manner before a citizen is deprived of a protected interest all of the plaintiffs in these consolidated appeals received full and fair hearing before on the question of their entitle me to disability benefits before those benefits were terminated three procedural protections were especially important in this regard first the plaintiffs were permitted to rely on all of the evidence the evidence collected and put into their case files when they initially applied for  disability benefits this includes all of the evidence from their treating physicians which under political s s a regulations are generally entitled to the most weight could they include any reports from these four doctors other than the functional capacity forms template forms that were filled out by those doctors in other words i think some of them had had examinations by some of the four doctors and like an i q test or something like that could those reports be considered when the reports were attached to the form as the reports that the  referred to were those were excluded because they fell within the scope of the o i g s referral which referred to the form submitted by signed by the doctors and submitted by connie during a certain time frame it's got actually correct to say that they're treating physicians who are considered if the doctors in question were also treating physicians you know if the doctors in question were treating physicians and the records were obtained directly from the treating physician and it would not fall it would not be disregarded that wasn't the case for any of the plaintiffs even if they were obtained from the treating physicians or the records could be obtained directly from the treating physicians and they would be considered it was when these reports and there the forms and reports attached to the forms were submitted by conn during this timeframe that they were just regarded but again none of the plaintiffs here indicated that they use one of these positions as they're treating source but my understanding was at least one of these individuals had had an i q test which was done by one of the four doctors that's right that was done as part of the consultation examination that was procured by cotton and that that test was  results of that test were actually attached to the r f c form and before him on its face said that it was based on the examination during which that report was prepared excluded that's correct the form said that the information on the form was derived from the report so they were really the same thing there i don't think it would make any sense to just regard the form s zing the report but to consider the report because ultimately they have the same information they're well is it accurate to say some of the plaintiffs had not seen the doctors at all but calling for submission to the judge started why is there an era but of all presumption there that if there was a three hour purported i q test given to one of these individuals that that was fraudulent why can't they why and why don't they have a constitutional right to explore whether or not the information from the three purported three hour i q test was valid because  the statute says to disregard information where there is a reason to believe that fraud was involved the statute doesn't say that the litigation manual says that no in fact the statute does say that the statute says that  determining in title man or making in the national determination of entitlement the commissioner shall disregard any evidence if there is reason to believe that fraud or similar fault was involved in the providing such attached to our brief page one and here the idea is that that fraud didn't necessarily occur with respect to this individual it's just that that particular provider of the information had been so infected with fraud that it would be excluded as that the idea that could be that certainly could be in this case the inspector general also indicated that the inspector general in the referral said there was reason to believe that fraud was involved in these applications and also specifically there is reason to believe that fraud was involved in these template forms so the inspector general determined your position is stronger if you look at it on an across the board basis and say this per this providers information is across the board infected yes and i other there is a saying oh we're relying on the fact that he thought it was infected in this particular case well i think both are are permissible and to the extent to think of this is an evidentiary do you know any other analogous provision in the law well we have pointed to other circumstances with respect to the due process clause where i don't think i cannot think of a single other evidentiary situation that would be analogous to this the closest thing i could think up was in the criminal context where you use the felony conviction to establish that an individual is a felon in possession of a firearm but even the end of the individual or first it's a criminal conviction so the person has had a great deal of d process practice conviction and but the person would still have a right to contest whether he's the person adin a fab in the conviction and a number of other similar matters pertaining to the conviction i just couldn't think of anything that was remotely like the us well i think it's important when looking at it to recognize the proper question under the due process clause which is whether they received a fair hearing or what was not the proper i ask again to that question can you think of anything i'm not aware of any off the top of my head but  not sure that that matters because the question under the due process clause is whether they received a fair hearing with respect to the deprivation of benefits stand somebody might say oh this is just another example of a way you scheme provide for the weighing of certain types