United States District Court, W.D. Kentucky, Owensboro Division
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl, United States Magistrate Judge.
the Court is the motion of Plaintiff, Harrison Melton, for
attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412 (DN 20).
Defendant, Andrew Saul, Commissioner of Social Security
(“Commissioner”), has filed a response (DN 21).
Melton's time to reply has expired. For the reasons set
forth below, Melton's motion for attorney fees under the
EAJA (DN 20) is DENIED.
to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties
have consented to the undersigned United States Magistrate
Judge conducting all further proceedings in this case,
including issuance of a memorandum opinion and entry of
judgment, with direct review by the Sixth Circuit Court of
Appeals in the event an appeal is filed (DN 22). This matter
is ripe for determination.
attorney Eric Conn assisted Melton and thousands of other
individuals in obtaining Social Security disability benefits
(DN 20 PageID # 76). See Lewis v. Comm'r of Soc.
Sec., No. 7:16-068-DCR, 2019 WL 5295187, at *1 (E.D. Ky.
Oct. 18, 2019). In Melton's case, Administrative Law
Judge David Daugherty (ALJ Daugherty) granted his disability
application on the record (without an in-person hearing) on
December 6, 2010 (DN 20 PageID # 76; DN 21 PageID # 85).
Relying exclusively on a medical report submitted by Conn,
ALJ Daugherty found Melton disabled from May 23, 2010 forward
(DN 21 PageID # 85).
Social Security Administration's (SSA) Office of the
Inspector General (OIG) later discovered that Conn obtained
benefits for many of his clients through the largest Social
Security fraud in the history of the benefits program.
Lewis, 2019 WL 5295187, at *1-2. From at least 2004
through 2011, Conn paid four doctors to provide medical and
psychological reports opining that his clients were unable to
work regardless of their actual abilities. Id. To
further ensure client success in obtaining benefits (and his
own ability to collect attorney fees), Conn paid
Administrative Law Judge Daugherty to assign these cases to
himself and then issue favorable rulings.
2, 2014, the OIG notified the SSA's General Counsel that
it believed 1, 787 applications submitted by Conn involved
fraud. Id. at *2. The OIG relayed this information
with the understanding that the SSA would not take any action
against the claimants until it received further notice from
the OIG. Id. On May 12, 2015, the OIG notified the
Commissioner that the Agency could move forward with
administrative redeterminations of the 1, 787 individuals it
identified on July 2, 2014. Id.
18, 2015, the SSA sent letters to the affected individuals
advising that it was required to redetermine their
eligibility for benefits under 42 U.S.C. §§ 405(u)
and 1383(e)(7). Lewis, 2019 WL 5295187, at *2. The
letters advised that the SSA was not permitted to consider
any evidence submitted by the physicians believed to have
been involved in the fraud. Id. The letters further
explained that the Appeals Council had reviewed the affected
cases. Id. Many individuals still qualified for
benefits after the tainted evidence had been excluded.
Id. But many other individuals were deemed not
qualified for benefits after the tainted evidence was
Commissioner provided these individuals with an opportunity
to submit additional evidence to the Appeals Council
demonstrating disability at the time their applications for
benefits were initially approved. Id. If the Appeals
Council concluded there was insufficient evidence to support
the prior findings of disability, their cases were remanded
to new Administrative Law Judges for redetermination
case was one of the many remanded to a new Administrative Law
Judge for redetermination (DN 20 PageID # 76; DN 21 PageID #
85). On August 16, 2016, an Administrative Law Judge
conducted a redetermination hearing (DN 20 PageID # 76).
Melton was not permitted to challenge the exclusion of the
Conn-submitted doctor report (DN 20 PageID # 85). In an
unfavorable decision dated January 5, 2017, the
Administrative Law Judge found Melton was not disabled
through the relevant period of May 23, 2010 to December 6,
2010 (Id.). On February 28, 2017, the Appeals
Council denied Melton's appeal and affirmed the decision
of the Administrative Law Judge (Id.). On June 6,
2017, Melton brought this civil action alleging that the
final decision of the Commissioner did not comport with
applicable legal standards, violated his due process rights,
and was not supported by substantial evidence (DN 1).
on October 12, 2016, then United States District Judge Amul
R. Thapar issued a decision in Hicks v. Colvin, 214
F.Supp.3d 627 (E.D. Ky. 2016). He observed that when the SSA
redetermined Ms. Hicks right to disability payments it
categorically excluded some of her medical evidence because
the OIG had “reason to believe” the evidence was
fraudulent. Id. at 630-46. Judge Thapar noted the
OIG's factual assertion was crucial as it removed the
only medical records Ms. Hicks could reasonably access nearly
ten years after the original determination. Id. To
defend her benefits Ms. Hicks needed the chance to challenge
the assertion but she never got one. Id. For this
reason, Judge Thapar concluded her hearing was not
meaningful, and the redetermination process violated the Due
Process Clause of the Fifth Amendment to the United States
Constitution. Id. He remanded the case so the SSA
could give Ms. Hicks adequate process which involves
providing her with the opportunity to challenge the basis for
excluding evidence she wishes to present. Id.
November 15, 2016, United States District Judge Danny C.
Reeves issued a decision rejecting claims of nine plaintiffs
that the redetermination procedure violated the Equal
Protection and Due Process clauses of the United States
Constitution, the Social Security Act, and the Administrative
Procedure Act (APA). Carter v. Colvin, 220 F.Supp.3d
789 (E.D. Ky. 2016). Notably, he acknowledged the plaintiffs
were not given an opportunity to rebut the OIG's
assertion that fraud was involved in their prior award of
benefits. Id. at 797-804. But Judge Reeves reasoned
since their revocation of benefits turned on the lack of
evidence to support the initial benefits award, not the fraud
allegation, and they were given a meaningful opportunity to
supplement and/or develop new evidence to substitute for the
excluded evidence, they have not been denied due process.
December 16, 2016, United States District Judge Joseph M.
Hood issued a decision rejecting Mr. Perkins's claim that
the redetermination procedure violated his right to due
process and his challenge to the merits of the
Commissioner's decision. Perkins v. Colvin, 224
F.Supp.3d 575 (E.D. Ky. 2016). In doing so, Judge Hood
adopted Judge Reeves reasoning in Carter.
Id. at 577-80.
plaintiffs in Carter and Perkins were
permitted to take an interlocutory appeal. Lewis,
2019 WL 5295187, at * 2. The SSA filed a notice of appeal in
Hicks. Id. These appeals were consolidated
in the United States Court of Appeals for the Sixth ...