Such Careful Reviews

     Social Security's Office of Inspector General (OIG) has belatedly posted four reports for the time period of June and July. I had written recently about the lack of reports for that time period. Four is still far below what OIG had been averaging but better than nothing,

    Here's a quote from one of those newly posted reports, The Social Security Administration’s Appeals Council Workloads:

In FY 2020, 76 AAJs [Administrative Appeals Judges] issued approximately 85,000 total dispositions. While 22 AAJs issued fewer than 500 dispositions, 4 issued more than 2,500, see Figure 6. The number of dispositions per AAJ ranged from 3 to 3,731, and the median number was 1,064 dispositions.

    These files probably average around 1,000 pages now but one AAJ is carefully reviewing 3,731 of them a year? Yes, they have help but 3,731 in a year? Calling the Appeals Council a rubber stamp is an insult to rubber stamps.

A Question

      I have cases at the Appeals Council whose status is variously given in ERE as Assigned to Adjudicator, Assigned to Analyst and Case Workup. What is the difference? What can I tell from these case statuses? Anything?

CCD Letter On Office Closure Problems

     From a letter sent by the Consortium for Citizens with Disabilties (CCD), the major umbrella group of organizations involved in helping those with disabilities, to Social Security Commissioner Andrew Saul:

... Please publish field office phone numbers more prominently. Currently, the national 800 number is in two much more visible spots ... and the local number ... is more difficult to find on the field office locator tool. With wait times on the 800 number exceeding 90 minutes, allowing people to more easily contact their local offices is critical to improving customer service. ...

We have requested, and understand that the Office of Disability Operations is considering, creating a web page on ssa.gov indicating the daily operating status of all state agencies (DDSs). We assume that SSA is already aware of whether DDSs are completely closed, having all employees telework, or operating under a different arrangement; allowing claimants, representatives, advocates, and others to access this information would be helpful as well.With many DDSs completely closed, it is difficult for DDS staff to obtain evidence submitted by mail or fax, and to generate CDs with claimants’ records to inform claimants and their representatives. Unfortunately, SSA has not yet provided claimants or representatives with the ability to view their electronic files or upload evidence electronically. SSA should prioritize these IT modernizations so that the agency can more efficiently process disability claims at the initial and reconsideration levels....

We appreciate that the Office of Disability Operations created an email address for representatives to send documents to the Representative Call Center (RCC). However, it would be useful for SSA to have similar email addresses for representatives to send documents to the Program Service Centers (PSCs) since the RCC email address cannot be used for any other unit or module. The PSCs often need documentation, such as information about workers’ compensation benefits, to effectuate decisions. With field offices closed, it is more important than ever for PSCs to have adequate channels of communications.  ...

OHO issued a Chief Judge’s Bulletin (CJB) regarding procedures during the pandemic on April 3, 2020. However, the Bulletin has not been published with other CJBs at https://secure.ssa.gov/apps10/reference.nsf/instructiontypecode!openview&restricttocategory=CJB. Advocates were told in the same phone call that the April 3 CJB was both too general to be of use to claimants and representatives and too “sensitive” to be publicly released. This strains credulity.  ...

Finally, some representatives have been told that OHO could not send any of the barcodes used as cover sheets when faxing documents to claimants’ electronic files and which contain information used to upload documents electronically. If accurate, OHO must find a way for claimants and representatives to submit evidence, requests for on the record decisions and critical case designation, and other important documents to the claims file. If not, SSA should explain how representatives can request bar codes for cases where they’ve recently been appointed or the ALJ hearing request has just been made. ...

The Appeals Council receives many documents and requests for review by fax; they use actual fax machines rather than a fax-to-computer system, and this is now a problem because the machines are out of paper and their memories appear to be full. We are encouraging claimants and representatives to use SSA’s iAppeals system whenever possible and mail if necessary, but claimants who are unaware of these options may be sending their requests for review into a technological void. We urge you to have the Appeals Council devise a way to accept faxed documents, ideally using a desktop faxing system so that staff do not have to manually load paper into fax machines and scan the faxes they receive. ...

     Isn't it obvious that it's inappropriate for an agency to issue secret instructions to ALJs on how they should handle cases? I don't think there's something nefarious going on here; just the age-old bureaucratic penchant for pointless secretiveness.

Is The Position Of Commissioner Of Social Security Unconstitutional?

     From Reuters:

Facing an existential threat at the U.S. Supreme Court, which will hear oral arguments on March 3 in a constitutional challenge to the unusual structure of the Consumer Financial Protection Bureau, the CFPB has found an unlikely champion. The Trump administration believes that the bureau's lone director is unconstitutionally shielded from accountability to the president, yet the Justice Department’s final brief before oral argument urged the Supreme Court not to issue a ruling that will halt the CFPB’s “critical work." ... [The case is Seila Law v. CFPB .]