of people who testify so all of this and people who lack this kind of training can't testify as to that you have to have someone that's the proper i again to return to the main question here we're looking at whether through applications of the application of the matthews test the play just received a meaningful hearing on the question of their entitle to benefits but why their entitle ment to benefits involves the question of what evidence they can they can look at and what they can challenge in terms of what the commissioner is saying and that evidentiary role that you point out in four o five you commissioner should disregard any evidence if there is reason to believe that fraud so that the reason to believe standard is totally within the power of the commissioner or the i g here and why shouldn't the individuals have the power to say as a matter of due process we challenge the reason to believe argument because in my case hypothetically i did have an i test by someone who said that i had a low i q and it is supported by other things but but why shouldn't they be able to challenge this reason to believe fraud aspect is a matter of due process because all of the other  procedural protections that we describe in the brief provide a full and meaningful hearing with respect to the question of entitlement to benefits as the carter and perkins and robertson's court noted the deprivation is based on sufficiency of the evidence and they had many procedural safeguards including all of the evidence from the treating physicians the ability to substitute for the evidence that was disregarded which in this case was a single excluded evidence makes the procedure fair and meaningful these substitutes have to pertain to the time of the original request for benefits right that is correct but evidence obtained today doesn't have to mean that the evidence was created at the time this is a common issue before a whole j's in the social security context where were doctors often create reports after the fact and say based on what i see i conclude that there was disability at that time i see that my time is up and i'd like to reserve for a bottle may please the court the social security administration all along with its office of inspector general made an individualized determination that in the case of amy hacks ten other plaintiffs and hundreds of other individuals there was  reason to believe that fraud existed with respect to specific medical evidence that they submitted in their pile that was an individualized determination and because it was an individual lives determination they are entitled to notice of what the  evidence that was presented by those doctors was categorically excluded because those doctors had participated in fraudulent activity in general but not necessarily because the  participated in it in a particular case if that's accurate maybe it's not only sort of backed away from that if that's accurate then how can you say it's an individualized determination it's an individualized determination anymore is it so so you said if it's accurate or not i don't think it's accurate to let's take the case of dr i didn't want to rely on both and i'm asking seems to me one is much more persuasive than the other that that may be right if you take it as that then what would be the problem if it's if it's  generic information that these doctors are all projects that everything this doctor is ever done is from everything that they've done but that they have exhibited in similar kinds of cases a pattern a fraud so so could could be could the social security administration have a have a rule constitutionally i'm not getting into what the rules are because they have a rule which says testimony from somebody who has repeatedly engaged in fraud with respect to the presentation of this kind of evidence in the past could not is categorically to be excluded that you can say yes you can say no but you can't say that's an individual lies determination  evidentiary rule that says if someone has engaged and so then comes down to the factual question of whether that person has in fact engaged in fraud in these in these hearings to challenge that they've ever but i don't think that's but i understand your honor asked me to grant  premise for the question but i don't think that's what this case is that's not what they're saying these doctors did dr atkins for example was an s s a doctor joined the time period and when his reports were submitted on behalf of s s a as a say except it is evidence you're when you're doing them at the behest of so and so who has also been has a history of fraud then it's then it's categorically not permissible or are you arguing that that  each one of these individual hearings that you're ever caving for they can go and challenge the fact that he ever that he ever did that if it's circumstantial evidence if it's generic evidence that a doctor committed a certain type of fraud i think  the nature of the hearing is not going to be that robust that is that what we're what our clients want and we explained this in our reply brief is they want to understand the evidence that specific to their case so in your honour's example if also show security has what i would call circumstantial evidence evidence that somewhat generic as to every individual i don't think that's particularly but i do think there's a due process right i just don't think it's burdensome the way that your honor described the idea of having me try oh i g could prepare a report that says we have got it what  actually is going to happen it seems to me it could be one of broadly two categories of thing you can show that this statement that so and so can't do sedentary work or whatever this was was fraudulent plea provided in this particular case even though or was not fraudulent only provided in this particular case even though it had been fraudulent only provided in a number of