Using Social Media To Deny Disability Benefits
On March 10, 2019, The New York Times released an article titled “On Disability and on Facebook? Uncle Sam Wants to Watch What You Post.” The post generated thousands of comments as well as shares and attracted the attention of Ohio Senator Sherrod Brown. Indeed, Senators Sherrod Brown and Bob Casey (D-PA), drafted a letter to Mick Mulvaney, Office of Management and Budget, and Nancy Berryhill, Acting Commissioner of Social Security, explaining their concerns on using Facebook and other social media to help identify people who claim Social Security disability benefits without actually being disabled.
While the attention generated by The New York Times and members of the Senate produced much needed sunshine on a troubling issue, this is not new. In fact, Long Term Disability (LTD) beneficiaries have long been scrutinized by claims administrators, most often insurance companies, that use social media to deny disability benefits. This, however, has been relatively under-covered and is a widespread problem leading to unsubstantiated denials of disability benefits.
First, let us revisit the basics of LTD. Approximately 1/3 of US employers offer LTD insurance coverage as an employee benefit. There are more than 50 different insurance companies that sell LTD policies and the policy language and terms for eligibility are often different in every policy. If a claimant obtained their LTD coverage through their employer as an employee benefit, then the policy is usually governed by the Employee Retirement Income Security Act (ERISA). The general rule is that if an individual purchased their LTD coverage from anyone other than their employer, then the policy is almost always governed by state law. In a state law claim, a disability insurance company’s failure to pay LTD benefits gives the claimant the right to file a breach of contract cause of action.
At the end of the day, whether it is the Social Security Administration, or a private entity claims administrator, our clients must now fear that their social media will be used to determine their disability. So that begs the obvious question, what does disability look like?
Let’s be honest with each other. People post their best selves on social media. Rather, people post what they want their friends to believe their life looks like. Whether we’re assisted with the use of a filter or a hashtag like #blessed #honored #lucky #grateful, our posts reflect how we want our social network to perceive us. Recent research supports my contention. In 2017, 1,787 adults ages 19 to 32 were asked about social media use and depression. According to Brian Primack, M.D., Director of the Center for Research on Media, Technology and Health at the University of Pittsburgh, a co-author of the study, “people who feel socially isolated may be reaching out on social media, on some level, to self-medicate.” Dr. Primack added “we know these are filtered, curated photos. But on social media, these are real people, so you feel like this is very much real life.”
Beyond the contention that social media fails to accurately portray one’s lifestyle, the use of social media in a disability determination process is fraught with potential for factual and legal error. For instance, if social media is reviewed to determine whether a person is working, big problems will arise almost immediately. For Social Security, a person who earns less than Substantial Gainful Activity (SGA), can still receive disability benefits. Thus, I would have a lot of concern when someone might appear to be working when in actuality they are volunteering, participating in a therapeutic activity, or engaging in work activity that is less than SGA.
Another obvious problem is when an inference of one’s limitations is made from a photograph. I will never forget when an insurance company, evaluating a claim based on diabetic neuropathy, issued a denial of benefits after discovering two pictures of my client. In the first picture she was wearing cowboy boots and in the second picture she was wearing flip flops. The insurance company stated in their denial that her choice in footwear was “inconsistent with an allegation of painful neuropathy.” The flipflops were medically prescribed orthotic sandals! It should go without saying that the denial was overturned, but my client’s benefits were ceased for eight months during the appellate process.
Recency is another big problem. Who amongst us hasn’t posted a picture of us on vacation much later than the actual trip? Perhaps a fun new profile picture? Again, that is something we see on a regular basis with the insurance companies. The companies will often exaggerate our client’s daily activities stating that they are traveling, when the picture, while currently posted, was taken many years ago. Maybe even before the onset date of disability. Additionally, traveling is often therapeutic and in no way indicates a person’s ability to work on a regular and continuing basis.
As we’ve seen, the primary issues in using social media to assist in a disability determination are relevancy, recency, and context. Simply put, social media is not an accurate portrayal on one’s limitations and the use of it is rampant and under-covered by the media. It was not until Social Security’s proposal that it caught the media’s attention. Yet, we’re seeing this in almost all LTD cases and there is no end in sight. As attorneys, we should regularly encourage our clients to run a privacy check on their accounts to make sure that they are not publicly sharing information.
1 Association between Social Media Use and Depression among U.S. Young Adults, Liu yi Lin, Jaime E. Sidani, Ariel Shensa, Ana Radovic, Elizabeth Miller, Jason B. Colditz, Beth L. Hoffman, Leila M. Giles, Brian A. Primack (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4853817/).
Andrew November has dedicated 100% of his practice to disability advocacy since 2009. Andrew regularly overturns unjust denials of Social Security Disability & Long Term Disability benefits for his clients. Andrew also founded Ohio’s first law practice dedicated to representing Deaf individuals who face discrimination. He has been a CMBA member since 2009. He can be reached at (216) 282-1773 or firstname.lastname@example.org.