Aug 3, 2015

Claims Reps Charged With Taking Bribes

     Two Florida women who had been claims representatives for the Social Security Administration have been charged with taking bribes for expediting or somehow modifying the process for obtaining Social Security benefits. Most of my readers know this but claims reps have no ability to approve or disapprove a disability claim and this may not have even involved disability benefits anyway. Claims reps are important in the process but they have little discretion. I don't understand how they could have modified the process for obtaining benefits in any meaningful way. I don't know why anyone would have been tempted to bribe a claims rep.

Social Security Making Up Special Rules For Eric Conn's Former Clients

     Social Security made up some special rules just for Eric Conn's former clients. The main point of the rules is to make sure the agency can decide in its absolute, unreviewable discretion that there has been "fraud or similar fault" without ever having to produce any evidence showing this or having to justify its decision before a neutral adjudicator.
     Take a look at sections I-1-3-15, I-2-2-101, I-2-10-8, I-2-10-10, and I-2-10-14 from the agency's hearings and appeals manual, HALLEX. These provide a process whereby an Administrative Law Judge (ALJ) will give notice of a hearing on the issue of whether there was "fraud or similar fault", hold the hearing, possibly take testimony from a witness from the agency's Office of Inspector General (OIG), and make a decision on the issue on the basis of the preponderance of the evidence. All of these sections other than I-2-2-101 were adopted on June 25, 2014. This is the traditional approach to administrative justice.
     Then take a look at section I-1-3-25, Processing Multiple Cases When Fraud or Similar Fault Involved (“Redeterminations”), also adopted on June 25, 2014. Here are some excerpts with my interpolated comments bolded and in italics.
  • The Deputy Commissioner of ODAR [Office of Disability Adjudication and Review] will determine which ODAR component is designated to redetermine the affected case(s). Wait, who adjudicates whether there was "fraud or similar fault" justifying a redetermination in the first place? Does the head of ODAR get to make this decision in her absolute, unreviewable discretion? When does the claimant get to see the evidence upon which this decision is based? When does the claimant get a chance to counter this evidence? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
  • ODAR will draft specific processing instructions for any particular batch of cases. Right, you just make it up as you go along.
  • When an adverse redetermination is necessary, ODAR will send the claimant an appropriate notice based on the circumstances. The notice may include issues relating to benefit continuation or the opportunity for a supplemental hearing. May include information on benefit continuation? Sounds like you can't make up you mind on this issue. Supplemental hearing on which issues? Additionally, the notice may include the opportunity and time-frame for submitting arguments or rebuttal evidence. I-1-3-25.  But what about the right to a hearing on the issue of "fraud or similar fault? Isn't that required as a matter of administrative law and due process? Does the process you've designed consist of you telling me you've already made up your mind but I can say something which you'll ignore since you've already made up your mind and you can't possibly change your mind because Congressional Republicans will attack you? It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
  • Based on OIG referrals of information pursuant to section 1129(l) of the Act or information obtained through other criminal, congressional, or administrative investigation, the agency may direct an ODAR adjudicator to disregard certain evidence. The agency can just summarily decide which evidence can be considered in its absolute, unreviewable discretion? How does this square with the right to submit arguments and rebuttal evidence? Sounds like that's no more than window dressing since "the agency" has already made up its mind. It sure looks like the agency is afraid of having to justify what it's doing before a neutral adjudicator.
     Why is it that the agency made up these rules last summer, obviously for Conn's cases, but is only just now getting around to acting on the cases? The statute says there is supposed to be an "immediate" readjudication when there is "fraud or similar fault." It looks like the agency can't make up its mind what it wants to do. Maybe that's because the evidence of "fraud or similar fault" isn't all that strong. Convincing 60 Minutes, which is far more interested in good TV than in justice, is one thing. Convincing a neutral adjudicator is another. They don't trust the ALJs to make the "right decision" -- the one that Congressional Republicans demand -- so they want to take the issue out of their hands.