other cases or you could say you can challenge now their determination that this is a person who has engaged in a process  of in a series of fraudulent activities or not it's the form that's a different issue and your honor to the former that's what our clients would like to prove they would like to prove that in their case  then we get to whether you can whether you can argue in your case that this is excludable because he's engaged in a practice of fraud in a lot of other cases that would be an evidentiary rules lots of eviden rules are there to serve a protective purpose that you could quibble with when they get to be applied but people don't normally get to quibble with them when they're applied they say this is a category of hearsay that we think is questionable you can't come in and say well sometimes you can but often you can't come in and say oh well it's not questionable in this case so let me present the evidence you know they say it fits within the category it's the judge the decision i would make is one that i think judge givens was drawing which is that the evidentiary rule is like in any criminal case  here's a used to be excluded there is a subsidiary factual issue which is is this hearsay example if we gave you a factual issue would be are they have they engaged in a pattern of this kind of fraud or in other cases i disagree or i think the subsidiary factual issue is is there reason to believe that there was fraud with respect to this evidence and in your honour's examination is would it be constitutional for them to have a rule like i'm describing that that a doctor who's had a practice of engaging in fraud is liberty could be it's could have his presented information excluded without having a hearing on whether it actually happened in this case because it's  irrelevant if the rule applies regardless of whether it happened in this case the evidence in that case the there still remains a factual question as to whether or not it was invalid in the individual case and our whole claim is that the  cause that's what i'm having trouble understanding if the rule is that it can be excluded regardless of whether it happened in this case because he's had a practice of doing it in in the past and therefore it's inherently problematic ar inherently questionable and so therefore you exclude it that's what a lot of evan ensure rules do they say this is a this is the type of evidence that's question that the shouldn't be presented because it's so prop with error you can't come in then usually maybe sometimes you can i'm not an expert in evidence law but you can come in and say well that's a nice evidentiary rule but it shouldn't apply here because this is good evidence and are you saying that it doesn't apply here because you think it violates due process in an opportunity in that proceeding to question the applicability of the rule based on the criteria of the rule that's exactly right in an individual case you have a right to be heard so in any any evidentiary rule the question of whether it applies to you is something that you get to be heard now and i want to go back to something that mr pull of about he said the statute required this the statute were lights to disregarding the evidence where there's a reason to believe that fraud has occurred the statute has nothing to do with the what is being applied here which is that it's that that evidence is disregarded statute gives a if then statement if there is reason to believe comma it should be excluded but whether there is reason to believe in an individual case and whether there is an opportunity to be heard it is determined by the how it's provision which says there is no opportunity to be heard any hicks's adkins report is available on the record from fourteen twenty nine to fourteen forty and the last three pages heart of the pretty complete r f c forms but the first nine pages are medical evidence being clue to discussion of her symptoms some of her background there are pages after pages in which dr adams walks through what looks like an i q test and makes an assessment that she has an i q of sixty nine and diagnosis her thoughts from a doctor that another part of the as determined to have  exceptions and then the whole question becomes whether they are an exception in this case and that for them to be able to at what i'm trying to get out is whether they get a hearing for that purpose i wonder for instance could the social security administration develop rules  and procedures for disqualifying doctors from participating in so disability security hearings if they have a generic rule that could they have could they develop can't could they have rules constitutionally now i'm not saying they do because they have rules which say a doctor can be disqualified from presenting evidence in a so security disability hearing i just think if you assume that they could assume for the moment that they could it's hard for me to imagine that they could but if you assume that they could with then the the person who the disability claimant be able to  challenge that determination in in each in each disability perhaps your own i mean as applied challenges can be brought i'll give you an example of a recent case lewis versus united states it's a tough forfeiture case involving fraud funds received in health care fraud and there this report accepted the idea that if you're going to use the money for a lawyer and it's for your sixth amendment right it's a six minute claim not a due process claim and they said in that particular situation that rule that evidentiary rule does not apply but  would be an as applied challenge in the application of a rule that may generally be valid but i do think that's different in this case because this rule is not phrased that way that you can challenge that in every application of an in every case well i do think think of that is where tennessee for example statutorily