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The Case for NOT Reporting Your Neighbor for Possible Disability Fraud

Osterhout Berger Disability Law > Blog  > The Case for NOT Reporting Your Neighbor for Possible Disability Fraud

The Case for NOT Reporting Your Neighbor for Possible Disability Fraud

Q: When I moved to my new home a few years ago, my neighbor told me that she’d had multiple back surgeries. She is in her mid-50s and does not work. She does, however, shovel three feet of snow from her roof, uses a rototiller in her yard, lugs mounds of leaves, etc.

From conversations and from what I’ve witnessed, it is my understanding that she is on disability. It is disturbing to be contributing financially for her welfare via my tax dollars, when it is obvious that she’s very able-bodied. Additionally, she is an ever-present annoyance who is unable to respect boundaries, even after we’ve repeatedly asked her to respect our space. One of her dogs bit my husband in our yard. She can be spiteful and has temper tantrums.

The bottom line is that it’s highly likely that I contribute to her well-being (through disability), just so she can make our lives uncomfortable.
 
I’d like your take on this. I’ve taken a few photos showing her physical abilities — just in case. Should I bring it to the attention of the Department of Social Security? I suspect this is a common issue facing many people.

Upset Neighbor

 


 

This question appeared in a recently published national advice column and is a common complaint we hear, not only from the general public but from some of our own disability clients. It can be frustrating to have to endure a complicated process such as filing for disability benefits, only to see someone who you believe is faking it receive monthly benefits. Though columnist Amy Dickinson did a fine job at answering the question, we wanted to take our own stab at it, particularly with respect to some key phrases we noticed immediately.

“Multiple Back Surgeries” – With any back surgery, there is a long recovery period and a good chance that either the surgery doesn’t resolve the issue or that the patient is left with new pain-causing problems. The fact that this woman had to have multiple back surgeries leads us to believe that she either had a failed surgery or that she had issues at multiple levels in her back; neither leading to a good prognosis for a pain-free life. Nevertheless, just based on this detail alone we would have a hard time disagreeing with the author’s complaint. But, as we will see as we move through some of the other comments, even this fact is not necessarily inconsistent with a legitimate award of disability benefits.

“Mid-50s” – If the woman is receiving Social Security disability benefits, her age could have been a factor. “Disability” as SSA defines it does not necessarily mean that the recipient must be unable to perform all types of jobs; this is most obvious when one considers the age of the person applying for benefits. SSA considers that at “advanced age” (age 55 or older) the claimant’s age is a significant additional factor which affects the ability to adjust to other work. Basically, the older someone is, the harder it is to adjust to work that -requires different skills. It is kind of a “you can’t teach an old dog new tricks” rule; SSA does not, for instance, expect someone who is older and who has been doing heavy construction all their life to go out and get a job as a secretary when they are 55 years old. So, to put it yet another way, a combination of impairments that could not be disabling for a 40-year-old person can be disabling for a 55-year-old.

“Obvious That She’s Very Able-Bodied”– Again, based on the surface facts of the ability to do yard work, etc., this does not strike us as necessarily way off base. But, even then, this activity is not necessarily inconsistent with receiving disability benefits, because the question in a disability case is not what a person can do intermittently; rather, the question is whether the individual can work “8 hours a day, 5 days a week…on a regular and continuous basis.” In other words, as anyone would agree, making oneself a meal, driving a car, or cleaning one’s apartment is not the same type of activity as being a cook, a taxi driver or a janitor for a living. Does the author observe her after she works in the yard? It’s not uncommon for individuals that live with chronic pain to have the ability to do manual labor for short periods of time. Often, the pain does not set in until hours later and they often pay the price for the physical work with increased pain, and a need for bed rest, potent pain medications and lots of heat and ice, etc.

“My Tax Dollars” – Social Security disability benefits (SSD) are not welfare or an entitlement program and with all due respect to the author is not “her money.” Working Americans pay, from their own paychecks, into the disability trust fund with FICA withholdings from their paychecks. If they have paid enough in (typically this means they have worked 5 of the last 10 years) they are insured for disability benefits and may be eligible to draw monthly benefits from the trust fund, if they meet the medical criteria. Supplement Security Income (SSI) is the other disability program administered by SSA and eligibility is based on need; not based on work history. From the information given, we do not know if the woman is drawing SSD or SSI, or any disability for that matter since this is all an assumption on the author’s part. If we assume she is drawing SSD, then it is important to understand that she contributed to her trust fund with her own FICA contributions.

“Unable to Respect Boundaries” – The columnist answered correctly that the disability payments could be unrelated to the back surgeries. Frankly, given the author’s description, this is quite likely; it is quite common for disability to be based upon a combination of multiple impairments that includes mental impairments, and it seems likely that this woman could have also had a mental diagnosis that leads to problems with boundaries. This limitation could certainly affect her ability to sustain full-time employment, especially when considered together with the physical limitations caused by back issues. Another factor is that it is also possible that this woman has impairments that the author has no idea about, since not all disabilities are visible. For instance, while this woman apparently has difficulty hiding her obvious social impairments, she may also have episodic impairments, such as migraine headaches or seizures, which occur intermittently and, often, out of view of other people. Some people have chronic gastrointestinal issues with embarrassing symptoms like needing to use the bathroom frequently during the day, soiling oneself, etc., that people do not usually go around talking about. When we hear people say things like, “My neighbor is getting disability and there’s absolutely nothing wrong with him” one of the things we always say is that you really can’t always know if someone meets the criteria just by looking at them.

The other thing we always point out is that these rules regarding the effect of age in a disability claim, that SSA does not use the ability to perform intermittent activities as a basis to deny disability claims, that the combined effect of all impairments must always be considered, etc., apply in their case as well and that, where appropriate, we will rely on all of these rules, and any others that apply, to ensure that their legitimate claim of disability is awarded.

Nobody really knows what is really going on with someone. Another way that a potential reporter of fraud who is also a disability claimant can look at it is this: “What if someone made a movie of my daily life?” Would that movie demonstrate intermittent activities which, if taken out of context, could make it look as though you were a lot more able than you are? While SSA encourages citizens to report fraud, we’d like to remind you that unless you have read someone’s medical records and have evidence that they are able to work on a regular and continuing basis, maybe you should reconsider. The original column can be read HERE. Read it and decide for yourself whether the author has enough to prove her neighbor is fraudulently collecting benefits.

Julie Phelps