I'm curious about exactly how the Social Security Administration is approaching the 900 or so cases in Kentucky and West Virginia in which it is trying to take away disability benefits from claimants who had been represented by Eric Conn. I wonder if some reader knows how, procedurally, the agency is doing this.
Here are the possibilities that come to my mind and the problems associated with those possibilities:
- Reopening under 20 C.F.R. §§404.988(b) and 404.989 due to new and material evidence that some medical reports submitted by Conn were phony. This would be limited to cases where the initial determination (not the ALJ decision) was issued in the last four years. The argument could be made that Social Security already knew that the medical reports were phony. I don't know for sure but I suspect that the local ALJs would testify that everybody already knew, at least in rough terms, what was going on. Of course, if the ALJ decision relied upon the allegedly phony report, this might not matter. I suppose this is the most likely route. The claimants could still prove they were disabled anyway and most probably would.
- Reopening under 20 C.F.R. §404.988(c)(1) on the grounds that the favorable decisions were obtained by "fraud or similar fault." If Social Security has proof of "fraud or similar fault" how is Eric Conn still practicing before the agency?
- Termination of benefits under 20 C.F.R. §404.1579(d)(3) based upon a determination that the original decision putting the claimant on benefits was "in error." The problems here are that benefits could not be terminated retroactively without meeting the criteria specified above for reopening, the claimants would be eligible for interim benefits while they appealed their terminations and the agency would bear the burden of proving the "error."
I know that all this may sound like a bunch of legalese but Social Security has to follow its own rules. You'll notice from what I've posted earlier and from many of the comments on my post that most lawyers think that cutting these folks off benefits is no slam dunk. There are reasons that Social Security is just now getting trying to do this. And remember, Social Security won't have an attorney present at any ALJ hearings on these issues and the attorneys representing these claimants will keep asking again and again why Social Security is going after the claimants but not going after Eric Conn directly.
Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.
Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.
16 comments:
Social Security's theory of Conn's actions and the public information seem to fit squarely into 404.1740(c)(6), or (c)(10). And the standard of proof to disqualify under the CFR is less than a criminal charge. The case for going after the claimants while Conn continues to practice before the agency without charges is mysterious.
none of the above. take a look at the act
From Page 36 of the 2013 report by the Permanent Subcommittee on Investigations: "The DB Lists reviewed by the Committee
ranged in date from June 2006 through July 2010...For the period reviewed by the Committee, a total of 1,823 claimants were identified on the various DB Lists, and almost all were approved for benefits."
Is it coincidence that the time period and number of cases mentioned in current news reports correlate with the above committee findings? Did the OIG/SSA take a closer look at these 1,823 OTR decisions? All these cases were on the DB lists specifying what type of medical report (physical/mental) was required to make an OTR decision. If the agency took a closer look, did they find the medical reports from Conn's doctors were inconsistent with the rest of the medical in the files? Is this how we are ending up with reports that 1500 out of 1800 were possibly fraudulent?
As unbelievable as it may sound, is it possible that Conn routed cases he knew would NOT be granted by other judges to Daugherty, submitted a disabling medical from one of the doctors in question, and then Daugherty granted the case OTR? If you read the Permanent Subcommittee's report (and I highly recommend it) you will also learn that Conn withdrew "losing" cases during the hearings in front of other judges and that some of these cases ended up going to Daugherty who granted them OTR. If a scenario like this existed, it would explain why these 1800 cases were singled out for review. It would also explain why comments have been made that other attorneys are unwilling to take the suspended benefits cases because they will not get paid for them - and neither would Conn have been paid if the cases had gone through a legitimate hearing process - because the majority of them would have been denied.
Sadly, as Charles said "the claimants have been caught in the crossfire." My guess is most of them honestly believed they were/are disabled even though they may not have technically met SSA's criteria for disability. Now they are suddenly losing their income and have been out of the work force for, in some cases, almost a decade, which has only further crippled their ability to find work in an already economically depressed area.
I'm not sure what it takes for SSA to disqualify a representative, but I find it hard to believe the agency views Conn as someone who upholds their standards of representative conduct. Similarly, I looked at the Kentucky Bar Association's discipline actions and saw where many attorneys had their licenses suspended for failing to pay dues or for paying dues late. How does the KBA weigh due payment against documented involvement in videotaping a federal employee, destruction of evidence during a federal investigation, VA resignation in lieu of misconduct investigation and "misdemeanor" campaign contributions, for example, in their duty to protect the public?
SSA found two of the hired doctors engaged in "fraud or similar fault" and disqualified any evidence they submitted. That is how the agency can reopen and cease benefits.
Fascinating stuff, 10:58, if true. What you say does make sense. It also only furthers my disbelief that SSA or the Kentucky state Bar have not brought sanctions against Conn.
The overall concern is that Conn's actions will only cause a Congressional backlash against all representatives and bring further and damaging restrictions on us all.
It is important to know that the Agency is not terminating benefits; it is suspending benefits. The Agency is redetermining these cases under sections 205(u) and 1631(e)(7) of the Act. However, I don't read either of those sections as authorizing the suspension of benefits pending the redetermination. Of course, if a determination or decision was obtained by fraud or similar fault, 20 CFR 404.988 and 416.1488 provide for reopening at any time. But, again, neither regulation allows for suspension of benefits during the redetermination process. It would not seem that 20 CFR 404.1596 would sanction suspension under these facts, either. So, SSA's suspension of benefits, while understandable from a certain PR perspective, is problematic, to say the least. Certainly from another PR perspective, it is disastrous. And, of course, to the claimant's involved, it has the potential to be disastrous.
