Social Security Disability claimants, take note: the Trump administration is working on a proposal authorizing SSA to use Facebook, Twitter and other social media platforms, as an investigative tool to identify fraudulent claims for Social Security disability benefits.
The New York Times reports this is part of the current administration’s efforts to “save Medicare, Medicaid and Social Security without cuts” by ridding the system of waste and abuse.
Legislative proposals to expand the use of “evidence obtained from publicly available social media” have been discussed for several years. According to the NY Times, the current White House administration maintains that it could “authorize greater use of social media by regulation, without action by Congress.”
A timeline of the proposal is now underway by the SSA with the backing of President Trump (a final rule is expected in the spring of 2020). Here is what we know so far.
Social Media as a Tool to Ferret Out Fraud
As detailed in the Office of Management and Budget (OMB) Fiscal Year 2019 Budget document, the proposal would authorize the Social Security Administration to:
- Use all collection tools to recover funds in certain scenarios
- Hold fraud facilitators liable for overpayments
What Are the Benefits of the Proposal?
If the plan holds true, social media could be a “treasure trove of information” about people who deceitfully apply for Social Security Disability benefits, or are already on claim.
For instance, if you are on SSDI benefits for degenerative joint disease, Facebook photos of you jogging on the beach or coaching little league could be used against you.
Money saved by stopping or preventing genuine acts of disability fraud in this manner benefits the SSA which should in turn benefit the seriously compromised SSDI program.
What are the Flaws of Using Social Media as an Investigative Tool?
For a lawyer who has represented disability claimants for more than 25 years, the concept of mining incriminating evidence from social media networks is not a new one. Disability insurance companies have done this for years, digging through online platforms for any “smoking gun” that, taken out of context or otherwise misapplied, help implicate claimants as “not disabled” in order to avoid paying benefits.
But for a proposed governmental policy overseeing public SSDI benefits, this is new territory. Disability claimants may be at risk of losing important rights. We pose the following critique:
1) Can social media data be trusted as evidence a person is not disabled?
Fraudulent claims and scammers certainly add to the Social Security Disability Insurance program’s problems. But should something as critical as one’s disability benefits depend on the payor’s faith in the accuracy of photos and posts? A picture is not always worth a thousand words.
The NY Times article reports that Michael J. Astrue, the last Senate-confirmed Social Security commissioner, is also wary of the proposal.
“Social media sites are not exactly clear and reliable evidence,” Astrue said at a Senate hearing in 2012. “Facebook puts up phony websites under my name all the time.” That, he said, is “why you need professionally trained fraud investigators” to evaluate the information.
2) Is Federal-level surveillance of social media acceptable? After all, it is public material.
Is this government overreach or good use of public information?
Who will do the monitoring—humans or algorithm, or both?
3) SSDI’s Definition of Disabled Should Work Both Ways
The legal definition of disability under SSDI is:
The inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) 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.
Proof of disability to SSA is not based on hearsay or vague evidence. To prove disability, SSA requires from its claimants credible, demonstrative and objective medical and vocational evidence to prove their impairment disables them from working.
Determinable in the SSDI definition means able to be firmly decided or definitely ascertained. The SSA should respond in kind by applying the same level of determinable proof when denying a claim.
In fact, it is very hard for disabled claimants to prevail in their initial claims because the system is already so complex. Most applicants do not comprehend the depth of evidence often necessary to win their cases.
Social Security Administration May End In-Person ALJ Hearings
The NY Times article also reminds us of yet another blow that may come to SSDI claimants. Over the years, the SSA has favored moving away from personal hearings before an administrative law judge.
In the name of saving money and time, and reducing backlog, SSA has proposed a change to their rules where video teleconference (VTC) becomes the format to be used in all SSA appeals, and in some cases, hearings will be by telephone only.
Currently, claimants may opt out of a VTC. If SSA’s proposal comes to law, they will lose that option.
We know how important it is for our clients to appear and be heard in front of a judge who is in the court room. A claimant’s constitutional right to an in-person hearing and cross-examination of witnesses is precious. Most requests for SSDI benefits are won at the hearing level.
Remote hearings may prove to be overall less efficient for the claimant. What might be a more agile use of technology comes at the expense of disabled individuals’ rights to due process and the ability to choose a personal hearing.
Be Wise about Social Media and your SSDI Claim
Because SSDI claims are tough enough to win, we caution our clients to stay away from Facebook and other social networks. As with surveillance, it does not take much for one casually published Facebook statement or photo to be misconstrued and turned against you.
Claims for Social Security Disability benefits seem to be under fire. Claim denials are not going to disappear. That is why the need is stronger than ever to hire a board certified SSDI attorney who knows how to help you through this system successfully.
And while it is true the SSA denies many of the claims submitted, it is also true that you can win your rightful benefits the first time you apply.