Seila’s lawyers ... had asked the Supreme Court to decide whether the provision that shields the CFPB director from being removed without good cause runs afoul of the separation of powers doctrine. The Justice Department and the CFPB, repudiating the CFPB’s longtime defense of its structure, backed Seila’s petition, arguing that the provision was an unconstitutional restraint on the president....

DOJ and Seila also agreed that Clement’s attempt to fit the CFPB’s structure within the penumbra of 1935’s Humphrey’s Executor v. U.S. falls short. In that case, the Supreme Court upheld the constitutionality of the Federal Trade Commission, but Seila and DOJ said the court’s analysis applies only to “quasi-judicial” agencies headed by several commissions, not to the CFPB’s lone director. They also hinted that if Humphrey’s Executor controls this case, then the Supreme Court should consider overruling its precedent, which Seila described as “erroneous and already repudiated.”  ...

     The Social Security Administration is also headed by a lone director who can only be removed "... pursuant to a finding by the President of neglect of duty or malfeasance in office." If, as this Administration is arguing, the position of head of the CFPB is unconstitutional, I see no way that the position of Commissioner of Social Security isn't also unconstitutional.
     If the position of Commissioner of Social Security is unconstitutional are regulations adopted by unconstitutional Commissioners valid? What about decisions made under a delegation of authority from an unconstitutional Commissioner such as those made by Administrative Law Judges and Appeals Council members? This isn't a problem that can be easily solved in the same way that the problem with how ALJs are appointed was solved.
     If the Supreme Court rules that positions such as that of the Commissioner of Social Security are unconstitutional, the Social Security Administration can no longer be an independent agency, at least not without a multi-member board heading it and maybe not then.
     This could put a real crimp in Andrew Saul's plans for a batch of far reaching regulations.

AC Reviews Per ALJ And Their Outcomes

     Social Security has posted data on the number of Appeals Council reviews per Administrative Law Judge in 2018 and the outcomes of those reviews.

OIG On Delays In Scheduling Remands

     From a recent report by Social Security's Office of Inspector General (OIG):

... Administrative law judges (ALJ) decided 49,579 Appeals Council remand decisions from Fiscal Years (FY) 2016 through 2018. Appeals Council remands represent the modification of a prior hearing decision often because the ALJ applied the wrong law, additional claimant or other witness testimony was needed, the claimant did not receive a fair hearing, or the ALJ decisional rationale was insufficient. 

SSA’s policy states that remands should be processed as a priority workload. Hearing offices are required to flag remands when they are docketed into the hearing office and assign them immediately to an ALJ for review. ...

Although remands should be processed as a priority workload, SSA does not define “priority” and does not have a processing time goal for this workload. Of the 49,579 remands processed in FYs 2016 through 2018,

• 22,144 were processed in fewer than 270 days,
• 10,043 took between 270 and 360 days,
• 5,191 took between 361 and 430 days,
• 7,179 took between 431 and 595 days,
• 4,717 took between 596 and 999 days, and
• 305 took 1,000 days or longer to process.  

Our sample analysis found some remands took longer to process because they were not always input immediately in the hearing offices’ master docket or the remands stalled in the Ready to Schedule, ALJ Review Pre-hearing, or ALJ Review Post-hearing stages. ...

     In my experience, this is definitely a problem. I've never understood what's going on behind the scenes but remands often take longer to schedule than new request for hearing cases.

Andrew Saul Hasn't Hit The Ground Running

     Andrew Saul was sworn in as Commissioner of Social Security on June 17. A few days later I posted a list of issues on Saul's docket. Let's go through that list and see what actions Saul has taken:

What To Do About Hicks v. Commissioner of Social Security

• Social Security twisted its rules to cut off benefits for as many of Eric Conn's former clients as possible. The 6th Circuit Court of Appeals ruled against the agency on November 21, 2018. Ever since then the Solicitor General and Social Security have been "considering" whether to ask the Supreme Court to hear the case. I doubt that they are seriously considering that. I think they've just been stalling until a new Commissioner was confirmed because it's hard to decide how to implement the decision of the Court of Appeals.  They can't stall much longer. -- A decision was made that Social  Security would not ask the Supreme Court to hear the case but that was inevitable since there was no reason for the Supreme Court to hear the case. No decision has been made on the difficult question of how to handle the Conn cases in the wake of the 6th Circuit opinion.

