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Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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| IN THE CASE OF | |
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Social Security Administration, |
DATE: November 17, 2006 |
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Dianna Stiles, Respondent
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Docket No.C06-112 Decision No. CR1532 |
| DECISION | |
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DECISION
In applying for disability benefits under the Supplemental Security Income (SSI) program, Respondent Dianna Stiles claimed that she was confined to a wheelchair, and required assistance for virtually all activities of daily living. Their suspicions aroused, the Louisiana Office of Disability Determination Services (DDS) referred her case for investigation. Investigators from the Cooperative Disability Investigations Unit (CDIU) observed and digitally recorded Respondent Stiles walking without apparent difficulty and shopping. The Inspector General (IG) for the Social Security Administration (SSA) now charges that, in her 2004 application for SSI benefits, Respondent Stiles made false and misleading statements and/or misrepresentations of material facts that she knew or should have known were false or misleading, in violation of section 1129 of the Social Security Act (Act). SSA proposes a $10,000 civil money penalty (CMP). For the reasons set forth below, I agree that Respondent Stiles knowingly misrepresented material facts to SSA for its use in determining her eligibility for SSI benefits, and I consider $10,000 a reasonable penalty. I. Background Respondent Stiles has filed multiple applications for SSI benefits. SSA Exhibits (Exs.) 1, 9; see SSA Exs. 11, 21; Respondent (R.) Ex. 7; Transcript (Tr.) 10-11. This case revolves around the application she filed on October 7, 2004, claiming that she became disabled on August 10, 2003. SSA Ex. 9. Section 1129 subjects to penalty any person (including an organization, agency, or other entity) who
See also 20 C.F.R. � 498.102(a) (authorizing the IG to impose a penalty against any person who has made a statement or representation of a material fact for use in determining any initial or continuing right to or amount of Title II or Title XVI benefits, and who knew, or should have known, that the statement or representation was false or misleading, or who omitted a material fact, or who made such a statement with "knowing disregard for the truth.") The Commissioner of Social Security has delegated to the IG the authority to impose penalties under section 1129. See 20 C.F.R. � 498.102. Following an investigation by the CDIU, the IG determined that Respondent Stiles made false and/or misleading statements to SSA in connection with her 2004 application. By letter dated October 21, 2005, the IG advised Respondent Stiles of its determination and the proposed penalty. SSA Ex. 15. In an undated letter received by the Civil Remedies Division on November 25, 2005, she timely requested a hearing and the matter was assigned to me. I convened prehearing conferences on February 6, 2006, and August 10, 2006, at which Respondent Stiles indicated that she would proceed without an attorney, and the parties agreed that the hearing should be conducted by telephone. See Order (August 15, 2006); Respondent's Waiver (August 21, 2006); Tr. 1. Respondent Stiles submitted 14 exhibits which I have admitted (R. Exs. 1-14). The IG submitted 21 exhibits which I have admitted (SSA Exs. 1-21). Order (August 15, 2006). (1) I convened a hearing by telephone on August 30, 2006. The IG was represented by Ms. Erin Justice. Respondent Stiles represented herself. The parties then submitted post-hearing briefs. Respondent Stiles filed a reply brief. The IG opted not to file a reply brief. II. Issues The issues here are: 1) did Respondent Stiles make, or cause to be made, to SSA a statement or representation of a material fact for use in determining her entitlement to SSI benefits, that she knew or should have known, was false or misleading, or did she omit a material fact or make such a statement with knowing disregard for the truth; and 2) if so, is the $10,000 proposed penalty reasonable. III. Discussion
As part of the application process, on October 29, 2004, a Social Security claims representative interviewed Respondent Stiles face-to-face. Respondent Stiles came into the district office in a wheelchair, and "appeared to [sic] tired sitting in one position in the wheel chair." She was accompanied by a friend who helped her shift position in the chair. SSA Ex. 9. In support of her application, Respondent Stiles subsequently answered questions on a document titled Disability Report - Adult (Form SSA-3368). She claimed that she was unable to walk, and had limited use of her left hand and arm. SSA Ex. 10, at 1-2. In November 2004, Respondent Stiles completed a document titled Function Report - Adult (Form SSA-3373-BK). On this form, she repeatedly wrote that she was paraplegic, and confined to a wheel