Social Security Disability Fraud Investigations

The Social Security Administration uses Cooperative Disability Investigation (“CDI) Units to investigate potential fraud.  The CDI units work with the Office of Inspector General (OIG) as well as state and local law enforcement agencies.  Such investigations take place during the entire application process, and also during continuing disability reviews.  Investigations can be generated by state agency employees, SSA employees, private citizens, anonymous sources, and law enforcement agencies.  During the investigation, the CDI Unit can interview the application, interview third parties, conduct surveillance, and/or examine the claimant’s social media accounts.  It appears such investigations are expanding.

2013 Appeals Council Statistics

In fiscal year 2013, the Appeals Council took approximately one year to process requests for review. Almost 77% of the requests were denied by the Appeals Council.  In other words, the Appeals Council refused to review almost 80% of the requests filed. Approximately 17% of the requests resulted in a remand. About 1% of the requests for review by the Appeals Council resulted in a favorable decision.

If the claimant is denied, the decision on whether to re-file for benefits or appeal the decision to the Appeals Council is very difficult.  If you decide to appeal to the appeals council, it will probably take at least a year to get a decision, and about 80% of those requests will not even be reviewed.  If you decide to appeal your claim to the Appeals Council, make sure your attorney or representative is able and willing to consider taking the case to Federal Court.

Request for Hearing

A common question I am asked is, “how long will it take until I get a hearing?”  Unfortunately, it takes a long time to get a hearing.  For example, in Chattanooga, where most of my hearings take place, the average time between the filing of a Request for Hearing and the actual Hearing date is currently about 14 months as of November 2013.  In Atlanta, it takes about 15 months.

Mental Demands of Unskilled Work

The basic mental demands of competitive unskilled work include the ability to perform the following activities on a sustained basis:

  1. understand, carry out, and remember simple instructions;
  2. make judgments that are commensurate with the functions of unskilled work ( simple work related decisions);
  3. respond appropriately to supervision, coworkers and work situations; and,
  4. deal with changes in a routine work setting.

“A substantial loss of ability to meet any of the basic mental demands listed [above] . . . would justify a finding of inability to perform other work. . . .”

POMS DI 25020.010

 

Evaluating Medical Opinions

20 CFR 404.1527 provides: “In determining whether you are disabled, we will always consider the medical opinions in your case. . . . we will evaluate every medical opinion we receive. . . .”  To ensure that opinions are properly evaluated, “the administrative law judge must explain in the decision the weight given to” medical opinions.  20 CFR 404.1527In denying a claim, the failure to comply with 20 CFR 404.1527 constitutes legal error, and demonstrates that the Commissioner’s decision is not supported by substantial evidence.

Social Security Disability: Attorney Fees in Federal Court

In Pittman v. Colvin, 2013 U.S. Dist. Lexis 79854 (M.D.Tenn. June 5, 2013), the plaintiff obtained a remand at federal court. On remand, the ALJ awarded benefits.  The Plaintiff’s attorney then filed a Motion for Attorney fees in the District Court ,seeking an award of approximately $13,500, which was 25% of the past due benefits. The Court awarded the fees requested, noting that despite the high hourly rate, the amount was reasonable.  The prior award of EAJA fees was ordered to be refunded to the Plaintiff by the attorney.

Social Security Disability: Standard of Review

This Court’s review of the Commissioner’s decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine (1) whether substantial evidence exists in the record to support the Commissioner’s decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).”Substantial evidence” means “such relevant evidence as a reasonable mind would accept as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). “Substantial evidence” has been further quantified as “more than a mere  [*6] scintilla of evidence, but less than a preponderance.” Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the Administrative Law Judge must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the Commissioner did not consider the record as a whole, however, the Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973))).

In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of medical experts; (3)  [*7] subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

Price v. Colvin, 2013 U.S. Dist. LEXIS 83218 (M.D.Tenn. June 13, 2013)