Social Security's effort to cut off the disability benefits of many hundreds of Eric Conn's former clients generated an intense legal challenge. Oral arguments of the first of these to reach the Court of Appeals was held last week. This was on the narrow issue of exhaustion of remedies -- whether Social Security claimants had to go through all the steps at Social Security before challenging the process in the courts. You can listen to the audio of the oral argument and tell us how you think it went.
One backdrop you need to consider to these legal challenges is the extraordinary right wing tilt to the judges who have heard and will hear these cases. The judges on the District Court bench in Kentucky are all Republican appointees. The judges on the Sixth Circuit Court of Appeals are overwhelmingly Republican appointees. This is quite unlike most federal courts where most judges are Democratic appointees.
The Court seems interested in ordering interim benefits.
ReplyDeleteThey got just about the worst panel possible, three W. appointees!
ReplyDelete@9:52
ReplyDeleteI would generally agree, however I've seen W. appointees (in the ninth circuit) reverse SSA if the judges find SSA's behavior is unjust. It is not like conservative judges love government inefficiency.
Renee Maines v. Carolyn Colvin springs to mind. Fun argument to watch.
So, are you saying that judges appointed by a republican are, by definition, biased? And those appointed by a democrat are automatically fair?
ReplyDelete@10:37
ReplyDeleteNo, however I've yet to see a judge not acknowledge a key part of their job is to try their best to remove their personal biases from their analysis of the issues presented and case law.
If a judge was appointed by Eisenhower I would presume they would be likely to rule against SSA as Eisenhower strongly supported Social Security. If a judge was appointed by W. I would presume they would be likely to rule in favor of SSA as they were nominated on the basis that they were more likely then their contemporaries to support limited government and limited judicial activism.
Conservative judicial philosophy is concerned with limiting judicial activism while liberal judicial philosophy is not. As such, a conservative justice is more likely to let the lower decision stand, while a liberal judge is less likely to.
Due process Requires a procedure to be fair and not arbitrary! Anyone with any intellectual honesty can see that the SSA's decision to arbitrarily dismiss all previous evidence is not only unfair, it is unjust! This is a case of "blame the victims" when those most at fault are/were employees of the agency. SSA policies gave big bonuses to Daugherty for his number of "decisions." Why didn't Daugherty's superiors investigate him earlier?
ReplyDeleteAs for previous medical records, did Conn's clients only go to doctors after visiting Conn? I could understand SSA wanting to disregard RFC forms filled out by doctors with proven relationships with Conn. However, I see absolutely no justification whatsoever in ignoring evidence from providers who treated a patient prior to them contacting Conn. Furthermore, if there is no evidence of wrongdoing by a particular doctor, I find it difficult to dismiss their records simply because Conn recommended them. MRIs, x-rays, blood tests, etc. are conducted by third parties and not by the doctor. If you believe they are faked, then prove it! Then, take the doctor's medical license!
As for the audio recording, the attorney representing SSA's interest suggested that the claimants could "just get another doctor" to help them! This case has effectively poisoned the atmosphere to the extent that few, if any, doctors are willing to help claimants. Especially in that area, but much more widespread. He also suggested that, if denied, they could simply reapply. Never mind the work credits, thing!
Tim..."when those most at fault are/were employees of the agency."
ReplyDeleteLook, it's deplorable what agency leadership let go on for so long, and we can argue about how they handled what everyone with half a brain can admit is baseless, phony medical evidence but like...isn't what Conn and his folks actually did the worst part since, you know, those acts are the genesis of all this and the actual fraud?
Tim wrote:
ReplyDeleteI could understand SSA wanting to disregard RFC forms filled out by doctors with proven relationships with Conn. However, I see absolutely no justification whatsoever in ignoring evidence from providers who treated a patient prior to them contacting Conn.
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These two sentences are an unfortunate byproduct of one attorney's campaign to dumb down the issue by repeating over and over that the hearings are rigged and the agency is arrogant, without actually explaining what happened.
With regard to your first sentence, that's all SSA did. It reviewed cases that were approved based on fraudulent opinions from doctors with proven relationships with Conn, and then determined whether there was enough evidence to support a favorable disability decision without that fraudulent evidence.
SSA did not arbitrarily disregard evidence from treating providers in these cases. The problem, from the claimants' perspective, is that because Conn was able to obtain benefits for them using minimal evidence, many of them did not obtain any other evidence. Or the evidence that they did obtain was destroyed (some of it by Conn himself).