What To Do About Cases Pending At The Appeals Council Which Were Decided Prior To Lucia v. SEC And An Objection Has Been Made To ALJ

• The Supreme Court decided last year that Administrative Law Judges (ALJs) as then appointed were unconstitutional. Social Security changed the way ALJs were appointed to adjust to this decision but there are thousands of cases still pending at the Appeals Council that were heard before the Lucia opinion. The agency has suggested that they want to avoid remanding all these cases for new hearings with different ALJs by having the Appeals Council issue new decisions on its own. This is arguably illegal and probably impractical. A decision on this can't be delayed much longer. -- No action. This one won't wait much longer.

Proposed Regulation That Has Been Published For Comments And Can Now Be Made Final

• Removing inability to communicate in English as a factor in determining disability. Anti-immigrant proposals are very popular with Republicans these days but Saul will poison his relationship with Congressional Democrats if he goes ahead with this one and they have the power to make his life difficult.-- No action.

Proposed Regulations That Have Not Yet Been Published For Comments

• Considering social media in determining disability. Unpopular with many in Congress, including Republicans.
• Revising evaluation of vocational factors in determining disability (probably increasing age categories in grid regulations). Go ahead with this one and you've made a declaration of war on Congressional Democrats.
• Hearings held by Administrative Appeals Judges. Nobody knows exactly what this one is but if it's what I think it is -- trying to get rid of independent ALJs -- it's going to be unpopular with all Democrats and many Republicans in Congress. -- No action on any of these proposed regulations. Will there ever be any action?

Stance On Employee Unions

• The Trump Administration has taken an extremely aggressive and antagonistic stance on federal employee unions. Social Security has followed suit. Democrats on the House Ways and Means Committee are already pressuring Saul to soften Social Security's approach. Will he be a loyal Republican and continue the harsh anti-union stance or does he modify it to avoid conflict with Congressional Democrats who can make his life difficult? His message to agency staff suggests that he'll soften the anti-union stance. -- No publicly announced action on employee unions.

Process For Appointing New ALJs

• The old process for appointing ALJs was found unconstitutional. What will the new process be? -- Apparently, the agency has been in the process of hiring new ALJs. I don't think there's been any announcement of what the process is.

Fee Cap 

• This one may be wishful thinking on my part. The cap on fees that may be charged for representing Social Security claimants hasn't been raised since February 9, 2009. By any normal standard it's way past time to increase it. However, I'm not sure that the organizations that represent those who represent claimants have been able to generate any real pressure to increase the cap. -- No action.

SSA Wants To Get Around Lucia By Having Appeals Council Rewrite ALJ Decisions?

     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.

More On SCOTUS Opinion In Smith v. Berryhill

     SCOTUSblog has posted an analysis of yesterday's Supreme Court opinion in Smith v. Berryhill. As usual, it's excellent.

Proposed Regs On Hearings Held By Appeals Council Judges Move Forward

     The Office of Management and Budget (OMB) has cleared a package of proposed regulations on Hearings Held by Administrative Appeals Judges of the Appeals Council. Social Security may now publish this proposal in the Federal Register. The public will be allowed to file comments. Social Security must then consider the comments. While comments from the public never seem to matter, the opinions of Andrew Saul, if he is ever confirmed as Commissioner of Social Security, and Congressional leaders do matter.

     We cannot know what is in this proposal. The fear would be that it would mark the beginning of the end for the use of Administrative Law Judges at the agency. No one would get an in person hearing. They would just be some big building holding hundreds of Appeals Council judges all holding video hearings without any pretense of independence.

What's Going On At The Appeals Council With The Lucia Cases?

     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?

First Lucia Remand

     I have received the first report of a case remanded by Social Security's Appeals Council on account of the Supreme Court decision in Lucia v. SEC. It was sent back to a different Administrative Law Judge.

Smith v. Berryhill Oral Argument Summary

     SCOTUSblog has posted a detailed summary of yesterday's Supreme Court oral argument in Smith v. Berryhill, a case concerning whether judicial review is available for Appeals Council dismissals. There's a lot of attention to major Supreme Court cases, as well there should be, but the Supreme Court's docket contains plenty of straightforward cases like this one where the political leanings of justices have little or no effect on the outcome.

Central Offices Closed By Snow

     The Social Security Administration has announced that its offices in the Baltimore and Washington area will be closed on a Wednesday because of snow.

When Will The Appeals Council Act?

     The Securities and Exchange Commission is remanding all cases pending before the full Commission for new hearings before different Administrative Law Judges, without regard to whether the Lucia issue was raised before ALJ or even before the full Commission. When will Social Security follow suit? Tens of thousands of cases are pending at Appeals Council. My firm has a considerable number of cases pending at the Appeals Council. We’ve raised the Lucia issue in each one. We’re not getting remands. We’re not getting denials of review. The cases are just sitting there.  What are they waiting on? Come on, Mr. Lucia himself didn’t raise the issue of ALJ appointment before the ALJ.

