Sections 205(u) and 1631(e)(7) of the Social Security Act (Act) require the Social Security Administration (SSA) to disregard evidence if there is reason to believe that fraud or similar fault was involved in the providing of the evidence. As noted in Social Security Ruling (SSR) 22-2p, Titles II and XVI: Evaluation of Claims Involving Similar Fault in the Providing of Evidence, when an adjudicator determines there is a reason to believe that similar fault was involved in the providing of evidence, the evidence “cannot be used as evidence in the claim.” Before SSA disregards evidence pursuant to sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act at the hearings level of the administrative review process, it will consider the individual's objection to the disregarding of that evidence.

The issue of whether to disregard evidence based on fraud or similar fault is generally before an ALJ when:

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  The issue was brought out in the initial, reconsidered, or revised determination and was not decided entirely in the claimant's favor (unless the claimant does not wish to contest the prior finding with respect to disregarding evidence);

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  A similar fault issue was not previously decided (see HALLEX HA 01130.018); or

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  The issue was previously decided favorably to the claimant, and evidence presented before or during the hearing indicates the issue must be reconsidered.

Evidence from another claim filed by the claimant (or any third party on the claimant's behalf) may be considered for the purpose of deciding the issue of fraud or similar fault. When evidence from an earlier claim is to be considered in a current case, the claimant must be given an opportunity to examine and contest the evidence, including the opportunity to call a third party as a witness. See HALLEX HA 01210.035 B.

OIG or a CDIU will generally provide a summary of an investigation in a Report of Investigation (ROI). An ALJ will see OIG or CDIU involvement in a claim when the file is tagged with a label, flag, or message with either the Special Agent seal or acronyms similar to “OIG/CDI.” Additionally, the OIG or CDIU ROI usually will be associated with the record in the F section of the claim(s) folder.

The purpose of an ROI is to provide material evidence that an adjudicator can use to evaluate fraud and similar fault. An ROI is not intended to express opinions and should not include recommendations.

OIG or CDIU evidence is to be considered with the other relevant evidence under 20 CFR 404.1513(a), 404.1513(b), 404.1520b, 416.913(a), 416.913(b), and 416.920b.

Evidence that is disregarded is included in the complete record of the hearing proceedings. However, the status of the evidence as “disregarded evidence” is reflected in the ALJ's findings of fact. See HALLEX HA 01295.014 B.

The disregarding of evidence based on a similar fault finding does not complete the adjudication of any claim for benefits. Unless a dismissal is appropriate, the ALJ must make a favorable, partially favorable, or unfavorable decision on the claim by evaluating the remaining evidence.