Surveillance by the Social Security Administration

It doesn’t happen very often, but every now and again a claimant will ask me if the Social Security Administration conducts surveillance to use against the claimant in processing continuing disability review (“CDR”) claims. Up until this weekend, I would have said, “No. Although possible, I have never heard of Social Security conducting an investigation and using surveillance video against claimants.” However, that is all about to change. Effective November 23, 2012, the Social Security Administration issued Transmittal No. 09, 11/2012, “Procedures for Special Cases and Handling” in Subchapter 25 of Chapter 330 (Disability Hearing Unit Procedures) in the PROGRAM OPERATIONS MANUAL SYSTEM (POMS). The long and short is that Social Security may start using video surveillance against claimants in CDR hearings. The Office of Disability Programs states it added this section to provide guidance on processing continuing disability review (CDR) Disability Hearing Unit (DHU) cases with a Cooperative Disability Investigations Unit (CDIU) report of investigation (ROI) in the file. Its guidance focuses on the identification, treatment, and resolution of issues with using a CDIU ROI in the CDR decision. These reports contain sensitive law enforcement material and may be used in the claims adjudication process. POMS DI 33025 TN 09 provides an explanation of consideration of the CDIU ROI in the Disability Hearing Officer (DHO) decision.

A Cooperative Disability Investigations Unit Report of Investigation (CDIU ROI) may include video surveillance in addition to copies of school and/or employment records. Most of an ROI will be a report of third party interviews by highly skilled interviewers. The hearing officer will consider the reports, weighed with the totality of the evidence, to evaluate and determine whether, and the extent to which other evidence supports the reports. The ROI helps the adjudicator 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.”

The newly-issued POMS even provides a sample sentence of how an investigative report may be used to deny a claim: “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.”