Amicus Curiae Brief — Willie Earl Carr, et al., Petitioners v. Andrew M. Saul, Commissioner of Social Security
Supreme Court briefDec 31, 2020
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Nos. 19-1442, 20-105
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In The
Supreme Court of the United States
---------------------------------♦--------------------------------WILLIE EARL CARR and KIM L. MINOR,
Petitioners,
v.
ANDREW M. SAUL,
Commissioner of Social Security Administration,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The United States
Court Of Appeals For The Tenth Circuit
---------------------------------♦--------------------------------JOHN J. DAVIS, et al.,
Petitioners,
v.
ANDREW M. SAUL,
Commissioner of Social Security Administration,
Respondent.
---------------------------------♦--------------------------------On Writ Of Certiorari To The United States
Court Of Appeals For The Eighth Circuit
---------------------------------♦--------------------------------BRIEF FOR AMICI CURIAE NATIONAL
ORGANIZATION OF SOCIAL SECURITY
CLAIMANTS REPRESENTATIVES, AARP,
AND AARP FOUNDATION
IN SUPPORT OF PETITIONERS
---------------------------------♦--------------------------------CAROLYN A. KUBITSCHEK
LANSNER & KUBITSCHEK
Counsel of Record
325 Broadway, Suite 203
New York, NY 10007
(212) 349-0900
ckubitschek@lanskub.com
THOMAS D. SUTTON
LEVENTHAL SUTTON
& GORNSTEIN
3800 Horizon Blvd., Suite 101
Trevose, PA 19053
(215) 357-3300
tsutton@lsglawoffice.com
================================================================================================================
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
BARBARA R. SILVERSTONE
NATIONAL ORGANIZATION OF SOCIAL
SECURITY CLAIMANTS’ REPRESENTATIVES
161 Airport Executive Park
Nanuet, NY 10954
(845) 682-1880
barbara.silverstone@nosscr.org
ROBERT E. RAINS
Professor Emeritus
THE PENNSYLVANIA STATE UNIVERSITY
DICKINSON SCHOOL OF LAW
150 S. College Street
Carlisle, PA 17013
(717) 240-5241
rer10@psu.edu
BARBARA JONES
AARP FOUNDATION
601 E Street, NW
Washington, DC 20049-0001
(202) 434-6091
bjones@aarp.org
i
TABLE OF CONTENTS
Page
INTEREST OF AMICI CURIAE............................
1
SUMMARY OF ARGUMENT ................................
2
ARGUMENT ...........................................................
4
I. The Social Security claims and appeals process is unique. It is intended to be manageable by claimants, many of whom suffer
mental impairments, yet it is, at the same
time, both arduous and complex .................
4
A. Application stage ...................................
7
B. Reconsideration .....................................
10
C. ALJ Hearing ..........................................
12
D. Appeals Council .....................................
19
II.
An issue-exhaustion requirement would wreak
havoc upon the administrative hearing process ............................................................... 20
III.
The hearings conducted by Administrative
Law Judges are informal ............................. 22
IV. Many claimants appear at their ALJ hearings unrepresented by counsel, leaving them
particularly ill-equipped to raise issues such
as the constitutional status of the ALJs assigned to hear their claims .......................... 24
V.
Raising Appointments Clause objections to
ALJs at hearings would have been a futile
exercise for claimants .................................. 26
CONCLUSION .......................................................
29
ii
TABLE OF AUTHORITIES
Page
CASES
Alvarez v. Bowen, 704 F. Supp. 49 (S.D.N.Y. 1989) .........7
Battles v. Shalala, 36 F.3d 43 (8th Cir. 1994) ............14
Biestek v. Berryhill, 139 S. Ct. 1148 (2019) ................22
Blackman v. District of Columbia, 633 F.3d 1088
(D.C. Cir. 2011) ........................................................20
Califano v. Sanders, 430 U.S. 99 (1977) .....................28
Carr v. Comm’r of Soc. Sec., 961 F.3d 1267 (10th
Cir. 2020) .................................................................19
Carrier v. Sullivan, 944 F.2d 243 (5th Cir. 1991) .......21
Carter v. Chater, 73 F.3d 1019 (10th Cir. 1996)..... 14, 15
Channel v. Colvin, 756 F.3d 606 (8th Cir. 2014) ........18
Cirko o/b/o Cirko v. Comm’r of Soc. Sec., 948 F.3d
148 (3d Cir. 2020) .............................................. 19, 26
Clark v. Astrue, 602 F.3d 140 (2d Cir. 2010).................6
Coskery v. Berryhill, 892 F.3d 1 (1st Cir. 2018). ...........5
Cox v. Califano, 587 F.2d 988 (9th Cir. 1978) .............15
Cruz v. Apfel, 48 F. Supp. 2d 226 (E.D.N.Y. 1999) ........17
Cunningham v. Apfel, 222 F.3d 496 (8th Cir.
2000) ........................................................................16
Currier v. Secretary of Health, Ed. and Welfare,
612 F.2d 594 (1st Cir. 1980) ....................................15
Gordon v. Shalala, 55 F.3d 101 (2d Cir. 1995) .............6
iii
TABLE OF AUTHORITIES – Continued
Page
Haley v. Massanari, 258 F.3d 742 (8th Cir. 2001).........18
Harris v. Secretary of Dept. of Health and Human Services, 959 F.2d 723 (8th Cir. 1992) ............16
Hawkins v. Chater, 113 F.3d 1162 (10th Cir.
1997) ........................................................................18
Henry v. Commissioner of Social Security, 802
F.3d 1264 (11th Cir. 2015) .......................................15
Hormel v. Helvering, 312 U.S. 552 (1941) ..................29
James v. Bowen, 793 F.2d 702 (5th Cir. 1986) ............21
Kinzebach v. Barnhart, 408 F. Supp. 2d 773 (S.D.
Iowa 2006) ...............................................................17
Krishnan v. Barnhart, 328 F.3d 685 (D.C. Cir.
2003) ........................................................................15
Lopes v. Department of Social Services, 696 F.3d
180 (2d Cir. 2012) ......................................................6
Lopez v. Commissioner of Social Sec., 622 F. App’x
59 (2d Cir. 2015) ......................................................16
Lucia v. Securities and Exchange Commission,
138 S. Ct. 2044 (2018) ....................................... 26, 27
Maes v. Astrue, 522 F.3d 1093 (10th Cir. 2008) ..........15
Mathews v. Eldridge, 424 U.S. 319 (1976)..................28
McCarthy v. Madigan, 503 U.S. 140 (1992) ...............28
Miracle v. Barnhart, 187 F. App’x 870 (10th Cir.
2006) ........................................................................15
Moore v. Apfel, 216 F.3d 864 (9th Cir. 2000) ................6
iv
TABLE OF AUTHORITIES – Continued
Page
Moran v. Astrue, 569 F.3d 108 (2d Cir. 2009) .............15
Muhammad v. Berryhill, 381 F. Supp. 3d 462
(E.D. Pa. 2019) .........................................................26
Nelms v. Astrue, 553 F.3d 1093 (7th Cir. 2009) .... 15, 18
Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999) ...........17
Probst v. Berryhill, 377 F. Supp. 3d 578 (E.D.N.C.