Aug 1, 2015

August 10 Hearing To Try To Prevent Benefit Cutoffs In Kentucky and West Virginia

     Ned Pillersdorf's Facebook page indicates that there will be a telephone hearing on August 10 on his motion to stop Social Security's plan to try to cut off the disability benefits of almost 1,500 of Eric Conn's former clients in Kentucky and West Virginia.
     I keep wondering when each of these folks gets an individual evidentiary hearing on the question of whether they were found disabled as a result of "fraud or similar fault." Social Security seems to be trying to go yada, yada, yada past this issue but it seems to me to be basic administrative law as well as basic due process.
     The evidence of this "fraud or similar fault" is so strong that Social Security wants to summarily cut all these claimants off benefits, yet it wasn't strong enough that:
  • A U.S. Attorney would bring criminal charges against Conn;
  • The Kentucky Bar would try to take away Conn's law license or discipline him in any way;
  • The Social Security Administration would bring changes that would prevent Conn from continuing to practice before the agency.
     If, or perhaps when, these evidentiary hearings start, I'd like to hear the testimony of the person at Social Security who is responsible for bringing actions to bar attorneys from practicing before the agency because of misconduct. Why didn't you bring an action against Conn? Or, maybe, you did and couldn't convince an Administrative Law Judge to discipline Conn? Which is it?

A Debate That Shouldn't Come To The U.S.

     I hope this debate isn't coming to the U.S.

Jul 31, 2015

Question About Eric Conn's Former Cases

     Is Social Security planning to continue these claimants on interim benefits after the Appeals Council remands the cases for new hearings? If not, these are fee generating cases. The fees will be meager but there will be fees if the claimants aren't going to be drawing interim benefits. I'm not exactly sure how that changes the equation for attorneys who might want to get involved but it may. Also, if these claimants will be getting interim benefits, from the point of view of the claimant, there's no great rush about getting the cases heard. I fear that the claimants and their attorneys will not have an adequate amount of time to develop the cases if they're all to be heard before the end of the year.
     Overall, this is a difficult situation. I have strong doubts that it will be possible to get enough volunteer attorneys to take the cases. There's just too many cases. They're going to be messy cases covering many years. It's not just the question of whether the claimant was disabled as of the time they were originally put on benefits. There's also the issue of whether they became disabled at a later date. That's also at issue. The cases will require a lot of medical development. It's unlikely that the claimants can pay for all those medical records. Geographically, it's a remote area. If all these cases are going to be heard before the end of the year, the time frames are difficult for everyone, including Social Security.

