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.

Saul Nomination To Get Vote Today

     There was a unanimous consent agreement in the Senate yesterday that the debate and vote on the nomination of Andrew Saul to become Commissioner of Social Security will occur today.

Senate Vote On Saul Nomination May Come Today

     The Senate is tentatively set to vote today on invoking cloture on the nomination of Andrew Saul to become Commissioner of Social Security.

Still True

OIG Report

     Social Security's Office of Inspector General (OIG) has filed its Semiannual Report to Congress. Here's a map from the report showing all of the OIG Cooperative Disability Investigation offices:

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     OIG obtained 372 criminal convictions or civil actions in the first half of the fiscal year and many of those did not concern disability benefits.

     By the way, why is it that these are disability investigation offices? Why don't they do investigations of other types of Social Security wrongdoing?

Finding Humor In The Death Master File

     Former Social Security Commissioner Michael Astrue gave an interview to This American Life on, of all things, Social Security's Death Master File. The interviewer found the concept of a Death Master File droll.

Forum On Social Security Disability

     The Committee for a Responsible Federal Budget has scheduled what they call "a conversation with some of the nation’s top disability experts and policymakers" for June 6 in Washington. Two of the speakers have focused their attention on ways to encourage disabled people to return to work. One speaker is a Democratic staffer for the House Ways and Means Committee and another is a career staffer at the Office of Management and Budget (OMB). Two Senators may speak.

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.