision of the Commissioner and judicial review may be sought. See 20 C.F.R. §§ 404.900(a)(5), 404.955(b), 404.981, 416.1400(a)(5), 416.1455(b), 416.1481, 422.210(a).

Plaintiff's assertion that an alleged defect in ALJ Pianin's appointment renders his decision void necessarily raises concerns about the SSA and the Court's authority to address her case. The Court must determine, therefore, whether plaintiff's challenge is jurisdictional or nonjurisdictional. This classification is important because it impacts analysis of the Commissioner's claim that plaintiff forfeited her challenge to any defect in the ALJ's appointment.

A jurisdictional challenge is one that cannot be waived or forfeited. See Arbaugh v. Y & H Corp. , 546 U.S. 500, 513-14, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (addressing whether Title VII's employee-numerosity requirement was jurisdictional or merely an element of a claim for relief). Thus, even if the parties consent or a litigant has otherwise forfeited such an argument below, "courts ... have an independent obligation" to address jurisdictional challenges. Id. at 514, 126 S.Ct. 1235 ; see Fed. R. Civ. P. 12(h)(3) (specifying that challenges to a court's subject-matter jurisdiction may be considered "at any time").

A nonjurisdictional challenge, on the other hand, is subject to waiver or forfeiture. A litigant who fails to timely assert a nonjurisdictional claim when her case was initially adjudicated may lose the opportunity to pursue such a claim at a later phase of the case. See Arbaugh , 546 U.S. at 510-11, 126 S.Ct. 1235 (noting that, if the employer's contention was nonjurisdictional, "then its failure to speak to the issue prior to the conclusion of the trial ... would preclude vacation" of the judgment in plaintiff's favor").

It is undisputed that plaintiff failed to challenge the propriety of the ALJ's appointment before the SSA. See R. 31-33 (opening statement by attorney at ALJ hearing), 134-36 (requesting ALJ hearing and listing attorney representative), 174-75 (filing for Appeals Council review, signed by plaintiff and attorney, asserting only that "[t]he ALJ's decision is not supported by substantial evidence"). Plaintiff first raised the issue only after seeking judicial review, when she sought leave to amend her complaint on September 25, 2018. ECF No. 20-1 at 2-3. If plaintiff's challenge is jurisdictional, then her failure to present it to the SSA is of no moment. Under similar circumstances, however, the Supreme Court, as well as several appellate courts, have classified such challenges as "nonjurisdictional."

For example, in Freytag v. Comm'r , 501 U.S. 868, 871-72, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991), the Supreme Court considered an Appointments Clause challenge to the appointment of a Special Trial Judge, whose proposed findings and opinion were later adopted by the Chief Judge of the Tax Court. After previously consenting in Tax Court to the Special Trial Judge's assignment to their case, the taxpayers who lost below challenged his appointment for the first time on appeal. Freytag , 501 U.S. at 871-72, 111 S.Ct. 2631. In addressing the matter, the Supreme Court acknowledged that "[t]he alleged defect in the appointment ... goes to the validity of the Tax Court proceeding that is the basis for this litigation." Id. at 879, 111 S.Ct. 2631. Nevertheless, the Court declined to characterize the challenge as jurisdictional and as one that it was compelled to address. Id. Instead, after noting instances in which the Court "exercised its discretion to consider nonjurisdictional claims that had not been raised below" and discussing how in Glidden Co. v. Zdanok , 370 U.S. 530, 535-36, 82 S.Ct. 1459, 8 L.Ed.2d 671 (1962), it "included Appointments Clause objections to judicial officers in the category of nonjurisdictional structural constitutional objections," the Court elected to consider the taxpayers' challenge. Id. at 878-79, 111 S.Ct. 2631 (stating "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") (emphasis added); see id. at 893-94, 111 S.Ct. 2631 (noting that "Appointments Clause claims, and other structural constitutional claims have no special entitlement to review [and a] party waives the right to advance on appeal a nonjurisdictional claim, structural or otherwise, that he fails to raise at trial") (Scalia, J., concurring in part and concurring in the judgment).

