Jan 14, 2015

Coburn Angry That Conn Not Prosecuted

     From the Huntington, WV Herald-Dispatch:
The Oklahoma senator who led a Congressional investigation into alleged disability fraud at Huntington's Social Security Office took a parting shot at justice officials for not prosecuting those involved.
Tom Coburn, R-Okla., delivered his criticism from the Senate floor as he walked into retirement last month. He singled out U.S. Attorneys in southern West Virginia and eastern Kentucky, saying both recused themselves from prosecuting Eric Christopher Conn.
House and Senate investigations targeted Conn, a disability claims attorney near Pikeville, Ky., as well as former Social Security administrative law judges David B. Daugherty and Charles Paul Andrus.
Coburn argued the alliance of Conn and Daugherty, coupled with lacking oversight from Andrus, amounted to a "slam dunk." ...
The Dec. 16, 2014, floor speech called it a failure of the Justice Department to be "handed an absolutely, totally perfect case" and not prosecute those taking advantage of the system. Coburn particularly took issue with Conn's continued ability to represent disability claimants before the Social Security Administration.
"I wonder what (Conn) has over them," he said of the prosecutors. "I wonder what it is when you have a closed case, a prosecutorial case that you have to do no work on and the U.S. Attorneys will not prosecute a thief of the highest order." ...
Coburn's floor speech indicates the matter now rests with Social Security Inspector General Patrick P. O'Carroll, Jr., who the now retired senator said was trying to convince the Justice Department's criminal division in Washington to take action.
     The Kentucky Bar Association has apparently decided against trying to discipline Conn. So far, Social Security hasn't disciplined Conn. Neither of those cases would require proof beyond a reasonable doubt, just by the preponderance of the evidence. And, yet, Coburn is certain that the case against Conn is a "slam dunk", "absolutely, totally perfect" that could be proven beyond a reasonable doubt in a criminal court? Maybe the case isn't as airtight as Coburn thinks. Maybe Coburn should stick to medicine and politics and leave prosecutorial decisions to prosecutors.


Anonymous said...

Yep - probably the same reason the U.S. Attorney in NY would not prosecute the dozens of disability cases. Didn't the state's attorney have to do it?

The current Justice Department's decisions in many areas not just disability or social security seem to be a lot to be desired and to serve the public. Of course is the other problem that SSA seemed to be aware of it for years and did little about it.

Anonymous said...

The US Attorney has many more possible cases than it can ever prosecute. This "slam dunk" may not be as important as the Senator thinks.

Anonymous said...

Then we need more prosecutors.

This would solve that problem.

We have a surplus of attorneys and a need for more U.S. prosecutors.

Looks like a win-win.

Anonymous said...

And maybe Coburn is right, perhaps Conn has something over people in the right places that they would rather not come to light? Conn had lots of cash and made lots of political contributions, some of which were investigated as being potentially improper to a KY Supreme Court Justice.

Anonymous said...

I don't see any reason why SSA shouldn't have at the very least suspended his ability to represent claimants while any details are worked out....pathetic!!!

Anonymous said...

I totally agree with 10:34

Charles, you were trying to make the point that the criminal prosecution wasn't a "slam dunk" by stating SSA and the State Bars involved didn't even do anything with their lower standards of proof. But rather than make me think, "yeah, criminal prosecution clearly wasn't air tight," your assertion just made me believe the State Bars and SSA have completely screwed the pooch.

There is PLENTY of actions proven with ample evidence to sustain some manner of Bar discipline (maybe not disbarment, but good Lord at least a censure or something) and to disqualify him as an SSA rep. I am literally physically sick to my stomach thinking about how the Kentucky and W.Va. Bars and SSA haven't done ANYTHING to this guy.

Anonymous said...

SSA cannot take any action against Conn (disqualification or otherwise) that might jeopardize a criminal investigation. SSA can't make a move until DOJ does (or affirmatively doesn’t).

Anonymous said...

To the person who wants more prosecutions, congress would have to seriously ramp up DOJ's funding to have enough prosecutors and agents to go after every allegation of wrongdoing. Even then, it would still be a question as to whether Coburn's "evidence" warrants a prosecution.

Guys like Coburn like to complain about fraud, waste, and abuse but aren't serious about spending the money to actually do something. As they say in Texas, all hat, no cowboy.

