Just this week, more legitimately disabled individuals became victims of the criminal acts of their former Social Security Disability attorney, Raymond LaValle, and his criminal associates Thomas Hale, Joseph Esposito and John Minerva.
See my prior posts here and here discussing the unfairness of lumping all claimants represented by Mr. LaValle into an overly broad allegation of fraud. Since that time, I have won many cases by proving to Social Security that many of the claimants represented by Mr. LaValle were in fact disabled under the Social Security law. Social Security was trying to take away their well deserved benefits through “guilt by association” for having made the simple mistake of choosing the wrong lawyer.
Now Social Security is making a new push to round up legitimately disabled in the alleged fraud net. Just this week I received calls from three claimants that I believe have been unfairly caught up in this bureaucratic investigation. Social Security is now assuming the claimant is guilty and making the claimant prove themselves innocent by excluding certain medical evidence from use in proving their case. Every person who has called me this week about the “Redetermination “letters they received has been on Social Security Disability for 15-20 years. Over that time period, Social Security has continued to review their cases and found them with a continuing disability. Hmm…
Now 20 years later, they receive what they describe as an “intimidating” letter from Social Security demanding a response in 30 days saying they might not be disabled after all. One of these individuals is a 9/11 FDNY hero who was disabled due to a lung prior to 9/11. Despite being severely disabled before 9/11, he still went in to work on the pile at Ground Zero to rescue and recover his brothers. This is a disgrace and this is not American justice.
However, there may be some hopeful due process and justice on the horizon. This past March,US District Court Judge Pamela Chen decided a “redetermination” case against the Social Security Administration. This important case, Chilson_v_ColvinSSA (shout out to my friend and fellow SSD attorney Louis Burko for the win!) seriously questioned the constitutionality of Social Security’s procedures in “Redetermination” cases like this. Part of the Judge’s comnments are below
“With respect to Plaintiff’s assertion that ALJ Farrell’s exclusion of medical evidence was overbroad (Pl.’s Br. 8-10), the Court makes the following observations. First, the provisions of that Act that address DIB redeterminations based on the SSA’s receipt of information suggesting an initial determination was tainted by fraud “or similar fault,” 42 U.S.C. § 405(u)—which, the parties agree, govern the SSA’s exclusion of evidence in Plaintiff’s case—define “similar fault” as conduct involving “an incorrect or incomplete statement that is material to the determination [that is] knowingly made,” or conduct involving “information that is material to the determination [that is] knowingly concealed.” 42 U.S.C. § 405(u)(2) (emphases added). Yet, as Plaintiff rightly argues, the SSA does not address this “knowledge” or mens rea element anywhere in its submissions. (Pl.’s Br. 9-10.) Indeed, rather than address what appears to be a mens rea requirement of 42 U.S.C. § 405(u)(2), the SSA points to an internal manual of procedure, “Hearings, Appeals, and Litigation Law Manual (HALLEX),” and emphasizes that a “preponderance of evidence” standard does not apply to its determination that there is “reason to believe” that an applicant’s evidence was tainted by fraud or similar fault. While the SSA is generally entitled to deference in interpreting its authorizing statute and regulations, see United States v. Mead, 533 U.S. 218, 227-28 (2001), it may not ignore the plain meaning of the Act, which defines “similar fault” as certain conduct that is done “knowingly.” 42 U.S.C. § 405(u).
Second, the Court is troubled by the effect that the SSA’s redetermination and evidence exclusion procedures have in the specific circumstances of Plaintiff’s case.Taking a step back, the Court observes that Plaintiff’s DIB have essentially been denied based on a letter by the DA’s office informing the SSA that the DA’s office investigated and decided to prosecute Plaintiff’s former attorney and former psychiatrist. (Tr. 229-30.) Based on that letter, the SSA determined that Plaintiff was no longer eligible for disability benefits, and, in her redetermination hearing before ALJ Farrell, Plaintiff was effectively precluded from giving any evidence whatsoever of her mental health during the relevant period. Indeed, based merely on a suspicion and guilt by association, without any fact-finding in the record as to Plaintiff’s culpability in the fraud scheme, the SSA disregarded not only Plaintiff’s records from the health providers in question, but also all of Plaintiff’s allegations regarding a mental impairment diagnosed by a discredited doctor; as well as all medical evidence from other sources that was based in whole or in part on Plaintiff’s allegations of a mental impairment alleged in her original application for disability benefits. In other words, the SSA withdrew Plaintiff’s benefits, disregarded her existing medical records, and told Plaintiff that she was barred from even giving testimony as to her mental health condition in the relevant time period and, in effect, from obtaining any medical evidence regarding her mental health—all of this without determining whether Plaintiff knew of, or knowingly participated in, the fraud scheme. The Court questions whether this procedure for adjudicating Plaintiff’s entitlement to DIB satisfies the requirements of Due Process guaranteed by the U.S. Constitution. See Basciano v. Herkimer, 605 F.2d 605, 609 (2d Cir. 1978); Mathews v. Eldridge, 424 U.S. 319 (1976). However, given the alternative grounds on which to remand this action, the Court abstains from this constitutional issue at this time.”
If you get a “Redetermination” letter from Social Security, contact a good New York Social Security Disability lawyer right away. You may have only 30 days to respond to the letter to preserve your rights to fight the case. If you have any questions, feel free to call us at 1-800-671-4927