How the Court’s Response to Mr. Social Security’s Actions Has Impacted Social Security Disability in Administrative Law

Blog Post | 111 KY. L. J. ONLINE | March 31, 2023

How the Court’s Response to Mr. Social Security’s Actions Has Impacted Social Security Disability in Administrative Law

By: Billy J. Devericks, II, Staff Editor, Vol. 111

Abraham Lincoln earned the nickname “Honest Abe” due to his prioritization of honesty in every situation.[1] A famous statue of Lincoln sits in a chamber of the Lincoln Memorial to honor “Honest Abe” for his strong beliefs in dignity and freedom.[2] A replica of this statue can be found in Middle Creek Battlefield in Prestonsburg, KY, where the Union army stopped a Confederate charge during the Civil War.[3] This battlefield, however, is not the replica’s first location. Initially, this statue was purchased by a local attorney and was placed in front of his law office.[4] Ironically, this local attorney, Eric C. Conn, was sent to prison for committing the largest Social Security fraud in American history.[5]

Billy J. Devericks II | Volume 111 Staff Editor

Above is the replica Lincoln Memorial Statue that previously sat outside of Attorney Eric Conn’s office. The statue stands today at the Middle Creek Battlefield in Prestonsburg, K.Y.

At one point, if you were driving down the highway in Eastern Kentucky, it was almost certain that you would see Conn’s billboards. Mark Wohlander, a former federal prosecutor, himself said “you couldn’t find a billboard that wasn’t an Eric Conn billboard.”[6] In 2010, Conn was the third highest paid Social Security disability attorney in the country.[7] It was soon discovered that Conn and an Administrative Law Judge developed an elaborate scheme to streamline disability benefit approvals.[8] Over the years, Conn illegally obtained over 500 million dollars from the Social Security Administration (hereinafter “SSA”).[9] Rather than performing examinations for each case, the SSA sent letters to hundreds of former Conn clients informing them that their benefits were suspended.[10] The impact of these suspensions was devastating, and led to, in some cases, individuals taking their own lives.[11] The SSA then reinstated benefits to those who had received suspensions, but the SSA disregarded any evidence provided by Conn’s doctors in their redeterminations.[12]

Eleven former Conn clients filed suit, alleging that these procedures of the SSA violated their Due Process rights, the Administrative Procedure Act, and the Social Security Act.[13] In 2018, the Sixth Circuit Court of Appeals applied the Mathews[14] test and concluded that this refusal to allow claimants to rebut assertions of fraudulent applications violated their Due Process rights.[15] According to the Sixth Circuit, the risk of erroneous deprivation was too high under the SSA’s redetermination framework.[16] Additionally, the claimants had a “substantial interest” in their benefits, as without them, claimants suffered from loss of homes, lowered income, and significant mental health issues.[17] Since the SSA waited almost ten years after learning about potential fraud to begin the redetermination processes, the Court was unpersuaded by the SSA’s claim of interests in time, cost, and preventing administrative burdens.[18]

The ruling in Hicks has continued to persuade other courts to find that the SSA’s redetermination processes following findings of fraud violate the Due Process rights of claimants. The Fourth Circuit Court of Appeals followed the Sixth Circuit’s reasoning in Hicks, ruling that the SSA’s redetermination procedures for Conn clients violated the Due Process Clause and Administrative Procedure Act.[19] The Seventh Circuit followed the reasoning in Hicks to determine that where a person in a disability redetermination hearing is not able to object to an agency’s evidence, there is a violation of Due Process.[20] The Second Circuit Court of Appeals, relying upon Hicks, granted the Commissioner’s motion to vacate as the Commissioner conceded that a disability redetermination procedure requires that the claimant have an opportunity to object to exclusions of evidence.[21]

Although the Hicks decision is a step in the right direction, the battle for many of Conn’s former clients continues. In January of 2023, a settlement was struck between the SSA and Conn’s former clients which will allow 500 clients, known as the Forgotten 500, to request new hearings to reinstate “benefits and backpay for up to six years.”[22] As Congressman Hal Rogers puts it, “It is good news for the remaining victims to have a final day in court with the possibility of receiving their benefits and due backpay, so they can finally close this difficult chapter.”[23]

[1] Howard Schuman, Amy Corning & Barry Schwartz, Framing Variations and Collective Memory: ‘Honest Abe’ versus ‘the Great Emancipator’, 36 Soc. Science Hist. 451, 458 (Winter 2012).

