38.  Plaintiff Kevin Robertson is forty-three years old, and resides in Fort Gay, Wayne  County, West Virginia.    39.  Mr. Robertson has an eighth-grade education and worked for approximately twenty  years as a land surveyor. He worked until 2006 at which time he became unable to work due to  constantly worsening mood swings and panic attacks that treatment with medications failed to  control. Mr. Robertson also suffered from physical injuries. He continues to be disabled.   4.  The foundation for the redeterminations that are the subject of this action are the  Commissioner’s allegations of fraud or similar fault, which originated during investigations  initiated by various committees of the United States Congress, and pursued in conjunction with  the Social Security Administration’s Office of the Inspector General (OIG). The investigations  began with the investigation of the Social Security Administration (SSA) itself.   40.  Mr. Robertson applied for and was denied disability benefits on April 22, 2010.  He  appealed the denial of benefits and retained Attorney Eric Conn to represent him on appeal. He  was evaluated by Dr. Bradley Adkins in order to provide expert opinion evidence about his mental  disability.   41.    Mr. Robertson was awarded SSD benefits by ALJ David B. Daugherty in a  decision dated December 3, 2010, as a result of physical and mental impairments that rendered  him unable to work.  SSA did not appeal this decision and it became the final decision of the  Commissioner sixty days after the date of the decision.  Mr. Robertson began receiving disability  benefits after the decision, which have continued to be paid to him because of continuing disability.   42.   On or about May 22, 2015, Mr. Robertson received a letter from the SSA  suspending his benefits.  The letter indicated that his benefits were suspended because “there was  reason to believe fraud was involved in certain cases including evidence from Bradley Adkins,  Ph.D., Srinivas Ammisetty, M.D., Frederic Huffnagle, M.D., or David P. Herr, D.O.”  A copy of  the letter from the SSA is attached hereto as Exhibit A.  15   43.  On or about May 22, 2015, Mr. Robertson also received a “Notice of Appeals  Council Action,” in which he was advised that the SSA was re-determining his disability case  without evidence from Frederic Huffnagle, M.D.  He was advised that he had ten days to submit  additional evidence to the Appeals Council, after which his case would be remanded to an ALJ to  await a new hearing and during which time he would receive no Social Security Disability  payments.    44.   Mr. Robertson appeared before an ALJ for this hearing on October 18, 2015.  On  December 16, 2015 the ALJ issued a decision – after disregarding evidence deleted from his record  – that the remaining evidence was insufficient to establish his disability in 2009.   45.   Mr. Robertson has appealed this ALJ decision to the Appeals Council, where it is  now pending.   46.  As a result of the ALJ decision, Mr. Robertson’s benefit payments of approximately  $1,100.00 per month were terminated by SSA.  This was his sole income.   47.  As a direct result of the termination of benefits, Mr. Robertson is unable to afford  various basic necessities of life, including the medications necessary to treat his medical  impairments. The severity of his condition together with the immediate loss of benefits and  inability to pay for his medications have created the imminent threat of irreparable physical and  mental harm to the Plaintiff, Kevin Robertson.  48.  Plaintiff Jenny Rose is a fifty-five year old married woman living at 119 Saltpetre  Road, Fort Gay, Wayne County, West Virginia.  16   49.  Ms. Rose worked for approximately thirty years in restaurants as a cook, as a clerk  in a convenience store, delivering meals to home-bound individuals, steaming hats at a hat factory,  and finally sewing emblems on uniforms for Cintas Corporation.  Ms. Rose attended school  through the eighth grade, but her educational attainment is significantly less than an eighth-grade  level. She has a verbal IQ of 68 and learning disabilities that affect her reading comprehension  limitations. She suffers from depression.  She also suffers from a variety of physical ailments,  including osteoarthritis of the spine, hypertensive cardiovascular disease, sacroiliac disease,  bilateral facet arthropathy, carpel tunnel syndrome, fibromyalgia, neuropathy in her lower  extremities, and trochanteric bursitis.   50.    Ms. Rose stopped working in April 2008 due to increasingly severe orthopedic  impairments that prevented her from standing, walking, lifting and carrying; enough to support her  previous full-time work.  Ms. Rose applied for her disability insurance benefits on January 21,  2010.  Her application was denied by SSA and she appealed the denial. Her lawyer died and she  retained Attorney Eric Conn to represent her on appeal.  She was evaluated by Srinivas Ammisetty,  M.D., in order to provide expert opinion evidence about the severity of her physical disability.   