will except in medical malpractise case only the testimony of certain doctors is expert testimony maybe they have to if it once it was stay in its constitutional challenge plaintiffs now to get the right can a lawyer that's right and this i mean dr yes and this report has thought about this question the context of differentiating the legislative rules from adjudicated determinations if a legislature passes a rule like that just a generic rule that is really typically only challenge for substantive due process is the line drawn in that law in that rule arbitrary capricious shocks the conscience it's typically put in the to the bucket of substantive due process but what's different is that that's not how this rule is written this rule isn't written the way your hypothetical is framed be your hypothetical judge druggers it's written as if there is reason to believe in the provision with respect to fraud in the provision of medical evidence that's not a that's not a legislative rule of the type that we're talking about that is a rule that asks for an individualized determination and as a defense in its reply brief that they made individualized determinations in each and every one of these cases when we bring the example of dr atkins they said we didn't just throw out every adkins report we need individualized determinations well that just proves our point if an individual lies determination was made that means our plaintiffs are entitled as a matter of due process to understanding the basis for that individual's determination the procedures and how they apply here we have to focus on the risk of a rony a step or evasion of benefits as the district court perkins carter and roberts and all indicated due to the  ability to substitute evidence the nature of the evidence we're talking about and the the fact that the fraud has been indicted it's been admitted to there's no reason to believe that any of these individual lives hearings that the plaintiffs asked for would actually provide a meaningful protection and reduce the risk of erroneous step or vision as judge rogers was alluding to the the fact of  before the lab g s report no it had not but when we talk if it happened did happen sometime during the see of this litigation it did but when we're asking about the what does that have to do with it is just reason to believe that is not a high bar and i think when people admit they systematically defrauded your adversary the perceived or that is under attack here is not only mandated it is the proceed sure that it's created that your litigation mean but that actually doesn't say anything about not giving a plaintive an opportunity to challenge to well i think the structure of the statute does suggest that the inspector general would conduct these investigations establish the reason to believe and the predicate would be established for the exclusion of evidence but even even so even if it just came from  how lex and the social security ruling which is binding on the agency that would still suffice for due process challenges in matthews and goldberg for example the supreme court just looked at the procedures and the matthews tossed asked whether there was an excessive risk of a pro and erroneous deprivation in light of the interests at stake without saying without asking well is this coming from the statute or procedures they evaluated the procedures under the political due process to us just quickly when you're considering the risk of erroneous determination you have to take into account to some degree the delay the l period of delay because that increases the chances that a plaintiff will not be able to get evidence that might entitle them to been i don't think so for several reasons first all of the evidence that the plaintiffs relied on when they applied for benefits was already in the case file they did not have to resubmit that it was already there so they didn't have to go out and get these again second they could as i indicated  substitute for any of the evidence and ask for s s a as assistance in developing that evidence if there were records out there that they couldn't get that s s they didn't yet have they could ask for assistance in record development which is a totally may please the court to quickly respond judge givens to your point our best evidence on why legitimately disabled people may in fact have lost in these three determination hearings is the continuing disability review process every one of the plaintiffs as far as we know passed their continuing disability reviews which if the government premise is correct that everyone who is legitimately disabled would have one and everyone who is not lost must have been illegitimately table doesn't quite make sense if you passed the continuing disability review system is that they show up to your door asking for records three years five years after your original determination and they say are you still disabled well if you are someone who is illegitimately disabled when they asked for those records they would see medical improvement because you no longer are physically or mentally disabled the distinction that the how extra that that we contend is arbitrary and capricious the arguments that the s s a has made to justify this we just don't think hold water they say it would interfere with the prosecution but you already says if it's going to interfere with the prosecution you have to get certification from a prosecutor and say then not initiate the redetermination hearings and they have never submitted any kind of certification of that sort they say that oh i g investigations are large and s s a in cases are small but as we show in our reply brief if you look at the public record seven seven percent of press releases are in fact single beneficiary cases so the idea that there is this distinction that can be drawn between referrals and s s a referrals is just as as the statute says