[Federal Register Volume 84, Number 51 (Friday, March 15, 2019)]
[Notices]
[Pages 9582-9584]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04817]
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SOCIAL SECURITY ADMINISTRATION
[Docket No. SSA-2019-0001]
Social Security Ruling 19-1p; Titles II and XVI: Effect of the
Decision in Lucia v. Securities and Exchange Commission (SEC) On Cases
Pending at the Appeals Council
AGENCY: Social Security Administration.
ACTION: Notice of Social Security Ruling (SSR).
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SUMMARY: We are giving notice of SSR 19-1p. This ruling explains how we
will adjudicate cases pending at the Appeals Council in which the
claimant has raised a timely challenge to the appointment of an
administrative law judge (ALJ) under the Appointments Clause of the
United States Constitution in light of the Supreme Court's recent 2018
decision in Lucia v. SEC.
DATES: We will apply this notice on March 15, 2019.
FOR FURTHER INFORMATION CONTACT: Nancy Chung, Office of Appellate
Operations, 5107 Leesburg Pike, Falls Church, Virginia, (703) 605-7100.
For information on eligibility or filing for benefits, call our
national toll-free number 1-800-772-1213, or TTY 1-800-325-0778, or
visit our internet site, Social Security online, at http://www.socialsecurity.gov.
SUPPLEMENTARY INFORMATION: Although 5 U.S.C. 552(a)(1) and (a)(2) do
not require us to publish this SSR, we are doing so under 20 CFR
402.35(b)(1).
Through SSRs, we make available to the public precedential
decisions relating to the Federal old-age, survivors, disability,
supplemental security income, and special veterans benefits programs.
We may base SSRs on determinations or decisions made at all levels of
administrative adjudication, Federal court decisions, Commissioner's
decisions, opinions of the Office of the General Counsel, or other
interpretations of the law and regulations.
Although SSRs do not have the same force and effect as statutes or
regulations, they are binding on all components of the Social Security
Administration. 20 CFR 402.35(b)(1).
This SSR will remain in effect until we publish a notice in the
Federal Register that rescinds it, or we publish a new SSR that
replaces or modifies it.
(Catalog of Federal Domestic Assistance, Program Nos. 96.001, Social
Security--Disability Insurance; 96.002, Social Security--Retirement
Insurance; 96.004--Social Security--Survivors Insurance; 96.006
Supplemental Security Income.)
Nancy Berryhill,
Acting Commissioner of Social Security.
Policy Interpretation Ruling
Social Security Ruling (SSR) 19-1p
Titles II and XVI: Effect of the Decision in Lucia V. Securities and
Exchange Commission (SEC) on Cases Pending at the Appeals Council
Purpose: This ruling explains how we will adjudicate cases pending
at the Appeals Council in which the claimant has raised a timely
challenge to the appointment of an administrative law judge (ALJ) under
the Appointments Clause of the United States Constitution in light of
the Supreme Court's decision in Lucia v. SEC, 138 S. Ct. 2044 (2018).
Citations: 20 CFR 404.970, 404.976(b), 416.1470, and 416.1476(b).
Background: In Lucia, the Supreme Court considered a challenge to
the manner in which the SEC appointed its ALJs. The Supreme Court held
that the SEC's ALJs are ``Officers of the United States'' within the
meaning of the Appointments Clause of the United States Constitution,
Art. II, Sec. 2, cl. 2.\1\ As a result, the SEC's ALJs should have
been (but were not) appointed to their positions by either the
President, a court of law, or the Department head. The Supreme Court
reversed the lower court's decision finding that the SEC's ALJs were
not inferior officers. Having determined that Lucia had raised a timely
challenge to the ALJ's
[[Page 9583]]
appointment, the Supreme Court remanded the case for a new hearing
before a properly appointed ALJ who had not previously heard the case,
or before the SEC itself.\2\ The Supreme Court's decision in Lucia did
not specifically address the constitutional status of ALJs who work in
other Federal agencies, including the Social Security Administration
(SSA). To address any Appointments Clause questions involving Social
Security claims, and consistent with guidance from the Department of
Justice, on July 16, 2018 the Acting Commissioner of Social Security
ratified the appointments of our ALJs and approved those appointments
as her own.\3\ On the same day, the Acting Commissioner took the same
actions with respect to the administrative appeals judges (AAJs) who
work at the Appeals Council.\4\ We are issuing this SSR to explain how
the Appeals Council will adjudicate appeals in which the claimant
timely raises an Appointments Clause challenge to the authority of the
ALJ who decided or dismissed a claim.
