“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Fourth Circuit judge Marvin Quattlebaum argued in dissent that the court should uphold a Social Security Administration (SSA) determination to cut off disability benefits of two individuals because of evidence that their lawyer committed fraud without giving them an opportunity to rebut the assertion that the medical evidence supporting their disabilities was tainted by that fraud. The majority rejected Quattlebaum’s claim and ruled that the individuals must be given such an opportunity in its February 2021 decision in Kirk v Commissioner of Social Security Administration.
SSA rejected the separate applications of Gary Kirk and Larry Taylor for social security disability insurance (SSDI) payments. They each went to Eric Conn, a lawyer who specialized in SSDI cases, who sent them to two doctors who examined them, submitted medical reports, and also submitted residual functional capacity (RFC) forms indicating that they were unable to work. The papers were sent to SSA, and an administrative law judge (ALJ) named David Daugherty reviewed the claims and determined they were each disabled and eligible. Each began receiving disability payments, in 2009 and 2010 respectively.
In 2015, however, SSA notified Kirk and Taylor, as well as 1,785 other SSDI recipients, that it would redetermine whether they should receive disability payments. Unbeknownst to them, Kirk and Taylor were part of a massive fraud committed by Conn, under which he sent SSDI applicants to one of four doctors who then submitted “pre-completed template” RFC forms stating that they were disabled. Conn then told ALJ Daugherty which cases to flag, and then Daugherty granted them all SSDI benefits without a hearing. The SSA’s action in 2015 was based on an Office of Inspector General (OIG) report that stated that “pre-completed and fraudulent” RFC forms had been submitted on behalf of Conn’s clients.
The SSA’s redetermination notice stated that it would disregard “any evidence” submitted by the doctors involved in Conn’s fraud scheme, even though the OIG report “suspected only” that the RFC forms were “tainted by fraud.” With respect to Kirk and Taylor, this meant that SSA would not consider medical evidence documenting problems including sciatica, back pain, spinal problems, anorexia, and acid reflux. At redetermination hearings in 2016, neither of the two was permitted to challenge the exclusion, and both received unfavorable determinations. Their benefits were cut off, and SSA determined that it could collect previous payments to them as “overpayments.”
Each then filed suit in federal court. In Kirk’s case, the district court found that it was improper for SSA to “categorically” exclude the “potentially critical” medical evidence without any opportunity to challenge its exclusion. A different court ruled for SSA with respect to Taylor. The cases were consolidated on appeal.
A Fourth Circuit panel ruled 2-1 that SSA’s categorical exclusion of all the medical evidence from the two doctors and refusal to allow Kirk and Taylor to challenge that exclusion violated both the Administrative Procedure Act (APA) and the Constitution’s Due Process Clause. The majority explained that it was arbitrary and capricious for SSA to take that action under the APA, particularly since it did allow other beneficiaries to challenge fraud allegations “arising from SSA’s own investigations” as opposed to those of OIG. The majority also concluded that SSA’s actions “violated their due process rights” because Kirk and Taylor were “denied the opportunity to contest” the allegations and exclusion of evidence concerning their cases. The panel noted that its decision was in accord with a similar ruling by the Sixth Circuit, and sent the cases back to SSA so that Kirk and Taylor could challenge the exclusion of evidence and try to prove that they should receive SSDI payments.
Trump judge Quattlebaum dissented. He claimed that Kirk and Taylor had “no constitutionally protected interest” in “avoiding redeterminations”, which SSA should do when appropriate. He also argued that they could mitigate any harm by submitting “a new application for benefits” with new evidence. He also claimed that only the RFC forms were excluded by SSA in its redeterminations. He maintained that the case involved no mere “garden-variety” fraud, but a massive scheme, and that the process afforded to Kirk and Taylor was “more than adequate.”
The majority explained what was wrong with Quattlebaum’s arguments. The “record” makes clear, they pointed out, that SSA excluded “all other evidence” from the doctors, not just the RFC forms. The “constitutionally protected” interest, they went on, was “the continued receipt of their benefits,” which was clearly harmed by SSA’s refusal to allow Kirk and Taylor to rebut the exclusion of evidence. Applying anew with new evidence, the majority continued, would require people like Kirk and Taylor to overcome the “onerous burden” of “proving retrospectively that they were disabled many years ago” and “without the contemporaneous evidence” from their previous doctors, as demonstrated by the fact that SSA denied a new application that Taylor filed.
As a result of the majority’s decision, therefore, SSA’s improper actions have been reversed, and Gary Kirk and Larry Taylor will have the chance to prove that their social security disability benefits should be restored. If it had been up to Trump judge Quattlebaum, however, SSA’s arbitrary conduct harming these and many other individuals would have been upheld.