Hicks v. SSA

Filing 36

MEMORANDUM OPINION AND ORDER: (1) Hicks's cross-motion for partial summary judgment on the due-process claim, R. 22 , is GRANTED. (2) The SSA's cross-motion for summary judgment on the due-process claim, R. 25 , is DENIED. (3) This case is REMANDED to SSA for further proceedings consistent with this opinion. Signed by Judge Amul R. Thapar on 10/12/2016. (RCB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
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AMY JO HICKS,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Civil No. 16-154-ART

MEMORANDUM OPINION
AND ORDER

*** *** *** ***
If the government threw Amy Jo Hicks in jail because she was a member of Al
Qaeda, she would get a chance to challenge that factual assertion before a neutral arbiter.
See Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004). If the government fired her because she
lied on an employment form, she would get a chance to challenge that factual assertion
before a neutral arbiter. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 544 (1985).
And if the government took away her stove because she was late on her installment
payments, she would get a chance to challenge that factual assertion before a neutral arbiter.
See Fuentes v. Shevin, 407 U.S. 67, 82–84 (1972). But when the government redetermined
her right to disability payments—and categorically excluded some of her medical evidence
because it had “reason to believe” the evidence was fraudulent—she never got a chance to
challenge that factual assertion before anyone.
The question here is whether that redetermination process violated the Due Process
Clause. It did. The Due Process Clause ensures that people receive meaningful hearings.

And meaningful hearings give people the opportunity to challenge the government’s factual
assertions—at least where, as here, those assertions affect their rights.
The Court must therefore remand this case so that the SSA can give Hicks adequate
process. That process need not involve a whole new mini-trial. The SSA must simply give
Hicks the opportunity to challenge the basis for excluding evidence she wishes to present.
That additional safeguard does not place an onerous burden on the SSA, and is necessary to
assure that people do not lose their entitlements because of decisions made in the dark.
I.
A.
Back in September 2007, Hicks suffered from headaches, depression, and anxiety, as
well as injuries to her right arm, neck, back, head, legs, and hips. R. 1 ¶ 4. She applied to
the SSA for disability benefits, and, after testifying at an administrative hearing, received
those benefits. Id. ¶ 5. The lawyer who helped prepare her application was “Mr. Social
Security” himself, Eric C. Conn,1 who secured benefits for thousands of others as well. See
R. 10 at 5.
As plenty of coaches have said in plenty of halftime speeches, however, it’s not what
you do that matters, but how you do it. How Conn got his clients their benefits was,
allegedly, by fraud. For years, the government says, Conn orchestrated a social-security
scam that involved himself, an administrative law judge (ALJ) named David Daugherty, and
four doctors. R. 25 at 3–4. When a client would walk into Conn’s office, Conn would have
a template medical form waiting. Id. at 4. Conn completed the form himself and sent it off
1

See The Conn Law Firm, http://www.mrsocialsecurity.com/.

2

to one of the doctors, who would sign it allegedly without examining the client at all. Id.
Conn would then request an administrative hearing. Id. Daugherty would assign the case to
himself, accept the false medical records into evidence, quickly award benefits, and collect a
kickback from Conn. Id.
At some point, the SSA’s Office of the Inspector General (OIG) began investigating.
By July 2014, the OIG discovered that at least 1,787 people—all former Conn clients—had
submitted a template medical form sometime between 2007 and 2011. Id. at 18.
B.
That discovery jumpstarted an interlocking series of statutes and regulations called
the redetermination process. Under one part of the Social Security Act, “[a]s soon as the
[OIG] has reason to believe that fraud was involved” in a benefits application, it “shall” refer
that information to the SSA. 42 U.S.C. § 1320a-8(l). When the OIG says such things, the
SSA listens. Indeed, it has to: Under another part of the Act, the SSA “shall immediately
redetermine” a person’s entitlement to benefits “if there is reason to believe that fraud was
involved” in that person’s application. 42 U.S.C. § 405(u)(1)(A). Further, the SSA “shall
disregard any evidence” during the redetermination process “if there is reason to believe that
fraud . . . was involved in the providing of such evidence.” Id. § 405(u)(1)(B). In somewhat
plainer English: When the OIG discovers fraud in an application, it must alert the SSA; the
SSA must then redetermine whether the applicant actually deserved benefits at the time she
applied for them; and in doing so, the SSA may not consider any part of the application that
contains the suspected fraud.

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As usual, the statute leaves something to the agency’s imagination—such as how,
exactly, to make the process work. In the Social Security Administration Hearings, Appeals,
and Litigation Law Manual (“HALLEX,” for short), the SSA has filled in those gaps. See
HALLEX § I-1-3-25;2 see also Policy Interpretation Ruling, 81 Fed. Reg. 13436 (Mar. 14,
2016) (providing public notice of the SSA’s interpretation of the redetermination statutes).
The HALLEX manual is an internal-guidance document laying out the procedures that the
SSA follows when it must redetermine someone’s entitlement to social-security benefits.
The SSA “will offer the opportunity for a hearing” before cancelling a person’s benefits. Id.
§ I-1-3-25(C)(5) (citing Goldberg v. Kelly, 397 U.S. 254 (1970)). The SSA will even help
that person develop new evidence, should she need it to prove that she deserved her benefits
at the time she applied for them. Id. § I-1-3-25(C)(4)(b).
The SSA will not, however, look at any part of the person’s original application that
the OIG has said contains fraud. At redetermination hearings, ALJs “do not have discretion
to reconsider” whether to disregard evidence the OIG has identified. Id. § I-1-3-25(C)(4)(a).
According to the SSA’s internal regulations, ALJs must simply pretend that the evidence no
longer exists. Nor can a beneficiary appeal the SSA’s decision to disregard evidence when
the OIG was the one to flag that evidence as fraudulent. Id. § I-1-3-25(C)(6). The OIG’s
word is, effectively, gospel.
C.
Conn’s alleged scheme was just what Congress built the redetermination process to
address. As required by Section 1320a-8(l), the OIG sent the SSA a referral letter identifying
2

Available at https://www.ssa.gov/OP_Home/hallex/I-01/I-1-3-25.html.

