Aug 5, 2016

Your Name Doesn't Have To Be Atticus Finch

     Most claimants caught up in the Eric Conn mess in Kentucky and West Virginia have received decisions from Administrative Law Judges (ALJs). About half have won. The Appeals Council is fast-tracking appeals from those who were denied. There are many claimants now in need of representation in federal court. There will be several hundred of these cases.
     Let me address some concerns that attorneys might have about taking on these cases:
  • These are fee-generating cases. Once the ALJ denies the claim, the interim benefits stop. There's also the possibility of fees under the Equal Access to Justice Act (EAJA).
  • There are attorneys available to serve as local counsel.
  • Social Security is not suggesting that any of these claimants participated in Eric Conn's questionable behavior. They've done nothing wrong. Taking on one of these cases doesn't involve an attorney in a complicated criminal matter.
  • There's nothing odd about these disability claims. Like other Social Security disability claims some are stronger than others but they're not phony.
  • There are good arguments that can and should be made on the merits of individual cases.
  • There are strong arguments that can be made concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in each of these cases. The claimant cannot see the evidence upon which this determination was made. They were not allowed to contest the determination of fraud or similar fault. ALJs were forbidden to consider this issue. The claimants were compelled to prove all over again that they were disabled. Important medical evidence was excluded from consideration and the claimant could not contest this. The process is completely different than what Social Security has done in the past in cases involving allegations of fraud or similar fault. For that matter, it's completely different from what Social Security is doing right now in other cases. 
  • Claimants were not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim except through a new claim. Most of the claimants caught up in this became sicker as time went on. I've looked at the statute involved and I can't even figure out what argument that Social Security can make on this issue.
  • This is going to be a mess for the District Court in Kentucky where most of these cases will be heard. They're going to be deluged with hundreds of these cases. Are those District Court judges really prepared to slog through these cases, one by one? They're going to be strongly tempted to find a way to get these cases off the docket quickly. The easiest way to do that is to remand. How can I predict this? I was around for the huge wave of terminations in the early 1980s. That's what happened then.
     If you're interested in getting involved in these fee-generating cases in federal court, contact Mary Going at Appalachian Research and Defense Fund (AppalRed) at maryg[@]ardfky.org. Of course, there aren't any brackets in her real e-mail address. I just put them in there so she doesn't get so much spam.

4 comments:

Anonymous said...

SSA clearly did not follow due process here. They just made up their own rules to suit the situation. Look forward to see what the Federal Courts have to say about this fiasco.

Howard Olinsky said...

My office will take Federal Court cases in Kentucky, but not in West Virginia. In West Virginia there is a 200.00 fee to be admitted in Federal Court and a 350.00 fee to the state bar for each case. That means to represent West Virginia Conn's Conn victims it will cost the out of state attorney 550.00 just to appear in the case.

Howard Olinsky said...

Charles, you email for Mary Going is wrong. do you have a better email?

Anonymous said...

Email is maryg, not mary. Rest is OK