I posted on April 8 about the first Appeals Council remand that I had heard of referring to Lucia v. SEC, the Supreme Court case that held that Administrative Law Judges (ALJs) who had not been appointed by an agency head were unconstitutionally appointed. That remand wasn't for a claimant represented by my firm. Since that time I've seen a redacted copy of the Appeals Council order in that case. It looked like a case that was going to be remanded anyway. I have heard of no other Lucia remands at Social Security. I have heard of no cases where the Appeals Council tried to rewrite an ALJ decision to somehow skirt Lucia. Also, I have seen no changes to the HALLEX manual that is used to disseminate new policies and procedures at the Appeals Council.
After Social Security issued Social Security Ruling 19-1p on Lucia, I assumed that the agency knew what it wanted to do. I'm beginning to think that they still don't know what they want to do although that makes me wonder how the Ruling got issued.
More and more Social Security seems like an agency adrift with an Acting Commissioner who feels she lacks the authority to lead even on something like this where there's really only one course of action that's even doable -- remanding all the cases where a Lucia objection was made. There's not enough staff at the Appeals Council to rewrite all those decision, not to mention that doing so probably wouldn't pass muster in the federal courts. How is this a tough decision?
18 comments:
The Lucia cases are just going to sit there for several years so they never have to deal with them.
The "strategy" is to have the cases disappear into the Appeals Council void and eventually be forgotten entirely.
The Circuit Courts should be issuing some rulings on these soon.
Maybe they are waiting to see what the federal courts will do. If the federal courts rule that no Lucia objection is required at the ALJ level or AC level, it would be interesting if SSA takes that to it's logical conclusion and redetermine all the FF that were issued by unconstitionally appointed ALJs as well.
Let's see - issues involving hearing procedures of administrative agencies challenged in court tend to be about due process. A person being denied something from a government agency is entitled to due process. If an agency believes it made a mistake, it is up to the agency to correct that decision, if it chooses - there is no due process issue involved because the agency has no constitutional obligation to provide due process to itself, right? So, why does someone keep petulantly raising the issue of redetermining fully favorable decisions. I certainly hope the person who keeps raising the absurd issue is not a lawyer. If this is a lawyer that works for SSA - well.... that's a little scary that he or she doesn't understand that this is about due process for the claimant. The agency certainly may review all those fully favorable issues if it so chooses. But, it has no obligation to do so and, its only obligation, if it were to choose to do so, would be to make sure it provides due process to the claimants. The insistence that, because the agency has to review unfavorable decisions, it should also review FF decisions as well, is just a petulant assertion and demonstrates a failure to grasp the basic underlying legal issues. If this is an SSA lawyer who has time to constantly make such absurd comments, perhaps they aren't as overworked as they claim.
Last week I received a remand on a case where I raised Lucia along with other issues. The remand was based on the other defects but the AC award notes that the case will be assigned to a different ALJ and by doing that "the Appointments Clause defect is cured."
"Last week I received a remand on a case where I raised Lucia along with other issues. The remand was based on the other defects but the AC award notes that the case will be assigned to a different ALJ and by doing that "the Appointments Clause defect is cured."
8:57 here.
That's because your particular case was part of the "cases the AC was going to remand anyway, but your Lucia argument gummed up the works and slowed down the remanding of the claim."
I got one just like yours nearly immediately after the AC finally decided to act. We have all been getting Lucia remands on the obvious cases where the AC had already decided to remand.
I should have just let the AC deny the various claims and then raise the Lucia argument in Federal Court. That would have moved the cases faster.
Charles and I have a lot of AC cases that are currently locked in the status of "Pending Analyst Assignment," some since 2017.
My overall caseload has actually increased since Lucia, but my Federal Court actions have significantly declined, since Lucia cases are still not moving at the AC.
SSA CANNIT REMAND AND HEAR LUCIA OBJECTION AC OR COURT REMAND CASE BECAUSE LAST YEAR SSA ILLEGALY AND IMPROPERLY REMOVED ALL PROPERLY APPOINTED FROM COMPETITIVE SERVICE AND IMPROPERLY MADE ALL ALJS ILLEGAL APPOINTED EXCEPTED SERVICE EMPLOYEES AND NOW THERE IS NOT A PROPERLY AND LEGALLY CLASSIFIED COMPETIVE SERVICE LUCIA PROPERLY APPOINTED ALJ IN OHO THANKS TO SSA IMPROPER AND ILLEGAL REMOVAL OF THESE ALJ AND ILLEGAL REAPPOINTEMENT OF THESE ALJS AS EXCEPTED SERVICE IMPROPERLY REAPPOINTED BY OHO AND ITS CONFEDERACY OF DUNCES. GOOD LUCK ON TOUR LUCIA REMANDS WITH AN IMPROPERLY EXCEPTED SERVICE NON-LUCIA ALJ. SSA'S ILLEGAL EXCEPTED SERVICE REAPPOINTMENT OF ALL ALJS OCCURRED AFTER THE LUCIA CASE AND HAS NOW MADE EVERY CASE A LUCIA OBJECTION CASE. BURY THE APPEALS COUNCIL WITH APPEALS SINCE THEY ARE LOOKING TO GROW BY HEARING CASES AT THE HEARING LEVEL AND ALSO CONTINUING TO DECIDE THE APPEALS OF THE NEW AAJ AGENCY GROWN CORP HEARING DECISIONS. SMELLS LIKE HOME COOKING. THERE IS NOW NOT A PROPERLY APPOINTED ALJ IN ALL OF SSA OHO. BY THE WAY, EXPECT SIGNIFIANT DELAYS IN THE PROCESSING OF AC APPEALS BECAUSE AN APPEAL DELAY IS ONE LESS PROBLEM THAT CAN BE REQUIRES ANY AC ACTION.
