In April we were told about thousands of medical files belonging to the former clients of Eric C. Conn found inside his Floyd County law complex in Stanville.
In August U.S. Marshals seized the law complex, locking the doors and boarding up the windows, until a receiver of the files could be appointed. That receiver, appointed two weeks ago, will have the task of reviewing all the files and making sure they get into their owners' hands.
"I have had some difficult discussions with the receiver," said Prestonsburg Attorney Ned Pillersdorf who represents many former Conn clients. "And in my view, he does not understand the urgency of getting these people their files in my opinion yesterday."
Nearly 2,000 former clients of Erc C. Conn have been going through redetermination hearings trying to get back their Social Security benefits. However, many of them are appearing for those hearings without the medical files necessary to prove their disability.
According to Pillersdorf, the clients will not start seeing their files until December, and that could be too late.
"By that time hundreds of hearings will have gone on. And in my view, no question that truly disabled people will lose their benefits because they did not have access to their files which contains important information."
Pillersdorf says many of those former clients do not realize just how important those files really are.
"There is a misunderstanding of what these hearings are about. They are not about whether these people are disabled today. The hearings are about whether they were disabled in 2007 and 2008, explained Pillersdorf. "Those client files, that the clients still don't have access to, were generated in 07 and 08 and would be very relevant." ...Many of these claimants say that they obtained their own medical records and gave them to Conn's office. However, he never submitted anything other than reports from physicians and psychologists on his payroll. Anything a claimant gave his office is probably still in his old files. Obtaining these records from the medical sources ten years later can be difficult or impossible. Claimants can't even remember which doctors they saw back then. Some of the medical practices where they were seen have closed. A few medical practices which are still open have discarded older medical records.
What is particularly bothersome is that Administrative Law Judges hearing these cases are all refusing to wait until Conn's files become available to the claimants. We have seen no instructions that they should not wait but none is willing to wait. How did they all decide to do the same thing if they weren't told that is what they are supposed to do? If they were told off the record to act in this way, isn't that an inappropriate ex parte communication?
9 comments:
So let me get this straight.
-The government has important evidence relating to those many claims.
-SSA knows the government has that evidence and that the claimants don't have access to it.
-SSA can get the evidence by waiting awhile for it to be available and requesting it.
-In many cases SSA ALJs are choosing not to do so and denying claims without considering that evidence, which might have changed the outcome in some instances.
Ms. Berryhill, this is an opportunity for you step up as a leader and show that SSA values justice and fairness for people with disabilities by forbidding denials of those claims until that evidence is obtained and considered. Will you take that opportunity?
Wonder what the ideal course of action is. If the rep. does not reapply with a new application, then the claimant forfeits the opportunity to establish disability to an earlier date - 17 months for T2 and the PFD for T16. So the claimant will have a period of potential overpayments, it would appear. But the new application may be prejudicical to the current fight as an admission that the earlier grant was wrong. Tough situation.
The ALJs assigned to hear these cases (as well as any other cases) do not have the discretion to postpone hearings sua sponte.
That being said, reps sometimes request postponements so that evidence can be secured. If the request is denied (and those usually are), the ALJ should hold the record open long enough so that the records can be provided, providing that the rep submitted a 5-day letter noting that there are likely outstanding records.
If both of those requests are denied, there would likely be a court remand based on a violation of procedural due process.
@ 11:13 - A new application filed by someone going through a redetermination would not get consolidated with the application being redetermined and would not get escalated to the adjudicator conducting the redetermination. It would be treated separately and just like any other application, i.e., it would go to DDS. The AOD should be the day after the original allowance date (allowance date, not onset date). While, as you note, the claimant wouldn't be able to recover beyond 12 months prior to filing (T2)/ before the PFD (T16), this at least gives the claimant the potential of getting back on disability at the earliest possible date should the redetermination proceeding not end up favorably.
I don't think SSA has been engaging in ex parte skulduggery to browbeat ALJs into not granting requests for postponement in this specific instance. I do think the constant drumbeat of "move your cases" that has been going on across the board for several years has become sufficiently internalized to the point that ALJs don't need to be told explicitly.
The cases have to keep moving. If there is evidence that can't be obtained in time, there is a way to preserve the issue for later review (good advice by 11:56).
I do wonder, though, if Conn's file warehouse isn't just going to end up as basically another Al Capone's vault. Why would someone who knew he was never going to use real medical records nevertheless be fastidious about keeping them once they were given to him? But we shall see.
11:13, you are forgetting that the DLI may well be expired for any application filed now. That's called SOL for T2 claimants.
Well, if Berryhill does not act here it will stain her reputation IMO. I believe she would then go down in history as the get it done quick instead of right Commish. Here's to hoping she's better than that.
@ 8:52 - the DLI is likely to be expired now, sure, but there often will have been some insured status left when the person was originally approved. Example: claimant with 12/31/2012 DLI applied in 2008 with AOD in 2007 and was approved in 2009. Even if the redetermination ends up finding the claimant not disabled from 2007-09, the claimant is still free to try to establish disability beginning any time from the day after the original allowance up through 12/31/2012. Has to be done through a new application, as nothing after the original allowance date gets considered in the redetermination process.
I think it is still funny that everyone thinks this scumbag was diligent enough to keep good records showing disability when he was cheating to get people on. If you review those records you also have to submit the evidence pointing to not disabled. Not everyone that applies is disabled.
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