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.

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.

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.

Social Security Disability: Standard of Review

This Court’s review of the Commissioner’s decision is limited to the record made in the administrative hearing process. Jones v. Secretary, 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine (1) whether substantial evidence exists in the record to support the Commissioner’s decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Secretary, 803 F.2d 211, 213 (6th Cir. 1986).”Substantial evidence” means “such relevant evidence as a reasonable mind would accept as adequate to support the conclusion.” Her v. Commissioner, 203 F.3d 388, 389 (6th Cir. 1999) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971)). “Substantial evidence” has been further quantified as “more than a mere  [*6] scintilla of evidence, but less than a preponderance.” Bell v. Commissioner, 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)).

The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner’s findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the Administrative Law Judge must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389 (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the Commissioner did not consider the record as a whole, however, the Commissioner’s conclusion is undermined. Hurst v. Secretary, 753 F.2d 517, 519 (6th Cir. 1985) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980) (citing Futernick v. Richardson, 484 F.2d 647 (6th Cir. 1973))).

In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff’s condition; (2) diagnosis and opinions of medical experts; (3)  [*7] subjective evidence of Plaintiff’s condition; and (4) Plaintiff’s age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

Price v. Colvin, 2013 U.S. Dist. LEXIS 83218 (M.D.Tenn. June 13, 2013)