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1,787 applications that bore the mark of Conn. R. 25-1 at 5. With “reason to believe that
fraud was involved in th[ose] applications,” the OIG saw no “objections to SSA moving
forward” with the redetermination process. Id. So, as required by Section 405(u)(1)(A), the
SSA moved forward: After getting word from the OIG, the SSA had no choice but to give
1,787 old applications another look. R. 25 at 16. But, as required by its own regulations, the
SSA looked past the template medical forms and any other evidence that Conn’s doctors had
submitted on the applicants’ behalves. HALLEX § I-1-3-25(C)(4)(b).
Facing the possibility that it was funding so many undeserving beneficiaries, the SSA
worked quickly.3 Flipping through the old applications, the SSA picked out those that, after
“disregarding the suspect evidence identified by the OIG,” did not have sufficient evidence
to support their claims. R. 25 at 9. That group turned out to include 86% of the applications
that the OIG had identified, or about 1,500 people. Id. at 9 n.4. Then—less than a week
after the OIG had said that it could move forward—the SSA notified about 1,500 people that
an ALJ would redetermine their entitlements. Id. at 9; see also R. 1-1.
Hicks was one of those people. Her redetermination hearing took place on February
1, 2016. See R. 1 ¶ 9. “The relevant period for this hearing,” the ALJ explained at the
outset, “is from September 1, 2007, through July 2, 2008,” the period when Hicks had
applied for benefits. See Certified Administrative Record at 34. All evidence, old and new,
had to pertain to that period; the ALJ was interested in the past. But he was not interested in
one specific part of it—any evidence that Hicks had submitted from Conn’s doctors. Id. at

3

More quickly, in fact, than the government worked to prosecute Eric Conn. It got around to that about a year later.
See United States v. Conn, No. 5:16-cr-22-DCR, D.E. 1 (E.D. Ky. Apr. 1, 2016) (indictment).

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30 (“[W]e exclude evidence from certain doctors during the relevant period. I’ll issue a new
decision based on the remaining evidence.”).
So Hicks once again found herself in an administrative hearing, testifying about the
state of her health in 2007. But this time, she was not testifying in 2007—she was testifying
about 2007 from almost ten years in the future. According to Hicks, this was no easy task.
Like many of Conn’s clients, she had been found disabled in the first place because of her
“mental deficits and illnesses,” which “hamper[ed] [her] ability to recall accurately [her]
medical histor[y].” R. 22 at 20. Nor was hard evidence easy to come by. What evidence she
had she apparently gave to Conn, who has since “los[t]” or “destroy[ed]” it. Id. Plus, if any
remained, it would have done her little good. Hicks said at oral argument, for example, that
she had undergone psychological testing in 2007. The only problem was that one of Conn’s
doctors had run the test. As the ALJ instructed, while Hicks told her story the second time,
she had to leave any visits with, statements by, or evidence from Conn’s doctors out of it.
And so, with a bad memory and little evidence, Hicks attempted to recall specific medical
facts from nearly ten years before. See, e.g., Certified Administrative Record at 45, 48.
After the hearing, the ALJ concluded that Hicks did not have enough evidence to
support her initial benefits claim. Id. at 10–22. So the SSA cancelled her benefits. See R. 1
¶ 9. Hicks appealed, but the SSA declined to review the ALJ’s decision. Id. ¶ 9. That
decision is, therefore, final, and Hicks no longer receives disability payments.
D.
By now, the SSA has held about 1,400 redetermination hearings for Conn’s former
clients. R. 25 at 10. About half have kept their benefits, and about half have lost them. Id.
6

Many in the second half—including Hicks—have now sued the SSA in this Court and others.
They argue that, procedurally, the redetermination process violated the Administrative
Procedure Act, the Social Security Act, and the Fifth Amendment Due Process Clause. They
also argue that, substantively, the ALJs’ decisions were not supported by enough evidence.
See R. 1 ¶ 11–20. The SSA moved to dismiss the procedural claims. R. 10.
The Court isolated the due-process claim for review because, above all else, agencies
must follow the Constitution. R. 18 at 2. Because the claim depends largely on questions of
law, which can be resolved through briefing and argument, the parties agreed to cross-move
for summary judgment on the due-process claim. Id. The parties submitted their motions—
plus some supplemental briefing—and the Court held a consolidated oral argument. With
the briefs in and the argument over, the due-process question is now before the Court.
II.
A.
The parties agree on some basics. Due process has always required an “opportunity
to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). Since the 1970s, due process
has specifically required that, when terminating someone’s social-security benefits, the SSA
give that person some kind of hearing. See Mathews v. Eldridge, 424 U.S. 319, 343 (1976)
(citing Henry J. Friendly, Some Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1281 (1975)).
The SSA gave Hicks a hearing. And, it argues, that was enough. There the parties diverge.
The wisdom of the halftime speech—not to mention the Due Process Clause—applies
to the government, too. It’s not always what the government does that matters, but how.
Whatever kind of hearing an agency might provide, that hearing must be “meaningful.”
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Armstrong v. Manzo, 380 U.S. 545, 552 (1965). Of course, what is meaningful to one person
might seem meaningless to another. Thus, “how much process is due” is, largely, relative.
Shoemaker v. City of Howell, 795 F.3d 553, 559 (6th Cir. 2015).
But there is at least one absolute. Even if no two hearings are alike, all meaningful
hearings provide “a fair opportunity to rebut the [g]overnment’s factual assertions before a
neutral decisionmaker.” Hamdi, 542 U.S. at 533. Granted, not all assertions are fair game.
The sky is blue. There are x number of certain jobs available nationwide. Those types of
“general factual issues” are “not unique to each claimant.” Heckler v. Campbell, 461 U.S.
458, 468 (1983). Such assertions are not about anyone in particular. They do not, standing
alone, affect anyone’s rights. No one’s unique evidence would change the agency’s mind
about whether the sky is blue or there are a certain amount of jobs available nationwide.
Thus, an agency can determine such facts without allowing a claimant to tender a challenge;
such challenges would merely waste time. Id.
But as the fact at issue gets more specific, the process gets more involved. When the
government asserts a fact about someone and that affects her rights, due process provides her
a chance to challenge the assertion. The logic is easy enough. Imagine contesting a speeding
ticket. You got the ticket on I-75. But that day, every inch of the road within county lines
was under construction—thus, the fine for anyone speeding on that road, on that day, will be
doubled. That decision rests on a general, sky-is-blue type of fact: there was construction.
Because the fact has nothing to do with you in particular, your hearing will not be any more
or less meaningful whether or not you get the chance to challenge it.

