the next case today is marvin lisboa at all st the social security administration at all number twenty dash one thousand three hundred and seventy seven attorney cologne please introduce yourself for the record situated they were the petitioners were initially claimants then plaintiffs and now apple and i like to reserve two minutes for rebuttal yes i'll make a brief statement and use a reminder remainder of my time twice or any questions that th wreath three ish for the most the social security administration is abusing its power that is our position and i say that in the present tense they started in two thousand and thirteen when they began implementing a new section two a five you redetermination policy and they keep on changing the process as they go along they avoid challenges to their policy by dismissing these cases and now after mystical s has finally exhausted administrative procedures they want to get these cases back under their jurisdictions in this fight my clients have the law and by the law i mean the constitution the statute the regulation  precedence thank for its eldritch and the legislative history my clients my clients have the facts underside they have any formulation of justice is underside any sense of compassion or fulfilling the purpose for which  s s a was created in the st place is underside and logic and as is it if it's been restored none no there was a and here i'm getting out of the message that i wanted to give but there was the this record order to restore missed by grants benefits and they have not been restored because the agency has unilaterally state the process unfrozen her process by saying that that's what they do but that in itself is contrary to the rules of civil procedure sixty two and the federal rules of apple a procedure eight where they have to request a stay of the district court's order to be able to stay it and anyways neither the social security act the regulation nor the hillocks instructions none of them contemplate stain or sold ing freezing claims and i'm sorry that i'm getting it's let me take a nd to pull myself back and last time i met with miss bat and i had to meet at her bed because she didn't have the ability to get out and about  she did make the effort to move to her dining room so that we ended up having lunch but no miss back then remains without the benefits and more importantly remains with out medicare curing ministration seems to be acknowledging that we should send this matter back to the district who are so that it can enter with respect to him exactly the seem kind ruling that that's that's reversed and now your clients would have an opportunity to argue that the so called fraudulent evidence that was disregarded as part of the redetermination process is plenty more i will not go into all the details of circumstance keep myself to the main ones so the social security administration has requested the regime and technology that the process regards to excluding medical evidence was flawed or heard or mistaken that is the rule under section two will five you one be of the social security act the exclusion of medical evidence wonder is the presence of fraud or similar fault however the opening the re deciding the taking a look the read it turning the cases themselves which is under section two a five you one a which is the exact same language as for the exclusion of evidence that part they will not look at whether or not these cases should even be reopened so they are presuming fraud exists in their order to reopen it and we cannot challenge whether the fraud exists at all for purposes of reopening only for purposes of excluding medical are you able to make that argument in the proposed hearing in the proposed case henri mance they are will be open to question the evidence with regards to whether or not to exclude they'll be open to question the evidence of fraud whether in regards to whether or not to exclude the medical specific medical evidence they will not allow the evil that evaluation will not open to examining the evidence of fraud with regards to whether or not even rico opened the cases so our position is that to be able to read a term in the case is to give it to reopen or  decide the cases that ability to reopen is premised on the existence of fraud or similar fault but they will not allow the examination of fraud or similar fault  as a as a as a practical and are i'm trying to understand how that impacts the end result i understand the distinction that you're  going to reopen it in the st place but as a practical matter what difference does it make in the case of mr  years and years with benefits to have been accumulated so when and if so if i make it if they give him a merits hearing where he's allowed to once again reestablish his case of disability you're saying that the retroactive benefits will not go back to the original date of terminations under this current for for the immediate proposal is similar to what you're saying but that's not where the problem lies the problem lies if after the merits hearing they decide that mr  yarnell was not the sable in two thousand and ten i don't remember the exact date then they have the day suspend benefits and then they can ask to they can assess the overpayment the overpayment itself then can be waived or not as a nd step but benefits would have accumulated from the date that they were initially awarded benefits until that hearing where they say that no in effect fraud has taken place and no you do not that that he knew hearing on the then that lump sum would go into the decision whether to waive or not the benefits right now what they have done is simply terminated the benefits and from th a nation through the new hearing those benefits will not be in essence and play because they have not been paid out and even if they decide that mr hussein yarnall is not is correct that is what i had said i have pointed out there's additional information to it that is the point that is additional information to it it is more obvious in the case of mr hosting and because the temporary be in statement has been defined from hearing new ale to hearing up to the new whale to hearing where as the whole period from the suspension through the