Aug 7, 2018

Mass AC Remands On Lucia Grounds Coming?

If a claimant or representative files a timely Appointments Clause challenge and timely requests Appeals Council review, the AC will consider the challenge in the context of the facts of the case (including, but not limited to, the date of the ALJ decision and the date the challenge was raised) in determining whether there is a basis to grant review. The AC will determine whether granting review is appropriate under 20 CFR 404.970 or 416.1470, or both, when considering both the decision on the merits and any potentially unresolved Appointments Clause issues.
In those matters where a timely Appointments Clause challenge to an ALJ decision issued prior to July 16, 2018 is raised to the Appeals Council in a proper request for review, the AC will grant review and issue a decision or order remand, as appropriate.

18 comments:

Anonymous said...

Here's a better hypothesis (I think). AC will grant review and then issue own decisions affirming by simply stating they agree with ALJ (AAJs have now all been properly appointed right)?

Anonymous said...

@10:21

I had the same thought. Not sure why the Administration is even leaving the remand avenue open, when it sees more efficient just to issue a new decision by AC. It might just come down to logistics, workload at AC versus OHO, etc.

Anonymous said...

@10:21
Lucia ordered a new hearing with a new judge, even if the prior judge had been legitimately appointed in the meantime.

David Tucker said...

@10:21

That won’t work. Claimants are due an imperial hearing.

If their previous hearing was deemed null and void by Lucia they would get another one.

Having an ALJ or AAJ simply review the evidence again isn’t the same as a new hearing.

Anonymous said...

"...raised during the pendency of a timely request for Appeals Council AC review..." Does this mean that the challenge must be raised with the timely filed request for review to the AC (or separately but within 65 days of the ALJ decision). Or can the challenge be filed to already existing cases at the AC where appeals have been filed and are past 65 days from the original ALJ decision. Wondering if we need to send challenge letters to all cases we now have pending at the AC.

David Tucker said...

Many cases at the appeals council take months for them to even assign to an analyst. I think it's safe to just send in appeals for ALL cases you have at the AC.

Even if the AC refuses to act you can bring this up in a federal suit.

Anonymous said...

The right to an imperial hearing was abolished when we seceded from Britain.

David Tucker said...

Lol. I meant impartial

Anonymous said...

The issues of the Acting Commissioner's Appointments Clause and Vacancies Act problems are still at play. Does she possess the authority under law to reappoint ALJs? Any conflict of her ability to reappoint ALJs would need to be resolved by an Article III court.

By claiming the ALJs are now properly appointed when there are still constitutional questions as to the Acting Commissioner's current tenure and the non-delegable authority of the Agency Head to appoint Inferior Officers, usurps the authority of the Judiciary Branch on this question and is beyond the scope of SSAs authority to adjudicate this for themselves.

I would advise a claimant to raise the issue on claims filed after 16 July both to the ALJ and AC. Sims v Apfel does not limit cause preservation for Federal Court appeals.

David Tucker said...

Just a heads up that federal district courts have started entering the footnote listed below in ALL decisions. Unfortunately the district courts are misguided here as the 2000 SCOTUS decision SIMS V. APFEL very clearly stated that claimants did not forfeit issues not raised to either the ALJ or Appeals Council. This issue has already been decided at the Supreme Court level so I'm not sure if the district courts are simply misguided or being claimant unfriendly.

"In Lucia v. SEC, 138 S.Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are "Officers of the United States" and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 47-77, 181; J. Stip. at 4-9, 18-21); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council)."

Anonymous said...

@6:48

The Ninth Circuit held Sims does not overrule application of the court-imposed issue preclusion doctrine established in Meanel. Shaibi v. Berryhill, 883 F.3d 1102, 1118 (9th Cir. 2017).

David Tucker said...

Last time I checked the Supreme Court supersedes district court rulings

Anonymous said...

Does the Shaibi language mean that those practicing in the 9th Circuit who failed to raise the Lucia issue in a timely fashion should consult their malpractice carriers?

"Shaibi contends that Meanel was overruled by the Supreme Court's subsequent holding that "[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for review by the Appeals Council in order to preserve judicial review of those issues." Sims v. Apfel, 530 U.S. 103, 112, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000). Sims does not control this case. Sims concerned only whether a claimant must present all relevant issues to the Appeals Council to preserve them for judicial review; the Court specifically noted that "[w]hether a claimant must exhaust issues before the ALJ is not before us." Id. at 107, 120 S.Ct. 2080"

Anonymous said...

The Supreme Court didn’t address whether waiver applies when an issue isn’t presented to the ALJ. The district and circuit courts are entitled to find waiver in those cases unless and until the Supreme Court says otherwise.

Anonymous said...

@6:40

The Meanel Court's holding is limited. Pure questions of law do not require exhaustion, so long as the opposing party will suffer no prejudice because of failure to raise it. Silveira v. Apfel, 204 F.3d 1257, n.8 (9th Cir. 2000).

I am not aware of a more pure question of law than the constitutionality of the ALJ appointments process, so it should be valid to raise the issue upon judicial review.

David Tucker said...

The Supreme Court did in fact address the issue in its entirety. Sims did not raise the issue with the ALJ as it was unaware of the issue until the decision was rendered.

Reread the brief. The crux of the decision was that the claimant need not bring up every issue administratively or risk forgetting omitted appeals. The reason, is that the hallex policy only states the claimant has to fill out a one page form to appeal with the AC. Not even a signature is required. If SSA regs required the claimant to detail every error with a decision they would say so in HALLEX or POMS. Fact is, it’s not a requirement.

Continuing...

The petitioner stated that they could not have raised the issue as they didn’t find out about it until the decision was rendered. SSA argued that if that were the case it should have atleast been brought to the attention of the appeals council.

SCOTUS then opined that they were not even going to discuss if the issue was brought before the ALJ and if it even mattered. This does not mean that another issue needs to be settled by SCOTUS. Their decision implies their intent and is not ambiguous at all. Claimants need not inform social security of every issue administratively to preserve their rights.

If the DOJ tries to squash Lucia motions they certainly won’t be doing so with Meanel. If they do you can expect another Claimant friendly SCOTUS decision on the matter.

David Tucker said...

As for Shaibi v. Berryhill

It’s important to know the context of the district courts decision to override sims. Their interpretation was extremely narrow in that regard.

In this case the plaintiff was arguing issues with the VE’s testimony for the first time. This is something that definitely should have been brought up at the hearing.

Comparing that case to Lucia is akin to apples and oranges.

A claimant would have never known an ALJ was acting unconstitutionally until the SCOTUS decision and executive order. I hold that as long as the claimant files an amendment to their position statement with the appeals council they should be covered.

I can’t see district courts using any previous case law to dismiss Lucia claims if the claimant brought the issue to the appeals council within a reasonable timeframe after the SCOTUS decision and executive order were issued.

Anonymous said...

If they are not disabled, don't file a frivolous AC that is not responsible representation. Its not a roulette wheel, don't spin hoping to win.

Deaf ears have been fallen upon.