The Social Security Administration does not routinely conduct surveillance on people who file for disability. You shouldn’t expect to see a van parked across the street from your office with a private investigator inside, snapping photos through your windows or when you step out to get the mail. While reasonable suspicion of Social Security Disability fraud may rarely result in some surveillance, as our SSD lawyer explains, it is anything but routine.
Nonetheless, the disability application process always involves the evaluation of someone’s “Activities of Daily Living” (ADLs). While one of Social Security’s doctors may ask you about your ADLs during a consultative examination, this evaluation otherwise does not usually involve any direct observation. You will almost surely be asked to complete what’s known as a “function report” to describe the difficulties your impairments cause you as you go about your day. Social Security will ask you to identify someone who knows you well enough to describe your limitations and send that person a “third party function report.” This person can use that form to describe what they have noticed about your health problems and their effects on you.
Third Party Function Report
When considering the limitations you describe on your function report, Social Security’s decision makers will compare them with your medical records. For example, if you report problems standing and walking, Social Security will look for indicators of gait problems, lower extremity weakness, and assistive device use in your medical records. These indicators would be consistent with standing and walking limitations, and Social Security should thus find your complaints credible. Medical records may identify activities that are seemingly inconsistent with reported limitations. For example, someone may tell a doctor that they experienced pain after a trip to a sporting event or go to the emergency room after an accident during a do-it-yourself project. Before holding this against you, Social Security should give you a chance to explain the situation and let them know if, for example, you had to use handicapped entrances and elevators at the sporting event, or were only assisting someone with a household project.
The opportunity to confront evidence like this is part of what’s known as due process. Due process also requires that you be able to see and address anything that is considered in the evaluation of your claim. For example, if Social Security reviews and considers any social media, it should add anything reviewed to your file so you can address it. However, like surveillance, formal social media review doesn’t seem to be a common practice in disability cases. I rarely see anything like this added to a file. However, it’s not a perfect world, and the adjudicators at the earlier levels of the disability application process aren’t attorneys with a law school education, so they may not understand or always adhere to due process requirements. I would advise you to act as if someone considering your disability claim will see your social media. We’ve all noticed how social media posts can create inaccurate impressions, and you don’t want something like this to impact your disability case.
Social Security will certainly be interested in what your doctors have to say about your disabilities. Often, they will send forms directly to medical professionals and ask them to identify their clinical findings and/or opinions about your limitations. Other times, a medical professional may more indirectly provide some kind of opinion. A doctor is likely to know if you are applying for disability. You may tell them this or they may notice that Social Security has asked their office for documentation. I encourage clients to let their doctors know they are applying for disability because if the doctor knows this, they may add something to your medical records indicating support for your application.
Social Security Applications
If someone knows that you have applied for or received disability, they can call Social Security and provide a comment on this. While very rare, I know that sometimes someone will call disability to say that someone applying for or receiving disability doesn’t deserve it. If this happens, Social Security should add a “report of contact” form to your file describing the conversation, and you should ultimately have the opportunity to address this.
Social Security’s disability application process is designed to create a system in which the only people approved for disability are those whose impairments make them incapable of working on an ongoing basis, so Social Security will definitely pay attention to your daily activities in considering whether you're medically disabled. However, pain is subjective, some conditions wax and wane, and the judge can’t walk a mile in your shoes. Medical disability determination really can’t be an exact science. What’s seemingly most important to keep an eye on is whether or not someone seeking or receiving disability is actually performing significant work, or engaging in what Social Security calls “substantial gainful activity.” After all, someone who is disabled and not working isn’t taking a full-time job from an able-bodied worker who wants one. People on disability are not in the labor supply, and, applying principles of supply and demand, thus increases the wages of those who are working. But someone on disability and performing “substantial gainful activity” really is unfairly double-dipping. This type of activity should be the most likely to raise suspicion and create the most possibility of Social Security heavily scrutinizing someone’s disability status. Neighbors or acquaintances may think this is unfair and report this to Social Security. If doctors know someone is applying for disability and they suspect work activity, they are very likely to note this in their records, as they know Social Security is reviewing them. Social Security will always pull earnings records and consider any reported wages when evaluating a disability claim.
With these procedures in place, Social Security seems to have created a system in which the most egregious conduct – working while applying for or receiving disability – is most likely to be detected, without engaging in invasive surveillance that would be inconsistent with privacy expectations. While this generally seems fair, someone with a valid disability claim may still need to address evidence that could at least possibly be considered inconsistent with their claims about their symptoms and limitations. This is one more reason to have a skilled attorney on your side, and you are welcome to contact us about this.