reinstatement that remain standing limbo and determination that your clients are act representatives of the class what what ok what a lousy writer for their their class has not been certified that is correct for purposes of this appeals before your honor's we presume that we treat the class as if it's been certified and then the district court if it's returned to them th record then would have to actually go through the process not they don't have to reach the conclusion but they would have to then be open to evaluating the certification or not it was  we presume that the class action is certified because for purposes of the appeal the at the appeal level all the allegations are taken as true and since it was the the allegations of a class were included in the in the complaint then in this review they should be taken as true once the case if if this court so decides returns to draw stiction to the district court then the district court would proceed and its normal process and evaluate whether or not the class action is to be certified i might just try to pin that down a little bit more clearly that i still don't understand if we were writing an order about class certification what would it say what you have a say about the class certification issue the order that out that in specific i'll include the order more generally that i'm looking for is for the district court t v while you wait the merits of the claims including to evaluate whether or not to certify the class action the challenge to the policies so the policies are what effect the class whatever potential class would be affected by the validity of the policy and by dismissing the ability to challenge the policies they are dismissing the class proceedings that were applied to both of the the plaintiffs were were dismissed because the agency acknowledged that it applied the wrong procedures and while the plaintiffs claimed that they would like to challenge or lawfully had to challenge an opportunity to challenge the exclusion of medical evidence in their case they will get an opportunity to do so on  redetermination order that the district court reversed and vacated and provide her new new procedures under which she may challenge the exclusion of the medical evidence and her case and after remained the district court to permit mr just standing on as amendment of his complaint to acknowledge that he has exhausted administrative remedies remain and on the same terms to the agency the redetermination so when mr ganns case that her benefits were terminated as of that date she will receive benefits going forward during the pendency of the new redetermination proceedings as well as a restoration of the benefits prior to that point mr just any on those benefits will be read just restored as of the date of the a l j decision in his case and going forward during the  redetermination for seatings because his benefits were terminated at an earlier point in the process there will be a gap between the benefits the date on which has benefits were terminated and the date on which they will have been well as we've described in our brief there were specialized hearings under which the agency determined whether there was reason to believe that fraud or similar fo tainted the tainted an application for benefits and mr destiny on his case his benefits were suspended and then terminated at that ariel earlier level when he appealed to the a l j case is that because they key to the ale jay's decision on redetermination and and reinstated benefits that would occur at that point just just to follow up on that briefly if i might just be honest case i thought your position now was that at the original hearing not not did not before the yale j but the original determination did he should have been intitled to argue against the exclusion of the medical evidence your honor that he should be argued he should have been able to do so before the a l j not before that because the l g is the is the point in the administrative process in which there is a hearing that is the point at which he is entitled to but it doesn't make sense to me that that benefits would be suspended or terminated before that point if there is no opportunity to challenge  has been a reason to believe that that fraud or similar fault tainted the application so the remedy afforded is the opportunity to contest the exclusion of that evidence which the so whether you become aware of the fraud through a prosecutor or right she or determine it on your own benefits are going to be cut off until there's a hearing before the  proceeding and so she would be made whole during the pendency of the new pre determination proceed yes that initial determination was made by a by i believe a specialized group within the social security administration  and then the plaintiffs were able to to challenge that determination before the a l j and then the appeals coun that the notice as were given and benefits were initially suspended and then terminated after there had been a redetermination and the agency has has acknowledged that that was error that it would it that these these cases were more properly considered s s a initiated  referrals and therefore that claimant should have been given an opportunity and my understanding is that that that is the case for all claimants who are currently in the administrative process that  redetermination proceedings that are happening that that are before the agency they will be up for it an opportunity to challenge me at that at some counsel if if if that's the point at which they are supposed to be allowed to  challenge the exclusion of the evidence i do not understand why the benefits only get reinstated to the date of the a l j's decision when there is an acknowledged legal error that took place before that permitted beef prior to the proceeding before the a l j have to read terminations stage i am sorry the hearing is the is the redetermination stage that i was referring to so i appreciate the opportunity to clarify  termination hearings so if there is a if so the reading terminations hearing in front of the l j if it if that is the decision there is that the evidence should not have been excluded  and that they should have been found