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Post by unlisted on Jun 5, 2019 5:17:00 GMT -5
Just curious, has anyone seen a Lucia challenge to an SSA ALJ yet, e.g. in a remand or District Court appeal? I know it's percolating through other agencies - there's at least one reported case with a Federal Mine Safety And Health Commission ALJ whose appointment was held invalid. Does SSA have a plan for this?
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Post by hopefalj on Jun 5, 2019 10:21:57 GMT -5
I've inherited three remands on the partial basis of Lucia. I saw I had a remand that will be reassigned to another judge on the basis of Lucia as well.
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Post by superalj on Jun 5, 2019 10:58:34 GMT -5
I saw the blog post too. It seems like the AC really wants to get into the business of adjudicating cases not that they don't already adjudicate when they should be reviewing. lol
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Post by unlisted on Jun 5, 2019 11:08:29 GMT -5
Egad! Here's what the letter in the link says (for those of you squinting at your phones): What We Considered
We considered your undated argument that the ALJ who issued the above-referenced decision in your case was not properly appointed under the Appointments Clause of the Constitution.
What We Plan To Do
• Two Administrative Appeals Judges (AAJs) whose Appointments the Acting Commissioner of Social Security ratified and adopted as her own on July 16. 2018, plan to vacate the ALJ's decision. They will conduct a completely new review of your file. For each claim for benefits that is the subject to this review, the AAJs will either: (1) issue their own new, independent decision; (2) remand your case to an ALJ who did not issue the previous decision or dismissal: or (3) dismiss your request for hearing. In taking one of these three actions, the AAJs will not presume that the prior ALJ's decision was correct and will not give it any weight.
• When the AAJs review your file. they will consider the testimony at the hearing(s) and any letters, forms, or statements you or your representative submitted. They will also consider any arguments you or your representative made in writing or at the hearing(s) and consider any additional arguments you submit to the Appeals Council.
Why We Are Taking This Action
You submitted a timely challenge to the appointment of the ALJ who issued the above-referenced decision.
You May Send More lnformation
You may send us a statement about the facts and the law in your case or additional evidence within 30 days of the date of this letter. We will consider additional evidence if it meets the rules we applied above.
You May Ask For An Appearance
You may ask for an appearance before the Appeals Council to tell us about your case. You must tell us in writing within 30 days from the date of this letter why you want an appearance.
Under our rules, we will give you an appearance if:
• There is an important question of law or policy;
OR
• Oral argument would help us reach a proper decision.So they're doing this in one case, but not in hopefalj 's four cases? Don't they talk to each other? |
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Post by Prrple on Jun 6, 2019 8:14:34 GMT -5
Egad! Here's what the letter in the link says (for those of you squinting at your phones): What We Considered
We considered your undated argument that the ALJ who issued the above-referenced decision in your case was not properly appointed under the Appointments Clause of the Constitution.
What We Plan To Do
• Two Administrative Appeals Judges (AAJs) whose Appointments the Acting Commissioner of Social Security ratified and adopted as her own on July 16. 2018, plan to vacate the ALJ's decision. They will conduct a completely new review of your file. For each claim for benefits that is the subject to this review, the AAJs will either: (1) issue their own new, independent decision; (2) remand your case to an ALJ who did not issue the previous decision or dismissal: or (3) dismiss your request for hearing. In taking one of these three actions, the AAJs will not presume that the prior ALJ's decision was correct and will not give it any weight.
• When the AAJs review your file. they will consider the testimony at the hearing(s) and any letters, forms, or statements you or your representative submitted. They will also consider any arguments you or your representative made in writing or at the hearing(s) and consider any additional arguments you submit to the Appeals Council.
Why We Are Taking This Action
You submitted a timely challenge to the appointment of the ALJ who issued the above-referenced decision.
You May Send More lnformation
You may send us a statement about the facts and the law in your case or additional evidence within 30 days of the date of this letter. We will consider additional evidence if it meets the rules we applied above.
You May Ask For An Appearance
You may ask for an appearance before the Appeals Council to tell us about your case. You must tell us in writing within 30 days from the date of this letter why you want an appearance.
Under our rules, we will give you an appearance if:
• There is an important question of law or policy;
OR
• Oral argument would help us reach a proper decision.So they're doing this in one case, but not in hopefalj 's four cases? Don't they talk to each other? Thank you for posting the text of what's at the link - very helpful |
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Post by SPN Lifer on Oct 5, 2020 20:50:03 GMT -5
It looks like there will be many cases coming back to SSA. See, e.g., Cirko v. Comm'r of Soc. Sec., 948 F. 3d 148 (3rd Cir. 2020), available at scholar.google.com/scholar_case?case=2225859001088534263 ; Ramsey v. Comm'r of Soc. Sec., Nos. 19-1579, 19-1581, 19-1586, 19-1889, 19-1977 & 19-3886, ___ F.3d ___ (6th Cir. Sept. 1, 2020), available at scholar.google.com/scholar_case?case=1955481756608270081 . |
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Post by carrickfergus on Oct 6, 2020 13:03:33 GMT -5
Expect this to end up at the SCOTUS, since there is disagreement among the circuits. It will be interesting to see if the court issues a narrow ruling, or takes the chance to pull on the loose threads left by Lucia and Seila.