Mass AC Remands On Lucia Grounds Coming?

     From a revised version of Social Security's Emergency Message EM-18003 on Important Information Regarding Possible Challenges to the Appointment of Administrative Law Judges in SSA’s Administrative Process:

If a claimant or representative files a timely Appointments Clause challenge and timely requests Appeals Council review, the AC will consider the challenge in the context of the facts of the case (including, but not limited to, the date of the ALJ decision and the date the challenge was raised) in determining whether there is a basis to grant review. The AC will determine whether granting review is appropriate under 20 CFR 404.970 or 416.1470, or both, when considering both the decision on the merits and any potentially unresolved Appointments Clause issues.

In those matters where a timely Appointments Clause challenge to an ALJ decision issued prior to July 16, 2018 is raised to the Appeals Council in a proper request for review, the AC will grant review and issue a decision or order remand, as appropriate.

Your Get Out Of The Appeals Council Jail Free Card

     I said in an earlier post that I thought that because of the Supreme Court decision in Lucia v. SEC that the Appeals Council might as well go ahead and remand virtually all the cases it has pending. Another attorney at my firm pointed out to me the reason why they have little choice, as long as a Lucia objection has been filed with the Appeals Council. They can’t realistically raise the objection that you failed to raise the issue before the ALJ because in Lucia v. SEC itself (slip opinion at 3), the objection was only raised before the Securities and Exchange Commission itself after the ALJ decision. Theoretically, one could say that issue was never considered by the Supreme Court but that's theoretical rather than an argument Social Security is at all likely to raise. Social Security can’t say that its ALJs are different from the SEC's ALJs since the Solicitor General memo has conceded that they aren't.

     If you've got a case pending at the Appeals Council and you haven't already filed a Lucia objection, you'd better do so right away. Like today.

Solicitor General Memo Makes Social Security's Lucia Headache Worse

     The Solicitor General represents the federal government before the Supreme Court. This is from a memo from the Solicitor General to General Counsels at federal agencies concerning the recent Supreme Court decision in Lucia v. SEC:

... As discussed below, to the extent feasible and consistent with law, we advise agencies ... (3) in pending cases in which no Appointments Clause challenge was timely made and preserved, to argue that any such challenge is forfeited; and (4) in pending cases in which an Appointments Clause challenge was timely made and preserved, to seek a voluntary remand to the agency to provide a hearing before a different, properly appointed ALJ, consistent with Lucia. ...

A threshold question is who exactly is covered by the Supreme Court's decision in Lucia. Although the Court's specific holding is narrow, its reasoning sweeps more broadly. For the reasons discussed below, we conclude that all ALJs and similarly situated administrative judges should be appointed as inferior officers under the Appointments Clause, and that Department Heads should ratify and approve the appointments of existing ALJs and administrative judges accordingly. ...

The Court's decision in Lucia does not directly address the constitutional status of administrative law judges appointed under 5 U.S.C. 3105 who do not preside over adversarial administrative hearings or possess powers equivalent to those of the SEC ALJs in Lucia. For example, Lucia does not squarely resolve the status of ALJs who preside over ex parte hearings for applicants seeking federal benefits. Nonetheless, much of the reasoning of Lucia applies with equal force to such ALJs: while they may not preside over adversarial trials, they do take testimony, preside over hearings, receive and weigh evidence, and employ various mechanisms for obtaining compliance with their orders. Accordingly, taking into account both the Supreme Court's reasoning in Lucia and the importance of ensuring the President's oversight of the execution of the laws, the Department of Justice no longer plans to argue that such ALJs are employees rather than inferior officers. Agencies should appoint all ALJs as inferior officers. ...

Many agencies, however, use other non-ALJ officials-often termed "administrative judges" or "administrative appeals judges"-to preside over hearings and issue initial or appellate decisions in agency adjudications. While there will be case-by-case questions, we anticipate that many of these adjudicative officials will qualify as inferior officers under Lucia, especially if they preside over adversarial hearings and have the four specific forms of authority highlighted by the Court in Lucia. Again, taking into account both the Supreme Court's reasoning in Lucia and the importance of ensuring the President's oversight of the execution of the laws, the Department does not expect to defend the appointment of such officials by individuals other than the Department Head on the ground that they are mere employees. Accordingly, we recommend that agencies appoint such non-ALJ adjudicators as inferior officers in the same manner as ALJs, consistent with the advice in this memorandum, or contact us with further questions, as appropriate. ...