to have been disabled is there then a retroactive reinstatement of the benefits going forward at that point the benefits retroactively will have already been reinstated that is the upshot of the of the district court's remained order and not in this case i'm just i'm just how does the process work how does the process works because the district court here they  or retroactively as well as prospectively if at the conclusion of the new redetermination proceedings it is determined that she is disabled then there will be little left to do because she will have received her benefit she will have already received her benefits retroactively and continue to do so going forward does that answer your question your honor and partially just indians case where there's the actual gap  during that what you've described as the gap will be restored as well one as going forward once again you saying that it's retroactive only to the date of the ale j s decision yes your honor be and maybe i am thinking about this incorrectly but it is it fair to say that there could be months between a suspension n n a l j a hearing yes  period that i'm sorry to to clarify if not determination mr just standing on who is determined to have been disabled he will get the benefits reinstated from that that get period of yes your honor if he is determined to be disabled or disabled as of the date of his initial application he will be his benefits will fully be fully restored so there is no gap depending on the determination in other words there's no gap between the last check he received and the next check he receives receives if he's determined to be disabled that right there yes your honor that if he  is ultimately determined to be disabled and conversed late if at redetermination the a l j determines in the appeals council affirms that he was not disabled as of the date of his initial application th the the agency could commence overpayment proceedings and  yes your honor so the agencies practices that while the case is on appeal then it does not affect the way the district court's order and so once the case is fre very procedures that she's asked for to challenge the exclusion of the evidence and we believe that that mr just standing on who should receive the same relief but there is there is no class in the case at this point more to the point the class allegations discussed in plaintiff's brief concern judicial waiver of exhaustion which this court in a case brought by mr just any i know at an earlier point in the proceeding found was not appropriate and all of the cases pending before the agency that is all of the claimants with an exhausted claims will receive the benefits of the rede they would be able to press those claims but but most importantly there are no class claims in the case at this point and that's why we did not you know at this point were were to individual plaintiffs because there was no class certified one individual plaintiff got the relief that would redress the grievances filed in her complaint we think the procedure and the benefits are the exclusion of evidence and that's precisely the grievance that plaintiffs had with the procedure they did get so in that sense they are they are getting the correct procedure and it will i have and i have also suggested that perhaps i need to provide the court with more detail about what happened and mr just any of those case that i'm not prepared to describe with apologies exactly the the stage  at which his his benefits were suspended that was not the challenge that was breached in this case and so i apologize but i would have to provide the court with with more more detail about that insistence that this is strictly or that our claim is strictly about being able to challenge the exclusion of evidence again to the exclusion of evidence is premised under section excluding evidence and the other one is carrying out the really determinations so this is important because even if the cases and up not excluding the evidence any two reasonable judges looking at the same evidence can reach different conclusions so before forcing a claimant to defend themself again there has to be there has to be the evidence that the that justifies reopening the case all together for them to be able to then justify and all of that can happen during the same hearing but they have to be able to be allowed my clients have to be able to be allowed people to question the evidence of fraud as it relates to whether or not the case can even be reopened and if the case cannot be reopened based on the evidence of fraud that would be the end of that issue as opposed to the insistence that it's only about whether or not to exclude evidence medical so how would that work i take it that you would require a notice that we intend to suspend jones this in front of a nail j correct so i would expect that a the agency makes an investigation with the help of whatever other external agencies they put together a file they notify the claimants in your case we suspect that there was fraud you will have a hearing on such a date and in that hearing you can challenge the evidence that the fraud took place we will look at whether or not this evidence will be excluded you have the opportunity to defend or oppose the exclusion of that evidence and we will evaluate if  medical record as it was for certain dates now also with that notice and prior to that hearing if it even if it's not with the notice itself there has to be a delivery by the agency of what is the evidence upon upon which we are finding fraud and the case of mister the evidence was not supplied until finally years later the case reached a nail g hearing so all that time there was no  evidence upon which to challenge the fraud and even during the hearing which they have corrected partially even during the hearing they would not allow a challenge to the evidence of fraud now they are going to allow a challenge of the evidence of fraud with regards to the exclusion of the evidence but not with regards to the justification for the proceedings themselves anything further thank you both thank you that concludes the arguments of this case attorney cologne attorney lilly's should disconnect from the hearing at this time