Your Online Presence – Why Disability Claimants Should Be Mindful

It is common knowledge these days that a person has to be careful about how they present themselves on the internet, whether it is through pictures, videos, blog posts, or even comments you leave on your friends’ Facebook pages. How you portray yourself online is essentially how you portray yourself to the world. When you are a disability claimant, you must be especially mindful of these things.

Until April of this year, some ALJs were utilizing the internet to research claimants whose cases were to be heard. SSA has since told ALJs they are no longer to seek out information on the internet to help decide cases. This has become a controversial issue for several reasons.

The ALJ’s Point of View

Senator Tom Colburn, an Oklahoma Republican, has been vocal in regards to what this ban could mean for taxpayers. Senator Colburn, along with many ALJs, believes the Internet is a valuable source for catching fraudulent disability claims. If a person is claiming disabling back pain, yet posts pictures of himself playing tag football with friends, it could be a huge red flag for an adjudicator.

Senator Colburn’s goal is to protect taxpayer dollars. He believes that by being more stringent on whom we award disability to, tax dollars won’t be going to people who don’t “deserve” it. Last year, Senator Colburn accused Stanley Thornton, Jr., who lives as an “adult baby,” of SSA fraud. Senator Colburn pointed out that, if Thornton is able to manage his own website dedicated to the adult baby lifestyle, as well as construct an adult baby high-chair of which he had posted pictures of on his website, that Thornton has the skills and knowledge to make a living. After a lengthy investigation, Thornton was cleared of fraud. Thornton suffers from PTSD, along with a range of other impairments, which in combination deem him disabled.

It is also argued that looking on the Internet is no different than looking out a window and seeing a claimant mow his lawn or work on his car. Casual observation of the claimant has always been part of the adjudication process, and it is believed that using the Internet falls along those same lines.

Another thing claimants must be mindful of is the fact that, when they make their application for SSD or SSI, they are required to sign a release that allows SSA to collect any and all information related to their ability to perform tasks. However, it can also be argued that information on the Internet is public, so no such release is even necessary to see any information an ALJ can find on a claimant.

Because deeming someone is disabled is such an important decision, all facts of the matter must be brought to light, not just what the claimant or the claimant’s representative wants the ALJ to see. 

The Claimant’s Point of View

As mentioned earlier, disability claimants must be especially mindful about what they post on the Internet. However, if the picture a claimant posts of himself playing tag football with friends is five years old, it should not be given any weight in a current disability claim. People post old pictures all the time, but the problem is the casual viewer being unaware of the picture’s age.

When an ALJ considers evidence without the claimant’s or the representative’s knowledge, it is called ex parte evidence. This is a serious legal matter because it denies the claimant due process. When evidence is requested and received by the ALJ, a copy must be made available to the claimant or his representative in order to allow time for a response. As in our example, if an ALJ found a picture of the claimant playing tag football with friends, and the picture is indeed five years old, the claimant should have the opportunity to explain same to the ALJ.

SSA officials have stated that, even though using information from the Internet can be potentially helpful, they do not want “front-line deciders” using it. Rather, this practice is reserved for the likes of fraud investigators that are hired to research awarded claimants that may be attempting to deceive SSA.

Arguments on both sides of the coin are strong. On one side: Should SSA take more steps to prevent fraud in the first place, such as ALJ internet research? Would this help prevent benefits from being paid to the “wrong people?”

On the other side: How much does this tool affect a claimant’s due process? Is it fair?

Because you never know who your ALJ is going to be, or what tools he or she may utilize to decide your claim, it is always better to err on the side of caution and maintain your internet presence wisely.

Source: The Washington Times, May 3^rd, 2012

Written by Anna Westfall & Attorney Andrew November

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