2019), aff ’d sub nom., Probst v. Saul, 980 F.3d
1015 (4th Cir. 2020) ........................................... 23, 24
Ramsey v. Commissioner of Social Security, 973
F.3d 537 (6th Cir. 2020) ...........................................19
Randall v. Sullivan, 956 F.2d 105 (5th Cir. 1992) ........22
Reed v. Massanari, 270 F.3d 838 (9th Cir. 2001) .......18
Reeves v. Heckler, 734 F.2d 51 (11th Cir. 1984) ..........18
Richardson v. Perales, 402 U.S. 389 (1971) ..................5
Sims v. Apfel, 530 U.S. 103 (2000) ........................ 14, 20
Smith v. Berryhill, 139 S. Ct. 1765 (2019) ...................5
Smith v. Colvin, 625 F. App’x 896 (10th Cir. 2015) ........6
Snead v. Barnhart, 360 F.3d 834 (8th Cir. 2004) .......14
Stambaugh on Behalf of Stambaugh v. Sullivan,
929 F.2d 292 (7th Cir. 1991) ....................................16
Sullivan v. Zebley, 493 U.S. 521 (1990) ........................6
Thompson v. Sullivan, 933 F.2d 581 (7th Cir.
1991) .................................................................. 14, 16
Torres-Pagan v. Berryhill, 899 F.3d 54 (1st Cir.
2018) .................................................................. 15, 17
v
TABLE OF AUTHORITIES – Continued
Page
Walker v. Sec’y of Health & Human Servs., 943
F.2d 1257 (10th Cir. 1991) .........................................6
Wallschlaeger v. Schweiker, 705 F.2d 191 (7th
Cir. 1983) ...................................................................5
Warren v. Colvin, 565 F. App’x 540 (7th Cir.
2014) ........................................................................17
Washington v. Keffeler, 537 U.S. 371 (2003) .................6
Watson v. Shalala, 5 F.3d 1495 (5th Cir. 1993),
1993 WL 391418 ......................................................21
Weinberger v. Salfi, 422 U.S. 749 (1975) .....................29
Yenik v. Comm’r of Soc. Sec., 522 F. App’x 65 (2d
Cir. 2013) .................................................................21
CONSTITUTIONAL PROVISION
U.S. Const., Art. II, §2, cl. 2 ...........................................4
STATUTES
15 U.S.C. §78y(c)(1) .....................................................20
15 U.S.C. §80b-13(a)....................................................20
42 U.S.C. §§401-434 ......................................................5
42 U.S.C. §423(d)(5)(B) ...............................................16
42 U.S.C. §§1381-1384 ..................................................5
42 U.S.C. §1382c(a)(3)(G) ............................................16
vi
TABLE OF AUTHORITIES – Continued
Page
RULES AND REGULATIONS
20 C.F.R. §402.35 ..........................................................6
20 C.F.R. §§404.101-404.2127 ......................................5
20 C.F.R. §404.900(b) ..................................................18
20 C.F.R. §§404.938-404.939 ......................................19
20 C.F.R. §404.940 ......................................................13
20 C.F.R. §404.944 ......................................................12
20 C.F.R. §404.967 ......................................................19
20 C.F.R. §404.1512(a)(i) ..............................................9
20 C.F.R. §404.1512(b) ..................................................9
20 C.F.R. §404.1512(b)(ii) .............................................9
20 C.F.R. §404.1519a ....................................................9
20 C.F.R. §404.1519a(b) .......................................... 9, 10
20 C.F.R. §404.1519a(b)(2) ..........................................10
20 C.F.R. §404.1705 ................................................ 8, 24
20 C.F.R. §404.1717 ......................................................8
20 C.F.R. §§416.101-416.2227 ......................................5
20 C.F.R. §416.912(a)(1) ................................................9
20 C.F.R. §416.912(b) ....................................................9
20 C.F.R. §416.912(b)(ii) ...............................................9
20 C.F.R. §416.919a ......................................................9
20 C.F.R. §416.919a(b) ............................................ 9, 10
20 C.F.R. §416.919a(b)(2) ............................................10
vii
TABLE OF AUTHORITIES – Continued
Page
20 C.F.R. §416.1400(b) ................................................18
20 C.F.R. §416.1440 ....................................................13
20 C.F.R. §416.1444 ....................................................12
20 C.F.R. §416.1467 ....................................................19
20 C.F.R. §416.1505 ................................................ 8, 24
20 C.F.R. §416.1517 ......................................................8
79 Fed. Reg. 9663 (Feb. 20, 2014) ...............................14
84 Fed. Reg. 9582 (Mar. 15, 2019) ..............................27
85 Fed. Reg. 73138, 73140 (Nov. 13, 2020) .................23
Sup. Ct. R. 37.6 .............................................................1
OTHER AUTHORITIES
Fiscal Year 2019 Disability Decision data, p. 156,
https://www.ssa.gov/budget/FY21Files/2021L
AE.pdf ........................................................................4
HALLEX I-2-2-10, Notice of Issues, https://www.
ssa.gov/OP_Home/hallex/I-02/I-2-2-10.html ..........12
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0200203004 ...............................................................9
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0200203015 ...............................................................9
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0203101040 .............................................................10
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0422510016 .............................................................10
viii
TABLE OF AUTHORITIES – Continued
Page
https://secure.ssa.gov/apps10/poms.nsf/lnx/
0429501015 .............................................................17
https://secure.ssa.gov/poms.nsf/lnx/0422510016 .......10
https://www.ssa.gov/forms/ha-501.pdf .......................11
https://www.ssa.gov/forms/ha-520.pdf .......................19
https://www.ssa.gov/forms/ssa-561.pdf ......................10
https://www.ssa.gov/OP_Home/hallex/hallex.
html .........................................................................12
https://www.ssa.gov/policy/docs/statcomps/
nbs/index.html ..........................................................7
https://www.ssa.gov/policy/docs/statcomps/
nbs/2015/beneficiary-characteristics.pdf ..................7
Pichardo Suarez v. Saul, 20-1358 (2d Cir.)
(Brief of Appellant Andrew Saul, Doc. 36, p.
2, Aug. 16, 2020) .......................................................4
Pichardo Suarez v. Saul, 20-1358 (2d Cir.) (Reply Brief of Appellant Andrew Saul, Doc. 60, p.
