A Recruiting Poster

Legal Action Under Way In Eric Conn's Cases

     Some of Eric Conn's clients are suing him. There's also talk of seeking a court order to prevent Social Security from summarily cutting off benefit payments to 900 of Conn's former clients.

Exactly How Is Social Security Trying To Cut 900 Former Clients Of Eric Conn Off Disability Benefits?

     I'm curious about exactly how the Social Security Administration is approaching the 900 or so cases in Kentucky and West Virginia in which it is trying to take away disability benefits from claimants who had been represented by Eric Conn. I wonder if some reader knows how, procedurally, the agency is doing this.

     Here are the possibilities that come to my mind and the problems associated with those possibilities:

• Reopening under 20 C.F.R. §§404.988(b) and 404.989 due to new and material evidence that some medical reports submitted by Conn were phony. This would be limited to cases where the initial determination (not the ALJ decision) was issued in the last four years. The argument could be made that Social Security already knew that the medical reports were phony. I don't know for sure but I suspect that the local ALJs would testify that everybody already knew, at least in rough terms, what was going on. Of course, if the ALJ decision relied upon the allegedly phony report, this might not matter. I suppose this is the most likely route. The claimants could still prove they were disabled anyway and most probably would.
• Reopening under 20 C.F.R. §404.988(c)(1) on the grounds that the favorable decisions were obtained by "fraud or similar fault." If Social Security has proof of "fraud or similar fault" how is Eric Conn still practicing before the agency?
• Termination of benefits under 20 C.F.R. §404.1579(d)(3) based upon a determination that the original decision putting the claimant on benefits was "in error." The problems here are that benefits could not be terminated retroactively without meeting the criteria specified above for reopening, the claimants would be eligible for interim benefits while they appealed their terminations and the agency would bear the burden of proving the "error."

     I know that all this may sound like a bunch of legalese but Social Security has to follow its own rules. You'll notice from what I've posted earlier and from many of the comments on my post that most lawyers think that cutting these folks off benefits is no slam dunk. There are reasons that Social Security is just now getting trying to do this. And remember, Social Security won't have an attorney present at any ALJ hearings on these issues and the attorneys representing these claimants will keep asking again and again why Social Security is going after the claimants but not going after Eric Conn directly.

     Update: This newspaper article suggests that Social Security is taking the third route, termination, since the 10 day window to get interim benefits applies only to terminations.

Claimants Caught In The Crossfire

     From the Lexington Herald-Dispatch:

The Social Security Administration confirmed Wednesday its review of disability benefits for approximately 1,500 cases, all tied to Kentucky attorney Eric C. Conn and former Social Security administrative judge David B. Daugherty.

The action suspends Social Security Disability Income (SSDI) benefits to more than 900 individuals and their auxiliaries, while payment to others receiving Supplemental Security Income (SSI) or a combination of both will continue as the review proceeds.

     Let me explain why Social Security's action is problematic. Eric Conn isn't guilty because 60 Minutes and a Congressional committee say he's guilty. The Social Security Administration has to bring charges against him, either to indict him for a crime and then convict him or to bring an action to suspend him from practicing before the agency and succeed in getting him suspended. Conn hasn't been indicted. So far, he hasn't been suspended from practicing before the agency. Social Security doesn't have the evidence to go after Eric Conn. However, the agency does have the evidence to summarily cut 900 people off benefits?
     Even if we assume that Conn is guilty as sin, that doesn't mean that his clients are guilty of anything or that they weren't disabled. What is alleged is that Conn got phony reports from doctors. Probably, his clients were unaware that Conn was doing anything wrong. More important, even if they were aware that Conn was doing something wrong, they may still be disabled. The allegation is that Conn was routinely obtaining and submitting phony medical reports on his clients. Adding a phony medical report to a file doesn't negate all the other evidence in the file. In most cases Conn would have been gilding the lily.
     From the point of view of an experienced Social Security attorney, what Conn is alleged to have done was just stupid. He was going to win most of the cases anyway. Obviously phony evidence might have impressed an Administrative Law Judge (ALJ) or two but it would have antagonized many other ALJs. His alleged scheme would have cost a lot of money, been of dubious utility and subjected him to a big criminal risk. Instead of trying to make a living representing Social Security claimants, Conn is alleged to have used illegal means to try to make a killing. Bad career move.
     I worry that the claimants whose benefits are being cut off are being caught in a crossfire. Social Security wants to destroy Conn. Cutting many of his former clients off benefits will probably destroy Conn's ability to get new clients. Social Security can also demand back the attorney fees that Conn has received in those cases, destroying Conn financially. Conn may have it coming but I doubt that his former clients deserve this treatment.

