Effect of Lucia v. SEC on cases pending at Social Security Appeals Council

The Social Security Administration (SSA) has issued a ruling explaining how cases pending at the Appeals Council will be adjudicated when the claimant has raised a timely challenge to the appointment of an administrative law judge under the Appointments Clause of the United States Constitution.

In Lucia v. Securities and Exchange Commission, 138 S.Ct. 2044 (2018), the United States Supreme Court held that the Appointments Clause of the United States Constitution requires that administrative law judges be appointed to their positions by either the President, a court of law of the department head.  On July 16, 2018, the Acting Commissioner of Social Security ratified the appointment of Social Security administrative law judges and administrative appeal judges and approved those appointments on her own.

The Appeals Council will grant a claimant’s request for review in cases where the claimant timely requests Appeals Council review of an administrative law judge decision or dismissal issued before July 16, 2018 and raises, either at the Appeals Counsel level or previously at the administrative law judge level, a challenge under the Appointments Clause to the authority of the Administrative Law Judge who issued the decision or dismissal in the case.

When the Appeals Counsel grants review in this situation, the Appeals Council will conduct a new and independent review of the claims file and either remand the case to an administrative law judge other than the judge who issued the decision under review, or issue its own new decision about the claim covering the period before the date of the administrative law judge’s decision.  In its review, the Appeals Counsel will not presume that the prior decision was correct.

In cases where the administrative law judge dismissed a request for hearing, the Appeals Council will vacate the dismissal order.  It will then either decide whether the hearing request should be dismissed or remand the case to another administrative law judge to determine that issue.

In these cases, the claimant may ask to file briefs with the Appeals Council.

When the Appeals Council grants review, it will mail a notice to all parties stating the reasons for the review and the issues to be addressed.  The Appeals Council will either remand the case to a different administrative law judge, issue a new, independent decision, or issue an order dismissing the hearing request.  (SSR 19-01p, March 15, 2019.)

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