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.

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Listing 12.05(C)

In Whitehead v. Comm’r of SSA, 2014 U.S.Dist. Lexis 112016, the District Court did a wonderful job of not only explaining Listing 12.05(C), but applying the listing to the facts of the case.   Listing 12.05C requires a valid IQ of 60 through 70 and a physical or mental impairment imposing an additional and significant work related functional limitation.  The Listing further requires intellectual disability manifested before age 22.  In my experience, there is a common misconception that someone who is mildly mentally retarded or intellectually disabled is unable to function in any manner whatsoever.  Thus, if a person with mild mental retardation has worked in the past, decision makers apparently feel it would be inappropriate to find the person disabled.  The truth is that individuals with mild mental retardation are usually able to live in the community, often independently (DSM, 4th).   Thus, it is improper to deny a claim that meets Listing 12.05 simply because the claimant has worked unskilled jobs in the past, or is able to watch television, drive, or take a bath.  “Individuals performing in the mild mental retardation range are capable of performing such activities.”  Whitehead, p. 14.      

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.

Credibility

In Social Security disability cases, credibility is a major driving force in determining the outcome of a claim.  Thus, the claimant’s testimony is extremely important.  During the hearing, a claimant will testify about his or her symptoms.  Symptoms are evaluated as follows:  (1) the medical evidence must demonstrate the existence of a medically determinable impairment “which could reasonably be expected to produce the pain or other symptoms alleged; (2) the symptoms are evluated in conjunction with the evidence to determine the extent to which they limit the claimant’s ability to work.   In examining the non-medical evidence, the law requires the consideration of the following:   (1) daily activities; (2) location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) type, dosage, effectiveness, and side effects of medication taken to alleviate pain or other symptoms; (5) other treatment used to relieve pain or other symptoms; (6) other measures used to relieve pain or other symptoms; and (7) other factors concerning the individual’s functional limitations and restriction due to pain or other symptoms. 20 CFR 404.1529(c)(3), 416.929(c)(3); SSR 96-7p.

Once a case reaches federal court, the credibility finding of the ALJ is entitled to a certain degree of deference, and courts often do not “second guess” such determinations.  Nevertheless, the credibility determination must be  based upon the evidence.  SSR 96-7p.  Often, inconsistencies in testimony or medical evidence are used as a basis to discount credibility.  In such a situation, because symptoms “may vary in their intensity, persistence, functional effects, and may worsen or improve over time,” the decision maker should strive to explain such inconsistencies.  SSR 96-7p.

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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.

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.”

Exceptions to Mariaz

Generally, it is harmless error if an ALJ fails to find an impairment severe as long as the ALJ finds at least one other severe impairment and proceeds with the remaining steps of the sequential evaluation process. Mariaz v. Sec. of Health and Human Services, 837 F.2d 240 (6th Cir. 1987).  The general rule, though, should not apply if the ALJ failed to consider the limitations caused by an impairment in determining residual functional capacity.  The following non-exhaustive list of cases address the situations when Mariaz does not apply:

  • Griffin, 2012 U.S. Dist. Lexis 28214
  • Steele v. Astrue, 2013 U.S. Dist. Lexis 11717
  • Childs, 2013 U.S. Dist. Lexis 9021
  • Sparck, 2012 U.S.Dist. Lexis 129852

If you have been denied disability benefits, feel free to contact Patrick Cruise for a free consultation.