Claimants caught up in the Eric Conn mess in Kentucky and West Virginia are now receiving decisions from Administrative Law Judges (ALJs). About half are winning. The early signs are that the Appeals Council is fast-tracking appeals from those who were denied. Claimant are receiving decisions from the Appeals Council in less than a month. If things continue on the current track there will be hundreds of claimants needing an attorney for the federal court cases in the next three or four months.
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 are good arguments that can and should be made on the merits of individual cases but there are extremely strong arguments that can be made in all cases concerning Social Security's methods. Social Security is simply assuming that there is fraud or similar fault in all of these cases. The claimant cannot see the evidence upon which this determination was made. They are not allowed to contest the determination of fraud or similar fault. ALJs hearing these cases are forbidden from considering this issue. The claimants are compelled to prove all over again that they were disabled. Important medical evidence is excluded from consideration and the claimant cannot 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 than what Social Security is doing right now in other cases. Also, claimants are not allowed to prove that they became disabled at a date later than the prior ALJ decision approving their claim. Most of the claimants caught up in this became sicker as time went on. Even if an ALJ holding a hearing now doesn't think the claimant was disabled at the time he or she went on benefits originally, the ALJ might want to approve the claim as of a later date. I've looked at the statute involved and I can't even figure out what argument that Social Security could make on this issue. It seems clear cut to me that Social Security can't do this.
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 mary[@]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.
11 comments:
Is there no practical way to consolidate these claims into a class action?
So, SSA is bending its own rules in order to "make up" for alleged bending of rules by Conn and co. (2 wrongs don't make a right) But, seriously, is there any "True" Fraud (to borrow a phrase form Senator Langford) in this case? Or, is it possible that the vast majority were and are disabled (according to the law) and Conn found doctors willing to give him the documents needed and an ALJ who learned that Conn delivered the "proof" needed to approve and a synergy developed? They both had a common interest in maximizing cases/approvals. Then potential clients here that Conn delivers and soon he gets all the "best" case! Sure, the conspiracy theory sounds better, but anonymous keeps pointing out that we shouldn't always believe in them (Just kidding).
I don't get it. If these are all supposedly fraudulent claims, why are half resulting in favorable decisions? There will, no doubt, be more favorable decisions after the appeals.
If the "take their benefits away NOW" crowd had been correct, we should be seeing 95% unfavorables. Go figure.
If litigation were so easy, then the leading attorneys should win cases in the relevant districts ASAP. Until then any attorney should assume that the Conn cases in court will sinkholes of time and money. The EAJA at this point is pie in the sky. And the EAJA pie is a 99-cent dollar store pie. It is misleading to suggest that Conn court cases are anything put a pro bono sink hole.
This whole process was a "make rules up as you go along" bureaucratic gamesmanship. SSA is unilaterally granting itself a second bite at the apple. Federal courts reviewing ALJ decisions look to see if the individual decision was supported by substantial evidence. If substantial evidence supported Daugherty's ALJ decision finding disability, I don't see how the reviewing courts could not overturn the rehearing ALJ's decision. Also, if the decision is supported by substantial evidence and there is no allegation of fraud with the specific claimant appealing, I don't see how allegations against Conn and Daugherty are material if substantial evidence supports Daugherty's decision.
Sad Sad Sad
The ALJs used to want to do the right thing and follow the regulations.
Now they chase numbers and sometimes the decisions dont pass the laugh test. The federal Judges always used templates and law students to write the decisions but they made an effort. Then it became political.
Now they too have gotten the memo and cant be bothered to try to protect the claimant. I have done this for 26 years and now have given up filing in district court. So they have gotten what they wanted. Sorry.
6:40,
Because Daugherty's decisions were not supported by substantial evidence. They were supported be evidence that was determined to be part of a fraudulent scheme between Conn and Daugherty to manufacture evidence to justify approvals. Fraudulent evidence is not substantial evidence.
If you wish to question the determination of fraud or similar fault, that's fine. But there is no universe in which Daugherty's decisions will be the benchmark for overturning rehearing decisions.
"They were supported b[y] evidence that was determined to be part of a fraudulent scheme between Conn and Daugherty to manufacture evidence to justify approvals. Fraudulent evidence is not substantial evidence."
I think that's part of issue in these cases, the process by which the evidence was determined to be part of a fraudulent scheme did not afford the claimants due process. And when they finally got their so called day in court, they could not challenge this finding. The system was rigged against them at that point.
Shouldn't the government have to "prove" the evidence is fraudulent instead of just declaring it fraudulent? Remember, this is the same government that claims nothing wrong happened in Cincinnati (IRS=Investigating Republican Sympathizers) or with Lerner's laptop and has yet to indict Mrs. Clinton. So, the ALJ will probably not be charged. Well, if he did nothing wrong, how could anyone else, other than the doctor(s)? You can't have a "scheme" and only charge Conn, unless he offered money that nobody took! But, then there wouldn't actually be a "scheme."
The only thing excluded was medical source statements by the Conn doctors who were found to have engaged in fraud/similar fault; everything else, including opinions and records from the actual treaters is still admissible.
My message to Mary's email bounced back (and yes, I took the brackets out).
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