8, Dec. 3, 2020) ..........................................................4
POMS DI 22510.016 (Dec. 6, 2019) ........................ 9, 10
POMS DI 29501.015 (April 10, 2017) ........................17
POMS GN 00203.004 (Oct. 4, 2019) .............................9
POMS GN 00203.015 (Aug. 11, 2011) ..........................9
POMS GN 03101.040 (June 17, 2011) .......................10
ix
TABLE OF AUTHORITIES – Continued
Page
Representative Rates by Adjudication Level,
https://www.ssa.gov/foia/resources/proactive
disclosure/2019/Representative%20Rates%20
by%20Adjudicative%20Level%20FY%202008
%20-%20FY%202018.pdf .............................. 8, 11, 25
SSA Program Operations Manual System DI
29501.010 (October 27, 2015), https://secure.
ssa.gov/apps10/poms.nsf/lnx/0429501010 ............18
1
INTEREST OF AMICI CURIAE1
The National Organization of Social Security Claimants’ Representatives (NOSSCR) is a national membership organization comprising approximately 2,900
individuals, mostly attorneys, who represent individuals applying for and appealing claims for Social Security and Supplemental Security Income (SSI) benefits.
NOSSCR members include employees of legal services
organizations, educational institutions, and other nonprofits; employees of for-profit law firms and other businesses; and individuals in private practice. NOSSCR
members represent Social Security and SSI claimants
before the Social Security Administration and in the
courts.
NOSSCR has a great interest in ensuring that its
members’ clients are awarded benefits when they satisfy the criteria under the Social Security Act and the
Commissioner’s regulations, and that their clients
have administrative hearings which satisfy due process, presided over and decided by constitutionallyappointed Administrative Law Judges.
AARP is the nation’s largest nonprofit, nonpartisan organization dedicated to empowering Americans
50 and older to choose how they live as they age. With
1
Under Supreme Court Rule 37.6, Amici state that no counsel for any party authored this brief in whole or in part; and that
no person or entity, other than Amici or their counsel, made a
monetary contribution intended to fund the preparation and submission of this brief. All Petitioners and the Respondent have consented to Amici filing an amicus brief.
2
nearly 38 million members and offices in every state,
the District of Columbia, Puerto Rico, and the U.S. Virgin Islands, AARP works to strengthen communities
and advocate for what matters most to families, with a
focus on health security, financial stability, and personal fulfillment. AARP’s charitable affiliate, AARP
Foundation, works to end senior poverty by helping
vulnerable older adults build economic opportunity
and social connectedness. AARP and AARP Foundation advocate to ensure access to disability benefits under the Social Security Disability Insurance (SSDI)
and Supplemental Security Income (SSI) programs
because older workers with disabilities rely heavily
on those benefits to stay out of poverty. Mikki Waid,
Social Security Disability Benefits: A Lifeline for Workers with Disabilities, AARP Pub. Policy Inst. (Apr.
2015). Assuring that Social Security benefits, including
disability benefits, are paid promptly is a top priority
for AARP.
---------------------------------♦---------------------------------
SUMMARY OF ARGUMENT
Congress has not enacted a statute mandating
issue-exhaustion in Social Security administrative
hearings. Nor has the Commissioner of Social Security
promulgated regulations requiring Social Security
claimants either to raise all issues at administrative
hearings or to forfeit issues which they did not raise.
3
The structure and procedures of the Social Security system, which is unusually protective of claimants,
militate against a judicially-created issue-exhaustion
requirement. The informality of Social Security administrative hearings likewise militates against a
judicially-created issue-exhaustion requirement. Requiring claimants to raise Appointments Clause issues
before Administrative Law Judges who are barred
from deciding those issues would be futile.
Requiring pro se claimants to raise Appointments
Clause issues at administrative hearings would cause
almost all of those claimants to inadvertently forfeit
their constitutional right to a hearing before a properlyappointed Administrative Law Judge. Requiring claimants who are represented by counsel to exhaust (or
forfeit) all issues before Administrative Law Judges
would overburden and cause havoc in the Social Security hearing process, which adjudicates half a million
claims each year.
---------------------------------♦---------------------------------
4
ARGUMENT
I.
The Social Security claims and appeals
process is unique. It is intended to be manageable by claimants, many of whom suffer
mental impairments, yet it is, at the same
time, both arduous and complex.
The Social Security system is enormous, handling
hundreds of thousands of claims for benefits each
year,2 with a corps of more than 1,400 Administrative
Law Judges.3 The instant case, however, concerns a
very small number of individuals, those who have challenged, in federal court, the authority of the Administrative Law Judges to hear their cases under the
Appointments Clause of the United States Constitution, Art. II, §2, cl. 2, and whose cases have not yet been
resolved. According to Respondent Andrew Saul, the
Commissioner of Social Security, “[m]ore than a thousand claimants who never raised an Appointments
Clause argument before SSA have argued for the first
time in federal court that they are entitled to new hearings under Lucia.”4 Only “[h]undreds of cases involving
unpreserved Lucia claims are still pending. . . .”5 Even
if all of those thousand or so cases are remanded for
new administrative hearings, that will amount to less
2
Fiscal Year 2019 Disability Decision data, p. 156, https://
www.ssa.gov/budget/FY21Files/2021LAE.pdf.
3
Id., p. 188.
4
Pichardo Suarez v. Saul, 20-1358 (2d Cir.) (Brief of Appellant Andrew Saul, Doc. 36, p. 2, Aug. 16, 2020).
5
Pichardo Suarez v. Saul, 20-1358 (2d Cir.) (Reply Brief of
Appellant Andrew Saul, Doc. 60, p. 8, Dec. 3, 2020).
5
than one additional hearing for each Administrative
Law Judge.
The Social Security system is one that is “unusually protective” of claimants. Smith v. Berryhill, 139
S. Ct. 1765, 1776 (2019). A half century ago, this Court
analyzed the Social Security statute and regulations
as follows:
There emerges an emphasis upon the informal rather than the formal. This, we think, is
as it should be, for this administrative procedure, and these hearings, should be understandable to the layman claimant, should not
necessarily be stiff and comfortable only for
the trained attorney, and should be liberal
and not strict in tone and operation. This is
the obvious intent of Congress so long as the
procedures are fundamentally fair.
Richardson v. Perales, 402 U.S. 389, 400-01 (1971).
The protectiveness of the Social Security system is
necessary for what has been described as a “byzantine
labyrinth” of rules and procedures. Wallschlaeger v.
Schweiker, 705 F.2d 191, 194 (7th Cir. 1983). The rules
include statutes enacted by Congress, 42 U.S.C. §§401434, 1381-1384; and regulations issued by the Commissioner of Social Security after notice and comment,
20 C.F.R. §§404.101-404.2127, 416.101-416.2227. The
rules also include Social Security Rulings, which are
opinions and statements of policy by the Social Security Administration. Coskery v. Berryhill, 892 F.3d 1, 4
(1st Cir. 2018). The Rulings “constitute Social Security
Administration interpretations of its own regulations
6
and the statute which it administers.” Smith v. Colvin,
625 F. App’x 896, 899 n. 1 (10th Cir. 2015), quoting
Walker v. Sec’y of Health & Human Servs., 943 F.2d
1257, 1259-60 (10th Cir. 1991). The Rulings are “binding on all components of the Social Security Administration.” 20 C.F.R. §402.35, Sullivan v. Zebley, 493
U.S. 521, 530 n. 9 (1990). They are also entitled to deference in the courts. Gordon v. Shalala, 55 F.3d 101,
105 (2d Cir. 1995).
