The Conn Fallout

If you watched The Big Conn documentary, you probably found the story of former Conn client Vanessa Stapleton to be especially sympathetic. After an allergic reaction, she had a shocking deterioration in her condition, and the documentary shows her as having great limitations in her ability to move and speak, reliant upon family support for just about everything. Her family is presented as incredibly loving and supportive and more than a little anxious and concerned about her future. The Social Security Administration had abruptly cut off her benefits, and the Stapleton family was still fighting to restore those benefits to help provide for her. At least as presented in the show, it is hard to imagine her successfully performing any sort of full-time work. Our Indianapolis social security attorney details the fallout.

Stories like this continued to get overshadowed by Conn’s overblown personality in the companion podcast series, but the final episode of that series did return to the Conn clients, spending more time discussing the continued fallout. Sadly, it was here that the producers revealed that Vanessa had since died—around the same time that the Social Security Administration once more denied her claim for disability benefits. Her father tells the producers that he feels the system is “broken” and that “Congress needs to step in and do something.”

Eric Conn's Narrative older man in wheelchair appearing disgruntled next to window

For all the zaniness around Eric Conn’s narrative, the impact of his fraudulent conspiracy and Social Security’s punitive overreaction in cutting off benefits to vulnerable people in desperate need is the more important story. The government’s overreaction has not just unfairly impacted Conn clients, as previously discussed. It is worth noting that the podcast discusses the outcome of Hicks v. Commissioner of Social Security, in which the Sixth Circuit held that the Social Security Administration violated Conn's clients’ due process rights, yet does not mention that the agency reacted by issuing an “Acquiescence Ruling,” meaning that it still disagreed with the court and believed it had the right to refuse to consider claimants’ objections to disregarding evidence where they believed fraud was involved, but they nonetheless agreed to comply with the court’s order in the Sixth Circuit alone. That means the agency only reversed course on its policy for claims appealed in Kentucky, Michigan, Ohio, and Tennessee.

In the fourth podcast episode, about ten minutes in, the producers give even more time to former Senator Tom Coburn, playing audio clips where he expressed skepticism about all disability clients. This deserves a special degree of scorn. The podcast plays him saying, “Go read the statute. If there’s any job in the economy you can perform, you are not eligible for disability. That’s pretty clear. So, where’d all those disabled people come from?” He’s just allowed to say it. No effort is made to point out how silly his statements are. The statute and resultant regulations, plus the precedent built up by various federal courts interpreting the program’s application in unique fact situations, are not so clear and simple.

How is Disability Actually Defined Within Social Security?

The statute, 42 U.S.C. § 423(d), defines “disability” in most cases as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” That statute goes on to say that someone is only disabled if their “physical or mental impairment or impairments are of such severity that [they are] not only unable to do [their] previous work but cannot, considering [their] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which [they] live[], or whether a specific job vacancy exists for [them], or whether [they] would be hired if [they] applied for work.” Furthermore, “work which exists in the national economy” is defined as work “in significant numbers either in the region where such individual lives or in several regions of the country.” On the one hand, that’s an incredibly stringent standard. There’s some unfairness baked into that—even if a disabled individual could not actually get any of the jobs purportedly available to them, it does not matter if a government bureaucrat decides they have the functional ability to hypothetically do that kind of work. But it’s also not quite the straightforward standard that Senator Coburn suggested. It is not, after all, a simple measure of whether there is any job that an individual can do. Isolated jobs in one region of the country where a claimant does not live should not count against them. There’s also the open question as to when job numbers become “significant,” with courts producing many different answers from region to region. And if age, education, and work experience—certain vocational factors—are to be considered, then it is not a simple matter of looking for the mere availability of any work. The Social Security Administration has produced a lengthy grid, taking into account prior studies of work, that allows for a presumption of disability given a certain age category, education category, work history category, and residual ability to perform a certain exertional level of work.

Senator Coburn was also grasping to suggest that so many people receive disability benefits. A 2021 fact sheet from the Social Security Administration indicated that 65 million Americans were receiving Social Security benefits every month, with only 8.1 million of those representing disabled workers. Meanwhile, a CDC fact sheet last updated in 2020 reported that 61 million adults in the United States “live with a disability,” representing 26% of the U.S. population. So yes, a lot of people are receiving some sort of Social Security benefit, but most of them are retirees; far more people have a disability but do not receive disability benefits. (Not that all people with a disability should receive disability benefits. Many people with a disability do not meet Social Security’s definition of disability because they’re still able to work full-time.)

The show does not deal with these complexities or make a serious effort to reframe Senator Coburn’s comments. It is enough that his “common sense” wrongly told him that a lot of people were taking advantage of the system. And that’s not all that they include of Senator Coburn’s suspicions. Much later in this episode, the attorneys who helped the Conn clients appeal their loss of benefits were allowed the opportunity to call out Senator Coburn’s behavior. Ned Pillersdorf, for instance, says that Coburn’s accusations were partially responsible for the ‘humanitarian crisis” that followed. But very little of this episode is spent on these thoughts.

The Anti-Benefit Conservative Perspective

Coming in about 28 minutes into the final podcast episode, the producers finally got back around to confronting how some have weaponized individual instances involving bad actors to cast aspersions on all disability clients, to suggest that the program as a whole is bad and a money dump to undeserving beneficiaries. Given that some of the show’s loudest voices represented the anti-benefit conservative perspective, it shouldn’t be surprising that even here the podcast is reluctant to cast stones, but it nonetheless does briefly talk about online commenters inaccurately accusing the Conn clients of involvement in the fraud. It isn’t enough to correct the slant of coverage in much of the rest of the documentary show or podcast, though.

Clearly, there were lessons for the Social Security Administration to learn here. Conn’s coziness with one or more judges in a particular hearing office is troubling. Whoever initiated the scheme, there should have been some degree of oversight to catch the issue earlier. The whistleblowers should have been protected and heard out, not penalized and harassed over and over again until they both left their jobs. The government should have recognized that people did not get any less vulnerable or in need of disability benefits just because one attorney committed widespread fraud in Kentucky. And perhaps there should have been a realization that the agency was over-dependent on metrics and quotas, but it seems like it’s only doubled down on that philosophy of churning out decisions, right or wrong, since then—perhaps now with an even greater anti-claimant bias in outcomes.

The wrong lessons were learned. Conn was a bad actor. The administrative law judges who participated in the corrupt scheme were bad actors. They were just a handful of people, though. The agency’s further hardening of a decades-long trend to become more and more anti-claimant was the wrong way to react. And there has yet to be any real reckoning to acknowledge or step back from this, even as commissioners and presidential administrations have changed.

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