2022-10559. Social Security Ruling 22-2p; Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence

AGENCY:

Social Security Administration.

ACTION:

Notice of Social Security Ruling (SSR).

SUMMARY:

We are providing notice of SSR 22-2p. This ruling rescinds and replaces SSR 16-2p and explains when we may find that there is a reason to believe that similar fault was involved in the providing of evidence to us in support of a claim under titles II or XVI of the Social Security Act (Act). We are revising the evidentiary standard for similar fault from a “preponderance of the evidence” to “reason to believe” to align more closely with the standard provided in the Act. We are also incorporating into this ruling a procedure that we currently have in other subregulatory instructions. The procedure provides that, before we disregard evidence under the Act at the hearings level of our administrative review process, we will consider the individual's objection to the disregarding of that evidence. We expect that the procedures we follow under this ruling will allow us to implement relevant sections of the Act in a manner consistent with the Act and principles of constitutional due process.

DATES:

We will apply this notice on May 17, 2022.

FOR FURTHER INFORMATION CONTACT:

Mary Quatroche, Office of Disability Policy, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, 410-597-1632. For information on eligibility or filing for benefits, call our national toll-free number 1-800-772-1213 or visit our internet site, Social Security online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this SSR, we are publishing it in accordance with 20 CFR 402.35(b)(1). SSRs do not have the same force and effect as statutes or regulations, but they are binding on all components of the Social Security Administration. 20 CFR 402.35(b)(1).

We use SSRs to make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and special veterans benefits programs. We may base SSRs on determinations or decisions made in our administrative review process, Federal court decisions, decisions of our Commissioner, opinions from our Office of the General Counsel, or other interpretations of law and regulations.

This SSR will remain in effect until we publish a notice in the Federal Register that rescinds it, or we publish a new SSR that replaces or modifies it.

(Catalog of Federal Domestic Assistance, Programs Nos. 96.001, Social Security—Disability Insurance; 96.002, Social Security—Retirement Insurance; 96.004, Social Security—Survivors Insurance; 96.006—Supplementary Security Income.)

The Acting Commissioner of Social Security, Kilolo Kijakazi, having reviewed and approved this document, is delegating the authority to electronically sign this document to Faye I. Lipsky, who is the primary Federal Register Liaison for the Social Security Administration, for purposes of publication in the Federal Register .

Faye I. Lipsky,

Federal Register Liaison, Office of Legislation and Congressional Affairs, Social Security Administration.

Policy Interpretation Ruling

SSR 22-2p: Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence

This Social Security Ruling (SSR) rescinds and replaces SSR 16-2p: “Titles II and XVI: Evaluation of Claims Involving the Issue of Similar Fault in the Providing of Evidence.”

Purpose: To explain the process we use when we evaluate and adjudicate claims in which there is reason to believe similar fault was involved in the providing of evidence to us in support of a claim for benefits under title II or payments under title XVI of the Social Security Act (Act).

Citations (Authority): Sections 205(u) and 1631(e)(7) of the Social Security Act, 42 U.S.C. 405(u) and 1383(e)(7), as amended; 20 CFR 404.704, 404.708, 404.1512, 404.1520, 416.912, 416.920, 416.924, and 422.130.

Dates: We will apply this notice on May 17, 2022.

Introduction

The Social Security Independence and Program Improvements Act of 1994, Public Law 103-296, amended the Act to add provisions addressing fraud or similar fault. These amendments to sections 205 and 1631 of the Act require us to immediately redetermine an individual's entitlement to monthly insurance benefits under title II or eligibility for payments under title XVI if there is reason to believe that fraud or similar fault was involved in the individual's application for such benefits or payments.

The Act further provides that, when we redetermine entitlement or eligibility, or when we make an initial determination of entitlement or eligibility, we “shall disregard any evidence if there is reason to believe that fraud or similar fault was involved in the providing of such evidence.” ^[1]

This ruling explains the standards we use when we determine whether there is reason to believe that similar fault was involved in providing evidence in connection with a claim for benefits or payments. The ruling applies to all claims for benefits under title II or payments under title XVI of the Act; e.g., claims for old-age and survivors benefits and disability benefits under title II of the Act, and claims for Supplemental Security Income payments for the aged, blind, and disabled under title XVI of the Act.

This ruling does not replace or limit other appropriate standards and criteria for development and evaluation of claims in accordance with our rules. There may be instances in which we will not disregard evidence under the statutory provisions discussed in this ruling, but nevertheless, factors may exist that justify considering the evidence in question less persuasive or probative than other evidence.

Policy Interpretation

A. General

1. Sections 205(u) and 1631(e)(7) of the Act require us to disregard evidence if there is reason to believe that fraud or similar fault was involved in the providing of that evidence.

2. A finding that there is reason to believe similar fault was involved in providing evidence is sufficient to take the administrative actions described in this ruling. Although a finding of “fraud” made as part of a criminal prosecution can serve as a basis for the administrative actions described below, such a finding is not required.

3. We may discover suspected fraud or similar fault related to a claim for benefits or payments or in the provision of evidence in a variety of ways. Most often, we learn about fraud from our Office of the Inspector General (OIG). OIG is responsible for investigating fraud in our programs and must notify us under section 1129(l) of the Act when it has reason to believe that fraud was involved in an individual's claim for benefits or payments, including in the provision of evidence. We refer to this notification as a section 1129(l) referral. We may also learn about fraud from a Federal or State prosecutor during the course of a criminal investigation or prosecution. With regard to similar fault, as we administer our programs, we may uncover information that provides a reason to believe similar fault was involved in the provision of evidence in an individual's claim for benefits or payments.

