Social Security Starting To Respond To Supreme Court Case On ALJ Constitutionality

     From Emergency Message EM-18003:

This emergency message directs administrative law judges (ALJs) to acknowledge Appointments Clause arguments raised in connection with the appeal of an administrative action without discussing or making any findings on any such arguments. This message also provides instructions in the Case Processing and Management System (CPMS) and the Appeals Review Processing System (ARPS) for flagging cases in which claimants or representatives raise such arguments. ...
[F]our plaintiffs challenging their denials of benefits in Social Security Administration (SSA) cases have raised in one district court the constitutionality of the manner in which SSA’s ALJs are appointed. The district court has stayed the Appointments Clause issue pending action by the Supreme Court in Lucia and Bandimere [the Supreme Court cases concerning SEC ALJs], while litigation of the disability issues in the cases proceed....If a claimant or representative challenges at a hearing the constitutionality of the manner in which SSA appoints its ALJs ...
What will an adjudicator do if a claimant or representative challenges the constitutionality of the manner in which SSA appoints its ALJs?

1. Challenge made orally at the Hearing level

If a claimant or representative challenges at a hearing the constitutionality of the manner in which SSA appoints its ALJs,
ALJs will only respond, “the hearing decision [/dismissal] will acknowledge that the argument was raised.” Because SSA lacks the authority to finally decide constitutional issues such as these.
ALJs will not discuss or make any findings related to the Appointments Clause issue on the record.

When issuing the hearing decision or dismissal, ALJs will acknowledge that the issue was raised by adding the following language “The claimant[/representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause to the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”

2. Challenge made in writing at the hearing level

If a claimant or representative challenges in writing the constitutionality of the manner in which SSA appoints its ALJs,
ALJs will acknowledge that the issue was raised by adding the following language to the hearing decision or dismissal “The claimant[/claimant’s representative] also raised a challenge to the manner in which I was appointed as an administrative law judge under the Appointments Clause to the Constitution. I do not have the authority to rule on that challenge and do not address it further in this decision[/dismissal].”
ALJs will not otherwise discuss or make any findings related to the Appointments Clause issue.

3. Challenge made at the Appeals Council (AC) level

As challenges of the constitutionality of the appointment of SSA’s ALJs are outside the purview of the administrative adjudication, the AC will not acknowledge, make findings related to, or otherwise discuss the Appointments Clause issue. ..

If a claimant or representative raises an Appointments Clause issue, Office of Hearings Operations (OHO) and Office of Appellate Operations (OAO) staff will flag the case in CPMS and ARPS by adding the case characteristic “LUCI,” which can be found in both systems under the “Other” case characteristic type.
ALJs who receive appointment clause objections will notify hearing office management. Hearing office management will either add the LUCI case characteristic in CPMS or delegate to staff to do so....