Social Security rules also include the Hearings,
Appeals, and Litigation Manual (HALLEX), which conveys guiding principles, procedural guidance and information to the Social Security hearing staff. Moore v.
Apfel, 216 F.3d 864, 868 (9th Cir. 2000). And, finally,
the rules include the Program Operations Manual System (POMS), a multi-volume manual of “the publicly
available operating instructions for processing Social
Security claims.” Washington v. Keffeler, 537 U.S. 371,
385 (2003). The POMS are a set of guidelines through
which the Social Security Administration construes
the statutes governing its operations. Lopes v. Department of Social Services, 696 F.3d 180, 186 (2d Cir.
2012); Clark v. Astrue, 602 F.3d 140, 144 (2d Cir. 2010).
Social Security claimants (applicants and recipients) cannot be expected to master that enormous
quantity of rules. Large numbers of Social Security
claimants (approximately one-third) suffer from mental illness, which inhibits their ability to advocate for
themselves. Annual Statistical Report on the Social
7
Security Disability Insurance Program, 2019.6 Others
are hobbled by painful physical impairments and the
brain fog caused by the medications that they must
take to dull the pain.
Some claimants do not speak English. Others are
poorly educated and not well-versed in law or procedures.7 As one court noted, a claimant of borderline
intelligence, who has little education, and cannot
speak English, may have difficulty cross-examining
a vocational expert. Alvarez v. Bowen, 704 F. Supp. 49
(S.D.N.Y. 1989). And the procedures are complicated.
The application process itself entails four stages of administrative review. Without an unusually protective
system, many claimants would be unable to navigate
the process.
The Social Security system is protective at all four
stages of administrative review.
A. Application stage
The protectiveness of the Social Security system
begins at the application stage of the process. At that
6
https://www.ssa.gov/policy/docs/statcomps/nbs/index.html,
Table 6.
7
In 2015, almost 30% of all beneficiaries neither completed
high school nor received a GED. National Beneficiary Survey: Disability Statistics, https://www.ssa.gov/policy/docs/statcomps/nbs/index.
html; and see Table 1, https://www.ssa.gov/policy/docs/statcomps/
nbs/2015/beneficiary-characteristics.pdf.
8
stage, the overwhelming majority of claimants – 75% –
are pro se.8
Of the 25% of claimants who are represented at
the application stage, many claimants are represented
by non-attorneys, who are of either of two types. One
type is the trained non-attorney representative, who
must meet a number of criteria in order to be eligible
for direct payment of fees. 20 C.F.R. §§404.1717, 416.1517.
Such a representative must have a bachelor’s degree
or its equivalent and pass a written examination administered by the Social Security Administration. But
a claimant can also appoint the other type, just about
anyone else, to represent him or her under 20 C.F.R.
§§404.1705, 416.1505. Often claimants are represented
by family members or friends who have no knowledge
or expertise whatsoever in Social Security law, much
less in arcane issues of constitutional law.
Unlike proceedings before other administrative
agencies, where the individuals are expected to supply
all the evidence that supports their position, the Social
Security Administration recognizes the fact that many
applicants are unable to understand the requirements,
so Social Security applicants are not required to do
anything more than complete an application for benefits. If they are unable to do even that task, the Social
Security Administration claims representatives help
the claimant complete the application form, either in
8
Representative Rates by Adjudication Level, https://www.
ssa.gov/foia/resources/proactivedisclosure/2019/Representative%20
Rates%20by%20Adjudicative%20Level%20FY%202008%20-%20
FY%202018.pdf.
9
person, at the local Social Security office, POMS GN
00203.004 (Oct. 4, 2019),9 or by telephone, POMS GN
00203.015 (Aug. 11, 2011).10
The claimant is not expected to supply any medical information about her impairments. She must only
“inform” the agency about “all evidence known to” her
relating to her disability. 20 C.F.R. §§404.1512(a)(i),
416.912(a)(1). It is the duty of the Social Security Administration to obtain the claimant’s medical records,
including the claimant’s “complete medical history.” 20
C.F.R. §§404.1512(b)(ii), 416.912(b)(ii). That includes
obtaining all medical records for at least the 12 months
prior to the application date. 20 C.F.R. §§404.1512(b),
416.912(b).
If the Social Security Administration is unable
to obtain necessary medical information from the
claimant’s treating physicians, the agency will schedule and pay for a consulting physician to examine the
claimant and report to the agency. 20 C.F.R. §§404.1519a,
416.919a, POMS DI 22510.016 (Dec. 6, 2019).11 For example, the agency may purchase an examination from
a consulting physician when the information in the
claimant’s records is insufficient to make a determination regarding disability, 20 C.F.R. §§404.1519a(b),
416.919a(b). The agency may purchase an examination
from a consulting physician if the information in the
medical records is inconsistent, in order to resolve the
9
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200203004.
https://secure.ssa.gov/apps10/poms.nsf/lnx/0200203015.
11
https://secure.ssa.gov/apps10/poms.nsf/lnx/0422510016.
10
10
inconsistency. 20 C.F.R. §§404.1519a(b), 416.919a(b).
The agency may purchase an examination from a consulting physician if the treating physician fails to send
copies of his or her records to the Social Security Administration. 20 C.F.R. §§404.1519a(b)(2), 416.919a(b)(2).
The Social Security Administration will not only pay
for the services of the consulting physician but will also
pay the claimant’s travel expenses and provide an interpreter if necessary, POMS DI 22510.016 (Dec. 6,
2019).12
The application stage is a paper process only. The
claimant does not meet face-to-face with the individual
who decides the application. The initial determination
is made by an SSA employee, POMS GN 03101.040
(June 17, 2011).13 The claimant receives written notice
that his or her application has been approved or denied. A claimant whose application has been denied
has the right to request reconsideration. The Social Security Administration provides a brief form for the
claimant to complete, requesting reconsideration.14
B. Reconsideration
The second stage of the Social Security application/
appeals process is virtually identical to the first step.
The applicant completes a one-page request for reconsideration, and the Social Security Administration again
engages in the task of developing the administrative
12
https://secure.ssa.gov/poms.nsf/lnx/0422510016.
https://secure.ssa.gov/apps10/poms.nsf/lnx/0203101040.
14
https://www.ssa.gov/forms/ssa-561.pdf.
13
11
record. That includes requesting updated medical records, sending the claimant for a consultative medical
examination, and having Social Security’s own doctors
review the records. For each of the past ten years, approximately one-third of the claimants have been pro
se at the reconsideration stage.15
If the Social Security Administration denies reconsideration, the claimant’s final step in the reconsideration process is to file a request for a hearing before an
Administrative Law Judge (ALJ). The Social Security
Administration provides its own form for a claimant to
request a hearing, Form HA-501.16 The relevant box
on the hearing request form states, “I REQUEST A
HEARING BEFORE AN ADMINISTRATIVE LAW
JUDGE. I disagree with the determination because:
____________”.
Like the form used later to seek Appeals Council
review, the hearing request form allots less than an
inch of space for the claimant to write anything at all.
