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.

Advertisements

2015 COLA

There will be a 1.7% cost of living adjustment for Social Security and SSI beneficiaries in 2015.

  • SSI:
    • Individual: $733 per month
    • Couple: $1,100 per month
  • Trial Work Period: $780 per month
  • Maximum Taxable Earnings: $118,500
  • Earnings required for quarter of coverage: $1,220
  • SGA
    • non-blind: $1090
    • blind: $1820
  • Retirement earnings test exempt amount:

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.      

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.

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.

If you would like to discuss your disability claim with a lawyer, click here.