Monday, January 18, 2016

Social Security's Use of CDI Units in Disability Cases

Social Security Disability Lawyers and their clients must be made aware of the increasing use of Cooperative Disability Investigations ("CDI") units by the Social Security Administration in disability cases.  CDI units have been created by the Federal Government to investigate allegations of fraud in the disability programs.  CDI units work with the Office of the Inspector General (OIG), state DDS and local and state law enforcement agencies.   It is important to take note of the new role of CDI units and its impact on pending SSDI cases.
Referrals to CDI units are typically made by DDS or SSA staff.  There is no clear guiding criteria for a referral.  Referrals can also be made by the hearing offices ("ODAR"), by private citizens or anonymous sources.  CDI units can investigate a case at any step of the disability process: at the initial application stage, at reconsideration, while a hearing is pending or while a claimant is receiving on-going benefits.  Once the CDI unit makes findings, it can send a report with the evidence gathered to DDS or to the ALJ.  DDS and the ALJ can rely on evidence gathered by the CDI unit to make their determinations.
Another very important aspect to note is that, upon referral, CDI staff will conduct a search of the claimant's social media accounts for evidence of fraud, including Facebook, Twitter and Google +. This is a clear departure from  the way that SSDI claims have been reviewed in the past few years. DDS and the Administrative Law Judges (ALJ's) do not look at social media accounts however, CDI units can.  If the CDI unit searches social media then, their findings can be turned over to DDS or to the ALJ.  For this reason, Social Security Claimants must be very careful with their social media postings and the privacy settings on their social media accounts.  CDI units will also interview claimants, talk to third parties and conduct surveillance of the claimant.    
As you all know, I practice Social Security Disability Law in Connecticut and Massachusetts. (Jurisdictions located within the 1st and 2nd Circuit Courts of Appeals.)  Issues involving CDI units have begun to arise in these two circuits.  For example, Donnelly v. Commissioner, 49 F. Supp. 3d 289 (E.D.N.Y. 2014) is probably the first case that discusses the use of evidence from a CDI unit in a Social Security Disability claim.  In Donnelly, the ALJ decided the case based on a report from a CDI that alleged that the claimant was able to move with normal gait an that she was able to move in and out of a car without any difficulty.  The District Court agreed with the ALJ that the CDI unit surveillance showed that the claimant's allegations were not credible.  The Second Circuit Court of Appeals upheld the district court's decision.  Another case in the District Court of Massachusetts that also also discusses the role of CDI Units is  Altman v. Colvin, No 14-CV.301-KAR (D.Mass Sept 1, 2015).
The rise of CDI units is part of an ongoing  Congressional effort to prevent Social Security disability fraud. The  bipartisan budget passed on 2015 specifically requires the SSA Commissioner to expand CDI units throughout the Nation.
If you or your lawyer becomes aware of a CDI unit investigation, you must demand that the agency provide you with a copy of the report.  The claimant must be given the opportunity to comment on the findings made by the CDI unit.  Failure to provide such an opportunity is a violation of a claimant's due process rights.