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.      

Evaluating Medical opinions

The regulations require an ALJ to evaluate every medical opinion. 20 CFR 404.1527(b): “we will evaluate every medical opinion we receive.”  The evaluation must comply with 20 CFR 404.1527(d).  Remember, a treating source opinion should not be rejected absent “good reasons.”  Id.

Drug Addiction and Alcoholism (DAA)

As briefly discussed in a prior post, for years representatives relied on 1996 EM 96200 and SSR 82-60 for evaluating DAA issues.  Now, SSA has published SSR 13-2p, which outlines the policies for “Evaluating Cases Involving Drug Addiction and Alcoholism.”  SSR 13-2p should be consulted in any case involving drug addiction and/or alcoholism.

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)

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.