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The Social Security Administration has issued a letter to its employees that might as well read, “Limited Time Only, Everyone Gets a New Disability Hearing!”  Indeed, if you or your client got a denial letter after a social security hearing held in the first half of 2018, you probably need to ask for a new hearing – and your request is likely to be granted, giving you a second bite at the apple.

The impetus for this emergency message was the  Supreme Court’s Lucia decision.  The Lucia case, decided in the Spring of 2018, temporarily threw the federal government’s system for using it’s large departments for deciding benefits and punishments into doubt.  In Lucia a defendant who had been accused of violating rules by the Securities and Exchange Commission had been punished by an administrative law judge until the defendant turned the case on its head by successfully arguing that the administrative law judge lacked the authority lacked the authority to punish him.  It was as if a judge had found someone guilty of a crime, only to have it pointed out that the person wearing the black robe and holding a gavel wasn’t really a judge, but instead some kind of imposter.

As a result of the Lucia case, people began to wonder if the Social Security’s administrative law judges – who conduct hearings and decide cases – were really judges at all.  Back when the case was decided,  we reported on the solicitor general’s concern that new hearings were warranted, may even required.  Apparently the Social Security Administration agreed.  Now, the Social Security Administration has issued guidance to its employees that if a hearing was held before July 18, 2018 and is timely raised, they’re remand for a new hearing.  This means that for any denial letter that comes out for the next couple of months, there is a free ticket for a second shot at a hearing instead of a faceless review at the Appeals Council (the usual place for appealing your denial of disability).

In an August 6, 2018 “Emergency Message,” the SSA directed:  “In those matters where a timely Appointments Clause challenge to an ALJ decision issued prior to July 16, 2018 is raised to the Appeals Council in a proper request for review, the AC will grant review and issue a decision or order remand, as appropriate.”  July 16 is a magic date because that is the day when the SSA ratified the administrative law judges appointments in a manner that it believes will comply with the Supreme Court’s Lucia decision.  Therefore, hearings conducted after that date will not be per se objectionable.

A new hearing will be most beneficial for those claimants and clients who continue have continued to develop a disability record with their doctors, but may also benefit claimants and clients who just need a second opportunity to present their case – this time with the benefit of hindsight.  The Emergency Message does not indicate if on remand the hearing will be before the same or a different ALJ.

Read the policy here and contact Browne House today about your Social Security appeal.