Mullins v. SSA

Filing 28

MEMORANDUM OPINION & ORDER: Commissioner's Motions for Summary Judgment (DE 12 ) are GRANTED. Signed by Judge Joseph M. Hood on 12/22/2016. (TDA) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
MAXIE MULLINS,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social
Security,

Civil Case No. 16-85-JMH

Defendant.
***
RUTH NEWSOME,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social
Security,

Civil Case No. 16-107-JMH

Defendant.
***
MEMORANDUM OPINION AND ORDER
Both

matters

Commissioner’s

are

Motions

before
for

this

Summary

Court

upon

Judgment

the

[DEs

12,

Acting
13].

Plaintiffs having filed Responses in Opposition [DEs 20, 16], and
the Acting Commissioner having submitted Replies [DEs 21, 19],1
these Motions are now ripe for the Court’s review.

1

Because there

All citations will refer to the records in Mullins first, and then the record
in Newsome, unless otherwise specified herein.

1

are

no

disputes

regarding

the

material

facts,

and

because

resolution of the legal issues favor the defendant, for all of the
reasons stated below, the Acting Commissioner’s Motions will be
granted2.
I.

BACKGROUND

Pikeville Civil Action No. 16-85 – Maxie Mullins
As Plaintiff Mullins averred in her Amended Complaint, she
was found disabled by an administrative law judge (ALJ) on October
9, 2007. The ALJ issued a fully favorable decision without a
hearing by relying on evidence from Dr. Frederic Huffnagle (ECF
No. 8-1, Exhibit A: Declaration of Nirmal Patel ¶ 2, Attachment 1
(Patel Decl.)). At the time, Plaintiff was represented by Eric C.
Conn, an attorney representative (id.).
Plaintiff’s lawsuit arises out of the redetermination process
set forth in section 205(u) of the Act. These sections requires
SSA to “immediately redetermine” an individual’s entitlement to
benefits whenever there is “reason to believe that fraud or similar
fault was involved in the application of the individual for such
benefits,” and, in the process, to “disregard any evidence” if
there is reason to believe that fraud or similar fault was involved

2

In Mullins’ case, the Commissioner asks the Court to dismiss Counts 1, 2, 3,
4, 5, 6, and 7 of her Amended Complaint [DE 12]. Similarly, in Newsome’s case,
the Commissioner asks the Court to dismiss Counts 1, 2, 3, 4, 5, 6, and 7 of
her Amended Complaint [DE 13]. To the extent that these Plaintiffs challenge
the underlying entitlement decisions, as otherwise addressed in their respective
Complaints, those issues are properly before this Court and will be briefed at
a later date.

2

in providing that evidence. 42 U.S.C. § 405(u)(1). “If, after
redetermining pursuant to this subsection the entitlement of an
individual to monthly insurance benefits, the Commissioner of
Social Security determines that there is insufficient evidence to
support such entitlement, the Commissioner of Social Security may
terminate such entitlement and may treat benefits paid on the basis
of

such

insufficient

evidence

as

overpayments.”

42

U.S.C.

§

405(u)(1).3
Under the redetermination process, if the case is remanded to
an ALJ for a hearing, individuals may submit statements or evidence
up to the date of their hearing in support of the original
disability determination, regardless of whether the individual
previously submitted that evidence to the Appeals Council (AC).
Social Security Ruling (SSR) 16-1p, 81 Fed. Reg. 13436 (Mar. 14,
2016). If the ALJ issues a decision finding that an individual was
not entitled to benefits at the time he or she was originally
awarded

benefits,

that

individual’s

benefits

will

then

be

terminated. The individual may subsequently request review by the
AC. See 20 C.F.R. §§ 404.967-404.968. If the AC issues a decision,
that decision will constitute the final agency decision. 20 C.F.R.
§ 404.981. If the AC decides not to review the ALJ’s decision, the

3

See ECF No. 11 (denying as moot Defendant’s motion to dismiss in part
Plaintiff’s original Complaint and request for extension of time to respond to
remaining counts of Plaintiff’s original Complaint filed in connection with
that motion).

3

ALJ’s decision will constitute the final agency decision. Id. In
either situation, a dissatisfied individual may then seek judicial
review. 42 U.S.C. §§ 405(g)-(h).
On May 12, 2015, pursuant to section 1129(l) of the Social
Security Act (Act), 42 U.S.C. § 1320a-8(l), SSA OIG informed the
agency that there was reason to believe that fraud was involved in
the applications for benefits of approximately 1,800 individuals
(Patel Decl. ¶ 3, Attachment 2). Specifically, SSA OIG had reason
to believe that Mr. Conn or his firm submitted pre-completed
“template” residual functional capacity forms purportedly from
Bradley

Adkins,

Ph.D.,

Srinivas

Ammisetty,

M.D.,

Frederic

Huffnagle, M.D., or David P. Herr, D.O., dated between January
2007 and May 2011, in support of the individuals’ applications for
benefits4 (id.).
Following receipt of this information, SSA was required by
statute to redetermine those individuals’ entitlement to benefits
in accordance with section 205(u) of the Act. 42 U.S.C. § 405(u).
Plaintiff was one of those individuals. Shortly after the SSA OIG’s
referral, on May 18, 2015, SSA notified Plaintiff that there was
reason to believe fraud or similar fault was involved in her
application for benefits, and that SSA was required to redetermine

4
Mr. Conn, Dr. Adkins, and former Huntington Hearing Office Administrative Law
Judge David Daugherty were recently charged in an 18-count indictment returned
on April 1, 2016 in the U.S. District Court for the Eastern District of Kentucky.
See Indictment, U.S. v. Conn, et al., 5:16-cr-22 (E.D. Ky. Apr. 1, 2016), ECF
No. 1.

