UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Anmarie Matson Wilson

v. Civil No. 19-cv-511-LM Opinion No.

Andrew Saul1, Commissioner, U.S. Social Security Administration

O R D E R

Pursuant to

(g), Anmarie Matson Wilson seeks

judicial review of the decision of the Commissioner of the

Social Security Administration denying her application for

disability insurance benefits. Wilson moves to reverse the

Commissioner’s decision, contending that the Administrative Law

Judge (“ALJ”) erred by assigning improper weight to the medical

opinions in the record. In the alternative, Wilson challenges

the ALJ’s authority to hear and decide her case on the ground

that the ALJ was not properly appointed under the Constitution

at the time his decision issued. The Administration moves to

affirm. For the reasons discussed below, the decision of the

Commissioner is affirmed.

1 On June 17, 2019, Andrew Saul was sworn in as Commissioner of Social Security. Pursuant to Fed. R. Civ. P. 25(d), he automatically replaces the nominal defendant, Nancy A. Berryhill, who had been Acting Commissioner of Social Security. STANDARD OF REVIEW

In reviewing the final decision of the Commissioner under

Section 405(g), the court “is limited to determining whether the

ALJ deployed the proper legal standards and found facts upon the

proper quantum of evidence.” Nguyen v. Chater,

(1st Cir. 1999); accord Seavey v. Barnhart,

(1st

Cir. 2001). The court defers to the ALJ’s factual findings as

long as they are supported by substantial evidence.

(g); see also Fischer v. Colvin,

(1st Cir.

2016). “Substantial-evidence review is more deferential than it

might sound to the lay ear: though certainly ‘more than a

scintilla’ of evidence is required to meet the benchmark, a

preponderance of evidence is not.” Purdy v. Berryhill,

(1st Cir. 2018) (citation omitted). Rather, the court

“must uphold the Commissioner’s findings if a reasonable mind,

reviewing the evidence in the record as a whole, could accept it

as adequate to support her conclusion.”

(citation, internal

modifications omitted).

DISABILITY ANALYSIS FRAMEWORK

To establish disability for purposes of the Social Security

Act (the “Act”), a claimant must demonstrate an "inability to

engage in any substantial gainful activity by reason of any

2 medically determinable physical or mental impairment which can

be expected . . . to last for a continuous period of not less

than 12 months."

(d)(1)(A). The Commissioner

has established a five-step sequential process for determining

whether a claimant has made the requisite demonstration.

(a)(4); see also Bowen v. Yuckert,

(1987). The claimant “has the burden of production and

proof at the first four steps of the process.” Freeman v.

Barnhart,

(1st Cir. 2001). The first three

steps are: (1) determining whether the claimant is engaged in

substantial gainful activity; (2) determining whether she has a

severe impairment; and (3) determining whether the impairment

meets or equals a listed impairment.

(a)(4)(i)-(iii).

If the claimant meets her burden at the first two steps of

the sequential analysis, but not at the third, an ALJ assesses

the claimant’s residual functional capacity (“RFC”), which is a

determination of the most a person can do in a work setting

despite the limitations caused by her impairments.

§§

404.1520(e), 1545(a)(1). At the fourth step of the sequential

analysis, the ALJ considers the claimant’s RFC in light of her

past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant

can perform her past relevant work, the ALJ will find that the

claimant is not disabled. See id. If the claimant cannot

3 perform her past relevant work, the ALJ proceeds to the fifth

step, at which it is the Administration’s burden to show that

jobs exist in the economy which the claimant can do in light of

her RFC. See id. § 404.1520(a)(4)(v).

BACKGROUND

A detailed recital of the factual background can be found

in Wilson’s statement of facts (doc. no. 10-1) as supplemented

by the Commissioner’s statement of facts (doc. no. 12), and in

the transcript of the administrative record (doc. no. 7). The

court provides a brief summary of the case here.

