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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.

Medicare Annual Enrollment: What Disability Recipients Should Know

Disability beneficiaries receiving Medicare should be asking the following questions right now:

  • Do I have proper prescription drug coverage?
  • Should I enroll in a Part C Medicare Advantage plan?
  • Am I on the best plan for me?
  • Can I save money?

This time of year, it’s hard to turn on the tv without being bombarded by insurance company commercials advertising their Medicare products. Each year, the Medicare annual enrollment period is between October 15th – December 7th. During this time, Medicare beneficiaries have the option to add, change or remove coverage. Many assume that the commercials are targeted to senior citizens but the insurance carriers also want to get the attention of individuals receiving Social Security disability insurance (SSDI).

SSA automatically enrolls SSDI recipients in Medicare after receiving benefits for two years, but typically, it is only Original Medicare, Part A (hospital coverage) and Part B (medical). The SSDI recipient has the option to enroll in a Part C (Medicare Advantage) plan or a Part D (stand-alone prescription drug) plan. Part C plans, which replace traditional Medicare, are offered by private insurance companies such as Humana, Aetna, AARP, and other carriers. These plans cover everything that traditional Medicare does and they usually have a very low and sometimes no monthly premium. Not only do they protect costs by limiting out of pocket expenses, but most of them include prescription drug coverage as well as dental, vision, and hearing coverage. A lot of times, Part C may be the best option for Medicare recipients under age 65, but not always. Sometimes the best option is to stay on Original Medicare (A&B) and add a Part D prescription drug plan. Once Medicare starts for SSDI recipients, they only have a limited initial enrollment period to elect Part C or Part D. If the deadline is missed, the recipient must wait until the annual enrollment period to enroll for the next year.

If you would like to see if there is a better plan for you that can reduce your cost, this is the time! After December 7th, beneficiaries may not be able to make these changes until the next annual enrollment period begins in October of 2020.

We can help you with this confusing process. We have a licensed insurance agent on staff who is prepared to help you understand your options at no cost. Complete the form below to have someone from our team call you for a no-charge consultation.

When we represent SSDI claimants before the Social Security Administration, part of our goal is to secure Medicare benefits in order to give them affordable medical coverage. There is no obligation for OBL clients to use our in-house agent; we simply want to help our clients and others get the best care possible.

Veterans, Did You Know You Can Draw Both VA and Social Security Disability?

Don’t leave money on the table! If you are unable to perform substantial work, you should apply for Social Security disability benefits, EVEN IF you are already drawing VA disability benefits. While the Social Security Administration does not base its decision on the VA disability rating, we can utilize the same medical record evidence to prove an inability to sustain competitive full-time work. SSA may even expedite your claim if you have a 100% VA P&T compensation rating or if your impairment was combat-related (https://www.ssa.gov/people/veterans/).

There are a few key differences between the VA and Social Security disability processes you should know about:

  • Social Security disability is all or nothing. The VA bases disability on a percentage. It is not uncommon for someone to have a 10% VA disability rating. With Social Security, there is no partial disability; you meet the criteria or you don’t.


  • The definition of disability is different. For VA disability, the applicant must show that they have a disabling condition that was “incurred or aggravated by their military service.” (Source: “Federal Benefits for Veterans, Dependents, and Survivors,” U.S. Department of Veterans Affairs, 2016 Edition). In contrast, SSA requires applicants to prove that they have an impairment that has lasted or is expected to last, at least 12 months or result in death and that prevents their ability to work at a substantial, gainful level.


  • With SSA disability, your age, education and past work may be a determining factor. The SSA adjudicator must decide whether you can perform work. If your impairment does not meet the criteria found in the SSA Listings of Impairments, the next steps of the process involve looking at your vocational factors such as age, education, and skills.

You have served our country and deserve to be justly compensated for your sacrifice.  We want to help you. Attorneys at Osterhout Berger Disability Law can help guide you through the claims process. Contact us today for a free consultation!

OBL Wants To Help Representatives Attend NADR 2020!

In this profession, it is crucial to stay on top of recent developments and policy changes! The National Association of Disability Representatives holds conferences each year designed to allow representatives to sharpen their skills and get necessary updates in order to better help their clients. OBL has sponsored this conference for years and we want to help representatives with the costs of attending.  Once again, we are offering three scholarships for $395 each! The 2020 conference will be in Puerto Rico, April 4-8! If you are a disability representative that would like to attend, but need to cut costs, apply for an OBL scholarship!

Here’s how it works:

  1. The scholarship is offered as a rebate. If you are selected, we will have a check for $395 to present to you at the conference.
  2. The deadline to apply is 11/30/19. Three entries will be chosen at random and all contestants will be notified on 12/1/19.
  3. Previous OBL scholarship recipients are not eligible.