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But now imagine that you had skipped school and were driving your father’s 1961
Ferrari GT California. And the judge tells you not even to bother arguing about speed—
she’s seen enough to know for a fact that anyone who skips school to drive their father’s
Ferrari always goes ten miles over the speed limit, and, thus, that you were driving ten miles
over the limit when you got the ticket. That assertion is about you. It affects your rights.
And you very well might have unique evidence to debunk it. Anyone would say that you got
some kind of a hearing. But absent any chance to challenge the judge’s speed assertion, no
one would say that you got a very meaningful one.
Although logic alone would suffice, cases are useful, too. Below is a non-exhaustive
list of controlling precedent, which illustrates this core element of due process. Consider it a
Brief Tour of “Meaningful Hearings” Through the Years.
First up is Interstate Commerce Commission v. Louisville & Nashville Railroad Co.,
227 U.S. 88 (1913). There, the Commission gave a hearing, but then found the railroad’s
rates unreasonable, apparently without considering any of the evidence that the parties had
presented. Id. at 90. The government argued that it had satisfied due process simply by
giving a hearing. After the hearing, it said, an agency could find any fact it wanted, no
matter the evidence. Id. at 91. The Supreme Court disagreed. The “right to a full hearing,”
the Court wrote, means the right to present facts and to have the case decided according to
those facts. Id. The government’s proposal would empower agencies to “capriciously make
findings by administrative fiat,” making the hearing meaningless. Id. When “rights depend[]
upon facts,” parties must have a chance to say—and be heard on—what those facts are. Id.

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That principle shows up again in Greene v. McElroy, 360 U.S. 474 (1959). There, the
Department of Defense fired Greene based on confidential reports that he was a Communist
agent. Id. at 478. Again, the agency held a hearing, though it never let Greene see the
reports. And again, the government argued that the hearing was enough. Id. at 492–93. But
again, the Supreme Court disagreed.

“[W]here governmental action seriously injures”

somebody, and “the action depends on fact findings,” that person must have “an opportunity
to show that [those findings are] untrue.” Id. at 496. “Certain principles,” the Court wrote,
“have remained relatively immutable in our jurisprudence.” This is one. Id.
Later, in Goldberg v. Kelly, the New York state social services agency ended the
plaintiff’s welfare benefits without any hearing at all. 397 U.S. at 268. In a decision taught
to every first-year law student since, the Court required the state to give its welfare recipients
a “pre-termination hearing.” Id. at 266–67. For the most part, the Court left the states alone
to work out the specifics of this new procedural right. But one feature stayed “immutable”:
the hearing must be “meaningful.” Id. at 267 (quoting Armstrong, 380 U.S. at 552). And
meaningfulness still meant that “where important decisions turn on questions of fact,” people
must have “an opportunity to confront” the government’s view of the facts. Id. at 269–70
(quoting Greene, 360 U.S. at 496–97).
In Mathews v. Eldridge, the Court dealt with a state that seemed, at first glance,
contrary to Goldberg. 424 U.S. at 316. Whereas Goldberg required states to give their
welfare recipients a hearing before terminating benefits, West Virginia gave its disability
recipients a hearing only after termination. Id. at 324–25. But, the Court explained, welfare
and disability are different. Welfare depends on financial need, which many people (indigent
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people especially) can only establish though in-person testimony. Id. at 343–44 (quoting
Goldberg, 397 U.S. at 269). Disability, by contrast, depends on a medical fact—whether the
recipient is disabled—that an agency can reliably determine without the benefit of a hearing.
Id. Under the circumstances, then, the West Virginia process worked just fine. But it
worked, the Court emphasized, because it kept one important feature intact.

After

termination, disabled West Virginians still received a “meaningful opportunity to present
their case,” id. at 349, which included an opportunity “to challenge directly the accuracy of
[the] information” on which the agency had relied, id. at 349. The timing of the hearing may
have changed, but the quality of the hearing remained the same.
Greene, Goldberg, and Mathews are the tour’s main attractions—all later cases apply,
and must apply, the due-process principles that those three laid down. For example, in
Vlandis v. Kline, 412 U.S. 441 (1973), the Court held that a state university cannot continue
to charge nonresident students higher tuition throughout their attendance based on an
“irrebuttable presumption” that they will remain nonresidents, because “that presumption is
not necessarily or universally true.” Id. at 452. Due process, therefore, “require[s] that the
state allow” a student “to present evidence showing that he is a bona fide resident.” Id. But
see Campbell, 461 U.S. at 467–68 (permitting such a presumption where the assertion is
universally true). Then in Califano v. Yamasaki, 442 U.S. 682 (1979), the Court held that
when the SSA seeks to recover overpayments, recipients are entitled to challenge whether
they were at “fault” for those overpayments.

