The Social Security Administration (SSA) has issued Social Security Ruling (SSR) 19-1p addressing Lucia issues in cases pending at the Appeals Council. Advocates will recall that last year, the Supreme Court found the appointment of SEC Administrative Law Judges (ALJs) was unconstitutional under the Appointments Clause of the U.S. Constitution. Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018). For more on the implications of the decision on the constitutionality of SSA ALJ appointments, and the aftermath of Lucia, see the July 2018 edition of this newsletter.
In SSR 19-2p, SSA explains how the Appeals Council will adjudicate pending cases in which timely challenges to the validity of the ALJ’s appointment have been raised. According to the SSR, when the Appeals Council grants review on a Lucia challenge, it will conduct a new and independent review of the claims file and either (1) remand the case to a different ALJ (other than the ALJ who issued the decision under review), or (2) issue a new decision about the claim covering the period before the date of the ALJ’s decision.
Does this mean some claimants will get a second bite at the apple, so to speak? Perhaps, but with several caveats. First, Lucia challenges only apply to decisions issued prior to the date all SSA were reappointed on July 16, 2018. Query whether the SSR should also apply to cases in which the hearings were held prior to the date, even if the decision was issued after? This may be an issue that will need to be resolved in litigation.
Second, according to SSA, the SSR only applies to timely Appointments Clause challenges. Does that preclude cases in which a timely initial request for review was filed, but the Lucia claim was raised later or is just raised now? Again, this issue may need to be resolved with litigation.
Should advocates now raise Lucia claims in any pending cases in which the hearings were held prior to July 16, 2018? As always, any decision should be made in light of the merits of the individual claim and based on the wishes of the claimant. It is unclear if the Appeals Council has begun remanding claims under the SSR.
What about cases in which Lucia challenges were either not raised or addressed at the Appeals Council and are now in U.S. District Court? A number of decisions have been issued in which the courts have dismissed the claims as not timely raised. In other words, the plaintiff’s claim was forfeited for failure to exhaust administrative remedies. But at least few recent cases have recognized the futility of raising the issue before the agency. The courts have remanded the claims to SSA with instructions for new hearings before properly appointed ALJs. See, e.g., Bizarre v. Berryhill, — F.Supp.3d —-, 2019 WL 1014194 (M.D. Pa. March 4, 2019).
Please keep us informed on any Lucia decisions from the Appeals Council or U.S. District Court. And thanks to NOSSCR for its helpful review of the SSR.