Jul 31, 2015

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.

7 comments:

Anonymous said...

The fact that the agency went after individual claimants, and has still done nothing to Eric Conn, is appalling. While from reading the reports, it's pretty obvious fraud was involved in at least some of those claims, nobody has been convicted of anything yet. The way the agency is handling this is absolutely atrocious. I think Mr. Pillsdorf has a good point that what the agency is doing is in violation of its own rules.

Anonymous said...

From having to deal with government entities for the last 46 years, I have come to conclude that a fundamental rule of bureaucrats when some irregularity/misbehavior occurs is to not necessarily punish the perpetrator, but to institute some burdensome rule/procedure which will punish a whole class of individuals, whether or not the rest of the class caused the problem. This handling by SSA is just par for the course.

Anonymous said...

1:58 reads like the Carver/Griffith complaint - hence why most of it was dismissed. Specifics or GTFO.

Anonymous said...

3:07 PM,

Why are you characterizing it as punishment? The affected claimants were initially found disabled based on fraudulent evidence. That means they never should have received the benefits that they are currently receiving. Now SSA is trying to right that wrong by requiring that the affected claimants show that they are disabled with legitimate, non-fraudulent evidence. You call it punishment, I call it following the regs.

Johnny Cash said...

@3:07pm. If the agency has proof that it's fraudulent evidence, then why aren't they going after the folks who likely created it, Conn and the involved doctors, in addition to the claimants? It feels like the agency just decided to go after those least able to defend themselves, the claimants, who are probably the least involved in the scheme.

Anonymous said...

Johnny,

The SSA is not a law enforcement agency. They can prevent Conn from practicing Social Security law (that door has not closed), but they can't "go after" him or the doctors in the manner you're suggesting. The SSA is doing exactly what it should do in these circumstances -- making sure that the beneficiaries of Conn's scheme do not continue to receive Social Security benefits to which they aren't legally entitled.

Johnny Cash said...

@9:37. The longer SSA goes without preventing Conn from practicing, the more likely they won't. They certainly can refer matters relative to Conn and the docs to the appropriate folks with the ability to go after them in the legal sense. Certainly a different burden of proof at that level but if SSA is so sure that fraud was committed by the way they are handling these cases, it would seem that dealing with Conn and the docs should follow.