Fault is “inherently subject to factual

determinations and adversarial input.” Id. at 696–97. And in Cleveland Board of Education
v. Loudermill, the Court held that when a school district believes its employees have lied on
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their employment forms, it still must give them a hearing before firing them. 470 U.S. at
532. Dishonesty is an “arguable issue,” and employees deserved an opportunity to tell their
sides of the story. Id. at 544. In sum, when rights to education, benefits, and employment
depend on facts, due process guarantees that students, beneficiaries, and state employees
have a chance to discuss those facts.
Which brings the tour to its final stop: Hamdi v. Rumsfeld. The government detained
Yaser Hamdi—without a hearing—on the ground that he was an enemy combatant affiliated
with the Taliban. 542 U.S. at 507. The “sole evidentiary support” for that ground was the
declaration of a government agent named Michael Mobbs (called the “Mobbs Declaration”).
Id. at 512. The government argued that any “further factual exploration [wa]s unwarranted.”
Id. at 527. As the government saw things, “a court [sh]ould assume the accuracy of the
[g]overnment’s” facts and assess “only” whether those facts justified detaining someone. Id.
at 527–28. The Supreme Court disagreed. Like students, beneficiaries, and state employees,
U.S. citizen-detainees “must receive” a “fair opportunity to rebut the [g]overnment’s factual
assertions before a neutral decisionmaker.” Id. at 533.
The parties have filed extra briefs specifically addressing how Hamdi applies to the
present case. The SSA argues, mainly, that Hamdi is “fundamentally different.” R. 30 at 3.
True enough—all of the above cases have their differences. In some, the stakes were higher
than in others. See Hamdi, 542 U.S. at 507 (“Hamdi’s . . . is the most elemental of liberty
interests—the interest in being free from physical detention[.]”). In others, the hearing must
occur earlier than in some. Compare Goldberg, 397 U.S. at 269, with Mathews, 424 U.S. at
343–44. But they all have this principle in common: When the government asserts a fact,
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and when that fact affects someone’s right to life, liberty, or property, due process requires
the government to let that person speak for himself. Otherwise, the Supreme Court will
strike the process down. See, e.g., Greene, 360 U.S. at 496; Goldberg, 397 U.S. at 269–70;
Mathews, 424 U.S. at 347; Vlandis, 412 U.S. at 452; Yamasaki, 442 U.S. at 396–97;
Loudermill, 470 U.S. at 544; Hamdi, 542 U.S. at 533. That principle is all the Court relies on
Hamdi for here. A hearing is not meaningful without a chance “to rebut the [g]overnment’s
factual assertions before a neutral decisionmaker.” Hamdi, 542 U.S. at 533. Because of that
principle, one feature remained notably absent from the above tour: any Star Chambers.
At the core of the present case, then, is a question about what the government can and
cannot do without process. One thing it cannot do, according to Hamdi and its predecessors,
is make a decision about you, not explain its reasons, and not let you challenge the decision.
But here, that is exactly what the government did. The OIG made an assertion: “there [wa]s
reason to believe fraud or similar fault was involved in [Hick’s] application for benefits.”
R. 1-1 at 1. Given the SSA’s internal regulations, nobody—not Hicks, not the ALJ, not the
SSA’s appeals board—could question the assertion. So the assertion became as good as fact.
Because of that supposed fact, the SSA excluded Hick’s main source of medical evidence.
And because it did, Hicks lost her benefits. She was unable to re-develop enough evidence,
almost ten years after the fact, to re-prove her entitlement. Thus, the government has made
an “important decision[]” (to cancel Hicks’s benefits), which “turned on a question of fact”
(that Hick’s medical evidence is fraudulent and therefore invisible), without giving her an
“opportunity to confront” its view of the facts. Goldberg, 397 U.S. at 269–70 (quoting
Greene, 360 U.S. at 496–97). That was some kind of process. Just not a meaningful kind.
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Nevertheless, one might be inclined to ask: So what? The point of a redetermination
hearing is not to find out whether certain evidence really was fraudulent. The point is to find
out whether someone really deserves her benefits. Since Hicks got to present evidence about
the ultimate fact, why should she get to challenge an ancillary fact (the fraud assertion), too?
Because, under the circumstances, that fact was not ancillary—her rights depended upon it.
The information in Conn’s medical report was, clearly, material to the SSA’s determination.
When the SSA considered that report, Hicks won social-security benefits; when it did not,
she lost them. Moreover, although Conn might have used a healthy dose of fraud to produce
the form, the form might still have held information—like the narrative account of Hicks’s
visit(s) with Conn and/or his doctors—that was not, itself, false. Hicks certainly argues that
it does. And without that evidence, Hicks was left without much evidence at all. Thus,
Hicks could not make her case about the ultimate fact without making her case about the
ancillary fact, too.

In other words, unless she could argue that the ALJ should have

considered her medical evidence, regardless of the doctor who signed it, her benefits claim
was doomed.
But, the so-whatters might continue, this case in not quite like those from the “tour.”
In those, the government made irrebuttable assertions about the ultimate fact at issue: He is a
member of the Taliban. She lied on an employment form. That student is from out of state.
Here, by contrast, the SSA held off on declaring Hicks unentitled to her disability benefits
until it gave her a chance to rebut that ultimate fact. The only irrebuttable assertion it made
was about a narrower, evidentiary issue.

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Under the circumstances, however, that distinction makes little difference. For Hicks,
the ultimate and the evidentiary questions were largely the same, seeing as her right to socialsecurity depended, largely, on the template form. The first time through, that form was the
basis for her claim. The second time, it was the only evidence she could reasonably get her
hands on. To prove, in 2016, that she deserved benefits in 2007, she needed to use—or at
least to argue that she should be able to use—her best evidence from that time. If the ALJ
had considered the form, Hicks might have kept her benefits. If he did not, she would not.
When a right turns on a fact, due process demands the opportunity to establish or to
dispute that fact. See Louisville & Nashville R.R. Co., 277 U.S. at 91. Here, Hicks’s rights
turned on an evidentiary fact: whether or not her medical evidence was fraudulent, and, thus,
worthy of being considered. But the SSA never allowed Hicks to dispute the fact that her
form was fraudulent or to establish that, fraudulence aside, it nevertheless had some data
worth considering. Rather, the government adopted, in somewhat Frankensteinian fashion,
many procedural traits that the Supreme Court deemed unconstitutional in the above cases.
As in Loudermill, Yamasaki, and Louisville & Nashville Railroad Co., the agency decided a
material fact without any adversarial input. As in Vlandis, that decision led to an irrebuttable
evidentiary rule. As in Greene, the agency never let Hicks see the basis for that decision.
And as in Hamdi, the agency never let Hicks challenge that basis. This case, of course, has
many differences from those. But the similarities are what matter. Those similarities drove
the SSA to do what the Due Process Clause forbids: Decide a fact without letting the person
affected by that decision know, or challenge, the basis for it.

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What else could the SSA insulate from dispute? Currently, the answer seems to be:
Anything the OIG says. Whether true or false, if the OIG announces a “reason to believe”
that part of an application is made-up, then forevermore that part will be known and treated
as fraud—just as, after the Mobbs Declaration, Yaser Hamdi was known and treated as a
terrorist. The slope is a slippery one.
But it is also one that the Due Process Clause prevents the SSA from going down. To
summarize: The OIG made a factual assertion about Hicks’s application. That assertion was
crucial because it removed the only medical records Hicks could reasonably access, nearly
ten years down the road. To defend her benefits, therefore, Hicks needed a chance to
challenge the assertion. But she never got one. Because she did not, her hearing was not
meaningful. And because her hearing was not meaningful, the redetermination process
violated the Constitution.
B.
The SSA responds in a number of ways.
1.
First, the SSA argues that it has already given Hicks all the process she could want.
See R. 25 at 20. Hicks got a hearing. The point of that hearing was to determine whether she
deserved her benefits. To that point, she could have “testif[ied],” “submit[ted] any new
evidence that is new [and] material,” and “s[ought] assistance with developing records that
are new [and] material.” Id. And if she wanted the ALJ to consider any other evidence, the
SSA said at oral argument, it was her “responsibility” to present it.

