Did Social Security Send Someone to Spy on You?

A policeman walking through slats of sunlight
The Social Security Administration hires state police to investigate some people who apply for disability benefits.  That doesn’t happen in every case—anecdotally, we only see it in about 5% of cases.  But when it does happen, the evidence produced is often taken out of context and manipulated to create the false impression that a claimant is not disabled.  

To a hammer, everything looks like a nail

When the Social Security Administration does hire a police office to investigate a claimant, the officer produces a report that nearly always concludes that the claimant is less impaired than the claimant reports.  There are many reasons for this.  Chief among them is that fact that officers are told that the claimant is suspected of fraud, and officers begin their investigation with that bias.  Additionally, the administration employs the same officers over and over again.  In short, discovering “fraud” justifies the officer’s own importance.  Moreover, disability is complicated and the officers draw conclusions that are too simple.  For example, a claimant may state in their application that they can sit for 30 minutes without pain.  An officer will observe the claimant sitting for 35 minutes, and conclude that the claimant is a liar.  Such simplistic reasoning fails to account for the realities of waxing and waning symptoms, or the fact that people behave differentially in the face of police authority. 
Police lie to claimants about the reason for the interview
State police nearly always interview claimants under a pretext.  In legal terms, this is called a “pretext interview.”  Essentially, state police officers who are sent to an claimant’s home will correctly disclose their identity as law enforcement, but will lie about the purpose of their visit. The officer will often claim to be investigating an identity theft or package theft ring in the area, and will ask for the claimant’s help in tracking down the criminals. Often, a claimant will allow the investigating officer into their home as they try to be of help with the investigation, which is known as a “ruse entry.”
In October 2018, the 9th circuit ruled that when police hired by the Social Security Administration gain permission to enter your home based on a lie, they have violated your constitutional rights.
Whalen v. McMullen, a case that was recently decided by the 9th Circuit Court of Appeals on October 30th, 2018, revolved around whether deceitful pretext interviews are legal, particularly when they involve access to a claimant’s home under false pretenses.

Kathleen Whalen underwent a pretext interview during which a Washington State Patrol officer, John McMullen—who told Whalen she was at risk for identity theft—got Whalen to invite him into her home. McMullen was wearing several hidden cameras and recorded video of the entire encounter. Whalen remained unaware of the existence of this footage, and of the fact that she had undergone a pretext interview, until the recording of her home from the CDIU report was used as evidence against her claim when she appealed the denial of her benefits.
The 9th Circuit decided unequivocally that the entry of the claimant’s home by the officer was a warrantless and unconstitutional search. This is due to the fact that, while the claimant did consent to allow the officer into her home, the consent was obtained through deceit.

If you were subjected to an illegal pretext interview in your home, reach out to a lawyer.

This decision will lead to changes in how pretext interviews are conducted in future.  Likely, the police will attempt to conduct these interviews outside of claimant’s home.  But there are many cases that have already been affected by CDIU reports resulting from deceptive pretext interviews. If you are in the process of appealing an ALJ denial that was reliant on such an CDIU decision and you live in southwest Washington or Oregon, please call our office for a free consultation.