Wilson filed an application for disability insurance

benefits on January 8, 2016, alleging a disability onset date of

November 20, 2015. Wilson alleged that she was disabled due to

multiple sclerosis, pyoderma gangrenosum, anxiety, and

depression. Wilson meets the insured status requirements of the

Act through September 30, 2021.

After the Administration denied Wilson’s application,

Wilson requested a hearing before an ALJ. The ALJ held a

hearing on May 24, 2017. Wilson testified at the hearing, as

did impartial vocational expert Christine Spaulding.

The ALJ issued an unfavorable decision on July 27, 2017.

He found that Wilson had a combination of severe impairments

4 consisting of multiple sclerosis, anxiety, and depression.2 The

ALJ did not find that Wilson’s combination of impairments met or

equaled the severity of the impairments listed at

, Subpart P, Appendix 1.

The ALJ found that Wilson had the residual functional

capacity to perform less than the full range of light work as

defined at

(b), with specified additional

physical and mental limitations. Wilson does not challenge the

ALJ’s findings regarding her physical RFC. As to her mental

RFC, the ALJ found that:

[Wilson] has the ability to understand, remember, and carry out detailed instructions. Persistence and pace may be affected on a temporary basis but not to an unacceptable level. She would not be off task more than 10% of the workday. She could sustain concentration, persistence, and pace for the typical 2-hour periods of an 8-hour workday and 40-hour workweek.

Admin. Rec. at 30.

In assessing Wilson’s RFC, the ALJ found that Wilson’s

testimony regarding the intensity, persistence, and limiting

effects of her reported symptoms was not fully consistent with

the available medical evidence. The ALJ considered all of the

medical evidence of record, including the medical opinion of

2 The ALJ did not find that Wilson experienced symptoms in connection with her pyoderma gangrenosum that caused more than minimal functional limitations during the period between her claimed disability date and the date of his decision.

5 consulting psychologist William Jamieson, Ph.D., but gave little

weight to the medical opinion of treating psychiatrist T.M.

Cadorette, M.D., and partially rejected the medical opinion of

consultative examining psychologist William Swinburne, Ph.D.

In response to hypothetical questions posed by the ALJ,

Spaulding, the impartial vocational expert, testified to her

opinion that a person with Wilson’s age, education, past work

experience, and RFC could perform the job duties of a cashier, a

sales attendant, and a price marker. Based on this testimony,

the ALJ found at Step Five of the sequential process that Wilson

was not disabled for purposes of the Social Security Act.

On July 15, 2018, the Appeals Council denied Wilson’s

request for review. In consequence, the ALJ’s decision became

the Administration’s final order for purposes of judicial

review.

(a); see also, e.g., Sims v. Apfel,

(2000). This action followed.

DISCUSSION

Wilson raises two claims of error on appeal. First, she

argues that the ALJ erred in weighing the medical opinions of

treating psychiatrist Dr. Cadorette and consultative examining

psychologist Dr. Swinburne. Second, she argues that the ALJ was

improperly appointed under the Appointments Clause of the United

States Constitution at the time of the hearing, and therefore

6 lacked legal authority to issue a decision on behalf of the

Administration. The court addresses each argument below.

I. Medical Opinions

Wilson contends that the ALJ erred in weighing the medical

opinions in the record. Specifically, Wilson argues that the

ALJ erred in: (1) affording little weight to treating

psychiatrist Dr. Cadorette’s opinion and (ii) partially

rejecting consultative examining psychologist Dr. Swinburne’s

opinion.

“An ALJ is required to consider opinions along with all

other relevant evidence in a claimant’s record.” Ledoux v.

Acting Comm’r, Soc. Sec. Admin., Case No. 17-cv-707-JD,

, at *4 (D.N.H. June 12, 2018). “Medical opinions are

statements from acceptable medical sources that reflect

judgments about the nature and severity of [the claimant’s]

impairment(s), including [the claimant’s] symptoms, diagnosis

and prognosis, what [the claimant] can still do despite

impairment(s), and [the claimant’s] physical or mental

restrictions.”