NOSSCR Seeking Volunteer Attorneys

     A message from the National Organization of Social Security Claimants' Representatives (NOSSCR) to its members:
PRO-BONO REPRESENTATION SOUGHT
Approximately 1500 SSDI beneficiaries in Kentucky and West Virginia have received notices from SSA advising them that they risk benefit suspension. These individuals, who were represented by Eric Conn, had submitted medical evidence from the doctors he worked most closely with, and had their claim adjudicated by ALJ David Daugherty. The SSA notice states that SSA is disregarding the medical evidence from the doctors in question and instructs the beneficiaries to submit additional medical evidence to document their disability. Failure to do so will result in the suspension of benefits. Although the Appeals Council has the authority to continue a claimant in pay status if additional evidence is submitted, we anticipate that the majority of these individuals will have their cases remanded for a hearing. 
Many local attorneys have been working tirelessly to protect these individuals' rights and benefits, through preliminary injunctions, wrongful death actions, motions to freeze Conn's assets, and pro bono representation at the Social Security ALJ hearings. These individuals need representation to assist them in obtaining this evidence, and to represent them before the Appeals Council or at an ALJ hearing, if needed. We expect that there will be no funds available to pay attorneys. To date, approximately 75 attorneys have volunteered to help represent the claimants at hearings or to provide training or other resources to volunteer lawyers. 
NOSSCR has paired with the Appalachian Research and Defense Fund (AppalReD) and other local legal services organizations to provide pro bono representation to these individuals. 
 I am personally calling on NOSSCR members to volunteer their time in one or more of the following ways:
A. Represent one or more clients on a pro bono basis, including evidence gathering and representation at a hearing if needed.
1. Please indicate if
a. you could travel to the Prestonburg or Huntington area to interview clients and/or represent at the hearing.
b. you cannot travel, but are close enough that the client can travel to you.
c. you can represent an individual in a three way video hearing.
 B. Provide training for attorneys with little or no experience in handling Social Security claims. A live training session will be held in Lexington, KY in August. There may also be the possibility of webinar training, with recording done either at a central location or through a provider such as "go to meetings.com." 
C. Be a resource for one or more less experienced local attorney who is representing an individual on a pro bono basis and has received some training. 
Here is what we have learned: 
  • Beneficiaries were originally told they had 10 days to submit evidence to the Appeals Council. Everyone who has asked for a 30-day extension of time has received it. If evidence has been submitted that shows the original decision was correct when made, the Appeals Council will close the redetermination case. If the Appeals Council cannot issue a favorable decision, the case is remanded to an ALJ. 
  • Up to 1500 hearings will be scheduled between September and December. 
  • We have been told that the hearings will be scheduled to be video hearings with ALJs from the St. Louis National Hearing Center. The individual has 30 days from receipt of the ODAR acknowledgement to opt out of a video. If an individual requests an in-person hearing, one of these ALJs will come to Prestonburg, KY for an in person hearing. 
  • 3- way video hearings will be available so the attorney and client need not be in the same area. Although this is certainly not an ideal situation, it may be the only way to obtain sufficient representation for this large number of affected individuals. We anticipate that someone from a local legal aid office will be with the claimants during the hearing, though not representing them when the representative is appearing elsewhere by video. 
  • The ALJ will be determining whether the individual was eligible for benefits when they were originally awarded. If the ALJ's decision is unfavorable, benefits will cease. All appeal rights are available. 
  • These redetermination are, according to the government, required by 42 U.S.C. sec 405(u)(1)(A) and (B). These redeterminations occur "if there is reason to believe that fraud or similar fault was involved in the application of the individual for such benefits." The purpose of the redetermination is to evaluate whether the individual was entitled to disability benefits at the time of the original decision, and adjudicators are instructed to disregard any evidence considered by the original adjudicator where "there is reason to believe that fraud or similar fault was involved in the providing of such evidence." 
  • Although the evidence is being disregarded as fraudulent, to the best of our knowledge neither the attorney nor the doctors have been sanctioned for fraudulent behavior in these cases. In a decision issued Monday July 27, the 2011 qui tam complaint was dismissed in part because for many of the claims asserted by the whistleblowers failed to "allege a specific claim submitted by Conn that was false or fraudulent in a manner that was material to the government's decision to pay the claim … they never tie a specific case to a specific false or fraudulent claim." (U.S. ex rel Griffith and Carver v. Conn, ED KY)) 
Your help is desperately needed. The local attorneys anticipate that they can serve fewer than 15% of the affected individuals. Please let me know as soon as possible if you can help in any or all of the 3 ways listed above. You can send an email to nosscr@nosscr.org and I will give your name and contact information to AppalReD legal services who will then be in touch with you directly. 
In addition to helping these individuals, we anticipate that your pro bono representation will be recognized by others and will help to show that the representatives in this field are truly involved in ensuring the integrity of the Social Security disability process and in ensuring full due process for Social Security claimants and beneficiaries. 
 Barbara R. Silverstone Executive Director
     Here's a little information on the St. Louis National Hearing Center. It's reversal rate (excluding dismissals) is about 46%, making it somewhat below average. The office includes two ALJs with extraordinarily low reversal rates and one with an extraordinarily high reversal rate. It has disposed of 5,746 cases in the first nine months of the fiscal year, although 16% of these were dismissals. Probably, there won't be many dismissals in these cases. They had a 4,103 case backlog as of the end of June. Also, it's a good bet that those ALJs REALLY don't want to travel.

Read This If You Think That The ADA Means That More Disabled People Can Work

     From TPM Cafe:
Twenty-five years ago this past Sunday, the Americans with Disabilities Act (ADA) was signed into law. Today, people with disabilities are less likely to be employed than they were before the law was enacted. Workers with disabilities earn, on average, about $14,000 less than similar workers without disabilities. About one in every three disabled Americans lives in poverty.

Jul 30, 2015

Texas ALJ Draws Fire For Belittling Vet's Claim Of PTSD

     Let me give a hint to ALJs based upon a lot of experience.Whether an individual develops PTSD after being exposed to stress has more to do with the individual's psychological makeup than to the nature of the stress. Some people don't develop PTSD even though they are subjected to incredible stress. Others develop PTSD after exposure to what most people would regard as only moderate or even mild stress. People who suffer from bipolar disorder are six times more likely to develop PTSD, which suggests to me that there is a genetic propensity to develop PTSD.
     In any case, the individual who is the subject of this newspaper article was certainly subjected to considerable stress.