In another article, from the Lexington Herald Leader that Charles linked below, there is some quoted language from the letters:
The letter, dated May 18, said "we are suspending your disability benefits and the benefits of anyone entitled under your Social Security record."
The letter said the Office of Inspector General had notified SSA that there was reason to believe fraud was involved in certain cases that used evidence Conn submitted on behalf of clients from four doctors: Frederic Huffnagle, who died in 2010; David Herr; Bradley Adkins; and Srinivas Ammisetty. ...
The letter that went out last week said that under the law, SSA must make a new determination of whether someone is eligible for benefits when there is reason to believe there was fraud in the earlier application. In doing the review, the agency must disregard information from the four doctors, the letter said.
The letter said the agency would not be able to consider evidence produced by Huffnagle from January 2007 to May 2011; from Adkins from July 2007 to May 2011; from Ammisetty any time after July 2007; and from Herr from December 2009 to April 2011. ..."
Adding that language to the language in the West Virginia article, which apparently gave 10 days to appeal to continue benefits, I will assume SSA is treating this as a CDR issue, excluding the evidence obtained by "fraud or similar fault" and giving claimants the opportunity to request continued benefits during the appeal.
From a pure admin law standpoint, it will be interesting to see how the cases are handled as to burden? I'm going to bet money that the cases will be treated as de novo with the claimant having the burden to prove disability.
This just seems more foolish every day. Add the factor that the suspended claimants essentially have no access to representation, as noted in another post above, since there will likely be no fees. At the very minimum in today’s climate, most representatives would avoid such cases. SSA has set into motion a class action or a sanction.
This is one of many moves in the last 2 - 3 years that are frankly stupid. Congress is culpable here because they have not confirmed a commissioner. Even if Colvin were adept, her position is tenuous at best. The SSA Star Chamber includes many who love a leadership vacuum that might allow some dark horse or rising star to jump pay grades when a house cleaning comes. And it would not surprise me if one were on the way.
In the past when the agency really screwed up, they at least retreated to Woodlawn and laid low before coming up with another disaster. While I have mixed feelings about Astrue, it seems as if SSA has been in free fall ever since his departure. Gotta wonder what this gang is gonna do next.
My problem with this entire situation has always been that SSA had to know what was going on. They monitor the activities of the ALJ's almost on a daily basis and all of these OTR's and/or favorable decisions had to be a red flag. Any one of us on this blog can check the favorable/unfavorable rates of any ALJ at any time. It appears to me that this is government CYA at best
2:39PM stated, "Congress is culpable here because they have not confirmed a commissioner. Even if Colvin were adept, her position is tenuous at best." Au Contraire, Congress was astute by not confirming Colvin in the 11th hour back in December. This is further confirmed by Obama's decision not to renominate her for Commissioner. Colvin has repeatedly demonstrated she is inept.
With regard to, "The SSA Star Chamber includes many who love a leadership vacuum that might allow some dark horse or rising star to jump pay grades when a house cleaning comes. And it would not surprise me if one were on the way." A house cleaning is in order, but a dark horse outside the Agency would be necessary because the entire managerial chain of command is corrupt (Scandal on the horizon) and have already demonstrated they will only continue in lockstep with the status quo.
Anon at 2:19: Fraud or similar fault is one of the so called group one exceptions to medical improvement. The claimant would lose the benefit of the presumption of continuing disability accorded the usual claimant subjected to a CD-R. But the Agency is not treating these like CDRs.
The Conn activity all went down on Astrue's watch and was a result of his relentless focus on numbers and the backlog as opposed to honest appraisals of disability. During his tenure the only thing that was rewarded was high productivity, and nobody cared how you got there. He deserves as much blame. Still can't understand why Conn the Agency hasn't prohibited Conn from practicing before it; their excuses sound hollow to me.
Look at the list of reps that have been disqualified from practice before SSA and do some googling on them. I gave up after the first couple dozen, but for those I did--in every single instance--SSA only acted to disqualify the rep AFTER a State Bar or some law enforcement agency already rung up the rep something serious.
So in short, it seems like OIG or OGC or whoever is in charge of doing the disqualifications are afraid or unwilling to do anything unless and until some other governmental body has already nailed the person first. Which is strange, since disqualification before SSA is a much lower bar than both criminal convictions and conduct that would result in a serious suspension/disbarment from a Bar.
Here is a thought as to why SSA went after poor claimants from Appalachia instead of a millionaire attorney. The millionaire attorney has access to high powered legal help and the poor claimants don't. Bully prosecutor-types work that way. This took years to happen and there should be no rush to wrap things up in ten days. The claimants deserve a fair shot.
4:48 MAY 29
entire managerial chain of [SSA] command is corrupt
I am a representative and think that is a bit over the top. This was a foolish error. But it is in accurate if not unfair to blame the "entire management" much less assume they are all corrupt. No, it is likely there were many in SSA upper management who knew this would be a disaster. Without sound leadership, common sense in SSA is often overlooked and a few in power can tilt the ship.
Anon, 11:53AM: "entire managerial chain of [SSA] command is corrupt
I am a representative and think that is a bit over the top. This was a foolish error. But it is in accurate if not unfair to blame the "entire management" much less assume they are all corrupt. No, it is likely there were many in SSA upper management who knew this would be a disaster. Without sound leadership, common sense in SSA is often overlooked and a few in power can tilt the ship."
No, this is not too over the top, and a scandal really is brewing.
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