Anonymous said...

A few things to consider here:

Senator Levin made the comment at the close of the Senate Hearing that their "evidence" was circumstantial and that there was not one claim that had been PROVEN to be fraudulent.

If I were the federal prosecutor in WV or KY I would be very angry that someone like Coburn - a gynecologist and grand standing politician - would dare to levy an accusation that I had been somehow influenced by a small town disability lawyer. The WV prosecutor "generally speaking" seemed to disagree that the evidence was as perfect or solid as Coburn would like the public to believe. A politician attempting to influence federal prosecutors with his derogatory and insulting comments, simply to further his own agenda against Social Security is, in my opinion, highly suspect.

Coburn is a doctor, not a lawyer and apparently does not understand the ex parte nature of a Social Security hearing. Many of his accusations are not actually forbidden practices but are encouraged in SSA R&R and particularly the HALLEX manual.

As shown by the actions of the very first days of this new congress, Social Security is at real risk. Coburn's ranting and raving is just his last ditch effort to hurt Social Security and force his personal views to the forefront of the new congressional agenda as his retirement means he will no longer be able freely toss around slanderous comments and enjoy the immunity that being a Senator has afforded him.

Charles said it best: Coburn should stick to medicine and politics and leave prosecutorial decisions to prosecutors.

Anonymous said...

The fact that former ALJ Daugherty agreed to voluntary disbarment is a pretty strong indicator that what he and Conn were doing was at a minimum unethical.

SSA will not sanction Conn until the KY bar sanctions him.

Anonymous said...

I am a rep near his area, and I can't believe I'm saying this ... I agree with a lot of what Coburn is saying. Eric "doesn't call himself Eric anymore" Conn has given a black eye to all reps who practice in the SS disability field. Rather than being prosecuted - or at least disbarred, he's expanding !! Most reps I know are hard-working, ethical, and truly care about their clients. But now, we are painted with the same brush as him, as if his tactics are commonplace (they're not). You have to practice in this field to truly understand. A lot of good people are being thrown under the bus for his actions.

Anonymous said...

From what I've read, it seems that the only things we know Conn did for sure was arrange for very short doctor's exams which resulted in cookie-cutter RFCs. Doesn't SSA do both of those things?

Anonymous said...

I run a large scale disability practice of my own, although not local to West Virginia, and this situation has affected my practice greatly. Still, I don't believe Anon @ 4:03 that it is ok to convict the man in your own mind just because you'd like to steal his clients.

As far as Daugherty is concerned - the man is almost 80 years old. I think he even responded to the WV Bar that he no longer needed a license. At that age, and with no intention of practicing, why would he go to the expense and trouble of trying to save a law license he does not intend to use?

Additionally, the previous comment regarding short medical exams and RFCs is what truly speaks volumes. This is common SSA practice. They (reps, examiners - non-medically qualified employees) write an opinion and send it off to their "consulting" doctor with the instruction that if they agree with that opinion they should simply sign and return. How is that not fabricated medical evidence by SSA?

Anonymous said...

5:13 - No desire for a "flame war", but I'd like to respond to your comment regarding what I said about EC. I have not convicted this man "in my own mind". I have years of knowledge to come to a very informed opinion, which I am free to express. I have no intent to "steal his clients". You're inference regarding my motives reeks of the very thing that you are accusing me of - essentially convicting me in your own mind.

All of our practices have suffered. Our clients are suffering, and that's what concerns me. Furthermore, our collective reputation is suffering, due to the actions of a very few.

Anonymous said...

People are convicted everyday on nothing more than circumstantial evidence. There is no need for a smoking gun.

The Conn/Daugherty incident has indeed tarnished all of our reputations (well everyone except Conn that is as I don't think he had much of one starting out).

I routinely hear our local ALJ's talk about how were aren't going to have another Huntington in this office as they look nervously over their shoulder when rendering every decision these days, choosing to deny cases that in the past would have been approved for fear that they will come under the microscope of higher ups.

Our world and the world of our client's has been changed by the actions of Conn and Daugherty.

Anonymous said...

"They (reps, examiners - non-medically qualified employees) write an opinion and send it off to their "consulting" doctor with the instruction that if they agree with that opinion they should simply sign and return. How is that not fabricated medical evidence by SSA?"

