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Post by redsox1 on Mar 6, 2021 7:14:05 GMT -5
Disagree. My understanding is the statute gives the sole authority for hearings to COSS. By regulation, he has ceded some of that authority to ALJ’s appointed under the APA using the process in the statute. I do not believe that COSS is statutorily bound to use ALJ/APA. APJ’s, from what I understood from the argument, have a separate statute that allows appointment by the Secretary but denies him/her the ability to overturn the decision. That is not the case with SSA ALJ’s. My understanding is that the COSS could revoke the regulation delegating ALJ’s authority.
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Post by Ace Midnight on Mar 6, 2021 22:40:53 GMT -5
My experience several years back was SSA overruled my findings as ALJ when I denied a claim, but never when I upheld a claim. So my supposition is that SSA looked at overrulings or remands as giving claimants another bite of the apple. This isn't 100% the case. As a writer, I wrote a decision (it was not the most well-written/reasoned set of instructions by the ALJ - we'll just leave it at that and not speak ill of the departed) in a child's case that was fully favorable and remanded by the AC. Now, admittedly as I wrote ~1250 decisions as a writer and have issued just under 2k decisions as an ALJ and I can only recall one, that appears to be quite rare. But not completely unheard of. Frankly, I expect to see more of those in the future as the AC likely didn't have time to waste on fully favorable decisions as they are never appealed by the claimant/rep. |
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Post by SPN Lifer on Mar 6, 2021 23:20:29 GMT -5
APJ = Administrative Patent Judge
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Post by redsox1 on Mar 7, 2021 6:35:51 GMT -5
My experience several years back was SSA overruled my findings as ALJ when I denied a claim, but never when I upheld a claim. So my supposition is that SSA looked at overrulings or remands as giving claimants another bite of the apple. This isn't 100% the case. As a writer, I wrote a decision (it was not the most well-written/reasoned set of instructions by the ALJ - we'll just leave it at that and not speak ill of the departed) in a child's case that was fully favorable and remanded by the AC. Now, admittedly as I wrote ~1250 decisions as a writer and have issued just under 2k decisions as an ALJ and I can only recall one, that appears to be quite rare. But not completely unheard of. Frankly, I expect to see more of those in the future as the AC likely didn't have time to waste on fully favorable decisions as they are never appealed by the claimant/rep. I have seen more than one. Rare, I agree, not unheard of. It seemed to me that the FF remands I have seen are usually when an ALJ uses “off task”. |
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Post by hopefalj on Mar 7, 2021 11:45:07 GMT -5
This isn't 100% the case. As a writer, I wrote a decision (it was not the most well-written/reasoned set of instructions by the ALJ - we'll just leave it at that and not speak ill of the departed) in a child's case that was fully favorable and remanded by the AC. Now, admittedly as I wrote ~1250 decisions as a writer and have issued just under 2k decisions as an ALJ and I can only recall one, that appears to be quite rare. But not completely unheard of. Frankly, I expect to see more of those in the future as the AC likely didn't have time to waste on fully favorable decisions as they are never appealed by the claimant/rep. I have seen more than one. Rare, I agree, not unheard of. It seemed to me that the FF remands I have seen are usually when an ALJ uses “off task”. I’ve typically found it happens when one of their three functioning neurons stops firing. Fortunately they won’t get that joke because it involves the use of a common medical term. |
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Post by mercury on Mar 7, 2021 12:38:33 GMT -5
This isn't 100% the case. As a writer, I wrote a decision (it was not the most well-written/reasoned set of instructions by the ALJ - we'll just leave it at that and not speak ill of the departed) in a child's case that was fully favorable and remanded by the AC. Now, admittedly as I wrote ~1250 decisions as a writer and have issued just under 2k decisions as an ALJ and I can only recall one, that appears to be quite rare. But not completely unheard of. Frankly, I expect to see more of those in the future as the AC likely didn't have time to waste on fully favorable decisions as they are never appealed by the claimant/rep. I have seen more than one. Rare, I agree, not unheard of. It seemed to me that the FF remands I have seen are usually when an ALJ uses “off task”. Two years ago the AC reassigned a number of disability review branches (unfavorables and PFs) to quality review (reviewing FFs), apparently at the direction of the White House. It didn’t last long. |
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Post by redsox1 on Mar 7, 2021 15:08:59 GMT -5
Disagree. My understanding is the statute gives the sole authority for hearings to COSS. By regulation, he has ceded some of that authority to ALJ’s appointed under the APA using the process in the statute. I do not believe that COSS is statutorily bound to use ALJ/APA. APJ’s, from what I understood from the argument, have a separate statute that allows appointment by the Secretary but denies him/her the ability to overturn the decision. That is not the case with SSA ALJ’s. My understanding is that the COSS could revoke the regulation delegating ALJ’s authority. My understanding is that the COSS is statutorily bound by the APA to use ALJs for formal hearings required to be held on the record, such as SSA disability hearings. That's one of the reasons why it is so controversial for AAJs at the Appeal Council (who are not ALJs) to be holding hearings at the AC level. My bad. It is not as clear as I made it out to be. However, the current COSS takes the position that he does not have to use APA appointed ALJ’’s under the statute. |
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Post by Legal Beagle on Mar 7, 2021 19:28:43 GMT -5
I understand that if the Payment Center does not like a decision - too hard for them to understand - they are alerting the AC I had one of those fully favorable ones come back the other day. Insane.