51.  Ms. Rose was awarded SSD benefits on May 5, 2011, by decision of ALJ David B.  Daugherty.  SSA did not appeal the decision, which became the final decision of the Commissioner  sixty days later.  Ms. Rose began receiving disability benefits after the decision, which have  continued to be paid to her because of continuing disability.   52.   On or around May 18, 2015, Ms. Rose received a letter from the SSA indicating  that her benefits were at risk because “there was reason to believe fraud was involved in certain  cases that included evidence from Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Frederic  17  Huffnagle, M.D., or David P. Herr, D.O.”  A copy of the letter from the SSA is attached hereto as  Exhibit B.   53.  On or about September 22, 2015, Ms. Rose received a “Notice of Appeals Council  Order Remanding Case to Administrative Law Judge,” in which she was advised that the SSA was  re-determining her disability case without evidence from Srinivas Ammisetty, M.D., and/or David  P. Herr, D.O.  Ms. Rose had submitted medical evidence from Dr. Ammisetty in her original case.   She was advised that she had ten days to submit additional evidence to the Appeals Council, after  which her case would be remanded to an ALJ to await a new hearing.   54.  On January 14, 2016 a hearing was held before an ALJ in which Ms. Rose  submitted additional evidence of her disability during the relevant time period.  The ALJ ordered  a review of the newly-submitted evidence and proposed that a later hearing would be convened  with a medical expert present to provide expert testimony about her physical impairments in order  to assist him in redetermining Ms. Rose’s disability.  The hearing has been recently set for April  5, 2016.   55.    Ms. Rose cannot afford her necessary medications without the $800.00 per month  that she is receiving from Social Security Disability.  Due to the severity of her condition, she  cannot go without her prescribed medications for an indeterminate period of time while waiting  for an appeal of any unfavorable ruling to the Appeals Council and then to this Court.   56.  Due to the severity of her condition, the potential loss of benefits and inability to  otherwise pay for her medications will create an imminent threat of irreparable physical and mental  harm to the Plaintiff, Jenny Rose.  18  57.  Plaintiff Kathy Collins is a fifty-three year old single woman living at 1151 West  6th Avenue, Williamson, Mingo County, West Virginia.  Ms. Collins worked as a bank teller for  over twenty years.  She suffers from depression.  In 2007 Ms. Collins had a horsing accident and  suffered a back injury and developed a seizure disorder.   58.  Ms. Collins was awarded SSD benefits on August 6, 2009, by decision of ALJ  David B. Daugherty.  Ms. Collins disability determination was based in part on evidence submitted  by Frederic Huffnagle, M.D.  SSA did not appeal the decision, which became the final decision of  the Commissioner sixty days later.  Ms. Collins began receiving disability benefits after the  decision, which have continued to be paid to her because of continuing disability.   59.  In or around May 18, 2015, Ms. Collins received a letter from the SSA indicating  that her benefits were at risk because “there was reason to believe fraud was involved in certain  cases that included evidence from Bradley Adkins, Ph.D., Srinivas Ammisetty, M.D., Frederic  Huffnagle, M.D., or David P. Herr, D.O.”  The notice explained that Ms. Collins case would be  remanded to an ALJ to determine her disability without evidence from Frederic Huffnagle, M.D.  She was advised that she had ten days to submit additional evidence to the Appeals Council, after  which her case would be remanded to an ALJ to await a new hearing.  A copy of the letter from  the SSA is attached hereto as Exhibit C.   60.  Ms. Collins was unable to obtain additional medical evidence to support her  disability as of 2007.  One medical professional that had treated Ms. Collins had died.  A  psychiatrist that had treated Ms. Collins in 2007 had destroyed his records.  19   61.  On or around August 25, 2015, Ms. Collins received a “Notice of Hearing,” in  which she was advised that the SSA had set a hearing to redetermine her eligibility for Social  Security Disability.   62.  A hearing was held on September 23, 2015, at which time the ALJ continued the  hearing to February 17, 2016.   At the February 17, 2016 hearing, the ALJ again continued the  hearing for an additional twenty days.   63.  Ms. Collins cannot live without the $883.00 per month that she is receiving from  Social Security Disability.  Due to the severity of her condition, she cannot go without her  prescribed medications for an indeterminate period of time while waiting for an appeal of any  unfavorable ruling to the Appeals Council and then to this Court.   64.  Due to the severity of her condition, the potential loss of benefits will create an  imminent threat of irreparable physical and mental harm to the Plaintiff, Kathy Collins.  