OIG Report On Tax Delinquent Social Security Employees

     Social Security's Office of Inspector General (OIG) has produced a report about the agency's employees who are delinquent in paying their federal taxes. See below for a chart. I'd call it sort of a gotcha report, good for little more than helping those who want to criticize civil servants. 
     Social Security employees are in about the same range as other federal employees when it comes to tax delinquency. 
     By the way, the report shows that 1.8% of Social Security's Administrative Law Judges and 1.2% of its Senior Executive Service employees are tax delinquent. 
     I didn't see any comparable numbers for non-federal government workers. I'd bet it's considerably higher.

Dispute Over Office Relocation In Albuquerque

Congresswoman talking with people in line to enter SSA office
     From the NM Political Report (emphasis added):
Congresswoman Michelle Lujan Grisham is asking the head of the Social Security Administration to suspend a move of an office to a downtown Albuquerque call center. ...
The second-term member of Congress described people waiting outside with “no shade, no chairs, no benches, no anything.” She expressed concern that a move to the downtown call center would exacerbate these and other problems. ...
“The primary reason for our move is to provide an improved experience for our customers in the Albuquerque area,” Regional Communications Director of the SSA Dallas office Sarah Schultz-Lackey said in a statement provided to New Mexico Political Report Tuesday evening. “The new office will allow us to offer  streamlined customer service with more interviewing windows at the front of the office.”
“We will have a larger lobby in this new space with increased seating,” the statement continued.
Lujan Grisham says that there is not suitable parking for those seeking help from the Social Security Administration and the parking that is available is not free.
“Given that SSA refuses to validate visitor parking, your planned move will impose new expenses on many people who live at or near the poverty line,” she wrote.
Another parking issue Lujan Grisham identified is the lack of parking for disabled individuals. She wrote that there is no such parking in a two-block radius and “there is no disable drop-off zone next to the building.” ...

No Good Choice

    A TV station in Atlanta is reporting on the dilemma faced by many who are denied by one of Social Security's Administrative Law Judges (ALJs) -- appeal and fact horrendous delays with only a limited chance of success -- or start over again with a new claim and still face horrendous delays but stand a better chance of success. Oh, and if you choose the new claim route, you're almost certainly giving up on all the benefits up to the date of the ALJ denial even though in some cases the ALJ denial is just ridiculous.
     It's like they deliberately stacking the deck against you. There's no good choice.

Jul 29, 2015

Facebook Can't Challenge Subpoenas For Info On Those Accused Of Social Security Fraud

     From Reuters:
Facebook Inc cannot challenge search warrants New York prosecutors used to get information from its site on hundreds of users suspected of Social Security fraud, a state appeals court said on Tuesday, in a decision likely making it harder for New Yorkers to keep their digital lives private.
The warrants, which applied to 381 users' photos, private messages and other account information, could only be challenged by individual defendants after prosecutors gathered evidence, the Manhattan-based court unanimously ruled. ... 
The Manhattan District Attorney's office served the warrants on Facebook in 2013, seeking information on dozens of people later indicted for Social Security fraud, including police officers and firefighters who allegedly feigned illness in the wake of the Sept. 11, 2001 attacks....
The court on Tuesday said the only way to challenge warrants was for defendants in criminal cases to move to suppress the evidence they produced.
Facebook spokesman said the company disagreed with the decision and was considering an appeal. 

A spokeswoman for the district attorney's office said prosecutors had secured nearly $25 million from people who were targets in the probe. 
"In many cases, evidence on their Facebook accounts directly contradicted the lies the defendants told to the Social Security Administration," she said. ...

Disability Trust Fund Numbers Released -- Why Don't We Just Make The Problem Go Away?