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Yes, Hicks got a hearing. But she might as well have arrived in a DeLorean.4 It was
a hearing about the past. Like Marty McFly, the SSA had the power to change the past—
specifically, to act as if Hicks had never submitted medical evidence from any of Conn’s
doctors, causing the main support for her claim to disappear. Certainly, offering to help
Hicks develop new evidence was generous. But by that point, there was no going back.
Even if Hicks had been to another doctor in 2007, that doctor likely did not keep a record of
the visit for ten years, and definitely would not remember the visit now. And even if Hicks
had such records and had given them to Conn, his bookkeeping apparently left much to be
desired. R. 22 at 20. Indeed, if what the government says is true, then Conn was a fraudster,
and fraudsters try not to leave paper trails. Conn’s clients were his victims, too: They could
bring him a legitimate claim, and all they would get was a form. Hicks’s benefits claim,
therefore, could live or die on the form. Hicks was indeed “responsible,” under the statutes,
to re-prove her entitlement during the redetermination hearing. But she is not “responsible”
for what Conn supposedly did to the SSA, and to her. The SSA must give her a chance to
fulfill her responsibility—not cut the branches off the tree and then tell her to climb it.
So, yes, Hicks got a hearing, but not a “fair opportunity” to present her case. Hamdi,
542 U.S. at 533. To see what such an opportunity might look like, look no further than at
redetermination hearings for Conn’s other clients. In some cases, Conn’s doctors had also
evaluated the clients on behalf of the SSA. And during the redetermination hearings, as the
SSA conceded during oral argument, the SSA considered reports from those doctors—the
See generally Back to the Future (Universal Pictures 1985) (“Marty: Wait a minute. Wait a minute. Doc, uh . . .
Are you telling me you built a time machine . . . out of a DeLorean? Doc: The way I see it, if you’re gonna build a
time machine into a car, why not do it with some style?”).
4

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very same doctors whose reports it excluded when they supported the claimants. See R. 28
(collecting examples). Recreating the past is difficult. If the SSA wanted Hicks to recreate
the past, it should have given her the same opportunities it gave itself.
2.
Second, the SSA argues that it does not have permission to give Hicks more process.
R. 25 at 32. According to the SSA, it merely followed Congress’s orders. And those orders
were to “disregard any evidence” when the SSA has “reason to believe” that the evidence is
fraudulent. 42 U.S.C. § 405(u)(1)(B).
Excluding fraudulent evidence is one thing. Forming a reason to believe that the
evidence is in fact fraudulent, however, is another. Although the statute demands the former,
it says nothing of the latter.

Congress’s intent on that score is, therefore, open to

interpretation. As discussed above, the SSA’s interpretation would make the redetermination
statute unconstitutional. That then is one interpretation that the Court must avoid. See
Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 247 (2012)
(“A statute should be interpreted in a way that avoids placing its constitutionality in doubt.”
(citing U.S. ex rel. Att’y Gen. v. Del. & Hudson Co., 213 U.S. 366, 408 (1909))).
As the SSA concedes, courts must presume that Congress follows the Constitution.
See R. 25 at 32. The Constitution includes a due-process clause. That clause guarantees
Hicks a chance to challenge factual assertions that affect her rights, like the OIG’s assertion
about her principal medical evidence. Thus, the redetermination statute must honor that
guarantee and leave the SSA room to provide beneficiaries the process they are due.

18

3.
Third, the SSA argues that its interpretation of the statute should control, regardless of
what the Court thinks. R. 25 at 17. Under Chevron, courts defer to an agency’s reasonable
interpretation of an ambiguous statute, at least when the agency codifies that interpretation in
a binding regulation. Chevron v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984).5
The redetermination statute is, indeed, ambiguous—Strunk and White would have had fits
over a passive phrase like “there is reason to believe that fraud . . . was involved in the
application of an individual for such benefits.” 42 U.S.C. § 405(u)(1)(A).
No doubt, the SSA has endeavored to interpret and apply the redetermination statute
reasonably. For the most part, it has succeeded. But location is key. The interpretation at
issue—that the OIG’s assertion is not open to challenge—resides only in the HALLEX
manual and a later policy statement.

“[I]nterpretations contained in policy statements,

agency manuals, and enforcement guidelines” have not gone through the notice-andcomment process, and thus “lack the force of law.” Christensen v. Harris Cty., 529 U.S.
576, 587 (2000) (emphasis added).

Those interpretations warrant “respect,” but not

“Chevron-style deference.” Id. (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
The manual and statement might have the power to persuade a court, but not to bind it. Id.
And no matter how much power those materials have to persuade, the Court must still
follow the Constitution. A court can defer all it wants, but, in the end, it cannot adopt an
unconstitutional interpretation. See, e.g., Stinson v. United States, 508 U.S. 36, 45 (1993)
But see Charles J. Cooper, Confronting the Administrative State, 25 Nat’l Affs. 96, 102–04 (2015) (“[O]ur
constitutional order has been subverted, perhaps irreversibly . . . the administrative state has the last word, binding
even on the Supreme Court, on what ambiguous statutory provisions mean[.]”).
5

19

(“[P]rovided an agency’s interpretation of its own regulations does not violate the
Constitution . . . it must be given [deference].” (emphasis added)).
4.
Fourth, the SSA argues that Hicks has no right to additional process. R. 25 at 13.
True, “due process does not require an automatic right to challenge every SSA evidentiary
decision,” all the above case law notwithstanding. Id. But under that case law, due process
does require some opportunity to challenge decisions about facts that affect people’s rights.
See, e.g., Hamdi, 542 U.S. at 533.
The principal case on which the SSA relies—Flatford—simply applies that rule. In
Flatford, the Sixth Circuit held that the SSA need not allow a disability recipient to crossexamine experts who submit reports after his hearing. Flatford v. Charter, 93 F.3d 1296,
1307 (6th Cir. 1996). But there, the SSA had already given him a meaningful hearing,
complete with an “opportunity to present all of his evidence and to confront the evidence
against him.” Id. at 1306 (emphasis added). Flatford simply limits the number of times that
someone may meaningfully prove her case. Hicks would like the opportunity to do so once.
And she is entitled to. More specifically, she is entitled to challenge the SSA’s unilateral
evidentiary decision and to argue why the SSA should allow her to present the evidence that
she wishes to present.6

6

The SSA mentions three other cases, none persuasive here. Yancey, which the SSA cites as a Sixth Circuit case
but is actually from the Second Circuit, merely adopts Flatford. See Yancey v. Apfel, 145 F.3d 106, 113 (2d Cir.
1998). Mancari, a decision from the Northern District of Illinois currently on appeal, simply applies the Mathews
rule that disability beneficiaries are entitled only to meaningful post-termination hearings. Mancari v. Colvin, No.
15 C 1105, 2016 WL 3951415, at *4–5 (N.D. Ill. July 21, 2016). And Kaley, a Supreme Court case, is unique to
defendants who want to challenge grand-jury findings. See Kaley v. United States, 134 S. Ct. 1090, 1103 (2014).

