Well, it’s about time the feds caught up with lawyer Eric Conn, you say. I agree.
But a much larger saga has been playing out in recent months to the detriment of hundreds of disabled Eastern Kentuckians, all former clients of Conn. In May 2015, approximately 1,500 of these former clients received notices from the Social Security Administration that they would need to appear for a hearing before an administrative law judge to “redetermine” whether they were truly eligible for the benefits they received years ago when they were represented by Conn.
Social Security based its decision to redetermine all these cases on an inspector general’s report, never made public, that concludes that the benefits were awarded as a result of a fraudulent scheme for which Conn, along with an administrative law judge and a psychologist, have now been indicted by the federal government.
These people would need lawyers to represent them at the hearings. There were no provisions for attorney fees so the representation would need to be pro bono. Clearly the staff of the legal services agency serving Eastern Kentucky, the Appalachian Research and Defense Fund of Ky. Inc. (Appalred), could only handle a small number of these clients in addition to its other work.
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Appalred, with the help of the National Organization of Social Security Claimants Organization and the Kentucky Bar Association, mounted a major recruiting drive for volunteer lawyers. The results were gratifying — 135 lawyers have volunteered, 54 from Kentucky. Some of the volunteer lawyers have taken one or two cases, others as many as 50.
Winning these hearings would not be easy. The clients and lawyers had to establish the client’s disability dating back in some cases to 2006 from medical evidence not provided by Conn’s doctors, because SSA considered their reports to be fraudulent and directed the judges not to consider them. Furthermore, during the intervening years, doctor practices have merged or closed, and some original medical records have been lost or destroyed (Conn burned his records and destroyed his hard drives) and memories have faded.
To date there have been about 1,200 hearings. About 60 percent of the clients have prevailed. No evidence produced at the hearings found that the claimants themselves were involved in any fraud.
It is likely some folks went to Conn who were not disabled but believed that Conn could get them benefits. If so, they appear to be a small minority, and they have not come forward to be represented by the volunteer lawyers.
To be sure, the picture is not the distorted one painted by former U.S. Sen. Tom Coburn, R-Okla., who chaired the 2013 Senate investigation which looked into the operations of the Huntington SSA office, and the Conn cases.
Coburn’s reaction to the indictment, quoted in the newspapers was, in part, “The claimants in this case were not innocent. They knew a scam was going on…”
The evidence is in the other direction. Many of these clients had admirable work records until their disability forced them to stop working, and they were able to prove it. For others, developing the proof of their disability those years ago has been more difficult, in large part because of the SSA restrictions being followed by the judges. There are pending legal challenges to these restrictions and the entire redetermination process. I hope they are successful.
Of course, if 60 percent won their hearings, then 40 percent lost and will need representation for appeals, first to an Administrative Appeals Council, (which is pretty much rubber stamping the decision), and then to federal court. The volunteer lawyers believe many of these clients have justifiable appeals, and will eventually regain their benefits.
While Conn and his co-conspirators may well deserve to go to jail and pay hefty fines, let’s focus our thoughts on the hundreds of victims who are in danger of losing their major income source for an indeterminate time, and give a shout-out to the volunteer lawyers who are helping them along.
John Rosenberg is a Prestonsburg attorney.