In amici’s experience, pro se claimants often go to their
District Offices after losing at reconsideration, seeking
assistance in completing the form. The Social Security
staff who assist them in completing Form HA-501 frequently instruct the claimants to write words to the effect of “I am disabled and cannot work” after the word
“because” on the form. The form does not advise the
15
Representative Rates by Adjudication Level, https://www.
ssa.gov/foia/resources/proactivedisclosure/2019/Representative%
20Rates%20by%20Adjudicative%20Level%20FY%202008%20-%
20FY%202018.pdf.
16
https://www.ssa.gov/forms/ha-501.pdf.
12
claimant that their failure to raise issues at that stage
acts as a waiver or forfeiture of those issues.
C. ALJ Hearing
Claimants who seek hearings before Administrative Law Judges have already undergone two administrative stages in which the Social Security
Administration did virtually all of the work for them.
They can reasonably expect that the hearing stage will
be similar in that regard, i.e., that they need only show
up at the hearing, explain their situation, and let the
Administrative Law Judge do the rest. This assumption is not wildly unrealistic. Social Security statutes,
rules, and procedures require that the Administrative
Law Judge assist the claimant, just as the agency staff
assisted the claimant at the previous two stages.
Hearing procedures are governed by the Social
Security Act, regulations and the Social Security Administration’s Hearings, Appeals, and Litigation Law
Manual (the HALLEX).17 The regulations provide that:
“At the hearing, the administrative law judge looks
fully into the issues. . . .” 20 C.F.R. §§404.944, 416.1444.
The ALJ must give notice of issues to the claimant.18
“When an ALJ has jurisdiction to do so, he or she may
agree to adjudicate a new issue(s) raised by a party to
17
https://www.ssa.gov/OP_Home/hallex/hallex.html.
HALLEX I-2-2-10, Notice of Issues, https://www.ssa.gov/
OP_Home/hallex/I-02/I-2-2-10.html.
18
13
a hearing, or may adjudicate a new issue(s) on his or
her own initiative.”19 (emphasis added).
Neither the statute nor the regulations nor the
HALLEX alert the claimant that failure to raise an issue at the administrative hearing forfeits further review of that issue. To the contrary, the rules make it
clear that an ALJ cannot adjudicate a claim over which
he or she lacks jurisdiction, which would certainly include the claim as to whether the ALJ was constitutionally appointed.
It is true that an ALJ may disqualify himself if he
is prejudiced or partial with respect to any party, or if
he has an interest in the matter pending for decision,
20 C.F.R. §§404.940, 416.1440, and that a claimant
may seek recusal on any of those bases. But the regulation does not authorize a request for disqualification
on the basis that the ALJ was not constitutionally
appointed. Nor would it make any sense for the regulations to do so. The ALJ corps has always been appointed in a uniform fashion. If one ALJ was not
constitutionally appointed, then all ALJs were not constitutionally appointed, and none of them could adjudicate any case. The individual ALJ would have no
jurisdiction to rule on the constitutionality of his or her
appointment, so raising the issue at this level would
clearly be futile. Moreover, the claimant would be making an argument which would preclude any ALJ from
rendering a favorable decision in his or her case
19
Id.
14
seeking benefits on which to live. Surely the law cannot
command such an absurd result.
The hearing procedure continues to be unusually
protective of claimants. As the Social Security Administration says, “Our disability system is non-adversarial, and we assist claimants in developing the medical
and non-medical evidence we need to determine
whether or not they are disabled.” 79 Fed. Reg. 9663
(Feb. 20, 2014). This Court has agreed that the ALJ has
a “duty to investigate the facts and develop the arguments both for and against granting benefits.” Sims v.
Apfel, 530 U.S. 103, 111 (2000).
Appellate courts throughout the nation have reaffirmed that duty. The Administrative Law Judge is required “to fully and fairly develop the record as to
material issues.” Carter v. Chater, 73 F.3d 1019, 1021
(10th Cir. 1996). Because Social Security hearings are
non-adversarial, “precedent confirms that the ALJ
bears a responsibility to develop the record fairly and
fully, independent of the claimant’s burden to press his
case. The ALJ’s duty to develop the record extends even
to cases . . . where an attorney represented the claimant at the administrative hearing.” Snead v. Barnhart,
360 F.3d 834, 838 (8th Cir. 2004) (internal citations
omitted). The “Commissioner and claimants’ counsel
share the goal of assuring that disabled claimants receive benefits.” Battles v. Shalala, 36 F.3d 43, 44 (8th
Cir. 1994). It is “a basic obligation of the ALJ to develop
a full and fair record.” Thompson v. Sullivan, 933 F.2d
581, 585 (7th Cir. 1991). “Even when a claimant is represented by counsel, it is the well-established rule in
15
our circuit ‘that the social security ALJ, unlike a judge
in a trial, must on behalf of all claimants . . . affirmatively develop the record in light of the essentially nonadversarial nature of a benefits proceeding.’ ” Moran v.
Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009) (internal
citations omitted).
That obligation has been interpreted to require
that the ALJ “scrupulously and conscientiously probe
into, inquire of, and explore for all relevant facts.”
Henry v. Commissioner of Social Security, 802 F.3d
1264, 1267 (11th Cir. 2015). The ALJ must be “especially diligent in ensuring that favorable as well as
unfavorable facts and circumstances are elicited.” Cox
v. Califano, 587 F.2d 988, 991 (9th Cir. 1978); accord,
Krishnan v. Barnhart, 328 F.3d 685, 695 (D.C. Cir.
2003).
As part of the obligation to develop the record,
the ALJ must ensure that the administrative record
contains all of the claimant’s medical records. TorresPagan v. Berryhill, 899 F.3d 54, 59 (1st Cir. 2018), quoting Currier v. Secretary of Health, Ed. and Welfare, 612
F.2d 594, 598 (1st Cir. 1980). That obligation includes
obtaining reports from the claimant’s treating physicians and copies of medical charts regarding the claimant. Miracle v. Barnhart, 187 F. App’x 870, 874 (10th
Cir. 2006); Carter v. Chater, 73 F.3d 1019, 1022 (10th
Cir. 1996); Maes v. Astrue, 522 F.3d 1093, 1096 (10th
Cir. 2008); Nelms v. Astrue, 553 F.3d 1093, 1099 (7th
Cir. 2009).
16
The ALJs’ obligation to obtain medical evidence is
not only a part of their general obligation to develop
the record fully and fairly, but is also explicitly mandated by statute. The Social Security Act requires that
the ALJ “make every reasonable effort to obtain from
the individual’s treating physician . . . all medical evidence, including diagnostic tests, necessary in order to
properly make [a disability] determination, prior to
evaluating medical evidence obtained from any other
source on a consultative basis.” 42 U.S.C. §§423(d)(5)(B),
1382c(a)(3)(G). That statutory obligation exists whether
or not the claimant is represented by counsel. Whether
“dealing with a pro se claimant or one represented by
counsel, the ALJ must ‘develop [the claimant’s] complete medical history.’ ” Lopez v. Commissioner of Social Sec., 622 F. App’x 59, 60 (2d Cir. 2015).
