After the Supreme Court held in Lucia v. SEC that Administrative Law Judges (ALJs) as then appointed were unconstitutional, there was the inevitable issue of which Social Security claimants would get new hearings. The Social Security Administration argued that the issue had to have been raised before the Administrative Law Judge or at least before the Appeals Council. They have now given up on the argument that Lucia had to have been raised before the ALJ and have remanded all of the cases where the Lucia issue was raised at least before the Appeals Council. The issue of whether the issue had to have been raised at least before the Appeals Council is being litigated in the federal courts.
We have our first Court of Appeals opinions in one of the post-Lucia Social Security cases, Cirko v. Commissioner, a Third Circuit case. Social Security lost. The Court held that it did not matter that the Lucia issue wasn't raised until after the matter reached the United States District Court.
Social Security is still litigating this issue before other Courts of Appeals. It's possible that the agency will win elsewhere. If that happens, the issue will have to be decided by the Supreme Court.
Thank you reporting on this case. As far as I know there were are currently 51 cases involving this issue at the Circuit Courts (3rd--15; 4th--7; 6th--8; 8th--11; 10th--4; 11th 6). I am handling the 4 cases in the 10th Circuit. I just filed the Appellees' Brief (2 cases combined) and I enjoyed reading the 3rd Circuit decision because it mirrors my brief on several issues, particularly the point that the Commissioner's Attorneys raised about "opening the flood gates." I argued that instead of hundreds of thousands we are probably only dealing with hundreds of cases nationwide.
ReplyDeleteIn my area the other appellate attorneys either decided not to raise this issue or actually did not know about it.
It my understanding that something like 60 District Courts ruled on this issue and only 4 ruled in favor of the claimants: The Middle District of Pennsylvania, the Eastern District of Pennsylvania, the Eastern District of North Carolina and the Northern District of Oklahoma.
My career handling Social Security Disability appeals stretches over 40 years. This is the first time (in hundreds of Federal Court cases) that I am representing the Appellees.
This issue has a long way to go before it is resolved. This decision is noteworthy, however.
Social Security's argument in these cases is extremely narrow. They are arguing that the bar against issue exhaustion in the Sims case only applies to the ALJ level because the Sims Court stated that it was only deciding that level. It is not logical to apply issue exhaustion at a lower administrative level (ALJ) and not at the Appeals Council (Sims finding). Many district courts agreed with that argument, however.
ReplyDeleteI'm interested to see how many of the original decisions are substantially changed or reversed by the subsequent judge.
ReplyDelete7:45, You’ve got it backward. Sims addressed exhaustion before the AC, not the ALJ.
ReplyDeleteMaybe I did not explain it clearly. Sims does find that we do not have to exhaust issues at the Appeals Council. The Sims Court found, however, that it was not ruling on the ALJ level. SSA is arguing that the parties in these cases should have brought the issue of the Appointments Clause at the ALJ level and that failure to do so waived that issue in the District Court. To me that is a narrow issue that is also not logical. The 3rd Circuit in the cited case agreed with the claimant's position on that point. I suspect that the same arguments are being made in the other cases.
ReplyDeleteSSA's argument never made sense to me. If EVERY issue had to be brought up in the hearing, wouldn't that require an adversarial hearing? Would that not have to provide the time to ask the judge how he sees the case and his thought process, in order to make a fair hearing? Or, do you want a 3 week presentation with dozens of witnesses?
ReplyDeleteIf the Supreme Court has ruled against issue exhaustion, why would Constitutional issues, that the ALJ & AC can't rule, on be excluded?
Restating the issue in these cases is does Sims apply at the ALJ level? Several of the Courts ruling for the claimants position have noted that 19 years have passed since Sims and Social Security has not created a regulation or rule that requires issue exhaustion at the the ALJ level. The Courts have also noted that there are no statutes in the Social Security Code requiring issue exhaustion.
ReplyDeleteMany District Courts (56 out of 60) ruled in favor of SSA on this issue.
4:03 PM The problem with what your talking about is that it would put a condition on the claimant that didn't exist with Lucia. Namely, Lucia didn't contest the the appointment of the ALJ before the ALJ. Plus, as you stated, there is no rule requiring issue exhaustion at the ALJ level.
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ReplyDeleteRequiring issue exhaustion doesn't make the hearing any more adversarial than it already is. Actually, I could imagine if the process were outright adversarial, with the state agency represented by counsel, principles of waiver/forfeiture could apply and it would be a more level playing field. As to requiring an ALJ to disclose his or her thought process, the better ones already do that. It allows claimants to at least attempt to respond to the ALJ before the decision is rendered.
As to whether issue exhaustion should apply to the lucia argument. Yeah, that's probably the most absurd part of all this. ALJs can't rule on it. It is pointless to require a useless argument be raised before them.
I received from SSA a packet that included this decision, plus their argument that th AC COULD have ruled on it, had I brought it up. However, Donald Trump's Executive Order 13843 (July 2018) that "allowed" the appointments to be made in a constitutional way was well after my case had been refused by the AC. So, are they really arguing the executive order was unnecessary and they COULD have made constitutionally correct appointments all along? If they could have, why didn't they? Either way, it is like closing the barn door after the horses got out. Does Ex Post Facto mean anything to these lawyers?
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