So, you're saying that a thousand plus disabled people hardly ever bothered to see a doctor until contacting Eric Conn? Or, are you saying DDS didn't bother to collect the records? Are you suggesting that most of Conn's clients' cases have been "cleared" due to other evidence? It sounds like the SSA needs to do a better job of convincing us (the American People) that the process has been fair. All I have read points to an agency that got embarrassed and then over-reacted and wants to put ALL of the blame on Conn. What about Daugherty, his supervisors and the doctors? Didn't doctors sign forms for Conn? Or did Conn just manufacture them? Did Conn bribe the doctors? Did the doctors make provable false statements? I am sorry, but I don't trust the agency.
ReplyDelete@tim
ReplyDeleteYour DDS collects records?
Yes! When you apply, you give a list of your doctors... DDS requests them from your DOCTORS... they put them in files, which can be obtained on a cd. The files are updated again at Reconsideration.
ReplyDelete@5:59
ReplyDeleteI was kidding. Our DDS frequently...misses...medical records, even those directly reported to them. It has gotten better since we started following up with DDS on a frequent basis.
Tim,
ReplyDeleteI understand that many of Conn's former clients are actually disabled, and they would have been disabled even if they had never hired Conn. But you have to remember that they did hire Conn. The agency didn't appoint Conn. He was hired by people trying to get disability benefits. In many cases, he was hired specifically because of his reputation for winning cases. As it turned out, his promises were too good to be true, because he and a stable of doctors-for-hire manufactured evidence to support favorable decisions. This is all documented in a publicly available congressional staff report that was released in 2013.
In every other area of law, when an attorney behaves badly and his client suffers, then the client's recourse is to sue the attorney for malpractice. Here, because SSA has deep pockets, the attorneys representing Conn's former clients have been trying to force SSA to keep paying the benefits indefinitely. In other words, they want to keep the checks coming unless and until SSA can prove in each individual case that the evidence Conn submitted was NOT fraudulent. This approach would give their attorneys license and incentive to drag out the appeals process for years, knowing full well that any clients eventually stripped of benefits would never actually pay back all of the benefits obtained via fraud. Maintaining the status quo for now sounds great, except that the Social Security Act puts the burden on claimants to prove that they are disabled, and there is no special exception for people who are left without proof because they chose to hire a scam artist who destroyed records and didn't bother acquiring legitimate evidence from treating doctors.
Daugherty and his superiors did play a significant role. But SSA is not obligated to keep misspending taxpayer funds simply because a few employees went rogue and paid claims that should never have been paid.
Daugherty did not get to ride off into the sunset. He was disbarred and has been indicted for his crimes, alongside Conn. As for Conn's doctors, you can read about them in the congressional report. At least one of them, Dr. Adkins, has also been indicted.
You asked if Conn manufactured forms, bribed doctors, and got doctors to make provable false statements... yes, on all counts. It's all in the congressional report.
That should read "evidence Conn submitted was NOT legitimate"
DeleteIf SSA made a better effort at the DDS level, they wouldn't need as many lawyers and ALJs. Daugherty and Conn took advantage of a system that was set up to benefit lawyers and ALJs. It's hard to blame legitimately disabled people (I am not claiming all or even most of Conn's clients met SSA's criteria) for hiring the area's "best" SS lawyer! DDS is set up to deny, then hope they go away. So, naturally, people who have waited a year and a half (or longer) for a hearing want to maximize their chances...
ReplyDeleteMy biggest problem with this case is that certain people (Rand Paul, Lankford, Cotten, etc.) use it as part of their "fraud is rampant" arguments, while not one single claimant in this case has been accused of wrongdoing. Frankly, there has got to be easier ways for the unscrupulous people in our society to "make a dishonest living."
I wouldn't wish this "process" on anyone. It's been nearly 3 years since I was last able to "work" regularly and really almost 5 years since I was able to work on a sustained basis. I am still waiting for a hearing. The only thing worse than not being able to work is this ungodly wait! I have no sympathy for Conn, etc., only for the claimants.
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ReplyDelete@Tim
ReplyDeleteDon't forget Senator Sessions.
In regard to waiting for your hearing, review HALLEX I-2-1-40 for criteria which can result in a faster hearing if you can argue it to ODAR.
It won't get you a hearing next week, but I've seen hearings expedited to under 6 months waiting, and actually under two months in one case due to a terminal illness...that case ended in a fully favorable decision for SSI benefits literally 5 hours after the client died...depressing.
7:01 has explained this issue as cleanly as rationally as I have seen (on these boards, at least).
ReplyDeleteI get that claimants and, to a lesser extent, reps maybe don't care or aren't as aware of this, but SSA has other (proper, legally mandated) goals aside from providing as much due process/benefit of the doubt/extra help to claimants. Having a woefully inadequate budget and other factors hamstringing us doesn't help this reality.