20

5.
Fifth, the SSA argues that Hicks has no right to the specific type of additional process
she seeks. See R. 25 at 29–30. As the SSA pointed out at oral argument, Hicks’s hearing
was not a criminal trial. The OIG never found that Hicks herself had committed the fraud—
it only asserted a “reason to believe” that her lawyer had done so, which compelled the SSA
only to redetermine her right to benefits. The OIG’s assertion, says the SSA, merely initiated
a process; it was not a “finding” that had anything to do with Hicks, who has no need—or
right—to challenge the immaterial.
How Orwellian. Although the OIG never said Hicks put the fraud in her application,
it did believe that there was fraud in her application—and it said so. Maybe the OIG did not
mean for that statement to be taken as a fact, but the SSA took it as one anyway. We cannot
look at fraud, the SSA has consistently argued, and the OIG thinks this is fraud; thus, we
cannot look at it. If the OIG’s assertion was not a “finding,” it sure acted like one. And that
finding had everything to do with Hicks—indeed, her “rights depended upon” it. Louisville
& Nashville R.R. Co., 277 U.S. at 91. Because the ALJ could no longer look at the evidence
earmarked as “fraud,” Hicks had no chance of retaining her benefits.
As the SSA would have it, however, agencies could evade due process with indirect
phrasing. And worse still, beneficiaries could get better hearings by committing the fraud
themselves. If the government said, “Hicks defrauded,” she could challenge that assertion.
But if the government said, “fraud was involved in her case,” she could not. Such is the
danger of the passive voice.

21

This case would be different if Hicks merely wanted to challenge the government’s
allegations against Conn. Those allegations indeed have little to do with her—Hicks was just
one-one-thousand-seven-hundred-and-eighty-seventh of a piece of his alleged scheme. But
she does not want to clear Conn’s name. At the end of the day, the name on her application
was not Eric Conn, but Amy Jo Hicks. Saying that her application contains fraud necessarily
implicates her, too. She simply wants to challenge that alleged “fact,” which the SSA relied
upon when it redetermined, and ultimately revoked, her disability benefits. Due process
affords her that opportunity.
6.
Finally, the SSA argues that additional process would be too expensive—and thus,
that it gave Hicks enough process, all things considered. R. 25 at 23–32. This good-enough
argument relies on the so-called Mathews test, which courts normally use to measure how
much process is due, and which this Court has avoided using until now. When the naked eye
can see that process falls short of the mark, courts need no measuring tape.
In any event, the tape confirms what the eye can see. Under Mathews, the Court must
consider (1) the private interest at stake, (2) the risk that the government might erroneously
deprive someone of that interest, and (3) the government’s interest in providing a particular
level of process. See Mathews, 424 U.S. at 335.7

7

The Court applies the Mathews test while at the same time recognizing that it has lived under substantial—and
persuasive—criticism, almost since the day that the Supreme Court created it. See generally Jerry L. Mashaw, The
Supreme Court’s Due Process Calculus for Administrative Adjudication: Three Factors in Search of a Theory of
Value, 44 U. Chi. L. Rev. 28 (1976). This case exemplifies one of the test’s many problems. Nowhere does the test
allow the Court to weigh the plain old value of process itself, i.e., of simply knowing why the government has
decided to take action against you. And part of what Hicks seeks is simply a chance to know. In a democracy, that
interest is significant. See id. at 45 (“[Government action] can be legitimized only by invoking either authority or

22

a.
First, does Hicks have a significant interest at stake? Yes. Courts “have frequently
recognized the severity of depriving a person of the means of livelihood.” Loudermill, 470
U.S. at 543. For Hicks, those means were her disability payments, without which she is,
apparently, destitute. The SSA does not seriously contest that Hicks has an interest in her
disability payments. See R. 25 at 31. But it does contest the nature, significance, and scope
of that interest.
As to nature, the SSA argues that Hicks has an interest only “in having a meaningful
opportunity to show” that she deserved benefits at the time she applied for them. R. 25 at 20.
That argument misreads Mathews, where the Court was clear that “interest” means a liberty
or property interest, and that social-security benefits count as a property interest. 424 U.S. at
332. All the same, the misreading does not help the SSA much. Hicks never got her
“meaningful opportunity.”
As to significance, the SSA argues that, as a disability recipient, Hicks does not enjoy
the same “heightened” interest as welfare recipients do under Goldberg. R. 25 at 31. That
may be. Under Goldberg and Mathews, however, welfare and disability recipients alike get a
meaningful hearing. Hicks, still, has not.
Also as to significance, the SSA argues that Hicks’s interest has got nothing on the
“unassailable principle that individuals should not receive benefits” they do not deserve.
consent. In a democracy consent is undoubtedly the preferable justification. Its procedural approximation would
seem to be the fullest possible participation in the decisional process.”). As scholars have argued more recently,
Mathews is better understood not as a rigid algorithm, but as a framework for crafting fair procedures. See generally
Gary Lawson et al., “Oh Lord, Please Don’t Let Me Be Misunderstood!”: Rediscovering the Mathews v. Eldridge
and Penn Central Frameworks, 81 Notre Dame L. Rev. 1 (2005).

23

R. 25 at 20. The SSA is absolutely correct on this point. Equally unassailable, however, is
the principle that the government should not take people’s things without giving them due
process. Whether or not the government thinks she should, Hicks has an interest in keeping
what has, until recently, been hers.
And as to scope, the SSA argues that Hicks has no interest in a better redetermination
process because she has other ways to get her benefits back—like filing a new application or
asking the SSA to forego reclaiming her past payments. R. 30 at 8. For someone in Hicks’s
position, however, filing an entirely new application or defending past payments is itself a
burden. And the hope of recovering her benefits someday, of course, does not help her now.
Hence why agencies must provide due process the first time around.
Granted, under Mathews, an agency may wait to give someone a hearing until after
terminating her disability benefits. But Mathews must be understood in context. And in that
context, the plaintiff eventually got a meaningful hearing, including the opportunity “to
challenge directly the accuracy of [the] information” the government had used against him.
424 U.S. at 349. Here, the SSA’s additional remedies do not provide such an opportunity.
At no point can Hicks challenge the assertion that her medical evidence was fraudulent; at no
point can she resuscitate her (potentially) most persuasive evidence. Without that evidence,
any new application or waiver request she submits might well turn up dead on arrival. Thus,
the SSA’s additional remedies are no substitute for a meaningful hearing. They would
merely put Hicks through another costly round process, still without letting her challenge the
OIG’s assertion.