(a)(1).

The ALJ analyzes the opinions of state agency consultants,

examining sources, and treating sources under the same rubric.

See id.;

(c). The ALJ must consider “the

examining relationship, treatment relationship (including length

7 of the treatment relationship, frequency of examination, and

nature and extent of the treatment relationship), supportability

of the opinion by evidence in the record, [and] consistency with

the medical opinions of other physicians,” along with the

doctor’s expertise in the area and any other relevant factors.

Johnson v. Berryhill, Case No. 16-cv-375-PB,

, at

*5 (D.N.H. Oct. 12, 2017).

A. Dr. Cadorette

Dr. Cadorette first began treating Wilson in April 2016,

Admin. Rec. at 424, after both her alleged disability onset date

(November 20, 2015) and the date she filed her application for

benefits (January 8, 2016). At that time, Wilson reported to

Dr. Cadorette that her symptoms had “slowly worsen[ed]” after

she went on leave of absence from work in November 2015, and

that they had worsened more rapidly after March 1, 2016, the

date she took early retirement.

She reported that she was

“[v]ery upset” about her retirement, staying in bed, not doing

housework, and crying frequently.

At their first meeting, Dr. Cadorette assessed Wilson as

presenting with mild dysphoria and congruent affect. Id. at

425-427. However, she reported that Wilson’s mood steadily

returned to normal (euthymic with a full range of affect) over

8 the course of the next few months.3 Id. at 418-422. At no time

thereafter did Dr. Cadorette record in her treatment notes that

Wilson’s mood was other than “euthymic,” or free of symptoms of

depression. Id.

Beginning with their first consultation, and continuing

through to their final session together, Dr. Cadorette recorded

her opinion at each session that Wilson had good insight, intact

judgment, good attention and concentration, intact memory, and

normal rate of speech. Id. at 418-427.

In May 2017, Dr. Cadorette filled out a “Medical Source

Statement of Ability to do Work Related Activities (Mental)” for

Wilson. Id. at 414-417. Through her entries on the form, Dr.

Cadorette expressed her opinion that Wilson had moderate

limitations in her ability to make judgments on simple work-

related decisions and marked limitations in her ability to

understand, remember, and carry out complex instructions and her

ability to make judgments on complex work-related decisions.

Id. at 414. Dr. Cadorette specified in support of her opinion

regarding Wilson’s ability to understand, remember, and carry

out instructions that Wilson experienced impairment of her

short-term memory “when depressed.” Id.

3 Dr. Cadorette recorded that by June 2016 “her depressive symptoms were in full remission,” and that she was staying busy by helping a friend out and by taking babysitting jobs. Id. at 419.

9 With regard to her ability to function in a work setting,

Dr. Cadorette opined that Wilson had moderate limitations in her

ability to interact appropriately with the public, mild

limitations in her ability to interact appropriately with

supervisors and co-workers, and marked limitations in her

ability to respond appropriately to usual work situations and

changes in a routine work setting. Id. at 415. Dr. Cadorette

further opined that Wilson would have difficulty in completing

tasks on a timely basis, due in part to the “cognitive

impairment” caused by her multiple sclerosis. Id.

Dr. Cadorette expressly opined that the limitations

described in the May 2017 statement were first present in

“summer/fall 2014.” Id. Dr. Cadorette did not identify any

medical evidence supporting her opinion regarding the onset date

of Wilson’s limitations.

The ALJ gave little weight to Dr. Cadorette’s May 2017

opinion that Wilson had marked limitations in her ability to

understand, remember, and carry out complex instructions, her

ability to make judgments on complex work-related decisions, and

her ability to respond appropriately to usual work situations

and changes in a routine work setting. Id. at 34. The ALJ

explained that he afforded little weight to Dr. Cadorette’s May

2017 opinion because it was not consistent with either Dr.

