Hey, Can You Tell Me What Happened in Lucia and Carr?
By David F. Chermol, Esq.
What is something that a disability claimant (or their family member) can ask an attorney or non-attorney representative in order to determine if they should hire them as their representative for this Social Security disability or SSI claim?
A friend asked me this question and it gave me a great pause. I thought about it quite a lot before I could give a good answer.
On its face, this is a very difficult question to answer. Could I ask a series of detailed questions to probe whether someone is a good disability representative? Of course. But what kind of shorthand cheat code could I give to someone to help them probe whether the representative they are thinking about hiring actually knows what they are doing?
The foundation of how to come up with such a question starts with looking at simple reality. You as a disability claimant or their family member making this important decision of course do not have a knowledge base about disability that you could rely upon to really grill a potential representative. So what you need is a question that does not require you to know anything but would require an attorney to prove to you that they are actually on top of their game. After all, your life is on the line here. You want to be sure that you are in good hands.
Once I thought about my friend’s question a little and reasoned through things, it became so clear to me what a person could ask in such a situation. And it is this:
“Hey, can you tell me what happened in Lucia and Carr?”
If your potential representative goes dead silent, as is distinctly possible, it is time to move on and look for someone else. By contrast, if you got a thoughtful response noting that they were two Supreme Court cases that had huge impacts in the disability world, then you could rest assured that you had found the right person to represent you in what is often a matter of life and death.
Well, what would the answer be? The specifics would not matter much so long as the representative could give some articulate answer. But in case you are wondering, here is the background regarding Lucia and Carr.
In Lucia, a case coming out of the Security and Exchange Commission (SEC) context, the Supreme Court held that the SEC’s administrative law judges (ALJs) must be properly appointed under the Constitution or else they did not have any valid legal authority to adjudicate a case. What this effectively meant is that the SEC’s ALJs had to be appointed by the head of that Agency in order to legally occupy their positions as judges.
Well, how would a case like that matter to the Social Security disability and SSI world?
Good question. The reason why Lucia mattered in the disability world is that SSA uses ALJs just like the SEC does. Moreover, like the SEC, SSA had never bothered to have the Commissioner of the Social Security Administration appoint the Agency’s ALJs to their positions. As a result, SSA’s ALJs were just as illegal as the SEC’s ALJs. This meant that any adverse decisions rendered by SSA’s ALJs (because of course no one would be appealing a favorable decision) were legally invalid. The Acting Commissioner of SSA did not properly appoint the Agency’s ALJs until July 16, 2018. Roughly stated, all decisions rendered by SSA’s ALJs prior to that magical date were constitutionally deficient.
The Carr case actually was a disability appeal which went before the Supreme Court about this very issue. What SSA had argued in Carr and similar cases was that claimants who had not argued the Lucia appointments issue during the administrative processing of their claim should not be entitled to relief for the admitted violation of their constitutional rights. Ultimately, the Supreme Court disagreed with SSA and held that disability claimants do not forfeit constitutional rights they do not affirmatively invoke at their informal and non-adversarial disability hearings.
This issue was of monumental significance in the disability world because many thousands of adverse ALJ decisions were overturned due to the improper appointment of SSA’s ALJs. My firms and associates in Philadelphia, New Jersey and in other states have long known of the impacts of Lucia and Carr. Yet, shockingly, a large number of disability attorneys and representatives are unaware of what happened in Lucia and Carr despite their enormous impact on the Social Security disability adjudication system.
Now would Lucia or Carr be important somehow to your disability application as it goes forward today? That would be very unlikely. The only scenario where they could matter a great deal today is if you had an application denied in the past by one of SSA’s ALJs prior to July 16, 2018. That is not uncommon, but it would not be applicable to most cases going through the system today. So whether your potential representative understands what happened in these two cases or not may not be directly relevant to the outcome of your case.
But that is not why you asked “Hey, can you tell me what happened in Lucia and Carr?” The reason why you asked that question was to determine whether this potential lawyer is staying current with important matters in the disability world. If asking about Lucia and Carr generates total silence, then your potential representative is not doing their homework. They are not on top of major developments with respect to SSA and you have every right to expect that they would be.
Now you do not need to remember all of the intricacies of this appointment issue. All you have to do is remember to ask your potential representative this revealing question. If they cannot answer this basic question, you should not hire them to represent you in a matter which will have such a profound impact on your life.
Stay safe. Wear a mask.
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