United States District Court, E.D. Kentucky
IN RE VARIOUS SOCIAL SECURITY CASES AFFECTED BY THE SIXTH CIRCUIT DECISION IN HICKS V. BERRYHILL, NO. 17-5206,
MEMORANDUM OPINION & ORDER
Gregory F. Van Tatenhove United States District Judge.
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
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.
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.
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.
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).
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.
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
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