4

her entitlement to benefits under sections 205(u) and 1631(e)(7)
and disregard the evidence from Dr. Huffnagle (Patel Decl. ¶ 4,
Attachment 3). SSA invited Plaintiff to submit more evidence or a
statement about the facts or law in her case (id.). On September
11, 2015, SSA notified Plaintiff that it had considered any
evidence submitted along with the other evidence of record, but
that there was insufficient evidence to support the prior ALJ’s
decision (Patel Decl. ¶ 5, Attachment 4). SSA remanded Plaintiff’s
case to a new ALJ for a hearing and a new decision (id.).
The ALJ conducted a hearing in December 2015, at which
Plaintiff appeared with a representative (Patel Decl. ¶ 7). After
considering the hearing testimony and relevant evidence, the ALJ
concluded

that

there

was

insufficient

evidence

in

the

administrative record to support Plaintiff’s original entitlement
to benefits (Patel Decl. ¶ 7, Attachment 5). This decision became
the agency’s final decision when the AC denied Plaintiff’s request
for review on March 17, 2016 (Patel Decl. ¶ 7, Attachment 6).
Plaintiff filed her complaint with this Court on May 17, 2016
(ECF No. 3), and served the Acting Commissioner on May 23, 2016.
Plaintiff filed an amended complaint on August 2, 2016 (Am.
Compl.).
Pikeville Civil Action No. 16-107 – Ruth Newsome
As Plaintiff Newsome averred in her Amended Complaint, she
was found disabled by an administrative law judge (ALJ) on July
5

12, 2007 (Am. Compl. ¶ 4). The ALJ issued a fully favorable
decision without a hearing (ECF No. 9-1, Exhibit A: Declaration of
Carmine Borrelli ¶ 2, Attachment 1 (Borrelli Decl.)). At the time,
Plaintiff

was

represented

by

Eric

C.

Conn,

an

attorney

representative (id.).
Shortly after the SSA OIG’s referral, discussed in more detail
supra, SSA notified Plaintiff that there was reason to believe
fraud

or

similar

fault

was

involved

in

her

application

for

benefits, and that SSA was required to redetermine her entitlement
to benefits under sections 205(u) and 1631(e)(7) and disregard
record evidence from Dr. Huffnagle (Borrelli Decl. ¶ 4, Attachment
3). SSA invited Plaintiff to submit more evidence or a statement
about the facts or law in her case (id.). On August 28, 2015, SSA
notified Plaintiff that it had considered any evidence submitted
along with the other evidence of record, but that there was
insufficient

evidence

to

support

the

prior

ALJ’s

decision

(Borrelli Decl. ¶ 5, Attachment 4). SSA remanded Plaintiff’s case
to a new ALJ for a hearing and a new decision (id.).
The ALJ conducted a hearing in December 2015, at which
Plaintiff appeared with a representative (Borrelli Decl. ¶ 7).
After considering the hearing testimony and relevant evidence, the
ALJ

concluded

that

there

was

insufficient

evidence

in

the

administrative record to support Plaintiff’s original entitlement
to benefits (Borrelli Decl. ¶ 7, Attachment 5). This decision
6

became the agency’s final decision when the AC denied Plaintiff’s
request

for

review

on

March

31,

2016

(Borrelli

Decl.

¶

7,

Attachment 6).
Plaintiff filed her complaint with this Court on May 15, 2016
(ECF No. 1), and served the Acting Commissioner on May 31, 2016.
Plaintiff filed an amended complaint on August 2, 2016 (Am.
Compl.).
II.

ANALYSIS

The arguments presented on behalf of both Plaintiffs and the
Acting Commissioner mirror those previously addressed by the Court
in Perkins v. Colvin, Pikeville Civil Action No. 16-CV-35 (E.D.
Ky. December 16, 2016), as well as by my brother Judge Reeves in
a series of decisions rendered on November 15, 2016, see 0:16-017DCR, 0:16-061-DCR, 7:16-051-DCR, 7:16-059-DCR, 7:16-068-DCR, 7:16075-DCR, 7:16-101-DCR, and 7:16-153-DCR, from across the Eastern
District of Kentucky.

My decision in Perkins and those rendered

by Judge Reeves clearly explain why we believe no due process error
occurred in the redetermination procedure employed by the Acting
Commissioner.5

Nothing more need be said on this point.

5

Additionally, both Plaintiffs contend that (1) the agency’s reopening
regulations govern the redetermination process under sections 205(u) and
1631(e)(7), and (2) the agency violated the Social Security Act’s requirement
that redetermination hearings be initiated “immediately” upon there being a
reason to believe fraud or similar fault was involved in Plaintiff’s original
application for benefits. These arguments require no further discussion, as
they have already been rejected by this Court in Perkins, 7:16-cv-35, and
Thompson, 0:16-cv-62, and by Judge Reeves in 0:16-017-DCR, 0:16-061-DCR, 7:16051-DCR, 7:16-059-DCR, 7:16-068-DCR, 7:16-075-DCR, 7:16-101-DCR, and 7:16-153DCR.

7

Accordingly, for the reasons stated herein,
IT IS ORDERED that the Acting Commissioner’s Motions for
Summary

Judgment

[Pikeville

Civil

Action

No.

7:16-85,

12][Pikeville Civil Action No. 7:16-107, DE 13] are GRANTED.
This the 22nd day of December, 2016.

8

DE