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\1\ The Supreme Court explained in Lucia that ``[t]he
Appointments Clause prescribes the exclusive means of appointing
`Officers.' Only the President, a court of law, or a head of
department can do so. See Art. II, Sec. 2, cl. 2.'' Lucia v. SEC,
138 S. Ct. 2044, 2051 (2018).
\2\ Lucia v. SEC, 138 S. Ct. at 2055.
\3\ See Social Security Emergency Message (EM) 18003 REV 2,
Sec. B (available at: https://secure.ssa.gov/apps10/reference.nsf/links/08062018021025PM).
\4\ Id.
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Policy Interpretation: We receive millions of applications for
benefits each year.\5\ The essential requirement for any system of
administrative review in a program as large and complex as ours is that
it ``must be fair--and it must work.'' \6\ In adjudicating the millions
of claims we receive each year, we strive to balance the two overriding
concerns of fairness and efficiency, consistent with the law. The
Social Security system must be fair and accurate and provide each
claimant with appropriate due process protections. At the same time,
the Supreme Court has recognized that we must make decisions
efficiently in order to ensure that the system continues to work and
serve the American people.\7\ Because we employ more ALJs than all
other Federal agencies combined, and our ALJs issue hundreds of
thousands of decisions each year, Lucia has the potential to
significantly affect our hearings and appeals process. To properly
address the issues Lucia raises in the context of our hearings and
appeals system, we have determined that some claimants are entitled to
additional administrative review of their claims.
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\5\ In fiscal year 2017, we completed 5.62 million retirement
and survivors insurance claims and 2.485 million initial disability
claims. We also received 620,000 hearing requests, and completed
686,000 hearings. FY 2019 Congressional Justification, at 6
(available at: https://www.ssa.gov/budget/FY19Files/2019CJ.pdf).
\6\ Richardson v. Perales, 402 U.S. 389, 399 (1971).
\7\ For example, in Barnhart v. Thomas, 540 U.S. 20, 28-29
(2003), the Supreme Court stated that, ``As we have observed, `[t]he
Social Security hearing system is probably the largest adjudicative
system in the western world.' . . . The need for efficiency is self-
evident.' '' (quoting Heckler v. Campbell, 461 U.S. 458, 461 n.2
(1983)).
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A claimant who is dissatisfied with an ALJ's decision, or the
dismissal of a request for a hearing, may request that the Appeals
Council review the decision or dismissal. Under our regulations, the
Appeals Council will review a case if:
(1) There appears to be an abuse of discretion by the ALJ;
(2) there is an error of law;
(3) the ALJ's action, findings or conclusions are not supported by
substantial evidence;
(4) there is a broad policy or procedural issue that may affect the
general public interest; or
(5) the Appeals Council receives additional evidence that the
claimant shows is new, material, and relates to the period on or before
the date of the ALJ hearing decision, and there is a reasonable
probability that the evidence would change the outcome of the
decision.\8\
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\8\ 20 CFR 404.970(a) and (b), 416.1470(a) and (b).
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We interpret some challenges to the ALJ's authority to hear and
decide a claim, based on the Supreme Court's decision in Lucia, as
raising ``a broad policy or procedural issue that may affect the
general public interest'' within the meaning of our regulations.
Challenges to an ALJ's authority to decide a claim may raise a broadly
applicable procedural issue independent of the merits of the individual
claim for benefits--that is, whether the ALJ who presided over the
claimant's hearing was properly appointed under the Appointments Clause
of the Constitution. We will process requests for review that include a
timely administrative challenge to the ALJ's authority based on the
Appointments Clause in the manner described below.
The Appeals Council will grant the claimant's request for review in
cases where the claimant: (1) Timely requests Appeals Council review of
an ALJ's decision or dismissal issued before July 16, 2018; and (2)
raises before us (either at the Appeals Council level, or previously
had raised at the ALJ level) a challenge under the Appointments Clause
to the authority of the ALJ who issued the decision or dismissal in the
case.