Just saw a case come back today where the AC punted it back 11 months after the ALJ released his decision. The interesting part was that Lucia was first raised in correspondence from the representative to the appeals council, 10 months after the ALJ issued the decision, while waiting for the AC to take action on it. AC remanded it to be reheard by another ALJ citing Lucia. This tells me that if you missed raising Lucia at the hearing and have the case pending at the AC now, raise Lucia now for another bite at the apple.
Even if you didn't raise at AC... Use Judge Timothy Rice's decision as a guideline... Mohammad v Berryhill. Be prepared for pushback, such as Fortin v commissioner... Judge David M. Lawson. Timothy Rice's argument is much more persuasive. Lawson appears to "justify" the decision he wanted to make.
"Just saw a case come back today where the AC punted it back 11 months after the ALJ released his decision. The interesting part was that Lucia was first raised in correspondence from the representative to the appeals council, 10 months after the ALJ issued the decision, while waiting for the AC to take action on it. AC remanded it to be reheard by another ALJ citing Lucia."
Was Lucia the only issue cited or was it a case that the AC was going to remand anyway and just added Lucia at the end?
Just had my first AC denial of a case where I raised Lucia. Federal court, here we come.
@10:53
I hope you're not an attorney if you think Lucia or the subsequent challenges have anything to do with due process. Go through the briefing and the opinion, and the Appointments Clause challenge has nothing to do with due process. It isn't mentioned once in the opinion. It's not even mentioned in the briefing outside of requesting a different and properly appointed ALJ on remand.
The challenge was successful because ALJs had no authority to make decisions on behalf of their agency, and in essence, there was no decision. If you don't think SSA can pull every single favorable decision and assign it to a new judge for a new hearing unless it has a due process interest, then you don't know what you're talking about. In fact, I'd argue favorables are an even bigger issue for the Appointments Clause since an improperly unappointed judge has bound SSA and the government to pay out benefits.
I'd also point out due process isn't a results oriented principle. It's entirely disingenuous for you to say Client A got due process from Judge Smith because they got a favorable decision while Client B didn't because Judge Smith denied them. The process was the same. The hearing was very likely the same or similar. Your future hearings with Judge Smith will be the same or similar.
Not being properly appointed didn't create an inherent unfairness to violate due process. You just don't like the result and can get it flipped on a technicality. I certainly don't begrudge you doing it since you are supposed to advocate for your clients, but please spare me the principled speech on due process. That's not what thot is about.
Great reply to 10:53am from 11:39pm. I tend not to respond to personal insults like "I hope you're not an attorney especially an 'overworked' SSA lawyer" while using other descriptors such as "absurd" and "pedantic".
Charles, the lack of civility of posts like 10:53am sully an otherwise informative and enjoyable blog shared by both the public, the representative community and SSA insiders.
Yes, the blog would be better without the uncivil references to "rep" fees and the like made on a fairly frequent basis, probably by some unhappy SSA employees. It would also be better without constant whining about how unfavorable findings are being reviewed why favorable decisions are not. That may not be uncivil but it comes across and disgruntled whining. This person appears to have some sort of grudge and, assuming they are an SSA employee, I would hope this doesn't affect their work.
There are certain respects in which "due process of law," understood as equivalent to "the law of the land," uncontroversially regulates the substance of governmental action. Most obviously, the core meaning of "law of the land" provisions, dating back to the Magna Carta, is to secure the principle of legality by ensuring that executive and judicial deprivations are grounded in valid legal authority. In this respect, the Fifth Amendment's Due Process Clause limits the substance of executive or judicial action by requiring it to be grounded in law.
@ 9:44PM Was your Lucia objection exhibited by the AC?
@4:20 PM - Yes, the brief in which it was contained was exhibited.
@ 9:44PM, well the failure to remand certainly seems contrary to the plain language of SSR 19-1p "The Appeals Council will grant the claimant’s request for review in cases where the claimant: (1) timely requests Appeals Council review of an ALJ’s decision or dismissal issued before July 16, 2018; and (2) raises before us (either at the Appeals Council level, or previously had raised at the ALJ level) a challenge under the Appointments Clause to the authority of the ALJ who issued the decision or dismissal in the case." The AC is then supposed to "either remand the case to an ALJ other than the ALJ who issued the decision under review, or issue its own new decision about the claim covering the period before the date of the ALJ’s decision. In its review, the Appeals Council will not presume that the prior hearing decision was correct." If they did neither, seems like its an easy USDC remand without even needing to get into the meat of the Lucia issues. SSA has failed to follow it own policy as stated in the SSR.
Good luck in federal court.
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