By Mary Meadows
The Social Security Administration published a notice on the Federal Register this month explaining how a ruling in a Court of Appeals case affiliated with the disbarment of attorney Eric C. Conn will affect re-determination hearings for Social Security and SSI in the future.
The SSA published what’s called an Acquiescence Ruling, or AR, a document that explains how the SSA will apply the Court of Appeals ruling in a case filed by Garrett resident Amy Jo Hicks and others who lost Social Security and SSI benefits after an investigation was launched into Conn’s practice.
Conn was convicted for his role in a conspiracy to defraud the SSA, as was an administrative law judge and a doctor who participated, and, prior to those convictions, the Office of the Inspector General informed the SSA that it had reason to believe fraud was involved in applications of former Conn clients who were receiving disability benefits.
Prestonsburg attorney Ned Pillersdorf, who represented Hicks and others in a case against the SSA, called the notice published on the Federal Register this month the “height of bureaucratic arrogance.”
“It’s not an acquiescence ruling. It’s a defiance ruling, in my opinion,” Pillersdorf said.
Hicks and 1,500 others Social Security beneficiaries were required to undergo re-determination hearings during which the SSA “disregarded evidence” that the OIG reported may have been involved in Conn’s fraud.
“In making the redetermination, we considered the rest of the evidence in the plaintiff’s claim files, any new evidence related to the relevant period that the plaintiffs submitted, and we heard argument regarding each plaintiff’s entitlement to DIB or eligibility for SSI payments based on disability,” the notice published on the Federal Register explains.
Hicks and the others who filed an appeal to the Court of Appeals, argued that during the redeterminations, however, they should have been given the opportunity to show that fraud was not involved in providing evidence for their claims.
The Court of Appeals agreed with that assertion, ruling that the SSA violated the constitutional rights to due process for Hicks and other former Conn clients by tossing out medical evidence that was used in their disability cases when Conn represented them.
“The Court of Appeals’ decision differs from our policy because it held that when we disregard evidence under (sections) of the Act, we must provide the affected individual the opportunity to challenge the reason to believe that fraud or similar fault was involved in the provision of evidence in his or her case,” SSA stated in the notice.
In explaining how it will apply the Court of Appeals ruling to future cases, the SSA reports that it applies only to cases in which the agency disregards evidence based on a referral from OIG and the person who receives disability lives in Kentucky, Michigan, Ohio or Tennessee.
“In these states, before we disregard the evidence pursuant to (sections) of the Act at the hearing level of our administrative review process, we will consider the individual’s objection to the disregarding of that evidence,” the notice states.
It goes on to report, “Our adjudicators will decide whether there is a reason to believe that fraud or similar fault was involved in providing evidence in the individual’s case.”
It says the SSA defines “reason to believe” as “reasonable grounds to suspect that fraud or similar fault was involved.”
“The ‘reason to believe’ standard requires more than a mere suspicion, speculation or a hunch, but it does not require a preponderance of evidence,” the notice states. “Adjudicators may make reasonable inferences based on the totality of circumstances, such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault.”
Pillersdorf said that last sentence in the notice in which the SSA reports that the agency can disregard evidence if the person receiving disability benefits did not know about or take part in Conn’s scheme, is problematic.
“It says basically, we can impose these rules on people who are blameless ... The problem with that is that’s exactly why the Sixth Circuit said it was unconstitutional. So, basically, they thumbed their nose or put up their middle finger toward the Sixth Circuit, is what they did,” Pillersdorf said.
He reported that he is working on a similar Conn-related case in South Carolina, and there, the SSA is arguing that the Hicks case was wrongly decided.
“They are still trying to undo the Hicks decision,” Pillersdorf said. “Their position in South Carolina is that Hicks was wrongly decided; the Sixth Circuit got it wrong. They were unsuccessful in convincing the federal judge in Spartanburg. He ruled the Hicks was rightly decided. They have appealed that to the Fourth Circuit in Richmond, Virginia. So, they’re not backing down at all. You know, one would think — I mean, the entire Sixth Circuit ruled against them but one judge .... It’s a disappointing acquiescence ruling, to say the least. They’re not backing down at all, and they’re still putting people through these damn Joe McCarthy hearings.”
He said the SSA is planning to hold redetermination hearings for 1,900 people this year.
He explained that there were 1,500 redetermination hearings when this case started, and 800 of those people lost their cases while 700 received benefits again. Pillersdorf said 250 of the 800 people who lost benefits got their benefits again last year, making at total of about 950 former Conn clients who went through redetermination hearings to have benefits reinstated.
“They’re not reinstating the other 500, and we’ve got a class action challenging that,” Pillersdorf said. “They started round two, which the 1,960 hearings, almost 2,000, that got aborted after the Hicks decision. They’ll still saying they’re going to put those 2,000 people through hearings, which would be bizarre because the hearings are all travel-back-in-time hearings. Everything is focused on whether or not these people were disabled in 2006, 2007, 2008, 2009. So, let’s say they start these hearings, this year or next year, the hearings will be about whether someone was disabled 14 years ago.”
Pillersdorf said that would place an “unfair burden” on the former Conn clients.
“Who remembers what doctor you were seeing in 2006 or 2007, right?” he said. “Basically, they call it an acquiescence ruling. I call it a defiance, thumb your nose up at the Sixth Circuit ruling, is what they’re doing.”
Pillersdorf said he is recruiting law students to help with future hearings.
“What I’m doing now, is, they are talking about starting new hearings in April. What I am doing, today, we are training law students to do the hearings. The lawyers can’t get paid to do the hearings, and the good news was, in the first round of hearings, we found lawyers for more than 1,000 people. We’re pretty much out of lawyers. I mean, these are complex cases. So, what I’m doing now is I’m recruiting law students. I’m going to spend the month of March training law students to do these hearings.”
The notice was published Feb. 4 on the Federal Register, under Docket Number SSA-2019-0033.
The full document is available at, https://bit.ly/2Uuxbjf.