TN 14 (04-21)

DI 33025.036 Disability Hearing Officer’s Use of Cooperative Disability Investigations Unit (CDIU) Report of Investigation (ROI) Evidence

This POMS discusses policy for adult cases. For Title XVI child claims, see DI 25200.000.

 

A. Definition of evidence

The regulations on determining disability provide broad-based authority to consider any kind of evidence bearing on the issue of disability. The regulations (20 CFR 404.1513(a) and 416.913(a)) specify that the term “evidence” means anything the individual or anyone else submits or we obtain that relates to the claim.

B. Categories of evidence

Categories of evidence include:

  • Objective medical evidence;

  • Medical opinion(s);

  • Other medical evidence, i.e., not objective medical evidence or medical opinion;

  • Evidence from a non-medical source(s); or

  • Prior administrative medical finding.

CDIU ROI evidence is evidence from a non-medical source(s).

C. CDIU ROI evidence

For background information on a CDIU, see DI 11006.001, DI 11006.005, DI 11006.010, and DI 11006.025.

A CDIU includes the following team members:

  • Office of Inspector General (OIG) Special Agent, who is the team leader;

  • Disability determination services (DDS) employee(s);

  • SSA employee(s), who acts as programmatic experts; and

  • State or local law enforcement.

If a disability hearing unit (DHU), or another component, suspect possible fraud or similar fault, the DHU or other component may refer a case to the State’s servicing CDIU. Refer potential fraud or similar fault claims issues to the CDIU through the Allegation Referral Intake System (ARIS). If a State does not have a CDIU, then an investigation unit (IU) in the OIG may handle the case. If the OIG or CDIU completes an investigation, it will prepare an ROI. Information in DI 33025.036 applies to an ROI prepared by a CDIU or OIG IU.

 

Consider a CDIU ROI in the disability determination process along with all other evidence in file. The ROI may include copies of school or employment records (or both), as well as video surveillance. The majority of an ROI is a report of third party interviews by highly skilled interviewers. Consider the reports, with the totality of the evidence, and evaluate to determine whether the other evidence supports the report. The ROI helps to evaluate the truthfulness, consistency, validity, and supportability of an individual’s statements. (See SSR 16-3p for additional information regarding evaluation of symptoms.)

Surveillance information in both video and narrative form can provide snapshots of an individual’s observed functional ability. Consider this information with all the other evidence to reach conclusions about the individual’s medical impairment(s) and, if the individual is able to work on a sustained basis.

D. CDIU ROI and symptom evaluation

Objective medical evidence, signs, or laboratory findings may show that the individual has a medically determinable impairment(s)(MDI) that could reasonably be expected to produce his or her symptoms. The disability hearing officer (DHO) must evaluate the intensity, persistence, and limiting effects of the individual’s symptoms. In addition, the DHO will determine how much the symptoms limit the individual’s ability to do basic work activities. For this purpose, whenever objective medical evidence does not substantiate the individual’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms, the DHO must evaluate the individual’s symptoms. The DHO must consider the individual’s statements and the entire case record. (See SSR 16-3p for additional information on symptom evaluation.)

If the DHO cannot make a fully favorable disability determination or decision based solely on objective medical evidence, they will carefully consider other evidence in the record to reach a conclusion about the intensity, persistence, and limiting effects of an individual's symptoms. The DHO must consider the CDIU ROI, statements from the individual, medical sources, and any other information about the individual's symptoms. Use the seven factors set forth in 20 CFR 404.1529(c)(3) and 416.929(c)(3) to evaluate whether the individual’s statements are consistent with objective medical evidence and all other evidence, including the CDIU ROI:

  1. 1. 

    Individual’s daily activities;

  2. 2. 

    Location, duration, frequency, and intensity of pain or other symptoms;

  3. 3. 

    Precipitating and aggravating factors;

  4. 4. 

    The type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms;

  5. 5. 

    Treatment, other than medication, received for relief of pain or other symptoms;

  6. 6. 

    Any other measures used to relieve pain or other symptoms (e.g., lying flat on one’s back, standing for 15 to 20 minutes every hour, sleeping on a board); and

  7. 7. 

    Other factors concerning functional limitations and restrictions due to pain or other symptoms.

