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.

Recent Decision Re: Credibility

In Hobson v. SSA, 2013 U.S. Dist. LEXIS 62901 (M.D.Tenn. May 2, 2013), the Magistrate Judge for the District Court recommended reversal and remand of a decision denying the plaintiff’s claim for disability benefits in large part because of the ALJ’s credibility determination.  The Magistrate Judge began the legal analysis by noting  the following important rule of law:

There is no question that a claimant’s subjective complaints can support a finding of disability — irrespective of the credibility of that claimant’s statements before the agency — if they are grounded in an objectively established, underlying medical condition and are borne out by the medical and other evidence of record. Id.; see, e.g., Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997); SSR 96-7p, 1996 SSR LEXIS 4 at *3, 1996 WL 374186, at *1, 5 (describing the scope of the analysis as including “the objective medical evidence, the individual’s own statements about symptoms, statements and other information provided by treating or examining physicians or psychologists and other persons about the symptoms and how they affect the individual, and any other relevant evidence in the case record[;]” “a finding that an individual’s statements are not credible, or not wholly credible, is not in itself sufficient to establish that the individual is not disabled.”).

The ALJ found that the claimant was “able to assist his children with their homework; to care for his own personal needs; to prepare simple meals; to shop; to manage funds/pay bills; to concentrate; to understand the spoken word; to get along with authority figures and to handle stress and/or changes in routine. This evidences that the claimant is able to function.”  The ALJ further found that medical treatment improved the claimant’s condition and that the objective medical testing was “unremarkable.”  As a result, the ALJ took issue with the claimant’s credibility.

The District Court noted that although the objective medical testing was unremarkable,

There is clearly an underlying medical condition giving rise to plaintiff’s subjective report of pain: migraine headaches likely caused or exacerbated by plaintiff’s cranial osteoma.”  The Court reasoned that the claimant’s treating physicians “did not in any way articulate that they doubted plaintiff’s report of migraine symptoms. Rather, the neurologists and primary care physicians at the VA continued to prescribe a combination of medications for his migraines, with adjustments made at intervals in an attempt to relieve his symptoms without resorting to narcotic pain medication, before finally adverting to narcotic therapy in 2009, with good results. . . . In fact, during the period at issue, there does not appear to be any legitimately conflicting evidence on the issue of pain in the record, a point which the Sixth Circuit has deemed significant. King v. Heckler, 742 F.2d 968 (6th Cir. 1984). Lastly, while not in any way binding on the SSA, it is certainly noteworthy that the VA awarded plaintiff benefits based on its determination of his unemployability, owing to the combined effect of his migraines, seizures, and asthma (of which plaintiff’s migraines were the most significant factor in the VA disability calculus).

The Court noted that while an ALJ’s credibility findings are due “significant deference”, in this case, the ALJ did not ask the plaintiff any questions during the short 15 minute hearing.  Moreover,

The ALJ failed entirely to discuss the alleged medication side effects mentioned above, including to what extent those side effects occurred during the period at issue here, prior to the introduction of narcotic pain medication; plaintiff had earlier reported drowsiness and weakness as side effects of amitriptyline. In short, the ALJ’s credibility determination is not supported by substantial evidence, and is not deserving of deference under these circumstances.

The Court concluded the decision as follows:  “In sum, the decision of the SSA is not supported by substantial evidence, and the undersigned therefore concludes that reversal and remand to the agency are in order in this case.”

Chronic Pain

Clint Cooper, a staff writer for the Chattanooga Times Free Press, published a very good article on Chronic Pain in today’s paper.  If your chronic pain keeps you from working, feel free to contact Patrick Cruise at The Hamilton Firm for a free consultation. You may be entitled to disability benefits.

2012 Disability Decision Data

According to data published in the NOSSCR Social Security Forum (Vol. 35, No. 2 – February 2013), 88% of Requests for Reconsideration were denied in 2012.  Over two-thirds of applications were denied.  At the hearing level, about 50% of claims were approved.  Appeals to the Appeals Council were denied 77% in 2012.  There were over 3 million applications for disability in 2012.  If you need help with your disability claim, feel free to contact my office at 423 634 0871.

