I-2-10-10.Considering Evidence When Fraud or Similar Fault Is Involved
Last Update: 6/25/14 (Transmittal I-2-112)
Sections 205(u) and 1631(e)(7) of the Social Security Act require the Social Security Administration to disregard evidence, based on a preponderance of the 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 16-2p, 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.”
Generally, an administrative law judge (ALJ) will decide the issue of whether to disregard evidence based solely on whether there is reason to believe that similar fault was involved in the presentation of the evidence. This is because the issue of fraud involves the complex subordinate issue of intent to defraud, which generally does not need to be evaluated to resolve the issue of whether to disregard evidence. However, if the ALJ has been assigned to “redetermine” the claim(s), the agency may also direct the ALJ to disregard certain evidence. For more information, see HALLEX I-1-3-25.
This section does not apply to administrative sanction cases. For instructions on administrative sanction cases, see Hearings, Appeals and Litigation Law (HALLEX) manual I-2-10-16.
B. When to Consider Disregarding Evidence
The issue of whether to disregard evidence based on fraud or similar fault is generally before an ALJ when:
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);
A similar fault issue was not previously decided (see HALLEX I-1-3-18); or
The issue was previously decided favorably to the claimant, and evidence presented before or during the hearing indicates the issue must be reconsidered.
Where a fraud or similar fault finding was not made in the determination upon which the request for a hearing is based, the ALJ, in deciding whether a case presents a true issue of fraud or similar fault requiring formal resolution, must carefully distinguish between that issue and ordinary symptom evaluation issues. See HALLEX I-1-3-15 B.
C. Considering Evidence From Another Claim(s) File
Evidence from another claim filed by the claimant (or any third party on the claimant's behalf) is admissible 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 I-2-1-35 B.
If the ALJ intends to reopen the prior claim based on an issue of fraud or similar fault, see instructions in HALLEX I-2-9-65.
If the claim relates to another individual or includes information about an individual who is not the claimant, the evidence must be redacted to protect the identity of the person(s) involved in the earlier claim(s), unless the evidence is a matter of public record.
D. Evidence From the Office of the Inspector General (OIG) or Cooperative Disability Investigations Unit (CDIU)
OIG or 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 may also send information to the agency, pursuant to section 1129(l) of the Social Security Act. The referrals may describe possible fraudulent activity, the individuals believed to have been involved in the possible scheme, the time period the possible fraudulent conduct transpired, and any other relevant information. On receipt of OIG referrals of information pursuant to section 1129(l) of the Social Security Act, the agency may initiate a redetermination of an individual's entitlement to benefits under sections 205(u) and 1631(e)(7) of the Social Security Act. If a redetermination is appropriate, an ALJ may be asked to “redetermine” affected claims, as explained in HALLEX I-1-3-25.
E. Associating Evidence in Claim(s) File
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 I-2-10-14 B.
F. Effect of Disregarding Evidence
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.