Well, since a determination of disability are reserved to the Commissioner, there has to be some way to manufacture these determinations.

So, they aren't medical evidence.

Rather, they are determinations that are crafted to enable the Commissioner to exercise the power that is reserved to the Commissioner.

It's very Zen.

Now, since Conn is *not* the Commissioner, he is not permitted to manufacture opinions, in bulk, in the same manner in which the Commissioner crafts such determinations because then Conn is really exercising the Commissioner's power without a letter of marquis, or a letters patent, or a Homeland security badge.

And that's definitely a no-no.

Anonymous said...

jeopardize a criminal investigation? This isn't a situation where a local law enforcement agency wants to arrest someone who is part of a big scheme currently infiltrated by the Feds in a long-term investigation or something.

I like to think I'm not a dummy, but I'm really at a loss to see how an administrative agency (SSA) disqualifying Conn from practicing before it based on, say, knowingly soliciting thousands and thousands of bogus MSSs (sharing a small handful of standard form responses), would jeopardize any subsequent DOJ investigation or prosecution. SSA's action would require no further investigation and could be done with evidence already in the public sphere.

Please explain how you think SSA disqualifying Conn could mess with Justice down the road.

Anonymous said...

Even if he is disqualified, I'm sure his practice will continue. I'm sure he employs other attorneys or reps.

Anonymous said...

I hate to play devil’s advocate here. OK, not really. I don’t hate it at all.

Running a large practice myself, I have followed this case closely. I agree it has affected everyone practicing in this field and also agree that it has affected many claimants and made it a bit harder to get through the claim process. If any of you are like me, you have the running of your office down to a very specific process and any change in the way the SSA does things tends to force me to have to alter my own methods. I suppose the recurring thought that I have as I follow along is that this could be me. It could be you. There are a few mentions in the senate report that tell me it could have been any other attorney in that area with several cases before Daugherty, it just so happens to be Conn.

The first thing I’d like to point out is that this particular ALJ did not reserve his favorable decisions for just one lawyer. His grant rate was based on all of the cases he decided. It is my understanding that Conn represented a high percentage of claimants in that area which would make it not so surprising that he had many cases that came before this ALJ and quite a few others. Further poking around into Daugherty’s career and personal history painted a picture of a former family court judge that also made questionable decisions during his tenure in that area. (There was a particular case in which he awarded custody of a teenage girl to the parents of her “boyfriend.”)

And yes, some months ago he gave up his law license. This is what he had to say about it: "I haven't practiced law in 25 or some years," Daugherty told the newspaper. "I really don't have any particular use for my (law) license." (That is a direct quote.)

Anonymous said...

In the senate report, there is one email in particular where he talks of how he has tried to help the people in his area and we all know that not long after the senate hearing he tried to commit suicide. There is a part of me that believes that this man really believed he was doing the right thing. And that thinking was reinforced as he received high praise from the administration for keeping his hearing office on the successful side of clearing the backlog.

Now, for the “Zen” response about Conn exercising the rights of the Commissioner – particularly this quote: “Now, since Conn is *not* the Commissioner, he is not permitted to manufacture opinions, in bulk, in the same manner in which the Commissioner crafts such determinations because then Conn is really exercising the Commissioner's power without a letter of marquis, or a letters patent, or a Homeland security badge.” I must call to question what it is you think you know about this process or what it is to represent a disability claimant. Any lawyer can hire any licensed doctor he wants. It is his CHOICE and is a means zealously representing his client’s interest. I will be the first to tell you I am not going to hire Dr. Denial to evaluate my clients. That is absurd.

Finally, as a practicing representative, I have found that lawyers are among the most spiteful and jealous people I know. This is not a field of camaraderie. While it may appear so at social functions and on television, the truth is that if one lawyer in a given area is successful, almost every other lawyer blames that one for their lack of success. I am sure Conn’s boisterous and sometimes outlandish advertising has done nothing to help his reputation among his peers but it is this same advertising that has allowed him to curate a large client base. In short, it worked. Even prior to the WSJ and subsequent investigation, the internet tells me that Conn has almost always been reviled and despised by practically every other attorney in that area and as far as I can tell it didn’t have all the much to do with his practice, it was more about the cars he drove, the women he dated, the ads he ran and general disapproval of how he determined to present himself.