Cadorette’s own treatment notes or with the mental status

10 findings of other medical sources throughout the entirety of the

longitudinal treatment record. Id. Wilson now contends that

the ALJ erred in affording Dr. Cadorette’s May 2017 opinion

little weight because Dr. Cadorette assessed her with dysphoria

in connection with the consultation of April 2016, and because

her opinion is purportedly otherwise uncontradicted by the

medical evidence of record.

“[T]reating physicians' opinions are ordinarily accorded

deference in Social Security disability proceeding.” Richards

v. Hewlett–Packard Corp.,

, 240 n. 9 (1st Cir.

2010). This is because “these sources are likely to be the

medical professionals most able to provide a detailed,

longitudinal picture of [the claimant’s] medical impairment(s)

and may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or

from reports of individual examinations, such as consultative

examinations or brief hospitalizations.”

(c)(2). A treating-source opinion is entitled to

controlling weight if it is “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence in [the

claimant’s] case record.”

(c)(2). If,

however, the treating-source opinion conflicts with other

opinions in the record, the ALJ “may reject the opinion of the

11 treating physician so long as an explanation is provided and the

contrary finding is supported by substantial evidence.”

Tetreault v. Astrue,

(D. Mass. 2012)

(internal quotation marks, citation omitted).4

Here, the ALJ provided good reasons for affording little

weight to Dr. Cadorette’s May 2017 opinion that Wilson had

marked limitations in her ability to understand, remember, and

carry out complex instructions, her ability to make judgments on

complex work-related decisions, and her ability to respond

appropriately to usual work situations and changes in a routine

work setting, and supported his findings with substantial

medical evidence of record. First, as the ALJ correctly noted,

Dr. Cadorette consistently assessed Wilson with good insight,

intact judgment, good attention and concentration, intact

memory, and normal rate of speech in connection with each and

every visit she made to Dr. Cadorette’s offices. Admin. Rec. at

418-427. Dr. Cadorette’s contemporaneously maintained treatment

notes therefore do not support her later-expressed opinion of

marked impairments in Wilson’s memory, attention, concentration,

or judgment. Moreover, to the extent Dr. Cadorette opined in

May 2017 that Wilson suffered from impairment in memory “when

4 An ALJ must give “good reasons” for rejecting a treating source’s opinion.

(c)(2); see also Polanco– Quinones v. Astrue,

(1st Cir. 2012) (unpublished disposition).

12 depressed,” her treatment notes indicate that Wilson experienced

only a single discrete period of mood dysphoria, when she was

“very upset” about her March 2016 retirement from work. Dr.

Cadorette’s treatment notes are therefore inconsistent with the

conclusion that any depression-related cognitive deficits were

present from 2014 onwards.

Second, as the ALJ also noted, the medical record as a

whole contains no mental status findings supporting the

conclusion that Wilson suffered from marked cognitive

impairments. In March 2016, consulting psychologist Dr.

Jamieson reviewed the then-available medical evidence and found

no evidence of understanding or memory limitations. In

addition, Dr. Jamieson found no evidence of significant

limitations in concentration or persistence. The only cognitive

impairments for which Dr. Jamieson found support in the medical

record were moderate limitations in Wilson’s ability to maintain

attention and concentration for extended periods or to perform

scheduled activities, maintain regular attendance and be

punctual within customary tolerances. Id. at 84.

The record reviewed by Dr. Jamieson included the following.

In May 2015, Wilson reported to her primary care physician that

she was feeling “extremely healthy” and was able to do

“everything she need[ed] and want[ed] to do.” Id. at 295.

Wilson presented at that time with good insight and judgment.