chair. She said that she had very limited use of her left arm and shoulder, and required assistance for virtually all activities of daily living. She said that she was not able to drive, and relied on others to take her to the doctor, which was the only place she ever went. SSA Ex. 8. Among her specific claims: "Without help I would be able to do nothing mentally [and] physically" (SSA Ex. 8, at 1); "The lady that takes care of me . . . brings food to me in wheelchair" (Id. at 2); "[I] have to be helped in wheelchair and helped on [and] off toilet" (Id.); "I am not able to do anything but be in wheelchair which I have to be pushed around in" (Id. at 3); "I am a T-12 paraplegia [sic] and have a left arm and shoulder disability" (Id. at 4); "[I am] not physically able [to drive]" (Id.); "I am a T-12 paraplegia [sic], so I'm not able to do a lot of above [listed functions/activities]" (Id. at 6); "My shoulder and left arm disability prevent me from lifting or rolling my wheelchair" (Id.); "[I] can't walk at all" (Id.); "[I need to use] wheelchair all the time except bedtime" (Id. at 7). Noting inconsistencies between these assertions and her medical file, the DDS referred Respondent Stiles' application to the CDIU, which opened an investigation. SSA Ex. 11. (3) When, on April 14, 2005, Respondent Stiles arrived for a consultative examination at the Baton Rouge office of Lawrence Wade, M.D., two CDIU investigators, Stan Howard and Gerry Riggleman, were waiting in the parking lot with a camera and digital recording equipment. SSA Exs. 12, 13; see SSA Exs. 18, 19. Respondent Stiles appeared at the physician's office in a wheelchair. One of her companions wheeled her into the office building. (4) When she emerged, about an hour and a half later, she was still in the wheelchair, pushed by one of her companions. She lit a cigarette, holding the lighter in her left hand. To move from the wheelchair to a car, she required assistance, and appeared to have difficulty standing. SSA Ex. 12, at 4, 7, 11, 12; SSA Ex. 13; Tr. 11-12. From the physician's office, Respondent Stiles and her companions drove to a Winn Dixie supermarket, followed by the investigators and their recording equipment. In footage that belies virtually all of her claims of functional impairment, the compact disk recording (CD-R) shows Respondent Stiles walking from her car into the grocery store. Inside the store, she walks the aisles without visible impairment. She left the store after about twenty minutes, and the CD-R shows her walking to the car, taking her wallet out of her pocket, and, using both hands, putting into it what appears to be a grocery receipt. With her left hand, she lifts some bags out of the shopping cart and loads them into the car. SSA Ex. 12, at 4-5, 8-10; SSA Ex. 13. In addition to the evidence on the CD-R, while she was in the grocery store, the investigators observed Respondent Stiles lift a case of Coca Cola (24-pack) from the floor and place it in the shopping cart. SSA Ex. 12, at 4. Respondent Stiles and her companions then drove to her residence, the investigators still following. The CD-R shows her leaving the car and walking into her house, without apparent difficulty. SSA Ex. 12, at 5; SSA Ex. 13. Respondent Stiles does not exactly deny any of the investigators' observations, but claims, "In my mind I made no false statements. I just told the facts as I knew them, that I was completely at someone's mercy." Tr. 4. She also suggests that, in walking the grocery aisles, she was in fact undergoing a form of physical therapy, taking advantage of the flat surfaces of the store aisles "to do walking rehab." Tr. 8; R. Posthearing Br. at 1 ("Just because I rehabbed myself, the Inspector General wants to punish me for telling the truth.") She also maintains that she is disabled and unable to work, and faults SSA for not recognizing that fact and awarding her benefits. (5) Whether Respondent Stiles meets the statutory and regulatory requirements for disability benefits is irrelevant to the question of whether she misrepresented her functional capacity. A disability claimant must accurately describe her functional abilities, and SSA then determines whether she qualifies for benefits. That a claimant believes she has been unjustly denied benefits does not justify her deliberately misrepresenting functional limitations in order to obtain those benefits. Next, I find wholly incredible Respondent Stiles' claims that she made no false statements, and that she was providing herself physical therapy by walking the grocery aisles. In applying for SSI benefits, Respondent said repeatedly that she was unable to walk; she said repeatedly that she was confined to a wheelchair; she said that she had very limited use of her left arm or hand. Yet, the digital recording plainly and dramatically establishes that Respondent Stiles was able to walk fairly well, and she was able to use her left hand and arm. She was obviously aware of her ability to walk and to lift and carry with her left arm and hand. She thus knowingly and repeatedly misrepresented her functional capacity.
