For what it's worth, here's the argument that Social Security filed in one case pending in District Court on a Lucia issue. They're probably filing something like this in every case.
The really powerful argument going against them is that Social Security had announced that they were refusing to consider any Lucia arguments administratively. Why require a claimant to make an argument that wouldn't have been considered anyway?
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Is SSA really taking the stance that if you failed to bring up an issue in an hour hearing that you forfeit the right to bring it up later? Why would the Supreme Court have taken up Sims vs .Apfel if this what they meant. Justice Thomas' Majority Opinion only makes sense if you see the AC and the ALJ decisions to be the Agency's decision, with Judicial review beginning at the Federal Court . In other words , the Supreme Court doesn't consider the AC to be a court . SSA is kidding themselves if they think this argument will get them anywhere .
ReplyDeleteI read the Iwan case that is discussed, and I have read others involving fibromyalgia. It seems to me that this agency has decided to try to discredit anyone with fibromylgia and systemically deny them disability. SSA will claim that "their complaints concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence... " THAT is the entire point of fibromylgia. There are days I think I can do something, then regret for a week having tried. Say you think you feel well enough to mop the floor. Within a couple of minutes, your pain elevates... And stays elevated. The Aqua therapy that seemed beneficial after 3-4 sessions then feels like torture after 5-7. Apparently, either SSA has no understanding of fibromylgia or has decided to use its variability against those who suffer from it. Do they do that to MS and other maladies? By the way, we still don't know how gravity really works, but I don't see anyone using that fact to discredit it!
ReplyDeleteI'll take this with a grain of salt and consider it an outlier until more SSA filings use the same argument.
ReplyDeleteSSA already has an expedited process for constitutional challenges. If they don't think something is constitutional, they go straight from the reconsideration level to the federal court.
In prior rulings, it was always held that the administrative agency cannot consider the constitutionality of any law which it operates by or draws its authority from. This applies to the decision makers and adjudicators of SSA. Ergo, the first opportunity to make a constitutional challenge is in federal court. Whether this comes up at any administrative level is without merit before the court. SSA's argument is a puerile; it is the same as a child shouting "no do-overs!"
"SSA's argument is a puerile; it is the same as a child shouting 'no do-overs!'"
ReplyDeleteOn the other hand, isn't an appointments clause challenge the equivalent of attorneys shouting "I want a do-over!"
They're not looking to overturn cases where their clients were awarded benefits by improperly appointed judges, right? So raising a Lucia challenge after an unfavorable decision is sort of like knocking over all the pieces on the game board after an unfavorable spin, and then demanding a rematch.
Can you please send us a link to where SSA announced that is wasn't going to consider appointment clause challenges?
ReplyDeleteI've read several district court decisions that dismiss Lucia because the claimant did not raise the issue administratively.
ReplyDeleteSSA is being petty. Essentially they say the SCOTUS decision only says issues don't need to be brought up to the appeals council but still need to be brought up before the ALJ.
These won't hold up if appealed. Looks like we need another SCOTUS ruling.