... During the appeals process, however, the plaintiffs can challenge the SSA’s determination that fraud might have been involved in their applications for benefits. ...[T]he plaintiffs know exactly what the SSA is doing and can challenge the suspicion of fraud during the appeals process ...However, Social Security's staff instructions say that "... the claimant may not appeal the agency's statutory mandate to disregard evidence based on OIG [Office of Inspector General] referrals of information ..." How is a claimant going to challenge the finding of fraud when Social Security's staff instructions say that finding can't be challenged? Did this court understand what is going on?
Nov 17, 2015
Did This Court Understand What Social Security Is Doing To Eric Conn's Former Clients
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18 comments:
So does that mean that all the evidence the claimants relied on to prove disability before will be disregarded? If that's the case, how will they be able to come up with new evidence that proves they were disabled 1, 2, 3 or more years in the past? In most cases that won't realistically be possible. If that sticks, it will result in more than a few legitimately disabled people getting denied or losing years of benefits through no fault of their own. So much for justice.
I just looked at a case today. All evidence but exam bought and paid for by Conn showed claimant clearly wasn't disabled. Only evidence cited by Judge Daugherty was the Conn exam in a 2 page OTR decision.
Re Johnny post - Probably not exactly a scientific sample.
When SSA is confronted with a problem in the disability branch that they can not solve, they make new rules. And if there is any hint of fraud, whether or not it is material to the all parties involved, nobody cares.
This is really the agency at its worst.
Definitely not a scientific sample. And I completely agree this is the agency at its worst. I was just pointing out that there are likely a certain percentage of cases like this one in the mix as well Sadly, it is the claimant who will suffer while Conn and Daugherty get off scott free.
What's the alternative? Should the agency just ignore the fact that Conn fraudulently obtained benefits on behalf of many claimants? Surely not every claimant who hired Conn meets the agency's definition of disability.
How about a little due process? How about not changing the rules as we go, also known as stacking the deck? How about allowing appeals? How about not painting with such a broad brush in that yes there were some fraudulent claims, but not all the claims were fraudulent. How about applying the laws of equity? Oh, that's right SSA doesn't recognize equity unless it is some bastardized version under the over payment rules. But I digress. How about just a level playing field for these claimant's who have already been put through the wringer.
7:47 PM,
Terms like "due process," "equity," and "level playing field" all sound nice in theory, but what do they mean in practice in this situation? Delaying the proceedings indefinitely? Giving controlling weight to Conn's fraudulent medical source statements in every case where the claimant would have difficulty obtaining other evidence? Giving everyone a pass (including the 40-50% who would not have been found disabled absent fraud), simply because it's the simplest course?
I'm actually interested to know what the goal is here. So far, folks seem to be proposing only two solutions: (1) let bygones be bygones and pretend the fraud didn't happen, or (2) stall as long as possible by requesting continuances and allowing claimants to appeal everything under the sun, so that everyone continues to receive benefits while their cases are tied up in administrative appeals and litigation. It appears that no one is concerned about the fact that nearly 2,000 people have received and continue to receive federal benefits that were fraudulently obtained.
As for the popular refrain that Conn and company have not been charged, bear in mind that an indictment may be forthcoming. If that happens, will it change your opinions about whether the government should re-evaluate his cases, or are the constant references to Conn's lack of punishment thus far just a red herring to drum up outrage?
There is clearly no fraud involved here...the 4 day bon fire in which 70k cases of records were burned...just a big smores party, the hammers to the hard drives...there must have been flies on them or something, they surely were not trying to cover something up. The dr's falsifying records and just copying them and changing the name...must have just been an accident a couple of times, these records should still be ok to use I'm sure...
Don't forget that SSA started out by declaring that all of these peoples' benefits were be summarily cut off - a position SSA reversed after several suicides in the group of claimants were reported.
