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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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)

Request for Relief in District Court

When you are considering hiring a Social Security Disability lawyer, there are many questions you should ask before making your decision.  One question is whether the attorney is prepared to file suit in federal court if the case is lost at the administrative level.  Very few disability claims end up in federal court, but it does happen occasionally.  It may be important to know whether or not the person you are considering hiring is able to handle your case in the unlikely event legal action in federal court is required.  If the claimant loses the case before the ALJ, and the Appeals Council denies the Appeal, the claimant can file suit in Federal Court. The plaintiff’s attorney then will normally file a Motion, which should conclude with a short statement of the relief sought. Specifically, the brief should state whether the Plaintiff seeks (1) reversal; (2) remand; or (3) reversal or, in the alternative, remand. In the case of a remand, the Plaintiff should indicate whether the remand is being sought pursuant to sentence four of 42 U.S.C. § 405(g) or sentence six of 42 U.S.C. § 405(g). If the relief sought is a remand pursuant to sentence six, i.e., the Plaintiff is seeking consideration of additional evidence, the Plaintiff must show that the evidence is new and material and that there was good cause for failing to submit the evidence during the administrative proceedings. If the Plaintiff seeks another form of relief not mentioned above, the Plaintiff is instructed to state the relief sought and cite the proper authority supporting such relief.

If you need assistance with your disability claim, feel free to contact our office.

Acquiescence Rule 98-4(6)

Sometimes, after a  Social Security Disability claim is denied, the claimant will re-apply and eventually have another hearing.  According to Acquiescence Rule 98-4(6), which adopted the holding of Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997), “When adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim, adjudicators must adopt such a finding from the final decision by an ALJ or Appeals Council on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence.”  Therefore, it is crucial on the subsequent claim to put forth new and material evidence to avoid being denied a second time.

Severe Impairment(s)

In my prior post I discussed step one of the sequential evaluation process. The Social Security Administration (SSA) has established a five step sequential evaluation process for determining whether an individual is disabled.  At step one, it must be determined whether the claimant is engaging in substantial gainful activity.  At step two, SSA must determine whether the claimant has a medically determinable impairment that is “severe” or a combination of impairments that is severe. SSA defines “severe” as an impairment that significantly limits the claimant’s ability to perform basic work activities.  If the individual does not have a severe impairment, or combination of impairments that is severe, he/she is not disabled.

The Hamilton Firm handles disability claims in North Georgia and Tennessee.  We are based in Chattanooga, Tennessee.

Mental Retardation

A few months ago I posted a short summary of the law on mild mental retardation.  A case from the Eastern District of Tennessee illustrates some of the difficulties in applying the rules of law I posted earlier.

In Melton v. Astrue, 2010 U.S.Dist.Lexis 103791 (E.D. Tenn. Sept. 28, 2010), the plaintiff was 51 years old at the time of her application for SSDI. The plaintiff was evaluated by David Thompson at the request of her attorney.  Mr. Thompson determined that the plaintiff’s full scale IQ was 51.  The plaintiff was also evaluated by David Caye at the request of SSA.  Mr. Caye noted a full scale IQ of 58, but found the test scores invalid.  The plaintiff asserted in District Court that the ALJ erred in failing to find that the plaintiff met listing 12.05.

The District Court discussed the relevant listing and case law.  The Court cited, but did not necessarily approve, McPeek v. Sec’y of Health & Human Services, 19 F.3d 19 (6th Cir. 2004), which held that a valid IQ score within the requisite range, absent evidence to the contrary, is sufficient to establish a deficit in adaptive function during the developmental period; however, such scores are no longer sufficient when the claimant reaches age 50 to 60 or older.”

The Court ruled that because there was no specific finding by the ALJ as to whether the record supports a finding of developmental deficiencies, “whether Plaintiff’s impairments meet or equal Listing 12.05 hinges on the validity of her IQ scores.”  The Court then found that the ALJ properly determined that “both sets of IQ scores were invalid.”  The Court nevertheless noted that such a finding “does not mean Plaintiff’s real IQ scores are not within the required range of Listing 12.05.”

The Court held that the ALJ improperly substituted his own medical opinion in finding that the Plaintiff had borderline intellectual functioning.  The Court reasoned that such a finding was a medical finding not supported by the medical evidence.  However, the Court also determined that there was insufficient evidence on the Plaintiff’s actual IQ scores.  Therefore, the Court remanded the case.

The Melton decision is a strange case.  The evidence revealed two IQ scores, both in the range of 50-60, yet there was insufficient evidence on the Plaintiff’s IQ.  It is difficult to determine whether or not the Court applied the rule that a valid IQ score of recent origin is sufficient, absent evidence to the contrary, to demonstrate a deficit in adaptive functioning during the developmental period.  After not finding sufficient evidence to establish a deficit in adaptive functioning, the Court nonetheless ruled that whether or not the listing was satisfied depended upon the validity of the IQ scores.  Then, the Court, as indicated above, held there was no evidence of the plaintiff’s actual IQ score.  The Court astutely held that the ALJ essentially “played doctor” in finding the claimant suffered from borderline intellectual functioning, which describes an IQ score of 71-84.

The above decision illustrates the difficulty of applying the law to the facts in these types of cases.

If you need assistance with your disability claim, feel free to contact my office.  Click here.

Vocational Expert Testimony

Sources for evaluating this issue:

* Selected Characteristics of Occupations Defined in the Revised DOT

* SSR 00-4p

* 20 CFR 404.1566(d) and 416.966(d)

* Cases: 78 F.3d 316; 279 F.3d 441; 202 F.3d 926; 368 F.3d 907; 134 Soc.Sec.Rep.Serv. 156; 136 Soc.Sec.Rep.Serv. 1