GAF Scores

In Thompson v. Colvin, 2013 U.S.Dist. Lexis 36019, (E.D.Tenn. 2013), the District Court provided a nice summary of the law with regard to GAF scores:

ALJs and courts routinely rely upon GAF scores and the scores’ meanings in analyzing whether benefits should ultimately be awarded. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 276 (6th Cir. 2009); see also American Psychiatric Association  Diagnostic and Statistical Manual of Mental Disorders, Text Revision 34 (4th ed. 2000) (detailing score ranges and their meanings). Here, it is undisputed by the parties that a GAF score of 41 to 50 indicates serious symptoms. See Gayheart v. Comm’r of Soc. Sec., No. 12-3553, 2013 U.S. App. LEXIS 4865 at *3 (6th Cir. 2013) (recommended for publication). It is further undisputed that the ALJ stated that a GAF score “in the 50’s” indicates “no more than moderate mental limitations.” (Tr. 15). As Dr. Moffet’s scores of only 50 are the only scores in the record, the ALJ’s statement that his scores indicate no more than moderate limitations is clearly incorrect.

. . . . While a GAF score is not controlling as to whether benefits should be awarded, the scores are helpful in analyzing a person’s symptoms and possible difficulty in social, occupational or school functioning at the time a practitioner performed the examination. Here, as noted, the only scores in the record are those from Dr. Moffet. The ALJ assigned an incorrect meaning to those scores. This error is significant  [*6] because part of the reasons why the ALJ apparently decided to give little weight to Dr. Moffet’s and to instead give more weight to the state agency psychologists’ reports was perceived inconsistencies in Dr. Moffet’s own records and that his opinions conflicted with other evidence in the record, including the plaintiff’s activities of daily living. However, the ALJ did not give sufficient details as to any of these. See Gayheart, 2013 U.S. App. LEXIS 4865 at *36 (discussing the proper analysis and “good reasons” in determining controlling weight to be given to medical opinions). Therefore, good reasons should have been given as to why Dr. Moffet’s opinions were given little weight. See id. When the scant reasons for discounting the opinions were based on a misconception, this Court cannot find this harmless.

Thus, after de novo and careful consideration of the record as a whole, including the Administrative Transcript, and after careful consideration of the Report and Recommendation of the United States Magistrate Judge, for the reasons set out in that Report and Recommendation which are incorporated by reference herein, and for the reasons stated above, it is hereby ORDERED that the defendant’s  [*7] objections are OVERRULED, [Doc. 19], that this Report and Recommendation is ADOPTED and APPROVED, [Doc. 16], that the plaintiff’s motion for judgment on the pleadings, [Doc. 12], is GRANTED IN PART, and that defendant’s motion for summary judgment, [Doc. 14], is DENIED. It is further ORDERED that this case is REMANDED to the Commissioner for remanded for a mental evaluation by an examining source, including a GAF assessment.

Treating Physician Rule

In Allen v. Astrue, 2013 U.S. Dist. Lexis 33743 (E.D.Tenn. Mar. 12, 2013), the District Court held that the ALJ’s rejection of a treating physician opinion was improper:

the ALJ gave insufficient reasons to explain his total rejection of the treating source’s opinion, which is generally given controlling weight. After determining that a treating source’s opinion  [*10] is not entitled to controlling weight, the ALJ must balance the four factors of the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and specialization of the treating source. Cole, 661 F.3d at 937. While the ALJ generally stated that he found Dr. Bridgeman’s opinion inconsistent with the other evidence of record, and briefly mentioned the activities of daily living as inconsistent non-medical evidence, the ALJ’s opinion does not indicate what specific parts of the objective medical record contradicted the opinion of Dr. Bridgeman.