Hatch Introduces Bill To Force Social Security To "Modernize" Grid Rules

     From what appears to be a press release:

Senate Finance Committee Chairman Orrin Hatch (R-UT) introduced three bills on Wednesday, each aimed at improving the administration and integrity of the Social Security Disability Insurance (SSDI) program. Essentially, Hatch’s legislation modernizes the antiquated “grid rules,” which have been used for many years to determine the level of disability and eligibility for the program. The bills also simplify the benefit process and create a medical-evaluation standard on par with Medicare.

“For far too long, the SSDI program has failed to keep up with the rapid changes in medicine, technology and education,” Hatch said. “These bills are the first step in modernizing the SSDI program to make it more effective and efficient for both beneficiaries and taxpayers.”

The Guiding Responsible and Improved Disability Decisions (GRIDD) Act would require the Social Security Administration (SSA) to update the medical and vocational grids that are used by disability decision makers. (The “grid rules” take a number of quality-of-life issues into account to determine whether an individual is or is not disabled, but the rules were originally written in 1979 and have never been updated to today’s standards).

The Promoting Opportunity Through Informed Choice Act would create a support system for disability beneficiaries who want to return to work by mandating that the SSA develop public online tools to assist beneficiaries.

The Disability Evidence Integrity Act would discourage the SSA from making determinations on whether disabled individuals should receive Disability Insurance benefits based on any evidence provided by those who have been convicted of a felony or are otherwise disqualified from participating in a federal health care program.

     Notice what's going on here. Hatch and other Republicans are afraid to say they want to cut Social Security disability. No, they use the euphemism "modernize" but, trust me, this is about making it significantly harder to get on disability benefits. And it's not just the use of a euphemism; they want to keep their fingerprints off the unpleasantness that results from the "modernizing." They want to force the executive branch to do the "modernizing." They'll then blame the executive branch for the resulting public anger. Nice jujitsu move if they're allowed to get away with it. Also notice how it appears that they're timing the introduction of this bill to coincide with what's going on in Kentucky. I don't think that's coincidental.

There's Not Enough Evidence To Charge Eric Conn With Any Wrongdoing But There Is Enough Evidence To Throw More Than 800 Of His Clients Off Benefits?

     From the Lexington Herald-Leader:

The federal government has moved to suspend disability payments to some people in Eastern Kentucky whose cases were handled by Floyd County attorney Eric C. Conn, citing suspected fraud by Conn and doctors whom his clients often consulted.

Attorneys familiar with the issue said it was possible that several hundred people received suspension notices from the Social Security Administration. ...

Conn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."

Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move." ...

The Social Security Administration, or SSA, did not respond to requests from the Herald-Leader for information about the suspension letters Friday or Tuesday. However, the newspaper obtained a copy of one of the letters with the name and claim number of the recipient redacted.

The letter, dated May 18, said "we are suspending your disability benefits and the benefits of anyone entitled under your Social Security record."

The letter said the Office of Inspector General had notified SSA that there was reason to believe fraud was involved in certain cases that used evidence Conn submitted on behalf of clients from four doctors: Frederic Huffnagle, who died in 2010; David Herr; Bradley Adkins; and Srinivas Ammisetty. ...

The letter that went out last week said that under the law, SSA must make a new determination of whether someone is eligible for benefits when there is reason to believe there was fraud in the earlier application. In doing the review, the agency must disregard information from the four doctors, the letter said.

The letter said the agency would not be able to consider evidence produced by Huffnagle from January 2007 to May 2011; from Adkins from July 2007 to May 2011; from Ammisetty any time after July 2007; and from Herr from December 2009 to April 2011. ...

Many people formerly represented by Conn will have trouble finding another attorney to represent them in the process of redetermining their eligibility, said Ray S. Jones, a Pikeville attorney and state senator who was contacted by three people who got letters.
"Prestonsburg attorney Ned Pillersdorf said his information is that more than 800 suspension letters went out last week.

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

There's going to be a lot of innocent people hurt by this," Jones said. ...

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpyConn's attorney, J. Kent Wicker, said Tuesday that a multiyear investigation of Conn's practice had concluded "without any finding of fraud or other misconduct."
Wicker said the Social Security Administration has directed that some cases should be returned to an administrative law judge for review, which he called an "unfortunate and unnecessary move."