24

The point is, property comes with process. Owning a house does not just provide
shelter, stability, and a school district, but also a guarantee that the government will not take
the house without just compensation. When that property is social security, the rule remains
the same: Those who are entitled to receive benefits are also entitled not to have them taken
without due process. Loudermill, 470 U.S. at 541 (“[T]he Due Process Clause provides that
certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to
constitutionally adequate procedures.”). Hicks has an interest in receiving her benefits and in
keeping them. The Constitution therefore required the SSA to give her a meaningful hearing
if it wanted to take her property. Instead, she had to defend herself with one hand tied behind
her back. The SSA’s additional remedies do not free that hand. They therefore cannot make
Hicks whole again, because they cannot restore her interest in having a full and fair
opportunity to defend her claims. Thus, Hicks’s interest does not shrink in their light.
b.
Second, is there a risk that the SSA erroneously deprived Hicks of her interest? Yes.
If the OIG was wrong that Hicks’s medical form was fraudulent, then the ALJ was wrong to
exclude that evidence. And if the ALJ wrongly excluded evidence, then the SSA might have
wrongly terminated Hicks’s benefits.
And the OIG might well have been wrong that Hicks’s medical form was fraudulent.
This case could be different if the OIG had asserted something objective and easy to verify
about Hicks—as in, “She has been indicted before.” See Gilbert v. Homar, 520 U.S. 924,
934 (1997). But the OIG asserted something more “subjective”—that Hick’s application
contained a lie. Loudermill, 470 U.S. at 544 n.9. Did it? Maybe, maybe not. Truth usually
25

depends on context. “Those pinstripes look very slimming on you.” The truth, or a lie?
That depends on the girth of the person wearing the suit. Without context, one cannot know.
Likewise, without context—and without even the “discretion” to consider the
context—an ALJ cannot know whether Hicks’s application really contained a lie. HALLEX
§ I-1-3-25(C)(4)(a). Maybe the template medical form happens to be accurate as to her.
Maybe one of Conn’s doctors really did examine her. When an issue “is inherently subject
to factual determination and adversarial input” in this way, due process guarantees a chance
to share one’s own side of the story. Yamasaki, 442 U.S. at 696–67. But the redetermination
process offers no relief—even on appeal—for the preclusive effect of the OIG’s assertion.
The OIG identified 1,787 applications. The SSA acted on all of those applications in less
than a week. And if they made an error, there is no way to catch it.
The SSA responds that, even if the template form is true for Hicks, she would be “the
needle in the haystack.” R. 25 at 27. To be sure, if providing more process would help only
the “rare exceptions,” the second Mathews factor weighs against providing more process.
Mathews, 424 U.S. at 344.8 But here, there is no way to know how many “needles” there
are. The OIG’s fraud assertion is unreviewable. When all is said and done, the OIG might
have been one-hundred percent right about all 1,787 applications. Or, it might have been
ninety-nine percent right. Or ninety. Or eighty. And so on. The point being that, unless the
8

This is yet another problem with Mathews: It sets the wrong baseline. Extending the logic of the second prong,
all process is, potentially, up for sale. But due process includes certain features that cannot get bargained away.
That principle should be the starting point—and if a party wants any additional process, then Mathews can apply.
Otherwise, the government could simply remove fundamental procedures—like the one it denied Hicks—just
because they might be costly or ineffectual in a particular line of cases. And otherwise—applying the same logic to
a different branch—courts could simply throw away all the pro se habeas petitions they receive, including, for
example, Clarence Gideon’s. See Gideon v. Wainwright, 372 U.S. 335 (1963).

26

Court considers the OIG infallible, it cannot be sure that Hicks is only a needle in the hay,
instead of a needle in a stack of needles. And this Court is not prepared—or allowed—to call
any governmental agency infallible.
The question, then, is not whether Hicks will win her benefits back. See Loudermill,
470 U.S. at 544 (“[T]he right to a hearing does not depend on a demonstration of certain
success.”). The question is whether the SSA relied on a “factual determination” when it
removed those benefits. Yamasaki, 442 U.S. at 696–97. It did: The SSA decided not to
consider certain evidence that was, according to the OIG, fraudulent. But since the SSA took
no “adversarial input” on that fact, the determination could have been wrong, thus increasing
the risk that the SSA incorrectly excluded certain evidence and deprived Hicks of her
benefits based on an incomplete record. Id. Indeed, in Yamasaki, the Supreme Court held
that “fault” is the type of fact that requires an adversarial hearing to establish: Evaluating
fault “usually requires” assessing a person’s “credibility,” “intelligence,” “physical and
mental condition,” and “good faith.” Id. Cutting out that step, therefore, might lead to faulty
decisions. And in the redetermination statute, fault is listed right beside fraud as a reason for
redetermining an application. See 42 U.S.C. § 405(u)(1)(A) (“The [SSA] shall immediately
redetermine the entitlement . . . if there is reason to believe that fraud or similar fault was
involved.”). If one requires input from both sides, the other does, too.
Moreover, a redetermination hearing is not just a hunt for needles in the hay. In the
hearing, ALJs must assess whether “there is []sufficient evidence to support” an application.
Id. § 405(u)(3). Even if she was no needle, Hicks might still have put the template form to
good use. Maybe the form includes some true information, even if the rest is false. Maybe
27

the form bolsters Hicks’s other evidence. Or maybe the form is her only evidence—a
possibility that, for many Conn clients, is more than just a hypothetical. See R. 22 at 20.
In short, the “probable value” of an “additional procedural safeguard[]”—specifically,
a chance to contest the OIG’s fraud assertion—is high. Mathews, 424 U.S. at 343. Granted,
the SSA takes some steps to reduce the risk of erroneous deprivations, most significantly by
helping beneficiaries develop new evidence. But as explained above, evidence from ten
years later is often nothing compared to evidence from the moment. Hicks’s best evidence
from the moment was the template form. Maybe she could explain why an ALJ should
consider the form—in part, if not in whole. Maybe an ALJ would agree, consider the form,
and uphold her benefits. Of course, maybe the SSA is right, too, and Hicks would still lose.
But Mathews does not talk about the probability of a victory; it talks about risk of an unfair
loss. Id. at 335. Because Hicks never got a chance to make her case fully—and explain why
her best evidence is worth considering—there is a risk that she was erroneously deprived.
c.
Finally, does the SSA have a significant interest in denying additional process? No.
The SSA argues that “administrative costs would soar” if it were to “conduct hundreds of
mini-trials on the issue of fraud.” R. 25 at 25. In general, costs are a legitimate concern. See
Mathews, 424 U.S. at 335. And in this case, they would be a legitimate concern if what the
SSA says is true. But what the SSA says does not appear to be true. As the SSA explained
repeatedly at oral argument, Hicks does not stand accused of fraud. Had the hearing gone as
it should have, the question before the ALJ would have been a simple one: Is the template
form trustworthy? ALJs make such evidentiary decisions for a living.
28