The Constitution not only specifies the manner in which officers of the United States must be appointed, but also limits the extent to which officers may permissibly be shielded from removal by the Department Head. ... Many litigants have already argued that ALJs are impermissibly shielded from removal because, by statute, ALJs can only be removed "for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before
the Board." 5 U.S.C. § 7521(a). ...

The Department of Justice is prepared to defend the constitutionality of Section 7521, as properly construed. As the government argued in the Supreme Court in Lucia, Section 7521's "good cause" standard for removal is properly read to allow for removal of an ALJ who fails to perform adequately or to follow agency policies, procedures, or instructions.

      The key points here as I see them:

• The federal government isn't going to defend the constitutionality of Social Security ALJ decisions issued prior to the date they were officially appointed by the Acting Commissioner.
• The federal government will try to defend these cases only on the grounds that the claimant did not raise the issue administratively (issue preclusion).
• It's not completely clear but it seems very likely that the federal government will not try to defend the constitutionality of the decisions of Social Security's Administrative Appeals Judges who make decisions at the Appeals Council prior to their appointment by the Acting Commissioner. (There has been no announcement that they have been so appointed but I imagine they have. I would appreciate information on this point.)
• The federal government will defend ALJs who are challenged on the grounds that they may only be removed by the Merit Systems Protection Board but only by saying that "as properly construed" that ALJs may be removed far more easily than has been the case in the past.

       The issue preclusion argument that Social Security will make isn't a strong one. There is a Supreme Court decision holding that issue preclusion doesn't apply to Social Security cases generally. Social Security will have an especially hard time getting the courts to accept issue preclusion in these cases since the agency announced earlier in the year that neither ALJs nor the Appeals Council could consider arguments concerning the constitutionality of ALJ appointments. How can you demand that an argument have been raised when you're announced to the world that you wouldn't consider the argument even if it was raised? Even if the agency could somehow get around that, there is the question of when the issue must be raised. Is it enough to raise the issue before the Appeals Council?

     Social Security won't follow my advice but I'll give it anyway. The Solicitor General just took away your strongest argument -- that Social Security ALJs could be distinguished from SEC ALJs. The agency may as well hold up its hands and surrender. Remand all the cases pending at the Appeals Council. Accept voluntary remands in all cases pending in federal courts.  You'd clear out the Appeals Council backlog and you'd avoid an avalanche of federal court cases that you're going to lose.

     The extent to which Appeals Council decisions will be affected is unclear. Is a denial of review enough to be a problem for Social Security? What about a remand order? It's not a final decision. Does it even matter considering that the ALJs were unconstitutional?

     Can Social Security and other agencies defend the constitutionality of the ALJ removal procedures? How hard will the federal government even try to defend on this point? Their logic sounds strained to me. I doubt that their hearts are in it. I'm pretty sure that the Federalist Society thinks that the removal procedures are unconstitutional. The Trump Administration has nearly subcontracted its legal policy decisions to the Federalist Society.

     Will Social Security try to remove more ALJs than they have in the past on the grounds that it should be far easier to remove ALJs than it has been in the past?

Onlike AC Appeals

     An announcement from the Social Security Administration:

We are pleased to announce a new online process for filing a Request for Review of an Administrative Law Judge (ALJ) hearing decision or dismissal (i520). 

The new online i520 process accepts both medical (disability) and non-medical (non-disability) appeals of an ALJ hearing decision or dismissal. 

There are many benefits to using the new i520. 

• Requests for review at the Appeals Council can be filed online. 
• The online appeals application is simple, convenient, and secure; it guides claimants and their appointed representatives through every step of the process, including uploading any necessary documentation. 
•  The HA-520 and documents are automatically routed to the correct branch in the Office of Appellate Operations, which improves the appeals process. 

 While the preferred method for filing a Request for Review is the new online i520 process, we will continue to accept requests by mail or fax. Please be sure not to submit multiple review requests by filing online and also by mail or fax, as it could delay processing. Additionally, please note that this new online process cannot be used to request an extension of time to file a civil action, Federal court review, or an ALJ decision in a case remanded by a Federal court. 

We encourage you to share this information with your colleagues.

Emergency Message On Casey v. Berryhill

     The Social Security Administration has issued Emergency Message EM-18004 on the implementation of the 7th Circuit Court of Appeals decision in Casey v. Berryhill which provides that a claimant may obtain judicial review of an Appeals Council order dismissing a request for review as untimely on the grounds that there was not good cause for a late request for review. However, at the moment they're only wanting to identify cases potentially affected rather than actually acting upon them.