If I file a lawsuit against someone alleging fraud in a contested civil matter, I have to prove the fraud through competent evidence. The opposing party gets a chance to challenge my evidence. A neutral judge decides if I have made my case that fraud occurred. Only after such proof and challenges can fraud be established. Also, I can appeal if I believe the Judge erred. That's fair. That's due process.
That's in contested, rough and tumble adversarial litigation. SSA's legal system is supposed to be non-adversarial. It is supposed to be more fair and friendly to the claimants. However, in this case, it is far less fair.
This is star chamber adjudication. SSA unilaterally decided the medical evidence was fraudulent in every case. My understanding is that claimants got no opportunity to challenge that finding in their individual cases regardless of the facts. There is, according to Hallex, no right to appeal the SSA's decision to disregard that evidence.
What would be fair would be to allow ALJs to make findings on a case by case basis. ALJs are capable of determining whether there is substantial evidence of fraud for each exhibit. Any such evidence should be made part of the record and the issue should be noticed. The claimant should have opportunity to rebut that evidence. That would be fairness and due process. Fraud should have to be established by proof, not assumption or guesswork.
@7:17 "The dr's falsifying records and just copying them and changing the name...must have just been an accident a couple of times, these records should still be ok to use I'm sure..." *describes state agency examiners*
11/17 11:25pm I did not say to just let bygones by bygones in any fraud cases. I think that all fraud cases that can be PROVEN IN A COURT OF LAW should be prosecuted after being investigated properly. However, the kangaroo court process that that these claimant's are being assaulted with is appalling.
I think that 11/18 9:47 did an eloquent job of stating my position as well as his/hers so I have nothing else to add.
Due process?! Where was due process when the majority of these claimants were granted OTR in a matter of months while thousands of other claimants had to wait years for a hearing and an obviously higher chance of being denied? I'm sorry Conn's claimants are going through this and believe the majority of them honestly considered themselves disabled, but why isn't the flip side of this ever mentioned? Why don't we hear about the claimants who lost their health, their homes and possibly their lives waiting to get in front of a judge? Even now, claimants with attorneys who follow the rules are taking a backseat while precious docket space is allocated to these Conn cases. Due process is due process - it was lacking the first time around for Conn's claimants, and they benefited from that. If it's lacking now...well, you can't have it both ways.
Johnny Cash at 6:12 PM wrote, "Sadly, it is the claimant who will suffer while Conn and Daugherty get off scott free." ...along with Andrus who had the choice to stop it and didn't.
Actually, for anon 1:35 AM, there is no evidence that "the majority of these claimants were granted OTR in a matter of months" or that the majority were fraudulent. I don't understand what is meant by saying "due process - it was lacking the first time around for Conn's claimants, and they benefited from that." Finally, you only need it one way, as the majority of comments above seem to me suggest, provide due process. Don't change the rules for one class or claimants. Here's a simple suggestion, treat all the cases like a regular CDR. Prove the CEs were fraud when they were and give them no weight. Instead, SSA's starchamber came up with a scheme that reflects little adherence to the law, regulations or common sense.
so, 1:35, if as you allege, there was no "due process" because of Conn's and Daugherty's collusion, your remedy is to follow this miscarriage of justice with another action which gives no due process bending in the opposite direction? So, 2 wrongs will then make it right?
Do you really a good reason to believe something when you don't have convincing evidence? Besides hunches and suspicion what can SSA prove? Nobody has even been charged criminally here. The ALJs have retired, Conn has his law license, and the docs are still in practice. SSA's process reeks of being arbitrary and capricious, yet the judge allows SSA to go on with their sham proceedings. If the Social Security Act says this OK then it has to be changed.
Cutting off the benefits from the start was the problem. Of course, probably not all of them will be granted again. But this arbitrary cutting them off while they wait for some sham adjudication of the claims is ludicrous.
Yes, Conn was wrong. But the ALJ was part of the SSA. He is their responsibility on some level. Already tired of this whole mess.
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