Social Security has threatened or is threatening termination of disability benefits to thousands of Eric Conn's former clients. These cases have come in two waves. We're in the second wave now.
The need for pro bono legal representation in the Conn cases far exceeds what can be provided locally. Attorneys all over the country have stepped up to help these sick people who were unaware of Conn's illegal behavior. In the last wave of cases, attorneys from other parts of the country appeared by video. It wasn't perfect but it did provide legal representation which couldn't have been provided otherwise.
Cases are now being scheduled for this second wave of Conn hearings. This time attorneys are receiving the letter shown below. We're being told that "Your office was made aware of the location of the hearing when it was scheduled and is in not in the best interest of the claimant for you to appear at another location ..." I was made aware of the location of the hearing when it was scheduled but I told the people scheduling the hearing that I would need to appear by video. I was told to send in my request so I did so, expecting to have my appearance by video. The idea that allowing me to appear by video would "not be in the best interest of the claimant" is almost Orwellian. There are already so many reasons why denials by Administrative Law Judges in the Conn cases may get remanded, it's hard for me to comprehend why anyone at Social Security would think this is a good idea.
13 comments:
The ironic thing is that in Prestonburg, the ALJ appears by video from Huntington, the VE is either with the ALJ in Huntington or by phone, but you as counsel working pro bono are not allowed to appear by video?
My understanding is that if a rep has an agency-approved VTC setup, than we ALJs must allow the rep's appearance by video, absent objection from the clt.
Here is a communication on that issue from current region 4 RCALJ
"When Judge Dillon and Deputy Commissioner Gruber visited Atlanta last month, they spoke at the NOSCAR conference. Several representatives mentioned problems scheduling hearings from their offices. The Deputy Commissioner made it very clear that after a representative invests in the equipment to conduct hearings in this manner, our offices are expected to cooperate, absent extraordinary circumstances. Below are some general provisions pertaining to this topic.
Thank you for your cooperation in this matter."
Sheila Lowther
RCALJ
Are the claimants from the first wave of Eric Conn redeterminations raising Lucia arguments in federal court? If not, they should be.
They have been making this as they go along, completely out of whole cloth. I long for the old days when someone like Judge Posner would chastize these clowns. It is beyond incompetence and even beyond staff shortages. There's no scintilla of compassion left and little real concern for the claimants who are in this condition through no fault of their own.
Charles,
Ironically, the "special review cadre" that sent you the letter that effectively discourages pro bono representation of financially desperate disability claimants is part of SSA's "Compassionate And REsponsive Service (CARES)" plan. https://www.ssa.gov/appeals/documents/2017_Updated_CARES_Anomaly_Plan.pdf
I take it neither you nor your clients are feeling the compassion.
So now they are denying appearance by video, knowing that the lawyers are in other States. Of course, you also have the wonderful new rules of conduct that prohibit withdrawal after the hearing is scheduled, so now all the volunteer lawyers may be forced to travel to another State because permission to withdrawal may not be granted either. This area of law has become very frustrating lately. It seems like everything is being adjusted to make our lives more difficult in every way possible. We are expected to do more every day and incur more time and money on our cases, yet the case approval rates have plummeted compared to just a few years ago. Thus, we are expected to do a lot more for a lot less pay. But everybody knows that all lawyers are rich,and have endless money, so it's no big deal. Right?
My best guess is the video system "broke" and they don't want to spend the money to fix it, or wake up the it guy to hey it done. Or they know they will lose in court and just want to discourage representation. This is odd because I heard the st Louis hearing center would handle all of the cases which would have to be by video
Well, did you include in your request to appear by VTC a signed statement by the claimant supporting the request and waiving any claim of prejudice resulting from the claimant and rep not being physically together at the hearing site? Or did you just request it on your own behalf and figure that would be good enough?
Having worked on other fraud redetermination projects, I can tell you that SSA does not have some master plan to discourage representation. They just see this as a project where they have to give every claimant a chance to prove, in a standard hearing under standard procedures, that he/she was disabled as of the date they were originally found to be disabled, except without resort to tainted evidence. So, repped or not, the hearing still has to be held, the evidence fully considered, and a full decision issued.
And under standard procedures, we do not normally allow reps and claimants to appear from different locations, especially not just for the rep's convenience. You need extraordinary circumstances (such as the claimant being in jail) and claimant consent. Did you show these?
And let's have it also noted for the record that "pro bono" reps in fraud redetermination cases can get reimbursed for travel and can file a fee petition if they win.
10:06 AM Not quite correct on travel reimbursements. I have my requests routinely denied by OHO because of the asinine rule that the farthest service area distance from OHO must exceed 75 miles. So, even if I cross the country to rep a client, if the OHO is close to its entire service area, I am out of luck.
@10:06
Travel reimbursement is capped and it is a pretty common occurrence for travel expenses to exceed travel reimbursement. I would imagine they will given Charles' office is roughly 5 hours (across two states) away from the hearing site and the cap is set by the maximum distance of travel within the state.
Payment through the fee petition process..maybe. It depends on if the claimant has requested interim benefits, and assuming they have, whether they are capable of paying the attorney fee granted. Also, the petition processing times have reached exceptional length and while you suggest the rep will be paid in the end, the delay creates a measurable loss of value. Even assuming a $6,000 fee award, 2% inflation effectively results in a loss of $120 after a year of delay. That is an incredible amount of risk not present in the standard social security claim, which is why "pro bono" reps deserve credit and support.
SSA's actions may not be meant to discourage representation in the fraud redetermination context. I would imagine SSA would want to avoid creating any appealable issue they can, but these rules apply in all contexts. The changes over the past two decades may not be meant to discourage representation, but the fact remains they are.
SSA would not know what's in the best interest of the claimant if it hit them in the face! What sleaze!
The special review cadre says
We'll protect you every day
We'll drive those pro bono lawyers away
So SSA don't have to pay
Keep them jumping through a lot of hoops
Make them travel until they droop
Who knows how low we might stoop
We're the special review cadre troop
In general, the representative and the claimant not being in the same place is a bad idea but given this particular flood, it should be approved.
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