E. Challenges to how we consider a CDIU ROI

Individuals may challenge the significance of, or how we consider, the CDIU ROI. They may seek to show the DHO that the evidence warrants less significance than might appear to be the case by:

  • Declaring that the activities depicted in the ROI occurred in isolated instances in which the individual’s symptoms were in temporary remission;

  • Declaring that the individual was able to overcome normally debilitating pain;

  • Calling witnesses to testify that the individual’s activities normally differ from those depicted in the ROI evidence; or

  • Submitting evidence concerning temporary periods of remission or subsequent worsening.

The DHO considers the CDIU evidence along with other relevant evidence. In deciding how the DHO considers the ROI and the individual’s statements, the DHO must address any discrepancies, including identifying any evidence that supports or negates the allegations. The DHO’s determination must contain specific reasons for the finding, must be supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers, how the DHO considered the individual’s statements and the ROI. It is not sufficient for the DHO to state that they believed or did not believe the individual’s statements without explaining why. To ensure a well-reasoned determination, the DHO will prepare a detailed explanation showing the logic that the DHO used.

F. Disregarding evidence when a CDIU ROI is in file

The DHO must consider all evidence, including the CDIU ROI, before determining whether to disregard any specific evidence. The CDIU ROI alone does not indicate a finding of fraud or similar fault (FSF). The term “fraud” means to make a false statement or to conceal a material fact when determining rights under the Social Security Act (GN 04105.005B.4.). The term “similar fault” is when an incorrect statement that is material to the determination is knowingly made; or information that is material to the determination is knowingly concealed (GN 04105.005B.5.).

Use the “preponderance of evidence” standard to make a finding about FSF. Preponderance of evidence means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not. The DHO will disregard specific evidence if there is reason to believe that FSF was involved in providing that evidence. Ensure that the FSF finding is based on evidence and reasonable inferences that can be drawn from that evidence, not on speculation or suspicion. (See SSR 16-2p and DI 23025.025 for additional information on disregarding evidence.)

The DHO may decide whether a prior final determination or decision should be reopened under the “at any time” rule of administrative finality because evidence was obtained by FSF. (See DI 27505.015, GN 04020.010, and GN 04060.055 for further information on reopening prior determinations.) In determinations or decisions in which the DHO makes a “similar fault” finding and the DHO disregards evidence, the decision to the individual must contain:

  1. 1. 

    An explanation of the applicable provision of the Social Security Act that allows the DHO to disregard specific evidence due to a “similar fault" finding;

  2. 2. 

    Identification of the disregarded evidence;

  3. 3. 

    A discussion of the evidence that supports a finding to disregard evidence. This discussion must explain that, in accordance with the law, the disregarded evidence cannot be used because, after considering all the information in the case file, the DHO has reason to believe that “similar fault” was involved in providing that disregarded evidence. The DHO may still find the individual eligible for monthly benefits despite the fact that the DHO disregarded some evidence based on similar fault. (See DI 23025.025 for more information about disregarding evidence.)

G. CDIU ROI disclosure

The CDIU ROI does not express recommendations about whether SSA should award, deny, cease, or continue benefits. These reports convey the results of an investigation and are for official purposes only. The ROI is part of the claims file, which the individual has a right to inspect prior to his or her hearing. The case file is not exempt from access under the Privacy Act.

When investigative evidence, such as an ROI, is included in the case folder, that evidence is subject to access by the individual under the Privacy Act. For this reason, the CDIU sanitizes ROIs to protect the identity of confidential informants and investigative techniques, or remove other information that can be properly withheld under the Privacy Act (5 U.S.C. 552a(d) and 20 CFR 401.35.

NOTE: If the case folder has a flag or includes a notation indicating a referral to a CDIU, or OIG office, and that office has not submitted an ROI, do not disclose the flag or notation. Remove the flag or notation from the file before the individual or appointed representative reviews the file in these circumstances. If the case file contains ROI evidence or a flag or notation is attached to the file, modify the standard “acknowledgment of notice of hearing” to advise the individual or appointed representative of such evidence in file.

Sample Language

“Your file contains investigative evidence submitted by the Office of the Inspector General of the Social Security Administration (SSA). You may see this evidence, as well as any other evidence in your file, if you decide to look at the file before or on the date of the hearing.”