13 Id. at 296. In November 2015, at approximately the time of her

alleged disability onset date, Wilson reported to her physician

that she was very tired, slowed in her thinking, and having

trouble performing the duties of what she characterized as her

“high stress” job as a police dispatcher. Id. at 293. At that

time, however, she continued to present with good insight and

judgment. Id. As discussed above, Dr. Cadorette’s treatment

notes of consultations from April 2016 through January 2017

consistently indicate good insight, intact judgment, good

attention and concentration, intact memory, and normal rate of

speech. Id. at 417-425, 427. Wilson’s treatment provider

reported a normal mental status exam in February 2017. Id. at

382. There are no findings in the record with any tendency to

support Dr. Cadorette’s opinion of May 2017 that Wilson had

marked cognitive limitations in her memory or judgment.

Wilson has not shown that the ALJ erred in weighing Dr.

Cadorette’s medical opinion. To the contrary, the ALJ provided

specific, legitimate, and convincing grounds for his

conclusions. Because the ALJ deployed the proper legal

standards and based his conclusions on substantial medical

evidence of record, no grounds exist for disturbing the

Commissioner’s final decision based on the weight the ALJ

afforded Dr. Cadorette’s May 2017 opinion.

14 B. Dr. Swinburne

Consultative examining psychologist Dr. Swinburne saw

Wilson in March 2016. Dr. Swinburne noted that Wilson was

appropriately groomed, attentive, and cooperative. Id. at 302.

He noted that her speech was clear and fluent and of normal rate

and volume, and that her thinking was goal-directed and

logically sequenced, with no signs of disorder. Id. at 303.

Upon examination, Dr. Swinburne opined that her short- and long-

term memory were intact, and that she functioned in the average

range of intellectual ability. Id. He found no impairments in

Wilson’s capacity for social functioning. Id. at 304. He

opined that Wilson could be expected to demonstrate reasonably

good attendance in a job setting, and to be able to manage the

occasional stressors that accompany most jobs, including changes

in work responsibilities. Id. at 305. He further opined that

she would be able to interact appropriately with supervisors and

co-workers. Id. However, he additionally opined as follows:

[I]t is not anticipated that she can keep her mind on the task on a sustained basis for a full eight-hour day’s work or five days a week schedule. Her mind will drift and she will become depressed and not be able to sustain her focus on the task. She would need close supervision.

Id.

The ALJ gave no weight to Dr. Swinburne’s opinion that

Wilson would require close supervision. Id. at 34. The ALJ

15 noted that the medical evidence, Wilson’s work history, and

Wilson’s own testimony all consistently indicated that she got

along well with others, worked independently for twenty years in

a high stress job, and was able to take care of her own medical

and social needs. Id. The ALJ did not expressly address Dr.

Swinburne’s opinion that Wilson would become depressed and

unable to sustain focus for a full eight-hour workday or five-

day workweek.

The opinion of a consultative examining psychologist must

be assessed in light of the absence of a treating relationship

between the examiner and the claimant, the support given for the

opinion by the examiner, the consistency of the opinion with the

record as a whole, and the examiner’s relevant expertise. See

(c)(2)-(6). The ALJ must give "good

reasons" for rejecting the opinion of any acceptable medical

source, including that of a consultative examining psychologist.

See

(c)(2). Here, the ALJ correctly noted

that Dr. Swinburne did not refer to any clinical findings in

support of his opinion regarding Wilson’s need for close

supervision, Admin. Rec. at 34, that Wilson’s consistent history

of normal mental status assessments did not support the

conclusion that she would require such supervision,

at 295-

296, 382, 417-427, that Wilson’s testimony contained no

suggestion that she was unable to work independently without

16 close supervision, id. at 47-66, and that there is no suggestion

in the record that Wilson ever required close supervision while

working in her former job position, id. at 177-207. The ALJ

thus provided good reasons for rejecting Dr. Swinburne’s opinion

regarding Wilson’s need for close supervision.5

Moreover, it was not harmful error for the ALJ to fail

expressly to address Dr. Swinburne’s opinion that Wilson would

be unable to remain on task for a full eight-hour day because

she would become “depressed” and her mind would drift. First,

an ALJ is not required to address every piece of medical

evidence in the record, so long as the ALJ provides specific

reasons in support of his findings. See Rodriguez v. Sec'y of

Health & Human Servs.,

(1st Cir. Sept. 11, 1990)

