Was A Claimant Required To Make A Lucia Objection Administratively In Order To Preserve The Issue For Federal Court?

     Since the Supreme Court's decision in Lucia v. SEC that Administrative Law Judges (ALJs) as they had been appointed to that time were unconstitutional there's been a big issue concerning the thousands of Social Security cases pending in the federal courts. It would seem that all should be remanded for new hearings except for one problem. Almost none of the claimants involved had raised the issue while the cases were pending at Social Security. In most administrative litigation an objection must be filed while the case is pending before the agency in order to preserve the issue for federal court. However, there's a prior Supreme Court decision that says that as a general matter that is not required in Social Security cases. There's also the fact that Social Security had announced prior to the Lucia decision that it would refuse to consider any argument about ALJ constitutionality. Why require that an objection be made when the agency has announced that it won't consider it?

     We've been waiting for the federal courts to act on this issue. There have been a number of decisions that have accepted Social Security's argument but those have been rather summary decisions that barely discussed the issue. We now have a more substantive decision in Muhammad v. Berryhill and it goes the other way. It's the recommended decision of a federal Magistrate Judge. The District Court judge could overrule this recommendation but it is certainly a substantive decision. We're a long way from even a Court of Appeals decision in this case.

     This issue may or may not end up at the Supreme Court. My guess is that it won't because the Courts of Appeals will all come down against Social Security. Even though a number of District Courts have accepted the agency's arguments, I just think those arguments are weak.