Because of the size of the electronic file, if a surveillance video is part of the investigation, the ROI may contain only a written description of the surveillance footage. Upon request, the CDIU will provide the DHO with a CD copy of the actual video, which may also be shown to the individual.

H. Sample language for the discussion of the ROI in the DHO decision

The following sample paragraphs provide examples for addressing an ROI in file. These examples do not constitute an entire determination or decision rationale, but serve as examples for your explanation and documentation of how to address the ROI.

  1. 1. 

    “In March 2018, the Cooperative Disability Investigations Unit (CDIU) investigated the individual due to inconsistencies in his allegations. According to Special Agent John Doe’s report, dated April 5, 2018, (discuss findings in CDIU ROI). The CDIU report also contains pictures of the individual moving furniture out of his home and placing the furniture in a moving van on March 1, 2018.”

  2. 2. 

    “At the hearing, the individual’s appointed representative objected to the Cooperative Disability Investigations Unit (CDIU) report on the basis of hearsay, and asserted that the investigator was not qualified to offer the evidence. The objection was overruled. The Social Security Act provides that evidence may be received at any hearing before SSA, such as this disability hearing officer (DHO) hearing, even though it is inadmissible under rules of evidence that apply to court procedure. The DHO did not consider the investigator’s review of the medical evidence. Instead, the DHO has only considered the investigator’s observations, documentary and video evidence and statements gathered during the course of the investigation. In summary, the individual’s hearing testimony and presentation are inconsistent with the longitudinal record as a whole. A portion of the record contains the investigator’s observations and the individual’s presentation in a video recorded two months prior to the date of the hearing.”

  3. 3. 

    “In conclusion, the record considered as a whole supports some limitations in the individual’s ability to perform work-related activities. However, those limitations are adequately accommodated by the residual functional capacity (RFC) outlined above, which is consistent with objective medical evidence, medical opinions, other evidence of record, as well as the documented activities. The record does not support greater limitations.”

  4. 4. 

    "On your appeal request, you stated you had the following symptoms: severe pain in your left shoulder and extreme limitations in the use of your left arm for reaching, pulling, and lifting. An investigative report by the Cooperative Disability Investigations Unit (CDIU) stated that the investigator observed you painting your house and using your left arm. The report also stated that witnesses saw no limitations with your use of your left arm for reaching and lifting. Therefore, in making this disability determination, we disregarded your statements about pain and limited motion in your left shoulder and your left arm. There are no medical reports with objective findings that show you have been treated for a left shoulder and arm injury in the past five years. Dr. Johnson’s report dated June 14, 2018 shows that you have had shoulder surgery in the past, followed by physical therapy. His latest exam findings show that you have good range of motion in your shoulder and x-ray findings are normal.”

  5. 5. 

    “Sections 205(u) and 1631e (7) of the Social Security Act provide that we must disregard evidence if there is reason to believe that fraud or similiar fault (FSF) is involved in providing the evidence. The disability hearing officer (DHO) disregarded your statements about the limitations you have with your left shoulder because objective medical evidence show good range of motion and normal x-ray findings. Witnesses provided visual reports of you helping roof a house on June 20, 2018. You previously stated on your request for a disability hearing that you could not raise your arms in any direction, and that you are unable to dress yourself or wash your hair due to shoulder problems. In accordance with the law, the DHO cannot use your statements about your inability to function as evidence in your claim. After considering all the information in your case record, the DHO has reason to believe that FSF was involved in providing your statements about your shoulder limitations. Therefore, the DHO must disregard your statements regarding limitations in the use and movement of your left arm and shoulder.”

I. References

DI 22505.001 Medical and Non-medical Evidence

DI 23025.025 Disability Determination Services (DDS) – Disregarding Evidence

DI 24503.005 Categories of Evidence

DI 24510.006 Assessing Residual Functional Capacity (RFC) in Initial Claims (SSR 96-8p)

GN 04020.010 Unrestricted Reopening for Determinations or Decisions Involving Fraud or Similar Fault

GN 04060.055 Fraud or Similar Fault

 


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DI 33025.036 - Disability Hearing Officer’s Use of Cooperative Disability Investigations Unit (CDIU) Report of Investigation (ROI) Evidence - 11/21/2012
Batch run: 04/26/2021
Rev:11/21/2012