(per curiam, table decision); Lord v. Apfel,

(D.N.H. 2000). Second, Dr. Swinburne’s opinion that Wilson’s

mind would “drift” due to depression was not supported by the

5 Consulting psychologist Dr. Jamieson noted Dr. Swinburne’s opinion regarding the need for close supervision and rejected it as unsupported by relevant clinical findings. However, Dr. Jamieson also opined that Wilson would be able to complete a normal workday or workweek with “reasonably supportive supervision.” Admin. Rec. at 85. The ALJ did not expressly adopt that portion of Dr. Jamieson’s opinion. Although Wilson does not expressly assign error to the ALJ’s failure to adopt Dr. Jamieson’s opinion that she would benefit from reasonably supportive supervision, the court notes sua sponte that it was not harmful error for the ALJ to fail to do so, for the reasons discussed in Dimambro v. US Soc. Sec. Admin., Acting Comm'r, Case No. 16-CV-486-PB,

, at *8-10 (D.N.H. Jan. 5, 2018).

17 available medical evidence; as discussed above, Wilson’s

treating physician for depression identified only one discrete

period of active depression symptoms in Wilson’s medical

history, specifically in connection with her retirement from

work, which coincided precisely with the date of Dr. Swinburne’s

examination. Admin. Rec. at 417-427. Third, the possibility

that Wilson might be unable to remain on task for the entirety

of an eight-hour workday was adequately captured by the ALJ’s

assessment of Wilson’s RFC, which provided that she might be off

task up to “10% of the workday” and could be expected to

“sustain concentration, persistence, and pace for the typical 2-

hour periods of an 8-hour workday and 40-hour workweek,” id. at

30. There is no error in capturing the essence of a limitation

identified by a medical expert rather than repeating the

expert’s opinion verbatim. See, e.g., Carver v. Colvin,

(10th Cir. 2015); Stubbs-Danielson v.

Astrue,

(9th Cir. 2008); Bordelon v. Astrue,

(5th Cir. 2008). Here, the ALJ provided

specific reasons for his assessment of Wilson’s mental RFC,

Admin. Rec. at 26-35, and did not err by failing expressly to

address Dr. Swinburne’s opinion regarding Wilson’s ability to

remain on task for extended periods.

18 For these reasons, the ALJ’s partial rejection of Dr.

Swinburne’s opinion provides no grounds for disturbing the

Commissioner’s final decision.

II. The ALJ’s Authority to Hear and Decide Wilson’s Application

In June 2018, the Supreme Court found that Administrative

Law Judges of the Securities and Exchange Commission exercised

“significant discretion” in carrying out “important functions,”

and on that basis found that they were officers of the United

States subject to the Appointments Clause of Article II of the

Constitution. Lucia v. S.E.C.,

(2018). Because “[t]he Appointments Clause prescribes

the exclusive means of appointing ‘Officers,’” providing that

they may be appointed only by “the President, a court of law, or

a head of department,” the Lucia court held that an ALJ

appointed by an SEC staff member lacked authority to hear and

decide SEC cases.

at 2051 (citing U.S. Const. Art. II, § 2,

cl. 2). On that basis, the Lucia court held that “one who makes

a timely challenge to the constitutional validity of the

appointment of an officer who adjudicates h[er] case” is

entitled to relief, specifically a new hearing before a properly

appointed officer. Id. at 2055 (emphasis supplied).

Although Lucia specifically addressed ALJs of the SEC, on

July 16, 2018, the Acting Commissioner of the Social Security

19 Administration ratified the appointment of all Administration

ALJs as her own, “in order to address any Appointments Clause

questions involving SSA claims.” S.S.A. EM-18003 REV 2(B).