As the foregoing demonstrates, the ALJ commits
reversible error when he or she fails in the affirmative
obligation to develop the record. Amici have found no
court which has held that a claimant has waived the
issue of the Administrative Law Judge’s failure to develop the record by failing to raise the issue at the
hearing.
The duty to develop the record is so broad that an
ALJ must investigate impairments that are obvious to
the ALJ, even if not claimed by the claimant. See, e.g.,
Harris v. Secretary of Dept. of Health and Human Services, 959 F.2d 723 (8th Cir. 1992); Thompson v. Sullivan, 933 F.2d 581 (7th Cir. 1991); Stambaugh on Behalf
of Stambaugh v. Sullivan, 929 F.2d 292 (7th Cir. 1991);
Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir. 2000).
17
This is especially true in cases of mental and cognitive
impairments, because people “often deny receiving treatment from a psychiatrist.” Cruz v. Apfel, 48 F. Supp. 2d
226, 229 (E.D.N.Y. 1999). Also, claimants “often do
not have insight into the reasons they are unable to
work, especially when mental health illness are involved.” Kinzebach v. Barnhart, 408 F. Supp. 2d 773,
779 (S.D. Iowa 2006). The ALJ must consequently inquire into the present status of the mental impairment
and its possible effects on the claimant’s ability to
work. Plummer v. Apfel, 186 F.3d 422, 434 (3d Cir.
1999). The relevance of “obtaining a claimant’s mental health treatment records to the ALJ’s determination of whether the claimant suffered from mental
health impairments is plainly evident.” Torres-Pagan v.
Berryhill, 899 F.3d 54, 60 (1st Cir. 2018).
It is not sufficient that the ALJ obtain only the
claimant’s medical records and the treatment notes
made by the claimant’s treating physician. If necessary
to adjudicate a case, the ALJ must also obtain a report
from the treating physician, POMS DI 29501.015
(April 10, 2017).20 The Social Security Administration
has even developed a form for the Administrative Law
Judges to send to treating physicians to obtain their
opinions and findings. Id.
If there are significant, prejudicial gaps in the
medical records, the ALJ has an affirmative obligation
to order supplemental examinations and testing. Warren v. Colvin, 565 F. App’x 540, 544 (7th Cir. 2014)
20
https://secure.ssa.gov/apps10/poms.nsf/lnx/0429501015.
18
(IQ testing); Nelms v. Astrue, 553 F.3d 1093, 1099 (7th
Cir. 2009); Channel v. Colvin, 756 F.3d 606, 608-09 (8th
Cir. 2014) (mental health evaluation). That may include a consultative examination by a physician.21 Failure to order a necessary consultative examination is
reversible error. Reed v. Massanari, 270 F.3d 838 (9th
Cir. 2001); Reeves v. Heckler, 734 F.2d 51 (11th Cir.
1984); Hawkins v. Chater, 113 F.3d 1162, 1164 (10th
Cir. 1997); Haley v. Massanari, 258 F.3d 742, 749 (8th
Cir. 2001).
Administrative hearings themselves remain nonadversarial, 20 C.F.R. §§404.900(b), 416.1400(b), with
no attorney to “prosecute” the case against the claimant’s entitlement to benefits. Indeed, after undertaking
a pilot project in 1982 to provide representation for
the government at Social Security hearings, the Social
Security Administration abandoned that project in
1987.22
Given the degree of the ALJ’s affirmative obligation to assist the claimant in developing her case and
the non-adversarial nature of the hearings, it is jarring
and illogical to judicially engraft a rule that the claimant has an obligation to raise issues at the administrative hearing or be forever barred from raising those
21
SSA Program Operations Manual System DI 29501.010
(October 27, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/
0429501010.
22
See, testimony, related documents, and letter to Rep. Edward R. Roybal, Chair, House Select Committee on Aging, dated
March 27, 1987, from Social Security Commissioner Dorcas
Hardy (on file with counsel for amici).
19
issues. Neither Congress, by statute, nor the Commissioner of Social Security, by regulation, has ever
added an issue-exhaustion rule for administrative
hearings, a fact which the Commissioner has repeatedly conceded. Ramsey v. Commissioner of Social Security, 973 F.3d 537, 541 (6th Cir. 2020); Cirko o/b/o Cirko
v. Comm’r of Soc. Sec., 948 F.3d 148, 153 (3d Cir.
2020).23
D. Appeals Council
A claimant who loses an administrative hearing
has a right to appeal to the Social Security Appeals
Council. 20 C.F.R. §§404.967; 416.1467. Again, the appeal form24 has only one small line to insert the reason
for the appeal.
The Appeals Council process is, again, a paper review. The claimant has no right to appear in person before the Appeals Council, although the Appeals Council
has discretion to grant oral argument. There is no
23
Despite the Commissioner’s concession, the Tenth Circuit
sua sponte interpreted 20 C.F.R. §§404.938-404.939 as requiring
claimants to exhaust issues by raising them before the ALJ. Carr
v. Comm’r of Soc. Sec., 961 F.3d 1267, 1274-75 (10th Cir. 2020).
Contrary to the Tenth Circuit’s interpretation, those two regulations only require ALJs to notify claimants of “specific issues to
be decided” at the hearings, and require claimants to object only
to those “issues to be decided.” The regulations do not require
claimants to object to issues about which they have not been notified; moreover, the regulations do not inform claimants that failure to raise other issues will result in forfeiture of such issues on
judicial review.
24
Form SSA 520-U5, https://www.ssa.gov/forms/ha-520.pdf.
20
requirement that the claimant exhaust administrative
remedies at the Appeals Council stage of review. Sims
v. Apfel, 530 U.S. 103 (2000). In the 20 years since this
Court decided Sims, Congress has not imposed an issue-exhaustion requirement on claimants by legislation, as it has imposed for proceedings before other
types of administrative agencies, notably the Securities and Exchange Commission. See, 15 U.S.C. §78y(c)(1)
and 15 U.S.C. §80b-13(a). In the past 20 years, the Social Security Administration has not, by regulation,
created an issue-exhaustion requirement.
II.
An issue-exhaustion requirement would
wreak havoc upon the administrative
hearing process
Currently, the administrative hearing process is nonadversarial. Judicially grafting an issue-exhaustion requirement onto that process would change the process
into a highly adversarial process. If claimants had to
identify each and every potential issue at the administrative level, claimants would need to “lawyer up”25 in
order to ensure that no potential issues in their cases
were overlooked. Such a rule would cause irreversible
hardship for the claimants who are pro se at administrative hearings, as they would very likely forfeit most
of the potential issues in their cases.
For claimants represented by counsel, in order to
protect their clients, counsel would have to submit a
25
See, e.g., Blackman v. District of Columbia, 633 F.3d 1088,
1095 (D.C. Cir. 2011) (Brown, J., concurring).