[2] Lincoln Memorial, National Park Service, https://www.nps.gov/nr/travel/presidents/lincoln_memorial.html#:~:text=The%20Lincoln%20Memorial%20National%20Memorial,also%20preserved%20America's%20high%20ideals (last visited Mar. 15, 2023).

[3] Jordan Whitaker, Honest Abe Home at Last, WYMT (April 2, 2021, 1:12 PM), https://www.wymt.com/2021/04/02/honest-abe-home-at-last/.

[4] Lincoln Statue in Kentucky Moved to Civil War Battlefield, AP News (April 5, 2021), https://apnews.com/article/kentucky-9882ad8f11e076803b8b91fb9f41440d.

[5] Id.

[6] The Big Conn: Mr. Social Security (Apple TV+ 2022).

[7]  SOCIAL SECURITY DISABILITY BENEFITS: DID A GROUP OF JUDGES, DOCTORS, AND LAWYERS ABUSE PROGRAMS FOR THE COUNTRY’S MOST VULNERABLE, 113th Cong. 4 (2013) (opening statement of Senator Tom Coburn of the Committee on Homeland Security and Governmental Affairs).

[8] Id. at 4–5.

[9] Andrew Wolfson, 500 of Disbarred Lawyer Eric Conn’s Former Clients May Finally Get Their Benefits Back, Courier Journal, (January 10, 2023, 12:23 PM), https://www.courier-journal.com/story/news/2023/01/10/eric-conn-clients-may-get-benefits-back/69794896007/.

[10] The Big Conn: Here Today, Gone Tomorrow (Apple TV+ 2022).

[11] See Tyler Crawford & Jessie Boas, The Conn Crisis: How the Social Security Administration is Waging a Silent War on Thousands of Poor People in Eastern Kentucky, National Lawyers Guild (Oct. 10, 2018), https://www.nlg.org/the-conn-crisis-how-the-social-security-administration-is-waging-a-silent-war-on-thousands-of-poor-people-in-eastern-kentucky/; Andrew Wolfson, ‘Devastated’ Conn Client Took Own Life, Courier Journal (July 2, 2015, 1:58 PM), https://www.courier-journal.com/story/news/local/2015/07/02/devastated-conn-client-took-life/29626457/.

[12] Chelise Greer, Less Due Process Than Terrorists: An Analysis of the Eric C. Conn Fiasco, 107 Ky. L.J. 149, 156 (2018).

[13] Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 791–92 (6th Cir. 2018).

[14] Mathews v. Eldridge, 424 U.S. 319 (1976) (determines due process by weighing the risk of erroneous deprivation and private interests against the public, or government, interests).

[15] Hicks, 909 F.3d at 804.

[16] Id. at 800.

[17] Id. at 802.

[18] Id. at 803.

[19] Kirk v. Comm’r of SSA, 987 F.3d 314, 328 (4th Cir. 2021).

[20] See Jaxson v. Saul, 970 F.3d 775, 777–78 (7th Cir. 2020).

[21] Medina v. Comm’r of Soc. Sec., No. 20-4154-cv, 2022 U.S. App. LEXIS 18116, at *2–3 (2d Cir. June 30, 2022).

[22] Press Release, Congressman Hal Rogers, Congressman Rogers Applauds Social Security Settlement for Eric C. Conn’s Former Clients (Jan. 12, 2023) https://halrogers.house.gov/press-releases?ID=0DC56A99-41AA-488E-960B-478B12E4198E; see also Andrew Wolfson, 500 of Disbarred Lawyer Eric Conn’s Former Clients May Finally Get Their Benefits Back, Courier Journal, (Jan. 10, 2023, 12:23 PM) https://www.courier-journal.com/story/news/2023/01/10/eric-conn-clients-may-get-benefits-back/69794896007/ (deeming the 500 clients eligible for disability benefit reinstatement as “Forgotten 500”).

[23] Press Release, Congressman Hal Rogers, Congressman Rogers Applauds Social Security Settlement for Eric C. Conn’s Former Clients (Jan. 12, 2023) https://halrogers.house.gov/press-releases?ID=0DC56A99-41AA-488E-960B-478B12E4198E.