The statute defines a material fact as one that "the Commissioner of Social Security may consider in evaluating whether an applicant is entitled to benefits under title II . . . or eligible for benefits or payments under title XVI." Act, section 1129(a)(2). Regulations governing SSI eligibility (under Title XVI of the Act) are found at 20 C.F.R. Part 416. An individual is disabled if she is unable to perform any "substantial gainful activity" because of a "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 20 C.F.R. � 416.905(a). To satisfy the basic definition of disability, the individual must have a severe impairment that makes her unable to perform her past relevant work or any other substantial gainful work. 20 C.F.R. � 416.905(a). If the individual is not working and meets or medically equals one of the listings in 20 C.F.R., Part 404, Subpart P, Appendix 1, she is considered disabled and may be entitled to SSI benefits. An individual who is unable to ambulate effectively on a sustained basis for any reason would meet or medically equal a listing, qualifying for benefits. 20 C.F.R., Part 404, Subpart P, App. 1, Listing 101.02. Although impairment of one upper extremity (shoulder, elbow, or hand-wrist), resulting in the claimant's inability to perform fine and gross movements effectively, would not, by itself, satisfy a listing, it would further limit a claimant's ability to perform substantial gainful activity, enhancing her claim of disability. Thus, Respondent Stiles' ability to walk and to use her left hand and arm are facts that the Secretary would consider in determining her eligibility for SSI (Title XVI) benefits, and must be considered material.
The statute authorizes imposition of a CMP of "not more than $5,000 for each such statement or representation," and an "assessment, in lieu of damages . . . of not more than twice the amount of benefits or payments paid as a result of such a statement or representation." Act, section 1129(a)(1); 20 C.F.R. �� 498.103(a), 498.104. In her effort to qualify for SSI benefits, Respondent Stiles has made multiple misrepresentations of her functional capacity. However, in recommending a CMP, the IG relies solely on her responses to questions from the November 2004 Function Report - Adult, which is in the record as SSA Ex. 8. SSA Ex. 15. Among other responses, the IG points specifically to Respondent Stiles' responses to question 6 (Describe what you do from the time you wake up until going to bed.) and question 14 (List household chores). I have listed above approximately ten examples of material misrepresentations contained in Respondent Stiles's November 2004 function report. Given the number of false and misleading statements contained in the November 2004 function report, the proposed penalty falls within the statutory maximum of $5,000 per misrepresentation. I now apply the regulatory criteria to assess the appropriateness of the penalty. I am specifically authorized to affirm, deny, increase, or reduce the penalties proposed by the IG. 20 C.F.R. � 498.220. In determining the appropriateness of the penalty, I must take into account: 1) the nature of the statements and representations and the circumstances under which they occurred; 2) the degree of culpability of the person committing the offense; 3) the history of prior offenses of the person committing the offense; 4) the financial condition of the person committing the offense; and 5) such other matters as justice may require. 20 C.F.R. � 498.106. In imposing a $10,000 CMP, I am most troubled by Respondent's financial condition. She claims that she currently has no funds with which to pay the CMP (Tr. 17), and, aside from her general lack of veracity, I have no reason to doubt that she is currently without funds. Were this the only relevant factor for assessing the reasonableness of the CMP, a significant reduction would be called for. However, I must also consider the nature of Respondent Stiles' false statements and misrepresentations, the circumstances under which they occurred, and her degree of culpability. I find no possibility that her statements could be attributed to simple error or misunderstanding. In her frustration at having been repeatedly denied benefits, she deliberately and knowingly set out to obtain them through gross exaggeration and outright deceit. She maintained her charade - sitting helpless in a wheelchair - while visiting the SSA office and the consulting physician, but left the chair behind as soon as she was no longer with anyone who could affect the outcome of her disability claim. Her continuing lack of veracity and her refusal to acknowledge the deceit justify a significant