ERISA LAW BLOG

We’ve previously discussed on here multiple times the dangers and risks of using social media or having an on-line presence.  However, in these modern times, it is very hard not to have some type of on-line presence.  The Social Security Administration is currently looking into the possibility of monitoring disabled individuals’ social media.  The outcry against such a policy mirrors what I have warned many clients about for their ERISA case.  For private disability insurers and in ERISA cases, the risks of on-line monitoring is already a reality.  In a recent article, Forbes discusses the problems with relying upon social media to determine disability status:

The proposal, like many of its policies regarding disabled people, shows a fundamental misunderstanding of disability and takes advantage of how social media operates in order to cut them off from the support they need.  Disabled people don’t all function in the same way, and disability is not a set of stereotypes like taking selfies staring longingly at the world.  They live lives while managing their energy for the activities they can handle and try to make those they cannot more accessible.

Additionally, studies have shown that a majority of social media users show only the good in their lives, not the hardships or difficulties.  Disabled people should be allowed to share the full scope of their existence without fear they’ll be accused of lying–and even fraud–by the United States Government which will likely reason that if a disabled person is seen going to the mall or taking time to swim or jog, they can be working.

The truth about disability is that it isn’t a series of down moments but both highs and lows that comprise the lives of the disabled.  Simply because disabled people are seen exercising, dancing or shooting hoops does not mean that they have the ability to sustain that level of energy all day.  This type of policy also plays upon the assumption that people with disabilities all function and move about in the world in the same way, which is entirely untrue.  There are wheelchair users who can walk, people with cerebral palsy that can run and amputees that are bionic.  It is just as dangerous to assume that disabled people should have to “overcome” their disabilities to do what they love as it is to assume there is nothing they want to do.  One person’s body should never be considered a prescription for another.   How a Trump Proposal Could Reduce ‘Happy’ Disabled People.

In a follow up article, Forbes provides the following illustration:

Let’s say a person named Mr. D has a chronic pain issue that affects his ability to perform his job–working on small planes–which he loves.  Mr. D is out of work and receiving disability payments.  Most days Mr. D is in pain.  On a family trip planned long ago for Mr. D’s Dad’s 80^th, he heads to Florida, intending to play golf with his Dad no matter how much it hurts.  But after a few holes, Mr. D humbly admits he can’t play.  Depressed and frustrated, they leave the course, but as Mom pulls out her phone and snaps a shot, Mr. D smiles dutifully.  Not thinking about the privacy of his account or the value the government might find in a family reunion photo, he posts the golf shot with Dad on Facebook.

This type of situation is something that I run into on a regular basis with my clients.  A single snapshot of a person smiling completely fails to provide an accurate picture of how that person is truly feeling in that moment, or throughout their days, weeks, years and the rest of their life.  Forbes concludes:

Speaker and author Linea Johnson wondered how Facebook could be thought of as a reliable investigative tool.  “The concept of investigating whether someone lives with a disability on social media is extremely concerning to me.  First of all, in our modern world, everyone is presenting this almost Instagramable view of their lives,” she says.  “There is a trend of only posting what is beautiful, fun, and exciting when that may be very far from someone’s reality.  Whether they live with a disability or not.”  Disability Advocates Poke Holes in White House Plan to Snoop on Facebook Pages for Disability Fraud.

Most of my ERISA clients are also receiving Social Security disability income and I must warn all disabled individuals to be particularly careful of their social media posts.  For years, those posts have been misconstrued by ERISA LTD insurers and it appears that they now may be facing the same risks for their Social Security disability benefits.