The Courts of the Appeals for the Sixth, Eighth, Ninth, Federal, and District of Columbia Circuits have similarly classified or treated Appointments Clause challenges as nonjurisdictional. See Kabani & Co., Inc. v. SEC , 733 F. App'x 918, 919 (9th Cir. 2018) (declining to address "forfeited" Appointments Clause challenge not raised before the SEC or in petitioner's briefs); N.L.R.B. v. RELCO Locomotives, Inc. , 734 F.3d 764, 795 (8th Cir. 2013) (declining "to depart from Freytag's general rule that [A]ppointments [C]lause challenges are nonjurisdictional"); GGNSC Springfield v. N.L.R.B. , 721 F.3d 403, 405-07 (6th Cir. 2013) (holding errors regarding appointment of officers are nonjurisdictional); Intercollegiate Broad. Sys. v. Copyright Royalty Bd. , 574 F.3d 748, 756 (D.C. Cir. 2009) (same) (per curiam ); In re DBC , 545 F.3d 1373, 1377, 1380 (Fed. Cir. 2008) (finding such a challenge waived and declining to exercise discretion to consider); but see N.L.R.B. v. New Vista Nursing and Rehab. , 719 F.3d 203, 210-13 (3d Cir. 2013) (holding "that the [National Labor Relations Act]'s three member-composition requirement is jurisdictional"). In light of this caselaw, and as concluded by numerous other courts considering Appointments Clause challenges to decisions rendered by SSA ALJs, see, e.g. , Faulkner v. Comm'r of Soc. Sec. , No. 1:17-cv-01197-STA-egb, 2018 WL 6059403, *2 (W.D. Tenn. Nov. 19, 2018), the Court concludes that plaintiff's challenge to the alleged defect in the ALJ's appointment does not implicate the Court's subject-matter jurisdiction and is nonjurisdictional.

2. Plaintiff's claim that the SSA lacked jurisdiction to address her case was also forfeited and is without merit.

Similarly, plaintiff's argument that the ALJ's decision was void and that the SSA lacked authority to adjudicate her case has been forfeited. Pl.'s Mem. 6, 9. In United States v. L.A. Tucker Truck Lines, Inc. , 344 U.S. 33, 73 S.Ct. 67, 97 L.Ed. 54 (1952), the Supreme Court considered and rejected a like challenge. The case involved a challenge to a decision, adopted by the Interstate Commerce Commission ("ICC"), made by an examiner whose appointment allegedly failed to comply with the Administrative Procedure Act. L.A. Tucker Truck Lines, Inc. , 344 U.S. at 34-35, 73 S.Ct. 67. Like plaintiff, the party challenging the ICC's decision asserted, for the first time upon seeking judicial review, that the appointment defect rendered the ICC's "action ... invalid for want of jurisdiction ...." Id. After a three-judge district court panel agreed and invalidated the ICC decision without addressing the merits, the Supreme Court reversed and ruled that the lower court "erroneously entertained" the untimely objection. Id. at 35, 73 S.Ct. 67. In the absence of a timely objection, the Supreme Court ruled that "the defect in the examiner's appointment ... is not one which deprives the [ICC] of power or jurisdiction ...." Id. at 38, 73 S.Ct. 67 ; see Freytag , 501 U.S. at 898, 111 S.Ct. 2631 (noting that the defective appointment challenge to the Special Trial Judge did not call into question the subject-matter jurisdiction of the Tax Court) (Scalia, J., concurring in part and concurring in the judgment). As plaintiff offers no basis for reaching a contrary conclusion, and because plaintiff's claim for disability benefits otherwise appears to have been properly before and proceeded to a final decision before the SSA, the Court rejects the suggestion that the decision below is void for want of jurisdiction.

Accordingly, because plaintiff's claim is nonjurisdictional and she forfeited the claim that the ALJ lacked authority to address it, the Court next considers whether grounds exist to excuse plaintiff's forfeiture.

3. A challenge to the appointment of an agency officer who adjudicated one's case generally must first be presented to the agency involved.