penalty. Even more compelling, Respondent Stiles has a significant history of making false and misleading statements to SSA in connection with her Title XVI application. In an August 7, 2002 SSI application, Respondent Stiles also claimed that she became disabled on October 29, 1999. SSA Ex. 1. In furtherance of this application, she filled out and submitted a Pain Questionnaire, dated August 30, 2002. In this, she claimed that she required assistance "with everything," that she was home "7 days a week, 24 hours a day," and that she could not do much walking, standing, sitting, or lying down. She said that she could not safely drive, and that someone drove her on errands. SSA Ex. 2. Suspicious of her claims, the DDS referred her claim to the CDIU, which opened an investigation. SSA Exs. 3, 6. Subsequently, Investigators Gerry Riggleman and Stan Howard observed and recorded Respondent Stiles' activities (SSA Exs. 18, 19), and the resulting CD-R, along with the investigators' report, are part of the record. SSA Ex. 5. Respondent Stiles has not challenged its authenticity. The CD-R shows Respondent Stiles arriving for a medical appointment on January 24, 2003. She was driving a car with two passengers. Looking for the office entrance, she walked, without any apparent difficulty, the length of two parking lots, then returned and found the entrance. SSA Exs. 4, 5, 6. About an hour later, she left the doctor's office and drove to a Super Wal-Mart Store. She and her two companions went into the store, and shopped for groceries and clothes. An hour later, they left the store with two shopping carts. Respondent Stiles used both hands to lift grocery bags from the carts and load them into the trunk of her car. She was also observed holding a drink in her left hand as she loaded groceries with her right hand. SSA Exs. 4, 5, 6. At that time, SSA denied Respondent Stiles' application for benefits, but imposed no penalty. SSA Ex. 7. And so she re-applied, making statements that were even more outrageously false. Such repeated conduct merits a significant penalty. For all of these reasons, I find reasonable the $10,000 penalty proposed against Respondent Stiles. IV. Conclusion Respondent Stiles violated section 1129 of the Act when she knowingly misrepresented material facts to SSA for its use in determining her eligibility for Title XVI benefits. I consider reasonable the imposition of a $10,000 CMP. |
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| JUDGE | |
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Carolyn Cozad Hughes Administrative Law Judge |
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| FOOTNOTES | |
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1. In error, the transcript indicates that I admitted eleven Respondent exhibits. However, as my August 15 order correctly reflects, I have admitted R. Exs. 1-14. 2. I make findings of fact/conclusions of law (findings) to support my decision in this case. I set forth each finding, in italics, as a separate heading. 3. This was not the first time the state agency investigated Respondent Stiles' claims of reduced function. I discuss below the results of a January 2003 investigation that yielded similar results. There, the DDS concluded that Respondent Stiles had misrepresented her functional limitations, but it took no action beyond denying her disability application. SSA Ex. 7. 4. According to Dr. Wade's report of the April 14, 2005 consultative psychiatric examination, Respondent Stiles was "confined to a wheelchair" and had "considerable loss of movement in her left arm." He also notes, "It is yet to be determined why she has no use of her legs." R. Ex. 4, at 9-11. It seems that when Dr. Wade learned of the CDIU investigation, he withdrew all of his stated conclusions as to Respondent Stiles' functional and emotional limitations. SSA Ex. 21, at 5. 5. Incredibly, notwithstanding the compelling CD-R evidence to the contrary, Respondent Stiles continues to maintain that she is barely able to walk. Tr. 8. She presents a consulting physician's report dated March 25, 2006, in which the physician relates that she "became paraplegic for one and a half years," and "remains wheelchair bound." R. Ex. 4, at 4. Petitioner relies on the physician's report to show that she made no false statements, arguing, "How can SSA's doctors be proven false?" R. Reply at 2. In fact, the physician reports do not accurately reflect Respondent's abilities because, in taking her history and documenting her symptoms, the physician accepted as true her representations that she is unable to walk and is confined to a wheelchair.
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