4. We may find there is reason to believe similar fault was involved in providing evidence based on the actions of any individual whose actions affect the evidence provided in support of the claim, even when such an individual has no direct relationship to the claimant, beneficiary, or recipient or acts without the claimant, beneficiary, or recipient's knowledge or participation. These individuals may include, but are not limited to, claimants, beneficiaries, auxiliaries, recipients, spouses, representatives, medical sources, translators, interpreters, and representative payees. For example, we may have reason to believe a medical source or representative provided false information to support a claim without the knowledge or participation of the claimant, beneficiary, or recipient.

5. We must disregard evidence under sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act due to similar fault if there is reason to believe, meaning reasonable grounds to suspect, that the person knew the evidence provided was false or incomplete or that the information that was material to the determination was knowingly concealed. A finding of similar fault requires more than mere suspicion, speculation, or a hunch, but it does not require a preponderance of evidence.

6. In certain circumstances, we may disregard evidence provided by someone who has not committed fraud or similar fault, but whose evidence relies on other evidence involving fraud or similar fault. For example, we may disregard parts of a medical source's opinion which rely on evidence that we disregarded from another medical source. Depending on the extent to which the medical source relied on the disregarded evidence, we may disregard some or all of the medical source's opinion.

7. Before we disregard evidence pursuant to sections 205(u)(1)(B) and 1631(e)(7)(A)(ii) of the Act at the hearings level of our administrative review process, we will consider the individual's objection to the disregarding of that evidence. After considering any objections, our adjudicators will decide whether there is reason to believe that similar fault was involved in providing evidence in the individual's case.

8. Generally, a finding that there is reason to believe similar fault was involved in providing evidence does not constitute complete adjudicative action in any claim. Even if we disregard evidence, we will evaluate the remaining evidence of record and determine whether that evidence supports a finding of entitlement to benefits or eligibility for payments.

9. If, after disregarding evidence, we determine an individual is not entitled to benefits or eligible for payments, an individual who is dissatisfied with our determination or decision may request an appeal of our determination or decision. In conjunction with such an appeal, an individual may object to our finding to disregard evidence under the Act. We will consider any appeal in accordance with our rules for administrative review.

B. Definitions

1. Fraud. Fraud exists when a person, with the intent to defraud, either makes or causes to be made, a false statement or misrepresentation of a material fact for use in determining rights under the Act; or conceals or fails to disclose a material fact for use in determining rights under the Act.

2. Similar Fault. Similar fault is involved with respect to a determination if: “an incorrect or incomplete statement that is material to the determination is knowingly made or information that is material to the determination is knowingly concealed.” ^[2]

3. Material. Material describes a statement or information, or an omission from a statement or information that could influence us in determining entitlement to benefits under title II or eligibility for benefits under title XVI of the Act.

4. Knowingly. Knowingly describes a person's awareness or understanding regarding the correctness or completeness of the information he or she provides us, or the materiality of the information he or she conceals from us.

5. Reason to Believe. Reason to believe means reasonable grounds to suspect that fraud or similar fault was involved in the application or the provision of evidence. The reason to believe standard requires more than mere suspicion, speculation, or a hunch, but it does not require a preponderance of evidence.

C. Development and Evaluation

1. Adjudicators at all levels of the administrative review process are responsible for taking all appropriate steps to resolve similar fault issues in accordance with the standards in this ruling. If we do not find that there is reason to believe evidence provided by a source involved similar fault, we will consider the evidence in accordance with our rules such as our rules regarding evaluating symptoms and medical evidence. We will adhere to existing due process and confidentiality requirements during the process of resolving similar fault issues.

2. In making a determination or decision about whether there is similar fault, all adjudicators must:

a. Consider all evidence in the case record before determining whether specific evidence must be disregarded.

b. Determine if there is a reason to believe, as defined in this ruling, that similar fault was involved in the provision of evidence. Adjudicators may make reasonable inferences based on all the information in the record such as facts or case characteristics common to patterns of known or suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected beneficiary or recipient had knowledge of or participated in the fraud or similar fault.

c. Disregard the evidence and fully document the record with the description of the disregarded evidence and the reasons for disregarding the evidence, if the adjudicator determines that there is a reason to believe similar fault was involved in the provision of the evidence.

D. Notice of Determination or Decision

In determinations or decisions that involve a finding of similar fault and disregarding evidence, the notice of determination or decision must:

1. Explain the applicable provision of the Act that allows the adjudicator to disregard particular evidence due to a similar fault finding.

2. Identify the documents or other evidence that is being disregarded.

3. Provide a discussion of the evidence that supports a finding to disregard evidence. The discussion must explain that, in accordance with the law, the evidence identified cannot be used as evidence in a claim because, after considering all the information in the case record, the adjudicator has reason to believe that similar fault was involved in providing the evidence. A similar fault finding can be made only if there is reason to believe the person knew that the evidence provided was false or incomplete. A similar fault finding cannot be based on speculation or suspicion.

4. Provide a determination or decision based on an evaluation of the remaining evidence in accordance with other rules and procedures. A similar fault finding does not constitute complete adjudicative action in any claim. A person may still be found entitled to benefits or eligible for payments despite that some evidence in the case record has been disregarded based on similar fault. For example, a person may be found to be under a disability based on impairments that are established by evidence that is not disregarded because of similar fault.

5. Include standard appeal language.

Cross-References: SSR 85-23: Title XVI: Reopening Supplemental Security Income Determinations at Any Time for “Similar Fault”; SSR 22-1p: Titles II and XVI: Fraud and Similar Fault Redeterminations Under Sections 205(u) and 1631(e)(7) of the Social Security Act.

Footnotes

1.  See 42 U.S.C. 405(u)(1)(B) and 1383(e)(7)(A)(ii).

2.  See 42 U.S.C. 405(u)(2) and 1383(e)(7)(B).