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Post by ba on Mar 9, 2021 10:46:40 GMT -5
Disagree. My understanding is the statute gives the sole authority for hearings to COSS. By regulation, he has ceded some of that authority to ALJ’s appointed under the APA using the process in the statute. I do not believe that COSS is statutorily bound to use ALJ/APA. APJ’s, from what I understood from the argument, have a separate statute that allows appointment by the Secretary but denies him/her the ability to overturn the decision. That is not the case with SSA ALJ’s. My understanding is that the COSS could revoke the regulation delegating ALJ’s authority. As I said, that is the same structure as the APA. The agency head or a member of the agency heads (for multi-headed agencies) may engage in an adjudication or the agency can have an ALJ engage in the adjudication with the agency reviewing the ALJ’s determination. Just because the SSA predates the APA doesn’t mean the structure is different. |
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Post by caroline on Mar 10, 2021 11:06:19 GMT -5
It is the same structure as the APA because it is bound by the APA. the APA applies when the organic statute (in this case the soc sec act) grants an opportunity for a hearing ‘on the record. There is no dispute that the language of the act satisfies that test. The fact that the act existed prior to APA is of no consequence. The APA applies to all agency hearings that provide for an opportunity for a hearing on the record. It’s statutory. While SSA recently amended regs to include AAJs it knows that if it implemented this there would be an immediate lawsuit as that is a statutory violation.
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cle
New Member
Posts: 13
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Post by cle on Apr 22, 2021 9:54:11 GMT -5
The point is that the Commissioner has full control, including firing for any reason, over the AAJs (lawyers) that he has designated to review ALJ decisions. That is the APA model and why APJs are in trouble (and going to be principal officers). And I’m not sure about Carr and Baker. The issue is administrative exhaustion and the AC is remanding plenty of Lucia cases. I’m hard pressed to understand why raising the issue before the agency is futile when the agency continued to provide relief to those that do. On my second point, considering the government didn’t actually bother to argue that the raising of Lucia before the AC shows that raising it to the agency isn’t futile, that changes my opinion. SSA will lose this case 7-2 or worse. You were right, it was worse. Supreme Court held 9-0 this morning that claimants didn't need to raise Lucia arguments in administrative proceedings. www.scotusblog.com/case-files/cases/carr-v-saul/ |
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Post by nylawyer on Apr 22, 2021 12:19:03 GMT -5
Always nice to see a 9-0 opinion.
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Post by lurkerbelow on Apr 22, 2021 18:02:42 GMT -5
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Post by generalsherman on Apr 23, 2021 16:25:53 GMT -5
This should help keep OHO busy for awhile, I suppose.
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Post by nylawyer on Apr 23, 2021 22:15:42 GMT -5
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Post by lurkerbelow on Apr 24, 2021 10:17:43 GMT -5
This'll be interesting when pretty much every represented case is challenged for a Lucia issue in district court. |
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Post by Legal Beagle on Apr 24, 2021 10:50:09 GMT -5
And I’m not sure about Carr and Baker. The issue is administrative exhaustion and the AC is remanding plenty of Lucia cases. I’m hard pressed to understand why raising the issue before the agency is futile when the agency continued to provide relief to those that do. My big problem with the Lucia remands (and now the new ones since the objection now does not need to be raised administratively) is that the AC and District Court make no effort to find out whether the ALJ was properly appointed in the first place (i.e. pre Colvin), and when you ask the rep at the remanded hearing what evidence do they have that the prior ALJ was not properly appointed or even if improperly appointed, how did that effect the outcome of the case, they have this deer in the headlights look and cannot answer the question. Talk about a waste of government resources and giving claimants false hope! |
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Post by ssaogc on Apr 24, 2021 18:33:24 GMT -5
This'll be interesting when pretty much every represented case is challenged for a Lucia issue in district court. AC and OGC should be able to deny with our ratification or pre Colvin appointment documents |
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Post by ba on Apr 25, 2021 20:12:11 GMT -5
And I’m not sure about Carr and Baker. The issue is administrative exhaustion and the AC is remanding plenty of Lucia cases. I’m hard pressed to understand why raising the issue before the agency is futile when the agency continued to provide relief to those that do. My big problem with the Lucia remands (and now the new ones since the objection now does not need to be raised administratively) is that the AC and District Court make no effort to find out whether the ALJ was properly appointed in the first place (i.e. pre Colvin), and when you ask the rep at the remanded hearing what evidence do they have that the prior ALJ was not properly appointed or even if improperly appointed, how did that effect the outcome of the case, they have this deer in the headlights look and cannot answer the question. Talk about a waste of government resources and giving claimants false hope! Sadly, Lucia itself pretty much established that parties should be incentivized to raise Appointment Clause issues, irrespective of proven prejudice. So, go figure. |
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