Plaintiff relies on the Supreme Court's decision in Lucia in pressing her Appointments Clause challenge. Lucia involved an administrative enforcement proceeding brought by the SEC alleging civil violations of federal securities laws. 138 S.Ct. at 2049-50. The SEC assigned an ALJ to conduct the proceeding who had been appointed by SEC staff members, rather than the Commission itself. Id. at 2049-51. After the ALJ issued a decision and imposed sanctions, including a lifetime ban from the investment industry, the sanctioned party (Lucia) appealed to the Commission, which rejected the claim that the proceeding was invalid because the ALJ "had not been constitutionally appointed." Id. at 2050. After reviewing the "continuing" nature of the ALJ's position and the "significant" discretionary authority he wielded pursuant to law in adversarial proceedings, the Supreme Court deemed him to be an "officer" subject to the Appointments Clause, rather than a "non-officer employee." Id. at 2051-55. Because Lucia made a "timely challenge" to the ALJ's appointment both before the Commission and when seeking judicial review, the Supreme Court ruled that Lucia was entitled to a new hearing before a properly appointed ALJ or the Commission itself. Id. at 2055 (citation and internal quotation marks omitted).

Although acknowledging that Lucia did not address the constitutional status of ALJs presiding over non-adversarial hearings and appointed pursuant to 5 U.S.C. § 3105, Pl.'s Mem. 9, plaintiff seeks to avail herself of the same remedy. But she stands in different shoes than Lucia because she failed to timely challenge the ALJ's appointment before the SSA, notwithstanding that she was represented by counsel. R. 6-7, 31-33, 116-19, 134-36, 174-75. As a result, plaintiff must surmount the "general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice." L.A. Tucker Truck Lines, Inc. , 344 U.S. at 37, 73 S.Ct. 67 ; see Woodford v. Ngo , 548 U.S. 81, 89, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (same). This rule of administrative procedure serves to provide agencies with an opportunity to correct mistakes before having to answer for them in court, discourages disregard of agency rules, and promotes judicial efficiency and the resolution of claims before agencies. Woodford , 548 U.S. at 89, 126 S.Ct. 2378 ; see L.A. Tucker Truck Lines, Inc. , 344 U.S. at 36-37, 73 S.Ct. 67 (noting that the Court's decisions and congressional enactments recognize "that orderly procedure and good administration require that objections to the proceedings of an ... agency be made while it has opportunity for correction in order to raise issues reviewable by courts"); Freytag , 501 U.S. at 895, 111 S.Ct. 2631 (noting that judicial " 'review' presupposes that a litigant's arguments have been raised and considered in the tribunal of first instance") (Scalia, J., concurring in part and concurring in the judgment).

To avoid the application of this rule, plaintiff argues as follows. First, she contends that no statute or regulation requires her to exhaust issues for judicial review by first presenting them to the SSA. Pl.'s Mem. 11-12.

Second, absent such a statute or regulation, she argues that the Court should decline to judicially require issue exhaustion. Id. at 12-13. Plaintiff contends the Court should follow the rationale of Sims v. Apfel , 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000), which held that a disability claimant who exhausted administrative remedies before the SSA need not separately present each appellate issue to the Appeals Council before seeking judicial review of such issues. The Court ruled that it would be "inappropriate" to require issue exhaustion before the Appeals Council as a predicate for judicial review, given the informal, nonadversarial nature of SSA proceedings, the Appeals Council's usual, plenary-type review, and the limited space on the form for requesting such review. Sims , 530 U.S. at 110-12, 120 S.Ct. 2080. Plaintiff further argues that Fourth Circuit precedent nowhere establishes a requirement of issue exhaustion in disability claim appeals. Pl.'s Mem. 14-15.

Finally, plaintiff argues that, even if issue exhaustion otherwise applied, the Court should excuse it pursuant to exceptions authorizing judicial review of a constitutional claim, as well as a claim whose presentation to an administrative agency would have been futile. Id. at 16-19. The Court addresses each of these contentions below.

a. Although SSA's statutes and regulations do not require issue exhaustion, the regulations specify procedures for objecting to an ALJ and raising constitutional issues.

In opposing the Commissioner's claim of forfeiture, plaintiff suggests that the Court's analysis should follow the path taken by the Supreme Court in Sims v. Apfel , 530 U.S. 103, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). In Sims , the Court first examined whether any statute or regulation adopted by the SSA required issue exhaustion. Sims , 530 U.S. at 107-08, 120 S.Ct. 2080. After noting "that the requirements of administrative issue exhaustion are largely creatures of statute," the Court observed that "the Commissioner does not contend that any statute requires issues exhaustion" and that "SSA regulations do not require issue exhaustion." Id. Although this still appears to be the case and the Commissioner does not argue otherwise, significant differences exist between this case and Sims. As discussed further below, these differences include both the fact that plaintiff seeks to present an as-applied constitutional chall