TN 9 (11-12)
DI 33025.036 Disability Hearing Officer’s Use of Cooperative Disability Investigations Unit (CDIU) Report of Investigation (ROI) Evidence
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 404.1512(b); 416.912(b)) specify that the term “evidence” means anything the beneficiary or anyone else submits or we obtain that relates to the claim.
B. Types of evidence
Evidence includes, but is not limited to:
objective medical evidence, that is medical signs, and laboratory findings;
other evidence from medical sources, such as medical history, opinions, and statements about treatment received;
statements by the claimant or others about the claimant’s impairments, restrictions, daily activities, efforts to work, or any other relevant statements made to medical sources during the course of examination or treatment in interviews, applications, letters, or testimony;
information from other sources. Other sources include but are not limited to medical sources who are not acceptable medical sources (e.g., nurse-practitioners, physicians’ assistants, naturopaths, chiropractors, audiologists, and therapists), educational personnel (e.g., school teachers, counselors, early intervention team members, developmental center workers, and daycare center workers), public and private social welfare agency personnel, and other non-medical sources (e.g., spouses, parents, and other caregivers, siblings, other relatives, friends, neighbors, and clergy).
C. Evidence at the initial level
Types of evidence at the initial level are:
decisions by any governmental or nongovernmental agency about whether the claimant is disabled or blind; and
opinions provided by State agency medical and psychological consultants based on their review of the evidence in the claims file when a State agency disability examiner makes the initial determination alone at the initial level.
D. Evidence at the reconsideration level
The State agency disability examiner makes the determination alone. Findings, other than the ultimate determination about whether the claimant is disabled, are made by State agency medical or psychological consultants and other program physicians, psychologists, or other medical specialists at the initial level of the administrative review process, and other opinions they provide based on their review of the evidence in the case record at the initial and reconsideration levels.
E. Evidence at the administrative law judge and Appeals Council level
At the administrative law judge (ALJ) and Appeals Council levels, findings, other than the ultimate determination about whether the claimant is disabled, are made by State agency medical or psychological consultants and other program physicians or psychologists, or other medical specialists, and opinions expressed by medical experts or psychological experts that the agency consults based on the medical experts or psychological expert’s review of the evidence in the record.
F. CDI ROI as evidence
A Cooperative Disability Investigations Unit Report of Investigation (CDIU 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, weighed with the totality of the evidence, and evaluate to determine whether, and the extent to which the other evidence supports the reports. The ROI helps you to evaluate the credibility of a claimant’s statements. Surveillance information in both video and narrative form can provide snapshots of a claimant’s observed functional ability. We consider this information with all the other evidence to reach conclusions about the claimant’s medical impairment(s) and, material to the determination of whether the claimant is disabled, if the claimant is able to work on a sustained basis.
Whenever the medical signs or laboratory findings show that the claimant has a medically determinable impairment(s) that he or she could reasonably expect to produce his or her symptoms, the Disability Hearing Officer (DHO) must evaluate the intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to which the symptoms limit the claimant’s ability to do basic work activities. For this purpose, whenever objective medical evidence does not substantiate the claimant’s statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms, the adjudicator must make a finding on the credibility of the statements based on consideration of the entire case record.
G. Sample language for addressing credibility issues
The following sample paragraphs provide examples to address credibility in cases with a CDIU ROI in file.
NOTE: These examples are not sufficient by themselves to constitute a full credibility assessment.
SAMPLE 1: “There are inconsistencies throughout the record that diminish the overall credibility of the claimant’s statements. In connection with her disability application, she was observed to be cutting down a tree in her front yard on April 2, 2012. The CDIU investigated the claimant in April 2012 due to inconsistencies surrounding her allegations. (Discuss findings in CDI report.) The CDIU videotaped the claimant on April 2, 2012. According to the special agent’s report, the claimant stated (include claimant statements made during a CDIU interview if one was done).”
SAMPLE 2: “The record in this case contains a report of investigation by the Social Security Administration’s Office of the Inspector General. According to the report, investigators observed you performing activities inconsistent with your alleged disability.”
H. Weight assigned to a CDIU ROI
Claimants may challenge the significance or the weight attributable to such evidence. Claimants may seek to show the DHO that the Office of the Inspector General (OIG) evidence warrants less weight than might appear to be the case by:
contending that the activities depicted in the evidence occurred in isolated instances in which the claimant’s symptoms were in temporary remission or the claimant was able to overcome normally debilitating pain;
calling witnesses to testify that the claimant’s activities normally differ from those depicted in the OIG evidence; or
securing evidence concerning temporary periods of remission or subsequent worsening.
In deciding what weight to give to OIG evidence and the claimant’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, supported by the evidence in the case record, and must be sufficiently specific to make clear to the claimant and to any subsequent reviewers, the weight the adjudicator gave to the claimant’s statements and the ROI, and the reasons for assigning that weight. It is not sufficient for the DHO to state that they believed the claimant’s statements without explaining why. The DHO needs further documentation to ensure a well-reasoned determination.
The DHO weighs the CDIU evidence with other relevant evidence and does not give it any special weight simply because it came from an OIG source.
I. Disregarding evidence
The DHO may disregard evidence based on fraud or similar fault (FSF) committed by either a claimant or a third party. (See DI 23025.025 – Disability Determination Services – Disregarding Evidence.) The DHO may also 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 fraud or similar fault. (See GN 04020.010 and GN 04060.055.)
J. CDIU ROI disclosure
The CDIU ROI does not express opinions about whether we should award or deny benefits. These reports convey the results of an investigation and are for official purposes only. OIG units provide us with copies of their ROIs for any related administrative purposes that we may deem appropriate.
The ROI is part of the claims file, which the claimant has a right to inspect prior to his or her hearing. The claims file is not exempt from access under the Privacy Act.
When investigative evidence that an OIG office or a CDIU submits for consideration in the Disability Hearing Unit (DHU) hearing process is included in the claims folder, that evidence is subject to access by the claimant 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 claims 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. You must remove the flag or notation from the file before the claimant or representative reviews the file. If the claims file contains OIG/CDIU evidence, modify the standard “acknowledgement of notice of hearing” to advise the claimant or representative of such evidence in file. The following wording is suggested.
“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 videotape was made during the investigation, the ROI may contain only a written description of the surveillance footage. Upon request, the CDIU will provide the DHO with a copy of the actual tape, which may also be shown to the claimant.
K. Sample language the discussion of ROI in DHO decision
“The claimant was investigated by the Cooperative Disability Investigations Unit (CDIU) in March 2011, due to inconsistencies in his allegations. According to Special Agent John Doe’s report, dated April 5, 2011, (discuss findings in CDIU ROI). The CDIU report also contains pictures of the claimant moving furniture out of his home and placing it in a moving van on March 1, 2011.”
“At the hearing, the claimant’s representative objected to the CDIU report on the basis of hearsay, and contended the investigator was not qualified to offer a medical opinion. The objection was overruled. The Social Security Act provides that evidence may be received at any hearing before SSA, such as this DHO hearing, even though it is inadmissible under rules of evidence that apply to court procedure. In terms of the weight afforded the report, the DHO did not consider or give weight to 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 claimant’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 claimant’s presentation in a video recorded two months prior to the date of the hearing.”
“In conclusion, the record considered as a whole supports some limitations in the claimant’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 findings and opinion evidence of record, as well as the documented activities. The record does not support greater limitations.”