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Appeals Council Remands – Again!

Empire Justice Center July 31, 2019

Attorney Mike Telfer of the Legal Aid Society of Northeastern New York in Albany has proven once again that persistence pays off. Following a remand from the U.S. District Court in the Northern District of New York, the same Administrative Law Judge (ALJ) again denied the claim. Mike returned to the Appeals Council, which agreed with Mike’s arguments and remanded the claim to a new ALJ.

 

The Appeals Council found that the hearing records from previous claims were not consolidated, despite its 2017 Order. It also determined the ALJ had not adequately considered the opinion evidence of two treating therapists. The ALJ only acknowledged one joint opinion, but the record contained several others that described significant limitations. Further, the ALJ misapprehended the report he did consider, erroneously concluding the therapists had identified moderate limitations, when in fact they had indicated marked limitations.

 

Mike also raised an Appointments Clause argument, claiming the ALJ was not properly appointed under the U.S. Constitution, citing Social Security Ruling (SSR) 19-1p. See the April 2019 edition of this newsletter for a discussion of SSR 19-1p and the Appointments Clause post the U.S. Supreme Court decision in Lucia v. SEC, 138 S.Ct. 2044 (2018). The Appeals Council determined that any Appointments Clause defect was cured by its remand to a different ALJ.

 

Kudos to Mike for his persistence.