21
laundry list of objections at each hearing. Claimants’
attorneys would have to comb through the medical evidence line by line, and state their objections to each
objectionable entry in their clients’ medical charts
or consultative examination reports, explaining which
entries were entitled to credence, which were not, and
why. Administrative Law Judge hearings, which presently are allotted 30 minutes to an hour, and some of
which take up far less time,26 would expand to durations of many hours if claimants were required to exhaust all issues before Administrative Law Judges.
The District Court and Court of Appeals review
procedures are an important error-correction process.
Requiring a claimant to raise all issues at her administrative hearing would create the attendant risk that
her failure to raise each and every issue would cause a
truly disabled individual to be wrongly denied benefits,
merely because she did not identify a potential mistake on the part of the ALJ.
For example, in Yenik v. Comm’r of Soc. Sec., 522 F.
App’x 65 (2d Cir. 2013), the Court of Appeals sua sponte
noticed that the claimant’s administrative record contained medical records of someone other than the
claimant, records which the ALJ had mistakenly reviewed in deciding that the claimant was not disabled.
The Appeals Council had apparently not noticed that
26
See, e.g., Watson v. Shalala, 5 F.3d 1495 (5th Cir. 1993)
(Table), 1993 WL 391418, *1 (court found adequate, hearing lasting 17 minutes and full transcript was 9 pages); Carrier v. Sullivan, 944 F.2d 243, 245 (5th Cir. 1991) (26-minute hearing); James
v. Bowen, 793 F.2d 702, 705 (5th Cir. 1986) (10-minute hearing).
22
medical records of another individual were mistakenly
contained in the file. Neither the claimant’s attorney
nor the government’s attorney noticed the error in the
District Court, nor had the District Judge noticed the
mistake. An issue-exhaustion rule would prohibit appellate judges from correcting such incontrovertible error.
Likewise, in Randall v. Sullivan, 956 F.2d 105 (5th
Cir. 1992), the record contained an EMG study of a different patient, which the ALJ had relied upon in denying benefits to Shirley Randall, thinking, incorrectly,
that the test results were hers. While the claimant herself may not have raised the issue before the ALJ, the
Fifth Circuit corrected the error. Again, a rule requiring issue exhaustion would have prevented correction
of that obvious mistake.
III. The hearings conducted by Administrative
Law Judges are informal.
A salient characteristic of ALJ hearings in the Social Security system is that they are informal. An ALJ
is to conduct a disability hearing in “an informal, nonadversarial manner.” Biestek v. Berryhill, 139 S. Ct.
1148, 1152 (2019) (citing 20 C.F.R. §404.900(b)).
The Commissioner of Social Security has repeatedly confirmed the informality of administrative
hearings. Just recently, the Commissioner stated that
“there are significant differences between an informal,
non-adversarial Social Security hearing and the type
of formal, adversarial adjudication to which the APA
23
applies. . . . [U]nder our ‘inquisitorial’ hearings process, an ALJ fulfills a role that requires him or her to
act as a neutral decisionmaker and to develop facts for
and against a benefit claim. The ALJ’s multiple roles
involve, in essence, wearing ‘three hats’: helping the
claimant develop facts and evidence; helping the government investigate the claim; and issuing an independent decision.” 85 Fed. Reg. 73138, 73140 (Nov. 13,
2020).
The Commissioner’s regulatory pronouncements
about the informality of hearings are often reinforced
by his ALJs, who explicitly emphasize that informality
and offer reassuring comments to claimants at the
hearings. For example, in one case:
The ALJ began by telling plaintiff that ‘[t]his
is just an informal fact-finding process.’ Tr. 27.
He went on to say: ‘The way I explain it to people, it’s no worse than if you and me were just
sitting in your living room talking about your
life. This isn’t Law and Order. This isn’t some
kind of show that you’re watching where
everyone is getting cross-examined. It’s real
low key, no big deal.’ Tr. 28.
Probst v. Berryhill, 377 F. Supp. 3d 578, 586 (E.D.N.C.
2019), aff ’d sub nom., Probst v. Saul, 980 F.3d 1015
(4th Cir. 2020).
Given the informal nature of the proceedings,
claimants understandably do not believe that they will
lose important rights, including the right to a hearing
conducted by a constitutionally-appointed officer of the
24
United States, if they fail to raise such issues at their
hearings. As the Probst court noted, in holding that
claimants had not forfeited their challenges to the
authority of ALJs under the Appointments Clause
when they failed to raise those challenges at the ALJ
hearings: “The ALJ’s statement . . . goes well beyond
[the non-adversarial nature of the proceedings] in
its benign characterization of the proceeding. The
ALJ equates the hearing to a casual conversation in
plaintiff ’s home with no legal consequences at all. The
ALJ’s statement thereby reinforces the propriety of
not applying the exhaustion requirement in this case.”
Id. Thus, the judicially-created issue exhaustion requirement imposed by the Eighth and Tenth Circuits
is particularly inappropriate in the informal context of
Social Security hearings.
IV. Many claimants appear at their ALJ hearings unrepresented by counsel, leaving
them particularly ill-equipped to raise issues such as the constitutional status of
the ALJs assigned to hear their claims.
Claimants may appoint either attorneys or nonattorney representatives to represent them in the Social Security claims process. 20 C.F.R. §§404.1705,
416.1505. However, a large number of claimants appear at their ALJ hearings with no representation at
all, and a smaller number appear with non-attorney
representatives. In Fiscal Year 2018, 765,554 cases were
decided by the Commissioner’s ALJs; 28 percent of those
claimants (215,050) were completely unrepresented at
25
their hearings, and another 11 percent (82,583) were
represented by individuals who were not attorneys.
Thus, 39 percent of all claimants were not represented
by counsel when they appeared before ALJs in FY
2018. The lack of representation was even more pronounced among the 223,878 of claimants presenting
claims for SSI: more than half of all SSI claimants in
FY 2018 (113,319, or 51 percent of SSI claimants) were
not represented by counsel at their hearings.27
The relatively low incidence of legal representation is the result of several factors, including the financial circumstances of claimants who have lost the
ability to work and generate income, and the number
of attorneys available to handle such claims. Whatever
the reasons, however, the effect seems clear: pro se
claimants may (or may not) be able to describe their
medical conditions and disabling symptoms, but cannot reasonably be expected to raise technical legal issues at their hearings, especially where, as here, those
issues involve a relatively obscure aspect of the Constitution, whose application to their claims was opaque
even to many attorneys. Moreover, prior to his July 16,
2018, ratification, the Commissioner did not provide
claimants any notice that there was good reason to
question the constitutionality of those appointments.
As the Third Circuit noted, although ALJs have a heightened duty to assist pro se claimants in presenting their
27
Representative Rates by Adjudication Level, https://www.
ssa.gov/foia/resources/proactivedisclosure/2019/Representative%20
Rates%20by%20Adjudicative%20Level%20FY%202008%20-%20
FY%202018.pdf.
