Will Social Security Disability look at your Facebook?

By June 11, 2019 January 27th, 2020 Social Security Disability
Woman uses Facebook on smartphone and laptop

In 2006, roughly 11 percent of adults were active on at least one social media platform. By 2019, that number had skyrocketed to approximately 72 percent. With so many people sharing their lives on social media, it stands to reason that outsiders will use social media to find out more about you.

Potential employers use your posts and pictures to determine whether you are a worthy candidate for consideration. Your poorly-reasoned Halloween costume and drunken stag party do not present the best version of you. No matter how well you interview, no one can un-see what you post.

Social Media and Disability Benefits

Anytime you post on a public platform like social media, you do so at your own risk. This is true not only for job applicants but Social Security Disability (SSD) claimants as well. In 2019, the Trump administration shared its desire to reduce fraud within the SSD system. Monitoring claimants and beneficiaries’ Facebook profiles and other social media accounts is one potential method for doing so.

The Social Security Administration’s (SSA) Fiscal Year 2020 Budget Overview includes looking at Facebook and other social media platforms. The SSA states, “In FY 2018, we studied strategies of our private sector counterparts and other government agencies on how social media networks can be used to evaluate disability allegations. Currently, agency adjudicators use social media information to evaluate a beneficiary’s symptoms when there is a CDI unit’s Report of Investigation that contains social media data corroborating the investigative findings. In FY 2019, we are evaluating how social media could be used by disability adjudicators in assessing the consistency and supportability of evidence in a claimant’s case file.”

The CDI, or Cooperative Disability Investigations, Program “prevent[s] and detect[s] fraud in SSA’s disability programs.”

The current use of social media is SSD cases is much more restrictive than this proposed alternative. If a disability examiner sees something suspicious in an application, he or she can refer these claims to SSA’s inspector general. At that point, the SSA can use social media to confirm suspicions. A final rule regarding the expanded use of social media in SSD decisions will likely be published in the spring of 2020. This timeline is due to pressure from the Trump administration.

A Problematic Approach

Using unreliable evidence that an adjudicator cannot evaluate appropriately has the potential to lead to injustices for truly deserving claimants. While fraudulent claims are certainly a problem, this approach is problematic in many ways.

  1. When a person posts a picture on social media does not necessarily reflect the date they took the picture.
  2. Individuals often use social media as a sort of “highlight reel.” It seems unlikely that anyone would post pictures of themselves struggling to perform everyday activities.
  3. Many disabilities are invisible to the naked eye. Conditions such as lupus, multiple sclerosis, and bipolar disorder cannot be seen in pictures.
  4. Adding social media review to the process could mean an even longer wait time for claimants.

Social Media’s Impact on ALJ Decisions

Interestingly, the increased use of social media in SSD determinations is in stark contrast to Transmittal No. I-2-95, part of the SSA HALLEX, or Hearings, Appeals, and Litigation Law Manual. The Transmittal, last updated in 2013, states that “an administrative law judge (ALJ) and other hearing office staff may not rely on information from the Internet that has not been corroborated by a Cooperative Disability Investigations Unit (CDIU). Further, entering an individual’s personally identifiable information (PII) in an Internet search engine or social media network may compromise the confidentiality of PII.”

The guidelines indicate judges are to consider the entire case record and evidence presented in the case record, not on social media sites. In fact, this directive specifically includes social media networks. At the time the SSA published this Transmittal, SSD attorney Kevin Bambury of Jeffrey Freedman Attorneys PLL said area SSA judges already do a good job of sticking to the evidence presented and “staying within the four walls established in the record” to make their decision.

U.S. Sen. Tom Coburn also had comments regarding the directive. He objected to the guidelines because no lawyer appears at a disability determination hearing on behalf of the government. This places the judge in the position of having to prevent fraud with whatever information they can find.

“If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant is truly disabled,” Coburn said in a letter to then-Commissioner Michael J. Astrue.

The Legal Impact of Social Media in the Private Sector

The SSA may model its social media monitoring after strategies used in the private sector. Social media has long had implications for these types of legal claims, including personal injury and workers’ compensation cases.

When you are injured in an accident and sue for damages, you are entitled to monetary compensation for a variety of things, such as lost wages, pain and suffering, and medical bills. Because we live in a society dominated by social media, it is natural to want to post about your accident and what happened after it. But you should really reconsider.

Insurance companies do not want to pay out fraudulent claims; they have a large incentive to investigate your claim fully. That means they will review your medical history, analyze your medical records, and examine your internet presence. Opposing counsel can use your social media profiles to reduce or eliminate your right to compensation. Although social media commonly paints a misleading picture of people’s overall health and wellness, the courts can and will accept everything at face value.

What you choose to make public about your life can be shared with a judge or jury. If you’re thinking of putting something on social media, talk to your attorney first. They will be able to explain the potential impact doing so might have on your case.

Contradicting Your Personal Injury Claim

Be careful that what you post does not contradict your claim. If you are suing because an accident caused a broken leg and this injury affects your ability to engage in activities you enjoy doing, it’s inadvisable to post a picture of you running in a 5K. Your broken leg might slow you down substantially. Maybe a 5K is all you can manage when you used to run marathons. However, people looking at your posts don’t know that. A jury, opposing attorney, or defending insurance company likely will not care. It is apparent that you can still run, and, therefore, don’t require compensation for pain and suffering.

The same goes for places you tag yourself in. If you sue for damages from a torn rotator cuff, but you check into a paintball facility on social media, the jury is unlikely to believe your injury is as severe as you claim. Your family and friends might also work against you with their comments. They might be joking about your abilities, but observers may jump to conclusions about your limitations.

Consider refraining from posting altogether and asking your family to do so as well until your claim is resolved. If you must maintain a presence on social media, disable comments and others’ ability to post on your accounts. Monitor your accounts diligently and remove any posts or pictures about you.

In all situations, we recommend using the most restrictive privacy settings. Know that a judge may order you to provide usernames and passwords if defense counsel has reason to believe you are hiding something imperative to the case online.

Social Media’s Effects on Workers’ Compensation Cases

Individuals filing for workers’ compensation benefits should be aware that their social media profiles may be monitored as well. Employers pay for workers’ compensation insurance. If a worker is hurt or becomes sick on the job, this insurance covers medical expenses and lost wages. However, employers and their insurance companies may dispute an injured employee’s claim.

Insurance companies may try to gather evidence proving a worker does not have an injury. One method for obtaining this evidence is an injured employee’s social media profiles. The insurance companies may use photos or videos from social media profiles to discredit an employee.

“An injured worker needs to be careful about what they post. If an insurance company sees pictures on a social media profile and it’s not indicated when the pictures were taken, the photos could be used against the employee to prove they are not really injured,” Jeffrey Freedman, managing attorney, stated. “Pre-accident photos should include text that indicates they are from an earlier time. Additionally, social media profiles should be kept secure.”

Insurance company examiners regularly check social media profiles. “More often than not, an insurance investigator will independently check social media pages. Often, an employer or co-employee will report something they see on a social media page,” Freedman stated. “It’s definitely an issue and anyone who files for benefits based on a physical condition should be aware of it.” This is true whether you’re filing for SSD or workers’ compensation.

“Employers regularly check social media profiles when screening employees for hire. It’s very likely that employers and insurance companies will check these same profiles to try and discredit an employee’s claim. If unsure whether a social media post may hurt your case, it may be advisable to consult with a skilled workers’ compensation attorney,” Freedman said.