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Post by SPN Lifer on Oct 6, 2020 18:04:44 GMT -5
As set forth above, both the Third and Sixth Circuits have required SSA to provide new hearings before constitutionally appointed ALJs other than the ALJs who presided over claimants' first hearings.
Have any circuits held otherwise with respect to SSA?
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Post by jimmyjiggles on Oct 7, 2020 14:18:07 GMT -5
The 10th has ruled the other way. I think the 8th did as well. Even if it went up, the issue could theoretically be narrowly confined to the preservation of appeal issue (which would sort of be a big deal in and of itself for ssa) and kick the can on the bigger issues.
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Post by superalj on Oct 8, 2020 6:42:58 GMT -5
I’m not so sure about SCOTUS. With the new addition, they might blow us out of the water by invalidating the APA. Additionally, did I read that AC remand correctly that 2 AAJs may issue a new decision? So we are doing panels now for disability hearings?
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Deleted
Deleted Member
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Post by Deleted on Oct 8, 2020 15:36:41 GMT -5
I’m not so sure about SCOTUS. With the new addition, they might blow us out of the water by invalidating the APA. Additionally, did I read that AC remand correctly that 2 AAJs may issue a new decision? So we are doing panels now for disability hearings? The AC has long had the power under the regulations to issue a decision on a case appealed to them. See 20 C.F.R. 404.967 ("The Appeals Council may deny or dismiss the request for review, or it may grant the request and either issue the decision or remand the case to an [ALJ]."), and 20 C.F.R. 404.979 ("After it has reviewed all the evidence in the [ALJ] hearing record and any additional evidence received . . . the Appeals Council will make a decision or remand the case to an [ALJ].") |
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Post by mercury on Oct 8, 2020 16:33:22 GMT -5
I am sure the claimants will enjoy the clipped, short AC decisions that have little beyond the findings. They are certainly easier to write.
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Post by hopefalj on Oct 8, 2020 16:44:09 GMT -5
I’m not so sure about SCOTUS. With the new addition, they might blow us out of the water by invalidating the APA. Additionally, did I read that AC remand correctly that 2 AAJs may issue a new decision? So we are doing panels now for disability hearings? AAJs aren't doing panel hearings. They're not doing hearings at all. They're just sending evidence to some 90yo ME, accepting whatever he/she says, and reversing on the record. Or even better, just substituting their judgment for yours without a hearing and without explanation beyond "just because." AAJ reversals are the best. Always well-reasoned, well-supported, and coherent. |
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Post by nylawyer on Oct 8, 2020 17:16:46 GMT -5
I’m not so sure about SCOTUS. With the new addition, they might blow us out of the water by invalidating the APA. Additionally, did I read that AC remand correctly that 2 AAJs may issue a new decision? So we are doing panels now for disability hearings? AAJs aren't doing panel hearings. They're not doing hearings at all. They're just sending evidence to some 90yo ME, accepting whatever he/she says, and reversing on the record. Or even better, just substituting their judgment for yours without a hearing and without explanation beyond "just because." AAJ reversals are the best. Always well-reasoned, well-supported, and coherent. Actually, if they want to substitute their judgment for mine, that doesn't bother me at all. Issue it as a favorable decision, I'll probably never know. Just don't send it back to me to get me to agree with you. |
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Post by hopefalj on Oct 9, 2020 12:08:23 GMT -5
AAJs aren't doing panel hearings. They're not doing hearings at all. They're just sending evidence to some 90yo ME, accepting whatever he/she says, and reversing on the record. Or even better, just substituting their judgment for yours without a hearing and without explanation beyond "just because." AAJ reversals are the best. Always well-reasoned, well-supported, and coherent. Actually, if they want to substitute their judgment for mine, that doesn't bother me at all. Issue it as a favorable decision, I'll probably never know. Just don't send it back to me to get me to agree with you. Well, since I'm taking the time to review the evidence, take testimony regarding the record, make a decision (which I like to think I'm taking seriously), draft instructions for someone to write and support my decision, and then go through the decision before signing my name to it, you'll have to forgive me for being annoyed when a couple of AAJs ship the record off to some doctor that was training residents at Parkland when Kennedy was brought in, get an incoherent report from said doctor, and then use that garbage to say my decision isn't supported by substantial evidence without even bothering to review the decision. I've seen them effectively make up evidence to support an ME's opinion ("Well, we know the listing requires these findings and the record doesn't have the specific findings required by the listing, but the doctor said the condition is pretty bad, so we find that's basically the same thing as having the required findings to meet the listing"). They've completely butchered the refs and misapplied them, and they get to do this without any review or accountability whatsoever. It's seems a little odd to me that you'd be more bothered if they sent a decision back to you that tried to get you to agree versus just disagreeing with you. At least with the former you have the decisional independence to disagree with them and actually make a decision. Perhaps it would be less bothersome to me if they showed even basic competence in doing it, but HALLEX and the Regs apparently don't require that. In my experience so far, they've certainly not voluntarily shown any. |
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Post by carrickfergus on Oct 9, 2020 15:25:54 GMT -5
I follow appeals of my decisions, as well as own motion reviews, mostly now for amusement rather than enlightenment. Anyway, to hopefalj's point - I issued a denial, it was appealed, and the AC sent the file to an ME who opined clt equaled a 12.05 listing (which I thoroughly considered). AC didn't weigh the opinion against the rest of the evidence, they just reversed the decision. I was annoyed, yes, but still ok/fine/whatever, good for the claimant and rep. But then to top it off, it counted against my agree rate.