26
claims, “even the most diligent ALJ is unlikely to raise
a sua sponte objection to his own appointment.” Cirko
o/b/o Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 157 (3d
Cir. 2020).
Claimants with hearings scheduled prior to ratification were thus highly unlikely to have been aware
of any potential Appointments Clause issue, and the
few who became aware of the issue would have felt
daunted by the prospect of challenging the authority of
the very ALJ empowered to decide their cases. As one
district court has noted, such an “attack on the structural integrity of the process itself[ ] is as adversarial
as it gets.” Muhammad v. Berryhill, 381 F. Supp. 3d
462, 467 (E.D. Pa. 2019). These factors explain why so
few claimants mounted Appointments Clause challenges to the Commissioner’s ALJs prior to this Court’s
decision in Lucia v. Securities and Exchange Commission, 138 S. Ct. 2044 (2018), and why those who did not
do so should not be penalized by the judicially-created
issue exhaustion requirement imposed by the Eighth
and Tenth Circuits.
V.
Raising Appointments Clause objections
to ALJs at hearings would have been a futile exercise for claimants.
It would have been futile for Petitioners to have
raised the Appointments Clause issue before the ALJs
who heard their claims. At the time of the hearings
in their claims, the ALJs had no authority to resolve
Appointments Clause challenges. The Commissioner
27
himself issued internal policy guidance in January
2018, prior to the Lucia decision, instructing his ALJs
that they were to respond to any Appointments Clause
challenge only by “acknowledg[ing] that the issue was
raised,” and by noting in the decision that the ALJ does
“not have the authority to rule on [the] challenge” because “challenges of the constitutionality of the appointment of SSA’s ALJs are outside the purview of
the administrative adjudication.” SSA, EM-18003: Important Information Regarding Possible Challenges
to the Appointment of Administrative Law Judges in
SSA’s Administrative Process (2018); Davis C.A. App.
61-63.28 Thus, the Commissioner’s stated policy barred
any relief for claimants raising such challenges during the administrative proceedings, and effectively
acknowledged the futility of raising an Appointments
Clause claim at the ALJ level. Even if ALJs had been
given the authority by the Commissioner to rule on
such challenges and had recused themselves on that
basis, claimants could not have obtained hearings by
constitutionally-appointed ALJs because, under that
logic, the entire ALJ corps was similarly situated, lacking constitutional appointments prior to July 16, 2018.
28
The Commissioner subsequently issued another message,
EM-18003 REV, which was effective on June 25, 2018. Both messages make clear that it was the Commissioner’s policy that neither the ALJ nor the Appeals Council was allowed to make any
ruling on an Appointments Clause challenge. The Commissioner
did not change his policy until March 15, 2019, when he issued
SSR 19-1p, 84 Fed. Reg. 9582 (Mar. 15, 2019), a ruling providing
at least some relief to claimants who raised Appointments Clause
challenges before the ALJ or the Appeals Council (but not to Petitioners).
28
Claimants certainly had no access to the Commissioner (the only agency official empowered to provide a
remedy for the Appointments Clause violation) through
the administrative review process. Because it would
have been futile for Petitioners to challenge the ALJs’
appointments and authority to hear their cases below,
the Court should not judicially-impose forfeiture of
their Appointments Clause claims in these circumstances.
Moreover, this Court has held that a Social Security claimant is not required to exhaust administrative
remedies and may raise a constitutional claim for the
first time on appeal to a federal court, because the
agency has no power to adjudicate such a challenge,
which is beyond the scope of the administrative proceeding. Mathews v. Eldridge, 424 U.S. 319, 329-30
(1976) (“It is unrealistic to expect that the Secretary
would consider substantial changes in the current administrative review system at the behest of a single aid
recipient raising a constitutional challenge in an adjudicatory context. The Secretary would not be required
even to consider such a challenge.”). Similarly, this
Court has held that administrative exhaustion of a
constitutional claim is not required “where the challenge is to the adequacy of the agency procedure itself,”
and the agency lacks authority to grant relief. McCarthy v. Madigan, 503 U.S. 140, 147-48 (1992); see also
Califano v. Sanders, 430 U.S. 99, 109 (1977) (“Constitutional questions obviously are unsuited to resolution
in administrative hearing procedures and, therefore,
access to the courts is essential to the decision of such
29
questions.”); Weinberger v. Salfi, 422 U.S. 749, 767
(1975) (“[M]atter[s] of constitutional law [are] concededly beyond [SSA’s] competence to decide,” and requiring they be heard there would be “futile and wasteful
. . . ”). Thus, because Petitioners’ Appointments Clause
challenges would have been futile if raised before the
ALJs who heard their claims, they should not have
been required to exhaust those challenges by the
Courts of Appeals for the Eighth and Tenth Circuits.
---------------------------------♦---------------------------------
CONCLUSION
As Justice Black wrote for a unanimous Court almost eighty years ago, “[r]ules of practice and procedure are devised to promote the ends of justice, not to
defeat them. A rigid and undeviating judicially declared practice under which courts of review would invariably and under all circumstances decline to consider
all questions which had not previously been specifically urged would be out of harmony with this policy.
Orderly rules of procedure do not require sacrifice of
the rules of fundamental justice.” Hormel v. Helvering,
312 U.S. 552, 557 (1941). The Commissioner urges this
Court to adopt a broad rule of forfeiture appropriate in
formal judicial proceedings, but ill-suited to the informal, non-adversarial and inquisitorial system of Social
Security administrative proceedings. Adoption of the
rule sought by the Commissioner would leave Petitioners with no remedy for the Commissioner’s uncontested violation of the Appointments Clause, or for the
denial of their disability benefits by ALJs who were not
30
appointed in conformity therewith. The Court should
reverse the judgment of the Courts of Appeals for the
Eighth and Tenth Circuits and hold that Petitioners
did not forfeit their Appointments Clause challenges
by failing to raise those challenges before the ALJs
who heard their claims.
Respectfully submitted,
CAROLYN A. KUBITSCHEK
LANSNER & KUBITSCHEK
Counsel of Record
325 Broadway, Suite 203
New York, NY 10007
(212) 349-0900
ckubitschek@lanskub.com
THOMAS D. SUTTON
LEVENTHAL SUTTON
& GORNSTEIN
3800 Horizon Blvd., Suite 101
Trevose, PA 19053
(215) 357-3300
tsutton@lsglawoffice.com
BARBARA R. SILVERSTONE
NATIONAL ORGANIZATION
OF SOCIAL SECURITY
CLAIMANTS’ REPRESENTATIVES
161 Airport Executive Park
Nanuet, NY 10954
(845) 682-1880
barbara.silverstone@nosscr.org
ROBERT E. RAINS
Professor Emeritus
THE PENNSYLVANIA
STATE UNIVERSITY
DICKINSON SCHOOL OF LAW
150 S. College Street
Carlisle, PA 17013
(717) 240-5241
rer10@psu.edu
BARBARA JONES
AARP FOUNDATION
601 E Street, NW
Washington, DC 20049-0001
(202) 434-6091
bjones@aarp.org
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