     The Social Security Administration has released the numbers on the operation of its Disability Insurance Trust Fund through the end of the second quarter of calendar year 2015. The Trust Fund stood at $50.8 billion as of the end of June. Here are some numbers showing how things have been going.
  • The Disability Trust Fund lost $3.5 billion in the second quarter of this year compared to a loss of $4.1 billion in the second quarter of 2014. 
  • The Trust Fund has lost $9.4 billion so far this year compared to a loss of $10.4 billion in the first half of last year.
  • In the past four quarters the Trust Fund lost $29.2 billion, compared to a loss of $30.9 billion in the four quarters before that.
     The trend is clear. The Disability Insurance Trust Fund is losing money and will be exhausted in the not too distant future. However, it's not been losing ground as fast as it was. If the Trust Fund loses ground at the same rate as it has over the last year, it will barely limp into January 2017 before running out of money. If Trust Fund operations continue to improve as they have been improving lately, it will last a bit longer, until around the end of the first quarter of calendar year 2017. The only way you get the Trust Fund running out of money before the end of 2016, as Social Security's actuaries have done, is to project that the Trust Fund will start doing worse than it's been doing, which is certainly possible, but which seems unlikely at the moment.
     To remind readers, the Social Security Administration could dramatically change the prospects of the Disability Insurance Trust Fund, possibly preventing it from ever running out of money, by changing its position on benefit payments to those who are dually eligible for Disability Insurance Benefits and a Social Security Retirement or Survivors benefit. Now the dually eligible are always paid the Disability Insurance Benefit first and any extra benefit is paid out of the Retirement and Survivors Insurance Trust Fund. The statute doesn't require this. Reversing this doesn't require Congressional approval and doesn't affect any benefit payments either now or in the future. Why go through endless bickering and threats to disability claimants and recipients when it's easy to make the problem go away?

Motion Filed To Stop Hearings For Former Clients Of Eric Conn

     From WYMT:
He calls it a "planned assault" on nearly 1,500 people.
Attorney Ned Pillersdorf said a motion to stop social security benefit hearings was submitted to a federal judge.
The S.S.A. is reviewing benefits rewarded to disability attorney Eric C. Conn's clients. ...
Hearings are expected to being in September and will likely take months to finish.
     This is all I know, folks.

     Update: Pillersdorf has posted the pleadings on his firm's Facebook page.

Jul 28, 2015

Lawsuit Against Eric Conn Not Going So Well

     Eric Conn has been accused of defrauding Social Security by many, including a Congressional committee and 60 Minutes. However, Conn's problems really began with a qui tam action. Qui tam is a very odd type of lawsuit. A party, called a relator (not realtor) brings a lawsuit in the name of the government against a person whom they believe is defrauding the government. The government has to review the case to see if they believe it has enough merit that the government should take over the case. If the government declines, the case can still go forward but the relators must bear the burden of proceeding with the case. If the qui tam lawsuit is eventually successful in forcing the defendant to pay damages to the government, the relator gets part of the damages. In Eric Conn's case, the government declined to take over the case. That's a sign that the case being brought by the relator may lack merit, or at least enough merit that damages are likely. In Conn's case, the relators are going forward with the qui tam case, although it seems like the case is proceeding at a glacial pace. The most recent thing that's happened is that the Court has ruled on Conn's motion to dismiss the case. The Court has dismissed most, but not all, of the case. This link will only work for a couple of weeks. I hope it works for Social Security employees. Let me know.
     Many believe that Conn is clearly guilty of fraud. He may be guilty as sin. I don't know. I've written before that to me he seems more like a doofus than a criminal. Fraud is awfully difficult to prove. So far, no criminal charges have been brought against Conn. Social Security has not been able to even suspend Conn from practicing before the agency. This qui tam case may not be going so well for the relators. However, Conn's Social Security practice has almost certainly been ruined, probably permanently. The litigation expenses may well bankrupt him. If you're looking for him to be punished, that may be all you get.

Hard To Make A Living Representing Social Security Claimants

     Crain's Detroit, a business newspaper, is running an article on the business of representing Social Security claimants. I can say from personal experience that it's a difficult business to be in. The article notes this. The firms that the newspaper talked with had all decreased the number of attorneys doing Social Security work. Apparently, hearing backlogs in the Detroit area are far, far lower than they are where I'm practicing.

He Got Hooked

     From the Associated Press:
A Massachusetts man seen manning big fishing rods and harpooning huge fish on the reality show Wicked Tuna collected government benefits while claiming to be disabled and unable to work, federal prosecutors said.
Paul Hebert, 50, of Gloucester, Massachusetts, accepted more than $44,000 in Social Security and Medicaid benefits between 2010 and 2013, according to a four-count indictment filed Friday in U.S. District Court in Burlington.