Social Security has just started holding hearings for former clients of Eric Conn who are being threatened with benefit termination. I'm hearing that at least one Administrative Law Judge (ALJ), William Wallis, is refusing to consider or even admit into the record any evidence that is dated after the prior decision. Attorneys are submitting evidence but the ALJ is refusing to make exhibits of the evidence. This is one way of interpreting the instructions that ALJs have been given that they cannot find that a claimant first became disabled after the prior ALJ decision but is this what Social Security intended? And, of course, the instructions to consider the claimant's condition only up to the date of the prior ALJ decision are clearly at odds with 42 U.S.C. §402(j)(2) but I suppose that the plain language of the Social Security Act doesn't matter when Congressional Republicans demand mass terminations.
Update: The ALJ refusing to admit any evidence dated after the prior decison is not William Wallis but Sandra DiMaggio-Wallis. ALJ William Wallis might be doing the same thing but I don't have a report about him. By the way, the ALJs hearing these cases have been put into a difficult spot. They've been given weird instructions which many of them may be uncomfortable with. I don't want to be too critical of the ALJs. The problems were created much higher up at Social Security.
Update: The ALJ refusing to admit any evidence dated after the prior decison is not William Wallis but Sandra DiMaggio-Wallis. ALJ William Wallis might be doing the same thing but I don't have a report about him. By the way, the ALJs hearing these cases have been put into a difficult spot. They've been given weird instructions which many of them may be uncomfortable with. I don't want to be too critical of the ALJs. The problems were created much higher up at Social Security.
21 comments:
the hearings are not to determine whether the claimant is currently disabled or even if they became disabled the day after the decision. they are meant as a do-over of decisions that were allegedly obtained through fraud.
If you are an attorney, can you really argue that evidence from AFTER that time should be admitted?
Judge Wallis is a very difficult ALJ to deal with and has been extremely demeaning to clients I have brought before him in the past. It doesn't surprise me that he would take whatever stance SSA suits tell him to take. His stats aren't bad but he is quite the piece of work.
It must be nice for SSA to be able to make up the rules to the game as they go along to best suit the outcome they desire.
Let's not get all up in arms. While the CFR does say later and earlier evidence can be used (linkage doctrine) to inform SSA about the period in question, this is a unique case. I can see the agency's apparent course of action--if it truly wants to act as though it is doing those decisions over again as if they were being done at the time they were first done, then it makes sense to exclude all evidence created after that time. Now its legal basis for doing so, that's a whole different story :)
The new evidence can be used when those that are denied at the ALJ level reapply. I don't see the problem here. The new evidence has nothing to do with the original decision, this is not a reconsideration.
As I read the HALLEX instructions, one issue to be resolved by the ALJ would be whether to disregard certain evidence because of fraud or similar fault. I am wondering if anyone has insight into whether this is being addressed in the hearings or whether the ALJ are just starting from the position that there has been fraud or similar fault.
This isn't supposed to be the Twilight Zone, where we go back in time and relive the case as then presented. The issue is supposed to be whether the person was in fact disabled at that time, not whether the record, after deleting the favorable medical opinions, would theoretically still have been sufficient. Of course new evidence of conditions developed immediately after the decision or even of current condition can tend to reinforce proof of the fact that the person was disabled at the time of the first decision. As can unsubmitted evidence from earlier periods that shed light on the condition as it existed at the time.
The judges should not be considering these cases with blinders on if there is to be even a semblance of due process. At least that would be the case as long as we are not writing a new Kafka novel.
What a shameful agency. SSA wouldn't know due process if it took a due due in a hearing room.
"Anonymous said...
The new evidence can be used when those that are denied at the ALJ level reapply. I don't see the problem here. The new evidence has nothing to do with the original decision, this is not a reconsideration.