65.  The Plaintiffs bring this action pursuant to Fed. R. Civ. P. 23(b)(2) and (3) on behalf  of themselves and the following Class:   All persons who were receiving Social Security Disability (SSD) and  Supplemental Security Income (SSI) benefits during or prior to May 2015, and  whose disability status the SSA has sought to redetermine based on the assertion  that evidence was provided by their attorney Eric C. Conn during the persons’  original disability cases by one or all of the following medical witnesses: Bradley  Adkins, Ph.D; Srinivas Ammisetty, M.D.; Frederic Huffnagle, M.D.; David Herr,  75.  The Plaintiffs incorporate the preceding paragraphs by reference.   76.  The Social Security Act defines procedures that must be followed in the evaluation  of disability in claims made by individuals seeking disability benefits provided for in the Act.   77.  The Social Security Act requires that individuals seeking disability benefits be  accorded specifically defined due process rights, including the right to appeal the denial of benefits  by SSA. The Act also requires that the Commissioner promulgate regulations through rulemaking  procedures consistent with the Administrative Procedure Act to ensure respect for these due  process rights. The right to appeal includes but is not limited to the right to a new and independent  decision regarding entitlement to benefits; the right to appear at a hearing before a new and  independent judge who is not bound by previous decisions of SSA; the right to have all relevant  issues relating to benefit entitlement considered and decided in the new and independent  proceeding; the right to appear at a hearing before the judge in which all relevant issues will be  decided; the right to legally sufficient notice of all issues to be considered in the evaluation and re- evaluation of disability; the right to present evidence and be provided with any and all evidence to  24  be relied on in reaching a decision about entitlement to disability; and the right to a written decision  provided to the claimant by the judge, in which all of the issues have been discussed, the law is  explained, and the evidence of record is appropriately weighed. See 42 U.S.C. §§ 405(b), 421(d);  20 C.F.R. §§ 404.929 et seq., 416.1444 et seq.   78.  Pursuant to these requirements, SSA has promulgated regulations that prescribe the  process used to evaluate disability. After an application for benefits is made to SSA, the evaluation  begins with a determination of disability that is in most states provided to SSA through contracts  with state agencies called Disability Determination Services (DDS). The state agency will  investigate the claim by securing all available medical evidence from a claimant’s health care  providers. The state agency will also secure medical source opinions as to the severity of a  claimant’s functional impairments from health care providers, independent medical evaluators and  staff medical consultants. The State agency will then present a disability determination to SSA,  which will approve or deny the claimant’s application based on the determination. See 20 C.F.R.  §§ 404.1601 et seq., 416.901 et seq.   79.  Claimants whose claims are denied may request a reconsideration of that decision.  The claim is then sent back to the state agency for a reevaluation and new determination. See 20  83.  Plaintiffs incorporate the preceding paragraphs by reference.   84.  The Plaintiffs both individually and on behalf of the Class, seek a declaratory  judgment from this Court that the Defendant’s actions described herein violate the Due Process  Clause of the United States Constitution.  See U.S. Const. amend. V.   85.  Plaintiffs’ claims for Social Security Disability benefits are based on payments  Plaintiffs made over the course of their working lives.  Plaintiffs therefore have a statutory  entitlement to these benefits that are protected by the Fifth Amendment to the United States  Constitution.   86.  For the named Plaintiffs, and for many other recipients, these benefits are their only  source of income and typically provide a standard of living below the federal poverty line.  26   87.  Defendant has also violated Plaintiffs’ due process rights by failing to follow the  Social Security Act and regulations promulgated thereunder as outlined above. These obligations  include an individual assessment of their status prior to the institution of the redetermination  hearings.  Defendant failed to make individual determinations of fraud or similar fault existing in  the named Plaintiffs’ and putative Class members’ cases. The Defendant also violated their  mandate to “immediately” commence redetermination hearings once they have notice of fraud or  similar fault. The defendants were on notice of the alleged conduct in 2007 and violated their  timeliness obligation by waiting until May 2015 to send out between 1500 to 1800 similar notice  letters. As a result the Plaintiffs’ rights have been violated in that the ongoing hearings are  obsessively focused on medical records that were generated between 2007 - 2009, and are now  missing or destroyed due to the passage of time.   88.  