Read more here: http://www.kentucky.com/2015/05/26/3870407_government-moves-to-suspend-disability.html?rh=1#storylink=cpy

80th Anniversary Coming Up For Social Security

     A press release from Social Security:

Anticipation fills the air as Social Security gets closer to the agency’s historic 80th anniversary and prepares to commemorate the August 14, 1935, signing of the Social Security Act.  Acting Commissioner Carolyn W. Colvin today announced the launch of the agency’s event-filled celebration, with many activities leading up to August 14.

“Social Security offers hope and protection for millions of people and some of the most vulnerable members of the American public,” Acting Commissioner Colvin said. “This was President Franklin Roosevelt’s vision in 1935, and the vision has never been clearer, nor has the work of our agency ever been more important than it is today.”

Observing this important milestone would not be complete without the participation of the agency’s employees and the public.  To engage the public, Social Security launched a commemorative 80th anniversary website, where they will learn more about the agency’s legacy and the importance of the Social Security program.  The website, www.socialsecurity.gov/80thanniversary can be used by the public to submit stories that show how Social Security has benefited them or their families. Social Security employees around the country are expressing their enthusiasm and support through the agency’s “Why I Serve” campaign, which highlights employees telling their own stories illustrating why they enjoy giving back through public service. 

The agency also has planned several additional events, such as celebrating “America’s Favorites: Baseball, Hot Dogs, Apple Pie & SSA” Night that will include a ball game between the Baltimore Orioles and the Oakland A’s and at other games around the country.  Stay tuned to the 80th Anniversary website for information on exciting upcoming events as they are planned!

“As I reflect on our agency’s rich history, I am deeply honored to be a part of such a great organization with employees who truly embody the spirit of passionate public service,” Acting Commissioner Colvin said.  “There is nothing more rewarding than making a difference in the lives of others, and with our collective commitment, there is no limit to what we can achieve.  Happy 80th Anniversary, Social Security!”

The "Right Mental Attitude"

     Someone retweeted this to me: "Nothing can stop the man w/ the right mental attitude from achieving his goal; nothing on earth can help the man w/the wrong mental attitude,"

     This was tweeted by a man who was a college football player and who is now the sales manager of a large corporation. It sorta fits his background, wouldn't you say?

     There is every reason to encourage people to have "the right mental attitude." That can help take one far. However, taken literally, and many people take this sort of platitude literally, it means that if you've succeeded in life, it must be because you have "the right mental attitude" and if you've been unable to overcome adversity, it must mean that you have "the wrong mental attitude."

     I'm cruel to say this but if the person who wrote this comes down with cancer, his "right mental attitude" may not enable him to achieve any goal he may have. If medical treatment doesn't work, he's going to suffer and die. Whether medical treatment works has almost nothing to do with his "mental attitude." Whatever goals he may have had will not be achieved. If his son or daughter develops schizophrenia, having "right mental attitude" won't get them very far. They'll probably be unable to work on a regular basis, regardless of their mental attitude. Life circumstances can completely overwhelm any "mental attitude" no matter how "right" it may be.

     I deal with clients every day who feel that their disability isn't so much caused by their illnesses as by their personal shortcomings. They feel that being out of work means that they have failed even though objectively they haven't failed; they're simply dealing with serious illness. It's bad enough to be sick. It's worse to mistakenly think that your inability to work means is your fault when it isn't.

     As a society, we're eager to tout the successes of those who have overcome disability with the "right mental attitude" while ignoring the fact that the disability overcome seldom involves factors such as chronic severe pain or chronic progressive illness or chronic severe mental illness. We like nice stories about people in wheelchairs who are still working. We think that's how we'll be if illness strikes us. We'll have the "right mental attitude" and be able to overcome our disability. When we hear stories about people with bipolar disorder who end up homeless, we want to think that can't happen to us because, unlike the homeless people, we have the "right mental attitude." We don't want to consider the possibility that the difference between the person in the wheelchair who is still working and the homeless person with bipolar disorder is the nature and severity of the disability rather than "mental attitude." We think we can control our "mental attitude." We don't like to think about the fact that we can't control illness and injury.

     Writ large, this is the problem with this country's attitudes towards disability. We think that people can control disability with the "right mental attitude" but that's a delusion that leads us to be cruel to disabled people and even to ourselves when we become disabled.