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In re Various Social Security Cases Affected by Sixth Circuit Decision in Berryhill

United States District Court, E.D. Kentucky

July 15, 2019



          Gregory F. Van Tatenhove United States District Judge.



         The Social Security Administration Office of the Inspector General noticed something strange-an astonishingly high approval of benefits for some of Eric C. Conn's clients. Hicks v. Comm'r of Soc. Sec., 909 F.3d 786, 793 (6th Cir. 2018). Believing that fraud was being perpetrated, the OIG began an investigation and identified Mr.Conn, Administrative Law Judge David Daugherty, and four doctors, Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Fredereric Huffnagle, M.D., and David P. Herr, D.O. as the culprits. Id. The OIG came to believe that Mr. Conn “submitted pre-completed ‘template' Residual Functional Capacity [“RFC”] forms purportedly from [the four suspected doctors] [. . .] in support of the individuals' applications for benefits.” Id. at 794. Using that information, the OIG flagged 1, 787 cases, including these plaintiffs, who they suspected were tainted by fraud. Id. As with all suspected fraud cases, this began the redetermination of benefits process. Id.

         So, the Commissioner sent letters to around 1, 500 individuals explaining there “was reason to believe fraud was involved” in determining their eligibility. Id. And, the letter explained that the Administration was required to “disregard [all] evidence from one of the [suspected] medical providers” if it was submitted by Eric C. Conn or his associates. Id. As a result, the SSA could not consider the suspected doctors' examinations of the plaintiffs, including testing performed and behavioral observations. Id. In all these cases the SSA has acknowledge that it excluded the medical records from one of the named doctors. No. plaintiffs' benefits survived this redetermination process. Id. at 795.

         A group of plaintiffs, similarly situated to these plaintiffs, challenged the legality of the SSA's redetermination process and won. In Hicks, the Sixth Circuit found that the SSA violated both the Due Process Clause of the Constitution and the Administrative Procedure Act. Id. at 792. The law required the plaintiffs have an opportunity to show their evidence was not tainted by fraud-and they were not. As a result, the plaintiffs were entitled to summary judgment. Id. at 813.

         Moreover, the Court found “evidence demonstrating that the ALJs [. . .] essentially rejected the only remaining medical opinions that could have established plaintiffs' claims based on the OIG's off-the-record determination that the records involved fraud determinations plaintiffs had no opportunity to rebut or contest.” Id. Because the SSA's failure to comply with the APA's formal-adjudication requirements was not harmless, reversal and remand was required. Id. at 805.

         These cases remain stayed while the Court waited for the Sixth Circuit to rule. Now, with decision in hand, both sides move for remand. The plaintiffs seek remand under the fourth sentence of 42 U.S.C. § 405(g) and the Commissioner seeks remand under the sixth sentence of § 405(g).


         Courts can only grant two types of remand under 42 U.S.C § 405(g) in Social Security cases: sentence four and sentence six. Melkonyan v. Sullivan, 501 U.S. 89, 99-100 (1991). The Court explains each in turn.

         The first kind, appearing in sentence four of § 405(g), allows the courts to “enter, upon pleadings and transcript of the record, a judgment affirming, modify, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a hearing.” That is, it permits the Court to make a substantive ruling about the correctness of the Commissioner's decision and then enter a judgment either affirming, modifying, or reversing the decision.

The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.

         Instead of substantively reaching the merits, then, the Court can remand if: (1) before filing a response in an action, the Commissioner requests remand with good cause; or (2) new evidence comes to light that was both unavailable to the claimant at the time of the administrative proceeding and may have changed the outcome of the prior proceeding, and there ...

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