Defendant has violated the Plaintiffs’ due process rights and on an ongoing basis is  depriving them of an opportunity to be heard by making decisions based on evidence not  introduced into the hearings and excluding evidence of their disability without any determination  that the particular evidence is untrustworthy.   89.  In conducting the mass hearings which commenced in November of 2015, the  Defendant knew there would be a representational crisis, in that the majority of the class members  would effectively default due to a combination of their disabled status, and the lack of volunteer  lawyers available to represent so many in complex legal proceedings.  Plaintiffs allege that the  hearings, for the reasons alleged above, violate due process. The pursuit of administrative remedies  would be futile because the administrative process violates due process and the Administrative  Procedures Act, as hereinafter further alleged.  27  9.  On May 19, 2011, The Wall Street Journal, published an expose-style article about  ALJ Daugherty and Attorney Eric C. Conn. Damian Paletta, Disability-Claim Judge Has Trouble  Saying ‘No’: Near Perfect Approval Record; Social-Security Program Strained, The Wall Street  Journal  (May  19,  2011)  available  at  http://www.wsj.com/articles/  90.  The Plaintiffs incorporate the preceding paragraphs by reference.   91.  The redetermination proceedings as alleged are formal adjudications, subject to the  requirements of 42 U.S.C. § 405(b) and the Administrative Procedure Act.   92.  Official rulemaking under the APA requires notice of the proposed rule, an  opportunity for public comment, and publication of the final rule in the Federal Register.  See 5  U.S.C. § 553(b)(A).   93.  The Administration’s written policy, the HALLEX manual, states that the agency  may “direct” ALJs “to disregard certain evidence,” and further that the “claimant may not appeal  the agency’s statutory mandate to disregard evidence based on OIG referrals of information.”  See  https://www.ssa.gov/OP_Home/hallex/I-01/I-1-3-25.html.  These rules both (a) directly shape a  claimant’s benefits (and hence rights), and (b) because they do not leave any room for ALJ  discretion, have the effect of law.  However, these HALLEX manual provisions have not been  promulgated consistent with the APA’s rulemaking procedures, which include publication and  opportunity to comment.   94.  The Administration has violated and continues to violate the APA’s procedural  protections for formal adjudications.  “A party is entitled to present his case or defense by oral or  documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may  be required for a full and true disclosure of the facts.”  5 U.S.C. § 556(d).  Here, the Plaintiffs and  putative Class members are not permitted to cross-examine the fraud allegation made in the OIG  report, even though the report limits the factual record.  28   95.  The transcript of testimony and exhibits, together with all papers and requests filed  in the proceeding, constitutes the exclusive record for decision.”  5 U.S.C. § 556(e).  “When an  agency decision rests on official notice of a material fact not appearing in the evidence in the  record, a party is entitled, on timely request, to an opportunity to show the contrary.”  Id.  “A  sanction may not be imposed or rule or order issued except on consideration of the whole record  or those parts thereof cited by a party and supported by and in accordance with the reliable,  probative, and substantial evidence.”  Id. § 556(d).  The Administration relies on information  without submitting it into evidence and without giving the claimant an opportunity to rebut the  report’s applicability.   96.  An ALJ “may not be responsible to or subject to the supervision or direction of an  employee or agent engaged in the performance of investigative or prosecuting functions for an  agency.  An employee or agent engaged in the performance of investigative or prosecuting  functions for an agency in a case may not, in that or a factually related case, participate or advise  in the decision, recommended decision, or agency review pursuant to section 557 of this title,  except as witness or counsel in public proceedings.”  5 U.S.C. § 554(d).  OIG is part of the  investigative or prosecuting functions of the Administration agency.  Defendant violates § 554(d)  when its ALJs accept the OIG’s factual determination of fraud.   97.  The APA permits a reviewing court to “hold unlawful and set aside agency action”  if it is “not in accordance with law,” or if it is “arbitrary and capricious.”  5 U.S.C. § 706(2).  The  Defendant routinely ignores regulations that facially apply to these redetermination proceedings.  29  PROMULGATED THEREUNDER   STATES CONSTITUTION  