Far be it from this Court to tell them how to do so here. But an adequate process
might look something like this: The SSA calls an OIG agent to the redetermination hearing.
The agent testifies about how he came to believe that there was fraud in part of Hicks’s file.
Hicks cross-examines the agent and presents evidence to show why her forms were all true.
After this exchange, the ALJ can decide for herself whether to consider the template form,
and, if so, how much weight to give it. No mini-trial necessary. In fact, this process would
look much like a Rule 5.1 preliminary hearing in a criminal case. See Fed. R. Crim. P. 5.1.
Those are quick, informal, and give the parties a way to test adversarially the government’s
finding of probable cause, which is much like the OIG’s finding of a “reason to believe.”
Granted, such a hearing will take a little longer than the one Hicks got. But that
“burden,” if it is one, is not heavy enough to tip the Mathews scales. Indeed, this is the very
process that the SSA provides in cases where the SSA—rather than the OIG—is the one to
discover the fraud. In that case, an ALJ may consider evidence allegedly tainted by fraud.
At least, the beneficiary can object “to the disregarding of certain evidence,” and the ALJ can
hear the objection. HALLEX § I-1-3-25(C)(4)(b). If the ALJ “is satisfied” that the evidence
is not fraudulent, “he or she will consider the evidence.” Id. The SSA has offered no reason
why the process becomes any more costly when the OIG gets involved.
Aside from costs, the SSA argues that legislative history and public policy compel
the Court to bless the SSA’s procedural choice. As the legislative history reflects, Congress
was interested in cutting undeserving beneficiaries off the government’s payrolls, and fast.
See R. 25 at 24–25 (discussing 140 Cong. Rec. H4750-03). But when Congress confers
property interests—like social-security benefits—it may not force beneficiaries to take the
29

“bitter with the sweet,” i.e., trade in due process for a disability payment. Loudermill, 470
U.S. at 541.
Should Congress choose to scrap the program altogether, nothing in the Constitution
would stop it. As long as it chooses to provide social-security benefits, however, Congress
must pair those benefits with due process. As discussed earlier, due process entails the right
to challenge the OIG’s fraud determination, a right that this Court assumes Congress meant
to preserve. And as discussed here, that right is not such a large wrench that it will slow the
redetermination process down much, if at all. Congress certainly has a legitimate interest in
“assuring a fiscally responsible system.” Himmler v. Califano, 611 F.2d 137, 146–47 (6th
Cir. 1979). But that interest leaves room—as it must—for another: Hicks’s interest in
exercising her constitutional rights.
As for policy, the SSA offers two arguments. First, it contends that allowing Hicks to
challenge the fraud assertion would require opening the “OIG’s investigative file” on Conn’s
thousands of clients, “severely prejudicing the [g]overnment’s ability to prosecute” Conn.
R. 25 at 27. Why Hicks would need information on thousands of people, in a hearing about
just one, is unclear. Regardless, the government only began to prosecute Conn a year after it
began to redetermine the rights of his victims. It cannot use that delay for its own benefit
now—especially since the redetermination statute itself provides a clear way to safeguard
information related to a prosecution, which the government, apparently, chose not to follow.
See 42 U.S.C. § 405(u)(1)(A) (allowing a prosecutor to halt the redetermination process).
Second, the SSA argues that allowing Hicks to challenge the fraud assertion might
cause the “fundamentally unfair” result that she keeps her benefits while others do not. Id. at
30

26. Indeed—that is how hearings work. Some claimants will win, some claimants will lose.
And if the hearings are meaningful, those who deserve to win will separate themselves from
those who deserve to lose. What the SSA calls unfair, the Constitution calls due process.
d.
Bringing it all together: The SSA has deprived Hicks of a property interest. Because
the SSA forbade Hicks from so much as mentioning the template forms, the SSA might have
deprived her erroneously. And the SSA fails to identify any governmental interests that an
“additional”—not to mention constitutionally required—“safeguard” would upset. Mathews,
424 U.S. at 348. Thus, under either the rigid due-process rule that the Court applied earlier,
or the more flexible standard it applies here, the redetermination process is unconstitutional.9
III.
Under 42 U.S.C. § 405(g), the Court can affirm, modify, or reverse an SSA decision
“with or without remanding the cause for a rehearing.” A rehearing is appropriate here.
Because of its unconstitutional internal guidelines, the SSA did not consider all the evidence
it should have. Hence, the Court cannot know if the SSA’s decision was right or wrong.
Depending on whether the ALJ ultimately considers the template form—and how much
weight he thinks it deserves—Hicks might or might not have sufficient evidence to warrant
benefits. Rather than guess at the facts, the Court will give the professionals a chance to
determine them.

9

The Court is aware that two judges from this district have reached the opposite conclusion. See Carter v. Colvin,
No. 0:16-cv-00017-DCR, D.E. 24 (E.D. Ky. Oct. 6, 2016); Griffith v. Colvin, No. 7:16-cv-00101-DCR, D.E. 34
(E.D. Ky. Oct. 6, 2016); Perkins v. Colvin, No. 7:16-cv-00035-JMH, D.E. 46 (E.D. Ky. Oct. 6, 2016). Although
thorough and thoughtful, those opinions do not change the Court’s conclusion here.

31

Even though remand is the “most natural remedy,” Hicks argues that the remedy is
“not suitable” here and that the Court should reverse the redetermination decision outright.
R. 22 at 18. Like a car with a “faulty transmission,” “bent frame,” and “blown head gasket,”
Hicks says, the whole process is unsalvageable. Id. But to be clear, the Court only considers
one part of the redetermination process unconstitutional.

That is the paragraph in the

HALLEX manual providing, in relevant part: “[A]djudicators do not have discretion to
reconsider the issue of whether the identified evidence should be disregarded when based on
an OIG referral of information or a referral based on information obtained during a criminal
or other law enforcement investigation.” HALLEX § I-1-3-25(C)(4)(a). To resolve the dueprocess problem on remand, therefore, the ALJ does not need to redo the entire hearing, but
rather hold a supplemental hearing in which Hicks has an opportunity to discuss the evidence
from the medical template form. If the ALJ believes that the evidence deserves some weight,
then he must reconsider the redetermination decision—and if he does not, then he need not.
The Court sees no reason to doubt that this simple fix will make the process “street legal.”
Accordingly, it is ORDERED as follows:
(1)

Hicks’s cross-motion for partial summary judgment on the due-process claim,
R. 22, is GRANTED.

(2)

The SSA’s cross-motion for summary judgment on the due-process claim,
R. 25, is DENIED.

32

(3)

This case is REMANDED to the SSA for further proceedings consistent with
this opinion.

This the 12th day of October, 2016.

33