4:03 PM, September 23, 2015"
The "problems" here is there has been no evidence or reasonable suspicion of any kind of fraud at all,and any such charges or allegation against the attorney Conn and those doctors has since been dismissed or found otherwise not guilty,that these people have had their civil rights denied by the SSA,these people have since been through "reconsiderations" and been found elligible by the SSA and it's own doctors,and here's the big one...that these "hearings are fixed and slanted in effort to defraud these people* of their elligible incomes (which are NOT handouts or government funded anything,these disability incomes were paid for BY these people every day that they worked for their entire lives....you/the SSA seem to forget,these moneys do not,never have belonged to,nor will ever belong to thm,the SSA/government),their incomes and medical insurance (Medicare) will be terminated,every one of them (just as has been happening all over the country in recent months to thousands of people--all about the same time the SSA "Proudly annouced" that "as early as 2017,millions of illegal aliens granted amnesty will be receiving SSI/Disability incomes..") will LOSE THEIR SOLE MEANS OF SUPPORT AND INCOME,they will be forced to repay much of the incomes that they have received over the years (I personally know of some people elsewhere who went through similar in recent months...a stage 4 cancer patientwho requires a 24 hour nurse and is bed-ridden comes to mind as but one example,who are now being forced to repay as much as $10K),and reapplying could take years. How long can you go without eating,having water or shelter,friend? Or might you be part of the problem. Why not do a little research before opening your mouth (perhaps that's why you chose to post "anonymously"...so I shall reply in like kind)...
*imagine that...the SSA,who is accusing and punnishing these people without just cause of "fraud/defrauding the government" is at the same time defrauding them...
in the current redeterminations, SSA is using sections 205 and 1631 of the Act, which state that the agency will "immediately" redetermine an individual's entitlement/eligibility if there is reason to believe that fraud or similar fault was involved in the claim. SSA never promulgated any corresponding regulations to implement these sections of the Act but instead has written up some Hallexes - kind of making the rules up as it goes along.
More disturbingly, the agency clearly ignored the word "immediately" in the Act. The agency seems to assume that nobody is going to notice or care that it did not "immediately" redetermine eligibility in these cases but instead waited years after finding out about what was going on in the Huntington office.
Meanwhile, doesn't SSA continue to allow Eric Conn to represent claimants at hearings and pay him fees in the cases that he wins?
The doctors Conn used have been found by SSA to have engaged in "fraud or similar fault" and any evidence they have submitted in any case during specific time periods is automatically excluded as unreliable.
@ 12:26AM Can you show me where an ALJ made that finding in a specific case? Was there a formal due process hearing conducted by SSA in making the finding of fraud or similar fault in each case? The finding needs to be made on a case by case basis to afford each claimant due process.
I keep reading "due process" an awful lot but am not seeing citations to any legal authority describing the process due to the claimant's in this situation.
@ 1:27 PM. You can start with the 5th and 14th Amendments to the U.S. Constitution and then move on to Goldberg v. Kelly (1970).
3:56 PM,
Why would you refer someone to Goldberg v. Kelly, when the Supreme Court specifically held in Mathews v. Eldridge that Goldberg's reasoning did not extend to require evidentiary hearings prior to termination of Social Security disability payments? If people are going to invoke vague principles of due process, they should at least be prepared to explain WHY SSA's procedures fall short here. Simply pointing to the Constitution and a 45-year-old case that does not involve disability benefits doesn't really advance the discussion.
Try on the principles laid out in Bowen v. New York, 476 U.S. 467.
@3:56 you might be misreading Mathews, which had a strange procedural posture because the beneficiary did not seek reconsideration, but simply filed suit in district court. Here are a few nuggets from Mathews.
"... at a minimum, due process of law requires notice and opportunity for a hearing, that is, an opportunity to be heard."
"...the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner."
umm, Mathews made it clear that it only applied when the person had a vested property interest. That means in SSA benefit land, its due process requirements only apply to those already in receipt of benefits--i.e., that notice and a hearing requirement only really applies to cessations ;). It's not so clear here that the Conn clients have a vested interest in those benefits since they were, at least allegedly, often gotten by dubious methods.
Allegedly often gotten by dubious methods? The mere unsupported allegation by SSA strips one of one's property interest? There is no requirement that the allegation be proven? We may be getting at the heart of the matter.
With any luck, that kind of reasoning will land SSA on the wrong side of a Supreme Court decision.
Again.
I want to see objective evidence of fraud, not just merely signs and symptoms of fraud. Just kidding. We can't hold the Agency to the same standards it holds claimants to. That would be too high a burden.
4:26 and 5:01 are on point. While it's certainly appropriate for SSA to seek to readjudicate cases like these when evidence MAY suggest fraud or similar fault, it's completely inappropriate and a violation of due process to preclude the claimant from contesting the allegations as part of the hearing process. SSA has the burden on this issue and cannot just issue a conclusory finding and instruct the ALJ to not consider certain evidence.
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