I-1-3-18.Submitting a Referral For Investigation of Possible Fraud or Similar Fault Discovered During Disability Claim Adjudication- Administrative Law Judges

Last Update: 5/13/14 (Transmittal I-1-74)

A. General

As outlined in this section, when a new issue of fraud or similar fault arises during adjudication of a disability claim, an administrative law judge (ALJ) must refer the matter to the Office of the Inspector General (OIG). However, the ALJ may specifically request that a Cooperative Disability Investigations Unit (CDIU) investigate the issue when:

  • The ALJ needs assistance in deciding whether to disregard evidence under Hearings, Appeals and Litigation Law (HALLEX) manual I-2-10-10; or

  • The CDIU previously investigated the issue and additional information has come to the ALJ's attention.

NOTE:

If the suspected criminal violation comes to the attention of an ALJ during testimony given at hearing, and the suspected criminal violation is unrelated to the merits of the case, the ALJ will limit the hearing to the issues in the notice of hearing and will avoid initiating further inquiry during the hearing. However, after the hearing, the ALJ must refer the criminal matter to OIG. If the ALJ has concerns about adjudication issues based on the testimony, the ALJ will consult with the Hearing Office Chief Administrative Law Judge and the Regional Chief Administrative Law Judge.

1. ALJ Cannot Determine Whether to Disregard Evidence

When adjudicating a case, an ALJ will request that the CDIU investigate an issue of fraud or similar fault when:

  • The case presents an issue of fraud or similar fault that requires formal consideration and resolution; and

  • The available evidence, including any testimony received at the hearing, is insufficient for the ALJ to decide the issue of whether evidence should be disregarded on the basis of “similar fault.” See HALLEX I-2-10-10 A.

NOTE:

If the ALJ cannot determine a fraud or similar fault issue raised during adjudication without additional development, the ALJ will not proceed with case adjudication until the CDIU has notified the ALJ of its action. If the CDIU generates a report of investigation, the ALJ must proffer the report to the claimant before deciding the issue. For proffer procedures, see HALLEX I-2-7-30. For weight given to CDIU evidence, see HALLEX I-2-10-10.

2. ALJ Decides to Disregard Evidence

When an ALJ decides to disregard evidence for fraud or similar fault, he or she will refer the case to CDIU if the CDIU previously considered the issue but the CDIU evidence was less damaging than the information in the record before the ALJ.

3. ALJ Does Not Disregard Evidence

If an ALJ suspects fraud or similar fault, the ALJ must refer the matter to the CDIU, even when:

  • The ALJ intended to decide whether to disregard evidence for fraud or similar fault (HALLEX I-2-10-10), but ultimately concluded that the issue was not material to the decision; or

  • The ALJ finds that similar fault is not established by a preponderance of the evidence (HALLEX I-1-3-15).

B. How to Submit a Request For an Investigation

The ALJ will not notify the claimant of a referral to CDIU to investigate an issue of fraud or similar fault. Notifying a claimant of the request could adversely affect investigative activity, compromise the safety of investigators, or unnecessarily alarm a claimant.

However, if the CDIU submits a response, the ALJ will make the response part of the record and will give the claimant an opportunity to examine the response.

CDIU makes an independent determination concerning whether to initiate or continue an investigation. Therefore, an ALJ may proceed with case adjudication when CDIU either:

  • Notifies the hearing office (HO) in writing of its decision to decline investigation, or

  • Returns its report if an investigation was undertaken.

An ALJ may request an investigation using either of the following methods.

1. Submit To CDIU

An ALJ may send a referral to the CDIU by completing and submitting the electronic version of Form SSA-8551 (e8551) (Reporting Form for Programmatic Fraud). Step-by-step instructions for completing this form are found in Program Operations Manual System GN 04111.065.

Alternatively, an ALJ may submit a referral by calling the CDIU using the contact information referenced in HALLEX I-1-3-90.

2. Submit To the Field Office or Disability Determination Services

When appropriate, an ALJ will request, in writing, that the local Social Security field office (FO) or the Disability Determination Services (DDS) initiate or reopen a CDIU investigation. The ALJ will send the request to the FO when the issue relates to work activity or a non-disability issue. The ALJ will send the request to the DDS when the matter involves medical issues.

A copy of the request must also be sent to the Hearing Office Chief Administrative Law Judge and the Regional Chief Administrative Law Judge.

C. Post-decision Referral

Post-decision referrals for fraud or similar fault are not part of the administrative proceedings in the case. Therefore, it is unnecessary to associate the referral with the claim(s) file. In most post-decision referrals, ALJs will use the procedures in HALLEX I-1-3-6 B or I-1-3-9 B rather than the procedures outlined in HALLEX I-3-1-18 B in this section.

NOTE:

Referral of a case to OIG or a CDIU post decision does not alter the normal procedures for case routing and tracking under HALLEX I-2-8-45 and I-2-8-50.