See below for an order from the Appeals Council concerning a case where an objection had been made to the consideration of the case by an Administrative Law Judge (ALJ) who had not been appointed in a manner consistent with the Supreme Court's interpretation of the constitution in Lucia v. SEC. The agency thinks it can get around Lucia by having the Appeals Council rewrite the decision. Click on each page below to view full size.
There are some obvious problems with what the Appeals Council has done. In Lucia itself, the Supreme Court didn't remand the case to the SEC to rewrite the decision. It specifically remanded it to a different ALJ. Why would the Appeals Council remedy the constitutional defect in a manner different from the Supreme Court? The Appeals Council is saying the hearing held previously was fatally defective yet it is not giving the claimant a new hearing. Isn't the claimant entitled to a hearing before an ALJ who was properly appointed? There's not going to be a hearing before the Appeals Council itself. There's also the not so small problem that it's been more than a year since the ALJ hearing and decision. The Appeals Council decision will cover the issue of whether the claimant is disabled all the way up to the date of its action yet the claimant is given no opportunity to submit medical evidence concerning this time period or to have a new hearing concerning this time period.
I can only guess what's been going on behind the scenes at Social Security with respect to Lucia. My guess is that there's been a lot of disagreement and little leadership. Despite this order, I doubt that the agency's final position has been resolved. We'll see what happens once Andrew Saul is confirmed as Commissioner, which will likely happen later today.
By the way, note that the Appeals Council supposedly issued this notice of May 22 but we didn't receive it until May 28. There are serious problems printing and mailing decisions at every level of the Social Security Administration. This matters because of appeal deadlines.
Reading between the lines - If the AC wants to pay it, they will.
ReplyDeleteIf they have any doubt, the AC will send it back to be heard by another ALJ at a hearing office.
What everybody forgets about Lucia, comes from Freedom Commerce Board, you have all been snowed with the appointment issues, when the issues of removal has not yet been settled. SSA ALJ's as Inferior Officers are protected by two layers (MSPB ALJ's who are also protected) from removal. As Inferior Officers, the president should be able to remove the SSA ALJ's at will, but cannot due to MSPB protections. This is an unconstitutional impediment upon Presidential removal authority. Until rectified, expect a future "Lucia" on removal
@12:30
ReplyDeleteFurther complicating matters, the MSPB lacks a quorum and cannot issue final decisions on petitions for review.
Charles:
ReplyDeleteWe should certainly be raising all of the issues you have discussed in reply to these letters. We should also be asking for a hearing before the Appeals Council in every case. I notice that the AC will only give 10 days notice of the time and place of the hearing, which seems to further violate the 75 day notice requirement.
As you point out, the claimant has never been given an opportunity for a hearing before a properly appointed ALJ. There are technical issues relating to the administration of oaths if the AC were to rely on prior hearing testimony, not just from the claimant but from VE's, ME's and any other witness. Due process violations certainly seem to be at play.
If the AC is just going to issue new decisions without rehearing, it seems like that SSA has decided to kick the can down the street to the federal courts to handle instead of having the leadership to resolve this cases appropriately via remands.
I guess if I suspend that rational part of my brain, I can also see why you folks might believe the sky is falling when you read that notice. But if you'll chill out, think about this rationally, and quit assuming everyone at SSA are idiots, I think it will become fairly obvious that @12:30's interpretation above is correct.
ReplyDelete@12:30pm: The problem with making ALJs ‘at will’ employees is that they will no longer be neutral adjudicators/judges and due process is violated. The inferior officers contemplated in Free Enterprise were not judges, that is a whole different case and issue than worrying about two-layer protections for Admin Judges. Admin Judges need the extra layer of protection so as to preserve the claimants’ rights to an unbiased and neutral arbitor.
ReplyDeleteThis is all about step 1 in replacing ALJs with AJs. AJs are largely career government attorneys with no law practice experience outside of plugging the same 7 boilerplate sentences into remand orders. Now they get to hold hearings and issue decisions and say "I CAN HAS JUDGE NOW?"
ReplyDeleteReps would love AAJs making decisions. If you think they're bad at reviewing decisions, you should try and see them actually make decisions. There was a brief period where they were doing so, and they were reversing decisions on the basis of some 90yo ME opining that a claimant met listing 9.00. They'd bring a return to the glory days of the 2000s.
ReplyDeleteI received a Federal Court Remand today (June 26, 2019) from the Northern District of Oklahoma. The Magistrate Judge relied on the Sims case as well as the cases from Pennsylvania and North Carolina as to what is "timely." The Court noted that the regulations cited by the Commissioner did not by the terms of the regulations require issue exhaustion or notify claimants of an issue exhaustion requirement.
ReplyDelete