I’ve already heard some colleagues say that the new Social Security Ruling giving the agency’s response to the Supreme Court opinion in Lucia v. SEC means that the agency thinks it can solve its Lucia problem by having the Appeals Council itself issue de novo decisions in the cases. There are a couple of problems with this. First, the Appeals Council isn’t set up to issue thousands of de novo decisions. Second, and more important, the Social Security Act says that claimants are entitled to hearings. If you’re agreeing that the hearing that was held was constitutionally invalid, how do you get around giving the claimant a new hearing? There’s a lot of wishful thinking at Social Security. I hope they’re not so far gone that they think they can get away with that. I think the language that some are pointing to about the Appeals Council issuing decisions is only intended to allow the Appeals Council to issue fully favorable decisions in a few cases.
I have to mention that after Lucia came down I told everyone who would listen that we should be filing Lucia objections in every case pending at the Appeals Council.
I dunno, Charles, 20 CFR 404.979 and the companion TXVI cite, coupled with HALLEX I-3-8-1, et seq, sure seem to allow the AC's AAJs to issue any type of decision.
ReplyDeleteIt appears SSA does not indeed think it can get away with this. It all depends on what judge you get when you appeal. That is a shame what this branch of government has become. To me , Constitutionalist judge SHOULD mean one who checks the powers of the government and holds there feet to the fire to follow the law. Part of that law is the fair treatment of those in front of them. In practice, this has given us judges that bend over backwards to NOT interfere with other judges, legislatures, etc. You may like the Affordable HCA, but it clearly was unconstitutional. If it was a tax , it was required to start in the House, not the Senate. If a fine, not constitutional. ALJs are clearly making decisions to deny that are flawed, insufficiently argued, and not based in reality as what the claimant can do. But, if the AC and federal courts back them up...
ReplyDeleteDoes indeed, no not
ReplyDeleteUs judges, should be those judges. Between my fingers, my eyes and stupid apps...
ReplyDeleteSpeaking of Lucia, has SSA issued anything on a new procedure for hiring new ALJs?
ReplyDeleteMr. Hall states, " I have to mention that after Lucia came down I told everyone who would listen that we should be filing Lucia objections in every case pending at the Appeals Council." That is really, really, really bad advice. Mr. Hall should know better. Lucia relief would *require* in many instances wiping out a favorable part of a partially favorable decision. Do not listen to Mr. Hall. His one-size-fits-all advice is thoughtless.
ReplyDeleteLucia is only raised when an applicant is denied, right? nobody’s lining up to give back their benefits if the same judge pays a case? Is there any risk that SSA could undo favorable cases on its own, or does Lucia not allow it?
ReplyDeleteIf the ALJ who presided over the claimant’s hearing was not properly appointed under the Appointments Clause of the Constitution, how can the AAJs at the AC use any of the evidence from that improperly held hearing to make a decision. The ALJ did not even have the authority to conduct the hearing, administer the oath, etc. As such, if the AC just issues a de novo decision without offering the claimant a new hearing, the claimant has been denied their right to a hearing, as an official one was never held. Perhaps it is prudent for all claimants to ask the AC for a hearing. The AC is not equipped to handle such requests though.
ReplyDelete@ 1:04PM I would beg to differ with you re the AAJs having the authority to issue any type of decision.
ReplyDeleteAs authorized in sections 205(b) and 1631(c) of the Social Security Act (Act), and as set forth in 20 CFR 404.929 and 416.1429, if a claimant is dissatisfied with one of the determinations or decisions listed in 20 CFR 404.930 or 416.1430, he or she may request a hearing. The Commissioner of Social Security has delegated to ADMINISTRATIVE LAW JUDGES (ALJ) the authority to hold hearings and issue decisions.
Under 20 CFR 404.979 and 416.1479, the APPEALS COUNCIL(AC) MAY AFFIRM, MODIFY, OR REVERSE AN ADMINISTRATIVE LAW JUDGE'S decision. Additionally, the AC may adopt, modify, or reject an ALJ's recommended decision.
I do not see where the AC has the authority to issue a decision where an ALJ has not yet issued one. AAJs are only authorized to affirm, modify, or reverse an ALJ decision. They are not authorized to conduct hearings and issue decisions in the same way ALJs are authorized to do so.
Hold on, how can a decision only be valid if it is a positive outcome and void if it is a denial? No, I am not a rep, this is the kind of stupid thing that makes the rest of us nuts and adds complexity to an already stupid system and makes no sense.
ReplyDelete@9:52 AM.....Because in one situation the party adversely impacted appealed the decision. If a claimant who was denied didn't appeal, their decision is as valid as the decisions of those approved.
ReplyDelete@11:47 AM - An AC reversal is a decision. The AC has the ability to make a decision that is the opposite outcome of a hearing decision, whether favorable or unfavorable, and when the AC does this, they apply the preponderance of the evidence standard versus the substantial evidence standard. Where there has been a well-developed file and thorough questioning and resolution of issues at the hearing by the ALJ, including usable medical or vocational testimony and/or interrogatories, there is no impediment to the AC issuing a new or different decision. The reason why they do not often do this is that the record is often not completely developed, inconsistencies in the evidence have not been resolved by the ALJ (who is the initial fact-finder), and/or expert testimony has not been elicited on material/outcome-determinative issues - which leads to remand. The other reason reversals/decisions are a small percentage is because decisions take more time, including advance notice for anything less than a fully favorable, and it's much easier/faster to remand to an ALJ to further develop evidence and fix the decision. Ultimately, blanket Lucia challenges without regard to the merits of the cases will result in all claimants waiting longer for a final decision because of the extra remands and hearings, without any guarantee of a different outcome for the Lucia claimant.
ReplyDelete@10:23 PM...I do not disagree that an AC reversal is a decision, and the AC has the authority under 404.979 and 416.149 to issue such a decision in a non-Lucia situation. Lucia situations appear different. For example, what if you showed up at a hearing office and had a hearing with what you thought was an ALJ, and that person then issued a decision denying the claim, but then you found out that the person who conducted the hearing and issued the decision was actually the OHO janitor. Would you say that you were afforded your right to a hearing and decision by an ALJ? I doubt you would. In such a situation that pretender ALJ’s holding of the hearing and issuing of the decision would simply be void ab initio and the parties should be returned to their respective positions at the time of the ab initio event, as if no hearing or decision ever took place. The ALJs whose decisions are vacated based on Lucia challenges are no different than the pretender janitor ALJ, neither had the authority to do what they did.
ReplyDelete