When the Appeals Council grants review based on a timely-raised
Appointments Clause challenge, AAJs who have been appointed by the
Acting Commissioner (or whose appointments the Acting Commissioner has
ratified) will vacate the hearing decision or dismissal.\9\ In cases in
which the ALJ made a decision, the Appeals Council will conduct a new
and independent review of the claims file and either remand the case to
an ALJ other than the ALJ who issued the decision under review, or
issue its own new decision about the claim covering the period before
the date of the ALJ's decision. In its review, the Appeals Council will
not presume that the prior hearing decision was correct.\10\
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\9\ Under our regulations, whenever the Appeals Council reviews
a hearing decision under 20 CFR 404.967, 404.969, 416.1467, or
416.1469, and the claimant does not appear personally or through
representation before the Appeals Council to present oral argument,
the Appeals Council's review will be conducted by a panel of not
less than two members of the Appeals Council designated in the
manner prescribed by the Chairman or Deputy Chairman of the Council.
In the event of disagreement between a panel composed of only two
members, the Chairman or Deputy Chairman, or his or her delegate,
who must be a member of the Council, shall participate as a third
member of the panel. When the claimant appears in person or through
representation before the Appeals Council, the review will be
conducted by a panel of not less than three members of the Council
designated in the manner prescribed by the Chairman or Deputy
Chairman. Concurrence of a majority of a panel shall constitute the
decision of the Appeals Council unless the case is considered by the
Appeals Council en banc or as a representative body, as provided in
20 CFR 422.205. See 20 CFR 422.205(b).
\10\ 20 CFR 404.979, 416.1479.
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In cases in which the ALJ dismissed a request for a hearing, the
Appeals Council will vacate the ALJ's dismissal order.\11\ It will then
either: (1) Decide whether the request for a hearing should be
dismissed, or (2) remand the case to another ALJ to determine that
issue.
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\11\ 20 CFR 404.960(a), 416.1460(a).
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When the Appeals Council grants a claimant's request for review in
cases that raise a timely Appointments Clause challenge, the claimant
may request a reasonable opportunity to file briefs or other written
statements about the facts and law relevant to the case.\12\ Our
regulations also allow a claimant to request to appear before the
Appeals Council to present oral argument.\13\ If the Appeals Council
decides that the case raises an important question of law or policy, or
that oral argument would help to reach the proper result, the Appeals
Council will grant the request to appear. If the Appeals Council grants
a request to appear and holds oral argument, it will notify the
claimant and his or her representative about the time and place at
least 10 days before the
[[Page 9584]]
date scheduled for the appearance.\14\ The Appeals Council will
determine whether the appearance, or the appearance of any other person
relevant to the proceeding, will be in person, by video
teleconferencing, or by telephone.\15\
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\12\ 20 CFR 404.975, 416.1475.
\13\ 20 CFR 404.976(b), 416.1476(b).
\14\ Id.
\15\ Id.
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When the Appeals Council grants a request for review, it will mail
a notice to all parties at their last known address stating the reasons
for the review and the issues to be considered.\16\ Consistent with our
regulations, the Appeals Council will consider all the evidence in the
ALJ hearing record, as well as additional evidence subject to the
limitations on Appeals Council consideration of additional evidence in
20 CFR 404.970 and 416.1470. The Appeals Council will also consider any
arguments the claimant or representative made in writing or at the
hearing and will also consider any additional arguments submitted to
it.
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\16\ 20 CFR 404.973, 416.1473
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The Appeals Council will either remand the case to a different ALJ;
issue a new, independent decision; or, as appropriate, issue an order
dismissing the request for a hearing. When the Appeals Council issues a
decision, its decision may result in different findings from the ALJ
hearing decision that the Appeals Council vacated.\17\ When the Appeals
Council grants review and issues its own decision, its decision will be
based on the preponderance of the evidence.\18\
\17\ 20 CFR 404.979, 416.1479.
\18\ Id.
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[FR Doc. 2019-04817 Filed 3-14-19; 8:45 am]
BILLING CODE 4191-02-P