All representatives in this field need to take pause and concern themselves with the almost constant unjustified attacks on the disability program. This is not about one attorney and his practice; this is an attack on the entire system.

Anonymous said...

@12:22 PM I have to disagree that this could have been anyone of us. I don't routinely give large sums of money to the daughter of an ALJ. I don't improperly try to make contributions to a State Supreme Court Judge by issuing checks in the names of all of my employees. I don't have doctors located within my office to "examine" clients and sign reports that I have others write. I don't set fire to my hard drives when people come around asking questions.

No, this could NOT have been me.

Anonymous said...

Please go back and review the testimony before Congress; the allegations were that Mr. Conn was, among other things, fabricating evidence, creating false x-ray reports. He was not just facilitating cursory examinations--or so the allegations were.

When offered a chance to clear his name before the Committee, he pleaded the 5th.

Anonymous said...

There is nothing wrong with a lawyer choosing the doctor he wants to examine his client.

The campaign contribution matter is entirely unrelated to Social Security.

The senate report falls far short of proving Conn gave money to Daugherty's daughter. Her campaign documents list a host of attorneys from Kentucky who practiced before Daugherty that contributed to her West Virginia campaign for magistrate, oddly enough, Conn is not listed.

Still, no amount of debate is going to change anyone's mind or compel them to look at this objectively. I have followed this case very carefully and I'm sure we could discuss this for many long hours but I have clients that need my attention. I respectfully bow out of this conversation.

Anonymous said...

Would you (as, I assume, a person knowledgeable of the court systems and legal field) have testified before a kangaroo court against your own best interest? Where the best line of questioning one could hope for is, "So, when did you stop beating your wife?"

Anonymous said...

Until such time that we are ready to remove Eric Conn and those like him from this area of practice we will continue to all be viewed in a similar light as he is. We need to clean our own house before we can expect outsiders to begin to treat us any differently than they currently are.

I distinguish myself from the likes of Conn to clients and others I meet everyday both in my words and in my deeds.

Anonymous said...

The MSS thing alone should be enough to make any ethical attorney want to disavow Conn and distinguish herself from him. And I think we have pretty hard evidence (such as the thousands of forms themselves...) that the MSS form doctoring and lack of practitioner input actually happened and that Conn directed it, or best case scenario knew of it.

I shudder thinking that so many presumably attorneys are both finding the things we know he did (not to mention those where the proof is lesser) OK and discounting circumstantial evidence. Only lay people scoff at circumstantial evidence--any 1L with a few weeks of class under his belt can tell you there's so rarely direct evidence and that circumstantial evidence can be just as probative/important in the eyes of the rules of evidence.

Anonymous said...

Frankly, it is not so much about Conn, WSG, 60 minutes, Daughtery, Coburn as it is about SSA's response. The law governing disability claims and appeals has not changed. What has changed is the agency's adherence to those laws. Every examiner, ALJ, Appeals Council whatever they are and Field Office employee who has taken advantage of this scenario to deny people who meet listings or are vocationally disabled, or moved their onset back in some lame attempt to justify an allowance; every one of those folks are to blame. And as a practicing representative I know they are in the minority. Unfortunately this minority of SSA employees and Management have seen fit to prevent 20 percent of eligible claims and appeals for the last two years. I blame those folks. We can all throw stones and vent, but are we holding our congress responsible? Very few in congress have countered this carnage.It happened with Reagan and CDI's but never to this extent. It is sickening to see it occur at this unprecedented level.

Anonymous said...

The fact remains, every MSS form was signed by an acceptable medical source. Therefore, an AMS was vouching for these limitations on every single form Mr. Conn submitted. A lot of medical licenses and professional reputations are on the line here, not just Mr. Conn's. I think SSA wants this whole thing to go away quietly.

Anonymous said...

Unless he started off using a ton of folks, what I remember reading in the Senate report was that Conn had a small number of AMSs on his payroll who churned out thousands of MSSs that were one of a small number of identical versions.

And so what--if Conn got 500 AMSs signing things that were identical and not even really reviewed before signature, roast them all. We all know that the AMA and State med licensing boards are an awful lot more willing to discipline their own (compared to State Bars and the ABA).