Federal appeals judges rule in favor of former Conn clients

A panel of three U.S. Circuit judges have ruled in a consolidated appeal of 11 former clients of Eric C. Conn, in a decision that could impact hundreds of other cases, and found the Social Security Administration violated due process in their redeterminations of Conn’s clients’ disabilities. 

The decision, released Nov. 21, noted that Conn had bribed an administrative law judge who reassigned Conn’s cases to himself and rapidly approved them, based on the medical evidence of four doctors. The SSA, the decision said, then threw out any medical evidence from those four doctors before opening cases for redetermination, without giving claimants any avenue to argue that the evidence may have been valid in their cases. 

Without the opportunity to challenge the finding of fraud in the medical evidence, claimants in federal court represented by Prestonsburg attorney Ned Pillersdorf, the Appalachian Citizens’ Law Center, the Appalachian Research and Defense Fund and other attorneys all argued that the SSA violated the basic Constitutional right to due process. U.S. District Judge Amul Thapar sided with that argument in 2016 decisions, while other district judges disagreed. 

In their review of the cases, the judges sided with Thapar’s ruling for the plaintiffs and against the SSA.

“Not only are the (Office of the Inspector General’s) assertions of fraud unreviewable, but the SSA’s application of those assertions is unreviewable. … In effect, the SSA insists that it may unilaterally select the criteria for fraud (based on vague statutory guidance) and then unilaterally select which evidence satisfies those criteria. With no adversarial input and no judicial oversight, the risk that nonfraudulent material will be erroneously excluded is impermissibly high,” the decision reads in part.

The decision also reverses district courts’ rulings in favor of the SSA on the basis of alleged violations of the Administrative Procedure Act and remanded those cases for further consideration, but sided with the SSA against the plaintiffs’ argument that the SSA violated the Social Security Act in its procedures.

Pillersdorf has said that while the case before the panel directly affected only 11 individual cases, hundreds of other cases pending before federal judges in Kentucky have been on hold awaiting the decision in this appeal, meaning the victory will have far-reaching consequences.

“While the future still has uncertainties for our vulnerable friends and neighbors, things are a lot brighter today than they were yesterday,” Pillersdorf announced. 

Of the three-judge panel, judges Karen Nelson Moore and Julia Smith Gibbons formed the majority, while the third, John Rogers, was of a dissenting opinion, saying that there are precedents for the possibility that accurate evidence can sometimes be excluded rather than engaging in “the hard, if not impossible, work of confidently determining which portions are good evidence and which are bad.”

By Aaron K. Nelson
Floyd County Chronicle and Times