I recently began watching The Big Conn on Apple TV+. The series is about a Kentucky Social Security attorney, Eric Conn, who was in “cahoots” with local Social Security Judge David B. Daugherty. The first episode goes over the relationship between Mr. Conn and Judge Daugherty. The two are charged with (and eventually convicted of) fraudulently fast tracking Social Security claims so that they could be approved by the judge without proper analysis.
Kevin, my law partner, had actually taken over one of Mr. Conn’s cases pro bono a few years back when the scandal came out. I remember Kevin telling me how badly he felt for those clients, having the stigma of Conn attached to them, despite their own very legitimate claims. The client had an intellectual disorder and shoulder problem. The likelihood of being able to work a job anywhere, especially Eastern Kentucky, was minimal. Fortunately, Kevin was able to help the individual get benefits.
The Big Conn is incredibly uncomfortable to watch. The music videos and pathetically self-involved persona of Mr. Conn are alone enough to make you cringe. As a disability attorney, it undermines the very important work that I have dedicated my life to. It undermines the great need and struggle of my clients. I blame most of this on Mr. Conn and Judge Daugherty. However, I have got to call out the reporter featured in that series, Damian Paletta, who originally broke the story in the Wall Street Journal.
Mr. Paletta admits that going into covering the story he knew very little about the Social Security disability process. I think his lack of knowledge hurts the story more than he thinks, even to this day. Mr. Paletta recalls that when he questioned Judge Daugherty on his abnormally high pay rate, the judge responded that everyone in Pikeville, Kentucky had less than a fourth grade education. Mr. Paletta surmised that this meant the judge thought that because people were uneducated they could not work.
I think the thing that is missed here is that having “less than a fourth grade education” means something in Social Security law. It is a term of art, so to speak. When a person is found to be illiterate, it can impact the types of work they can do and have a significant impact on the way their claim is analyzed when they become older. Fourth grade is significant, as explained in SSR 20-1p, because in the view of the Social Security Administration (SSA) “[m}ost individuals who have completed at least fourth grade can read and write a simple message. We will generally find that an individual who completed fourth grade or more is able to read and write a simple message and is therefore not illiterate.” The regulation goes on to explain that the person’s education level is not the only consideration in determining whether an individual is literate.
Having less than a fourth grade education alone is not going to get you Social Security benefits. At least it shouldn’t. However, it can in combination with poor health make it harder to get a job, and is a factor to be considered under the regulations. It also matters for other less obvious reasons.
I often tell my clients that judges don’t care about reality. They don’t care if you have a car to get to work, or someone to babysit your kid, whether jobs are actually available in your area or if you’ve ever even heard of some of the jobs they suggest you should be able to do. SSA’s use of the fourth grade education level as a factor in deciding claims is really as close as we get to the agency addressing the systemic problems that impact our clients’ ability to work. Having little education is commonly the result of poverty in our country. When you grow up poor you are more likely to experience hardships and trauma that will in many ways impact your ability to work. The results of the Adverse Childhood Experience Study (ACEs), which is an ongoing collaboration between the Center for Disease Control (CDC) and Kaiser Permanente, clearly demonstrates that the effects of adverse childhood experiences are a public health problem.
What if we gave Judge Daugherty the benefit of the doubt (which maybe he doesn’t deserve). Let’s imagine for a moment that what he was actually saying was, “My pay rate is high because I am deciding claims for people who start out at a disadvantage. They are poor and have little education. As life goes on and they have injuries and illness, poor health care, and the psychological stress that is common in poor communities, the impact on their ability to work is exponential. My pay rate is high because the level of need in this community is high.”
Or maybe Judge Daugherty was just full of crap and trying to get a reporter to get off his scent so he could take more bribes. Regardless, I really really hate this series. The bad acts of one bad judge and one bad attorney are being used to dissuade good attorneys and good judges from helping people who need it. I’m not asking judges to grant people benefits just because they are poor. I’m asking them to not be afraid of having high approval rates if more people who live in the areas in which they serve have a greater need. I’m asking them to consider reality as a factor in their decision making.
I also have a bone to pick with Mr. Paletta for his use of video of himself as a kid with a hip brace. My impression is that this was included to show that he “gets it” and that he understands what it’s like to struggle with a disability. I don’t doubt that having such a physical impairment as a kid was a difficult experience. However, I really hate the suggestion that you have to suffer from an impairment that is visible for it to be considered a serious disability by some. It doesn’t take a wheelchair or a brace to be considered disabled, and it shouldn’t. Many people have serious conditions that no one else can see. I absolutely despise the fact that this series promotes more judgement of my clients. I assure you, this process is sufficiently long, brutal and cruel for those that go through it.
In sum, if you do watch the series, don’t let it get you down. Please know there are still good attorneys out there who can win without cutting corners or committing fraud. Who believe their clients and can present a person’s story across to the judges the right way.