Click HERE to apply!



New Tool for Representatives: Circuit Reporter

Karl Osterhout knows how important it is for representatives to stay on top of recent developments and social security court cases and that is why he has added the Circuit Reporter to our website. “Just as a natural course of doing business in district courts all across the country, we need to keep track of case law developments throughout all the federal circuits. It dawned on me one day that since we have all this information that we have to accumulate anyway, it might be worthwhile to folks if we published it. For someone, for instance, practicing in the Second Circuit, it could be very helpful to read through the reported and unreported cases of that court in no more than an hour or so, which might guide a representative out there in developing their case on their client’s behalf,” adds Osterhout.

Example from Fifth Circuit:

Garcia v. Berryhill, 880 F.3d 700 (5th Cir. 2018).

Plaintiff, a Vietnam veteran, applied for social security disability benefits based on hearing loss and PTSD. The ALJ denied Plaintiff’s application, concluding that plaintiff was not disabled and capable of performing his past relevant work. The Appeals Council declined review. Plaintiff appealed under 42 U.S.C. § 405(g), arguing (1) the ALJ impermissibly relied on the VA’s summary of his treating expert’s evaluation, rather than obtaining directly reviewing a copy of the evaluation itself; (2) the ALJ improperly determined that plaintiff’s PTSD was non-severe; and (3) the ALJ was required to and failed to properly consider the VA’s “100% disability rating.”

The court disagreed. The court found that any failure to obtain the actual report was at most harmless and an ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (requiring applicant to show that omitted material “might have altered the result”). Plaintiff presented “no reason to believe the original report would somehow swing the evidentiary pendulum in his favor.” Second, the court found the ALJ “rigorously considered the four broad functional areas set out in the disability regulation for evaluating the severity of mental disorders.” Finally, the court found “the VA’s determination does not bind the Commissioner; it is merely “evidence . . . that must be considered” and that the ALJ did just that. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). The court affirmed the district court’s judgment.

Click HERE to access the Circuit Reporter. We’ll continue to update this section with relevant decisions that can help you WIN!

OBL on FIRE: OBL Win Results in Over $300,000 to Claimant

This case falls into the “it never hurts to ask” category. But, before you can ask, you really need to dig into a case, and Lindsay was very persistent with SSA about producing files related to applications for benefits the claimant told her he had filed in the distant past. Because she was so persistent and focused in her strategy for the case, she obtained evidence that SSA had actually found our client disabled in the late 90s (he never actually received any benefits because of excess resources). However, the finding of disability was made by SSA prior to our client’s 22nd birthday, a key date to establish that he was entitled to disability benefits based on his parent’s earnings record. Moreover, it had overlooked this fact when it had previously considered our client’s claim for these benefits in an application he filed many years ago.

Thus, Lindsay was able to convince the ALJ not only that our client was disabled on or before his 22nd birthday, but also that the previous application for benefits should be reopened because of the mistake made by SSA in failing to acknowledge and rely upon its own previous finding that he was disabled. As a result, he was awarded benefits based upon the much earlier application date and his past-due benefits are the largest amount OBL has ever obtained (or even heard of). Best wishes to our client, and big-time congratulations to Lindsay!

OBL On Fire: A Month FULL of Wins!

OBL has a strong track record of monthly favorable decisions outnumbering unfavorable decisions.  For 2019 we have been successful at an average rate of over 66%.  June was an especially amazing month of wins with almost 30 decisions being received and over 70% of those decisions being favorable for our clients. As many who are familiar with the Social Security Disability process know, it’s becoming more difficult to be successful in a disability claim over the last several years.  In response, OBL has worked hard to meet those challenges by developing the argument of your case earlier in the process and proactively gathering evidence before a hearing is scheduled.  We additionally obtain and submit necessary post-hearing vocational reports.  Our comprehensive approach of developing cases results in successfully winning your life back.

We Love These Thank You Notes!

We are always happy to receive cards and notes from grateful clients, but last week, we received thank you notes from some very important people! Take a look at some of the lovely handwritten notes participants in the Girls on the Run – Magee Womens Hospital UPMC sent to us to thank us for sponsoring the program.


GOTR empowers young girls in our community and we are happy to support the organization and our future leaders.

This past spring, GOTR-Magee Womens Hospital UPMC was about to host 68 sites in their 8 country region with 12 of them being new! This served a total of 1375 girls. $84,694 was provided in scholarship support to 42% of the participants and athletic apparel were provided to some teams as well. 311 dedicated coaches (including our very own Lindsay Osterhout) led the GOTR teams. We think these achievements are remarkable and we look forward to the fall programming!

To learn about how you can help, click HERE.