Thread creep warning!
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Post by bowser on Oct 9, 2020 15:49:45 GMT -5
Actually, if they want to substitute their judgment for mine, that doesn't bother me at all. Issue it as a favorable decision, I'll probably never know. Just don't send it back to me to get me to agree with you. Same goes for the district courts. Just admit you are reweighing the evidence and substituting your own judgement. But don't pretend I did not consider the important evidence and express clear reasons for my decision. |
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Post by lurkerbelow on Oct 9, 2020 17:11:29 GMT -5
Unfortunately these types of decisions get made above our collective heads. Probably for the best most of the time.
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Post by shoocat on Oct 10, 2020 13:52:13 GMT -5
Actually, if they want to substitute their judgment for mine, that doesn't bother me at all. Issue it as a favorable decision, I'll probably never know. Just don't send it back to me to get me to agree with you. Well, since I'm taking the time to review the evidence, take testimony regarding the record, make a decision (which I like to think I'm taking seriously), draft instructions for someone to write and support my decision, and then go through the decision before signing my name to it, you'll have to forgive me for being annoyed when a couple of AAJs ship the record off to some doctor that was training residents at Parkland when Kennedy was brought in, get an incoherent report from said doctor, and then use that garbage to say my decision isn't supported by substantial evidence without even bothering to review the decision. I've seen them effectively make up evidence to support an ME's opinion ("Well, we know the listing requires these findings and the record doesn't have the specific findings required by the listing, but the doctor said the condition is pretty bad, so we find that's basically the same thing as having the required findings to meet the listing"). They've completely butchered the refs and misapplied them, and they get to do this without any review or accountability whatsoever. It's seems a little odd to me that you'd be more bothered if they sent a decision back to you that tried to get you to agree versus just disagreeing with you. At least with the former you have the decisional independence to disagree with them and actually make a decision. Perhaps it would be less bothersome to me if they showed even basic competence in doing it, but HALLEX and the Regs apparently don't require that. In my experience so far, they've certainly not voluntarily shown any. I have had cases sent back to me for not addressing an opinion (actually not an opinion as we define them) when an analysis of it was included in the decision. |
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Post by hopefalj on Oct 10, 2020 15:36:53 GMT -5
Well, since I'm taking the time to review the evidence, take testimony regarding the record, make a decision (which I like to think I'm taking seriously), draft instructions for someone to write and support my decision, and then go through the decision before signing my name to it, you'll have to forgive me for being annoyed when a couple of AAJs ship the record off to some doctor that was training residents at Parkland when Kennedy was brought in, get an incoherent report from said doctor, and then use that garbage to say my decision isn't supported by substantial evidence without even bothering to review the decision. I've seen them effectively make up evidence to support an ME's opinion ("Well, we know the listing requires these findings and the record doesn't have the specific findings required by the listing, but the doctor said the condition is pretty bad, so we find that's basically the same thing as having the required findings to meet the listing"). They've completely butchered the refs and misapplied them, and they get to do this without any review or accountability whatsoever. It's seems a little odd to me that you'd be more bothered if they sent a decision back to you that tried to get you to agree versus just disagreeing with you. At least with the former you have the decisional independence to disagree with them and actually make a decision. Perhaps it would be less bothersome to me if they showed even basic competence in doing it, but HALLEX and the Regs apparently don't require that. In my experience so far, they've certainly not voluntarily shown any. I have had cases sent back to me for not addressing an opinion (actually not an opinion as we define them) when an analysis of it was included in the decision. I have, too. Twice. And both times it's been duplicative of an earlier CE opinion contained in later treating sources opinions. |
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