As noted, the ALJ in Wilson’s case held a hearing on May

24, 2017, and issued an unfavorable decision on Wilson’s

application on July 22, 2017. The ALJ’s decision became the

Commissioner’s final decision on July 15, 2018, just one day

before the Acting Commissioner’s ratification of the ALJs’

appointments. Without specifying the circumstances of the ALJ’s

initial appointment, and acknowledging that her challenge had

not been raised in the course of proceedings before the

Administration, Wilson now argues that the ALJ was improperly

appointed at the time of the hearing. It is Wilson’s position

that this case should therefore be remanded for a new hearing

before a properly appointed ALJ. Without addressing its merits,

the Commissioner argues that Wilson forfeited her Appointments

Clause challenge by failing to raise it at any point during the

administrative proceedings.

The court agrees with the Commissioner that Wilson has

forfeited her Appointments Clause challenge. First, as a

general rule an applicant’s failure to raise an objection before

either the ALJ or the Appeals Council waives the objection for

purposes of judicial review. See Mills v. Apfel,

(1st Cir. 2001) (“The impact of a no-waiver approach at the. . .

20 ALJ level . . . could cause havoc, severely undermining the

administrative process”); see also

(b)(1);

;

(g); Shalala v. Ill. Council on

Long Term Care, Inc.,

(2000) (Section 405(g)

contains a non-waivable requirement that claimants present

objections to the Administration before raising them on judicial

review). Indeed, the Lucia court specified a claimant could

obtain relief on an Appointments Clause challenge if the

challenge was “timely” brought before the ALJ’s agency. Lucia,

.

Second, virtually all courts to have considered the issue

in the context of judicial review of Social Security

Administration decisions have found that an Appointments Clause

challenge is waived if not raised in the course of

administrative proceedings. See, e.g Taylor v. Saul, Case No.

1:16CV00044,

, at *5 (W.D. Va. Aug. 15, 2019)

(collecting cases). Although the First Circuit has not yet

spoken on the issue, the district courts of this circuit have

likewise found that a claimant forfeits her Appointments Clause

challenge by failing to raise it before the Administration. See

Myers v. Comm'r of Soc. Sec., case No. 1:19-CV-10010-ADB,

, at *8 (D. Mass. Mar. 30, 2020) (collecting cases).

Third, the Administration has ruled, reasonably, that the

Appeals Council will consider an Appointments Clause challenge

21 only if properly raised in prior administrative proceedings.

See S.S.R. 19-1P (Mar. 15, 2019).

Fourth, Wilson’s argument that she could not have raised

her challenge in the course of administrative proceedings,

because Lucia was not decided until after the ALJ issued his

decision, is not persuasive. The Appointments Clause issue was

already the subject of a split of circuit court authority at the

time the ALJ held the hearing in this matter, see Bandimere v.

SEC,

(10th Cir. 2016), and in any event the

Lucia court expressly stated that Supreme Court jurisprudence

dating from 1991 already stated “everything necessary to decide”

the Appointments Clause question, Lucia,

.

Moreover, the Appeals Council expressly directed Wilson to

submit “a statement about the facts and the law in this case or

additional evidence” on or before June 29, 2018, Admin. Rec. at

13; Lucia was decided on June 21, 2018, eight days prior to that

deadline. Nothing prevented Wilson from raising her challenge

before the close of administrative proceedings.

Because Wilson did not raise her Appointments Clause

challenge in the course of administrative proceedings, she has

forfeited her right to do so on judicial review. See Mills,

. Her challenge therefore provides no grounds for

disturbing the Commissioner’s decision.

22 CONCLUSION

For the foregoing reasons, Wilson’s motion to reverse (doc.

no. 10) is denied, and the Commissioner’s motion to affirm (doc.

no. 13) is granted. The clerk of the court shall enter judgment

in accordance with this order and close the case.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

April 24, 2020

cc: Counsel of Record

23