Earlier in the opinion the ALJ discusses some of the notes from Dr. Bridgeman’s visits with plaintiff, spanning several years [Tr. 21-22]; however, nowhere in the opinion does the ALJ indicate that he considered the length of the treatment relationship in determining what weight to give to the opinion of Dr. Bridgeman. The ALJ does not mention the frequency of the examination, the extent of the treatment relationship, or whether Dr. Bridgeman is specialized in any way. To the contrary, the ALJ’s opinion  [*11] indicates that he in part decided to afford no weight to Dr. Bridgeman’s opinion because he believed that Dr. Bridgeman may have been sympathetic with plaintiff’s plight, rather than believing she was truly as limited as the doctor’s opinions indicate. The ALJ’s opinion thus gives the appearance that rather than objectively consider the record as a whole and the treatment relationship of Dr. Bridgeman and plaintiff, he speculated about the lack of legitimacy of Dr. Bridgeman’s opinion and allowed that speculation to in part lead him to the conclusion to give the opinion no weight.

Finding that a treating source opinion is not entitled to controlling weight does not automatically mean that it should be entitled to no weight, as was afforded here, and the Court finds that the ALJ failed to give sufficiently specific good reasons for why he decided to give no weight to Dr. Bridgeman’s opinion. See Blakley, 581 F.3d at 408; see also Renfro v. Comm’r of Soc. Sec., No. 2:12-CV-8, 2013 U.S. Dist. LEXIS 13102, 2013 WL 392471, *12 (E.D. Tenn. Jan. 10, 2013) (recommending remand where ALJ failed to give good reasons when he gave no weight to treating source opinion and stated only that he found the opinion to be inconsistent  [*12] with the medical evidence of record and that plaintiff had a history of malingering); Harris v. Comm’r of Soc. Sec., No. 5:10 CV 283, 2011 U.S. Dist. LEXIS 131205, 2011 WL 5523669, *6 (N.D. Ohio Nov. 14, 2011) (finding substantial evidence did not support ALJ’s decision giving less than controlling weight to opinions of treating sources and noting “although the ALJ did note that these treating source opinions were inconsistent with the other evidence, such as their treatment notes, the ALJ did not clearly articulate, as required, the specific points of any inconsistencies between the treatment notes and the opinions.”). Accordingly, the Court finds that the ALJ failed to appropriately and fully apply to the proper legal standards to plaintiff’s case, and the Court must decide whether this error demands that the case be remanded.

The Sixth Circuit “has made clear that ‘[it] do[es] not hesitate to remand when the Commissioner has not provided good reasons for the weight given to a treating physician’s opinion and [the Sixth Circuit ]will continue remanding when [it] encounter[s] opinions from ALJ’s that do not comprehensively set forth the reasons for the weight assigned to a treating physician’s opinion.” Cole, 661 F.3d at 939  [*13] (quoting Hensley v. Astrue, 573 F.3d 263, 267 (6th Cir. 2009) (citation and internal quotation marks omitted)). The Court will not remand the case if the violation is harmless error. A violation of the good reasons rule can be deemed “harmless error” if:

“(1) a treating source’s opinion is so patently deficient that the Commissioner could not possibly credit it; (2) if the Commissioner adopts the opinion of the treating source or makes findings consistent with the opinion; or (3) where the Commissioner has met the goal of § 404.1527(d)(2) . . . even though she has not complied with the terms of the regulation.”

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (citation omitted).

The Court does not find that any of those exceptions apply here. Upon review of the record, the Court does not find Dr. Bridgeman’s opinion to be patently deficient. As the ALJ determined that no weight should be given to Dr. Bridgeman’s opinion, the Court does not find that the ALJ adopted the opinion, and he did not make findings consistent with it. Last, the Court finds that the ALJ has not met the goal of § 404.1527(d)(2), as the ALJ’s opinion does not sufficiently explain to plaintiff why the  [*14] ALJ decided to give no weight at all to plaintiff’s treating physician’s opinion. Accordingly, this situation, where plaintiff’s treating physician has found her to be more severely impaired than the ALJ’s findings reflect, and the ALJ has decided to give no weight to that opinion without first sufficiently balancing the required factors, is the type of scenario that the good reasons requirement of the treating physician rule is meant to prevent. 1

Inability to Afford Medical Treatment

SSR 82-59 addresses this issue in detail. In any case involving an allegation that the claimant is unable to afford medical treatment, SSR 82-59 should be carefully reviewed. See also: Slaughter v. Astrue, 857 F.Supp.2d 631 (S.D. Tex. 2012)