Sochi Security

Last week the Dunk Tank criticized, D. Randall Frye, President of the bigstock-Protecting-Your-Facebook-Infor-48808871Association of Administrative Law Judges who complained in a New York Times opinion piece that Social Security’s judges cannot consult social networking sites, like Facebook, to help them determine whether a person is disabled or not.

Among other things, I said,

On the one hand, Judge Frye argues that Social Security’s ‘courtrooms ought to look more like what you see on Law and Order, or The Good Wife,’ but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts.

A reader of the post left the following comment on the Facebook page:

Interesting post.  One comment.  I’m not sure I understand why an applicant’s admissions against interest on a social networking site would be problematic to consider.  Of course, I don’t practice in this area at all.

To me, the comment is interesting and reveals an important subtlety not only about Social Security disability, but about disabled people that I tend to gloss over.

The subtlety is that disabled people who need Social Security disability, who apply for it, who fight for it, and who receive it … at some very basic level … DO NOT WANT IT.

  • Disabled people are often uncomfortable with their status as “disabled.”
  • Disabled people are often embarrassed by the conditions that disable them.
  • Disabled people often run from the label of “disabled.”
  • Disabled people often deny, and hide the parts of themselves that are deficient.
  • Disabled people often lie to cover up their disabilities.
  • Disabled people often present themselves as non-disabled to whatever extent they can.
  • And disabled people do ALL of this … even when they are … disabled.

As an attorney working to prove that my clients are disabled, I often find myself at loggerheads with my clients because it is very, very, very likely that they are vehemently disowning and denying the fact of their disabilities … while asking me to prove they are disabled. 

I try gently to draw out as much accurate information as a client is willing to reveal of their functional deficits, while simultaneously trying to protect them from the emotional hit of having to speak aloud the particulars of their functional deficits.   It’s an awkward little dance.

It is human nature to disown and deny weaknesses.

When I go to my doctor, I have difficulty bringing up my own physical … uh … foibles.   I am even more protective of my mental, emotional, and behavioral deficits.   None of us is particularly keen on those open-in-the-back hospital gowns, right?   We do not like exposing ourselves in harsh lighting.

A friend told me she wished she had “highly-evolved symptoms” to tell her doctor – rather than her embarrassing real symptoms.

Disabled bigstock-Denial-Concept--42598114people are no different than non-disabled people in this regard.   And … more often than not, they’re not trotting out their functional inadequacies on social networking sites.

Moreover, people – whether disabled or not – are often not even sufficiently self-aware to know what their impairments, diagnoses, symptoms, et cetera, are.   In medical records, this is deemed as the patient “lacking insight and judgment” as to whatever conditions or symptoms he or she has.

So … speaking for myself, not only do I tend to hide or minimize my inadequacies, I will take it one step further and not even be able to see my own inadequacies.   This is utterly human, utterly normal.

Disabled people who create an online presence on social networking sites are very likely to conceal – consciously or unconsciously – embarrassing facts, and present themselves as non-disabled – even when they are, in fact, disabled.  

Disabled people who create an online presence often take pains to present themselves in a less embarrassing way than their medical records – or their applications for Social Security disability benefits – portrays them.   And it cannot be assumed that the Facebook depiction of the self is the truthful depiction.   In fact, I think it is highly unlikely to be … the truth, the whole truth, and nothing but the truth.    

Disabled people who create an online presence often present themselves as non-disabled to advance their interest in presenting a positive public face.  

The definition of admission against interest is:

an admission of truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests.  A third party can quote in court an admission against interest even though it is only hearsay.   (Emphasis added.)

I would argue that online presentations of idealized selves on social networking sites are not admissions against interest.   The statements are often fabrications designed to diminish embarrassment, and to advance a personal interest in saving face.

So … when the President of the Association of Administrative Law Judges argues that Administrative Law Judges should be able to consult Facebook in disability determinations, without any mention that Social Security should also use the Federal Rules of Evidence, it makes me very nervous.  

I want, at least, an opportunity in court to argue that online presentations of an idealized self is not an admission against interest, and should be inadmissible on the basis of its being unreliable hearsay evidence.

Given my experience in administrative courtrooms, and in reading the decisions produced by Administrative Law Judges, the idea that Facebook posts could be given the same weight as medical evidence is alarming.

Regular readers of the Dunk Tank may recall the last post in which I discussed Judge Richard Posner‘s expression in oral argument of his frustration at Social Security’s judges’ bad habit of simply declaring claimants’ allegations and physicians’ opinions as “not entirely credible” without any analysis or explanation about why.

Judge Posner asked the attorney from the Office of General Counsel to …

get back to [Social Security judges] that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.

Indeed.

I absolutely guarantee that very seriously disabled people, who meet the rules for disability, and who very much need disability benefits for their basic support, are posting on Facebook that they are not disabled.

Guaranteed.

But, it does not change the fact that they are, in fact, disabled.

The thought that claimants’ Facebook utterances would cast their legitimate claims of disability, and their strong medical evidence, into the vast wastebasket of “not entirely credible” is a serious concern.

Let me put it to you this way:

bigstock-AUSTRIA--CIRCA----A-stamp--40403044Muhammad Ali is the greatest heavyweight boxing champion in the history of the sport.

Dubbed the “Louisville Lip,” Muhammad Ali is the greatest trash talker in the history of all sport.

In 1964 Muhammad Ali (then Cassius Clay) fought Sonny Liston taking from Liston the World Heavyweight Champion title.   The fight was determined to be a 7th round knock out when Sonny Liston couldn’t rise from his chair at the starting bell for the 7th round.

But before Cassius Clay took the title from Liston … BEFORE he was the World Heavyweight Champion – he talked the most glorious and wonderful trash talk EVER.  

Here is beautiful old film of a young Cassius Clay – accompanied by Liberace, of all people, on piano before the Clay-Liston fight in which Clay (predicting a win in 8 rounds) poetry-slam-trashes Sonny Liston describing, “the 8th round exactly as it will happen.”

Clay comes out to meet Liston, and Liston starts to retreat
If Liston goes back any farther, he’ll end up in a ring-side seat

Clay swings with the left, Clay swings with a right!
“Look at young Cassius, carrying the fight!”

Liston keeps backing, but there’s not enough room
It’s a matter of time, ere Clay’ll hit the moon!

Now Clay lands with a right, “what a beautiful swing!”
And the punch raises the bear clear out of the ring!

Liston is still rising, and the ref warns the crowd,
he ‘can’t start counting, ‘til Sonny comes down!’

Now Liston disappears from view …. The crowd is getting frantic … but our radar stations have picked him up … he’s somewheres over the Atlantic!

Who would have thought when they came to a fight that they’d witness the launching of a human satellite!

Yes, the crowd did not dream when they laid down their money
that they would see … a total eclipse of the Sonny.

Muhammad Ali’s trash talk was brash, creative, artistic … amazing.   But what made it most impressive was that Muhammad Ali delivered.   It was not just talk … his speed, his footwork, his ability to dipsy-doodle out of the way of most of Liston’s punches, his reach … that left hook.   It was bigstock-Super-Bowl-XLVIII-logo-on-Seat-58503986not just talk.

Sports are clear.   In sport, we see who beats who.

But, sometimes trash talk … is just talk.

Super Bowl 2014:
Seattle Seahawks 43, Denver Broncos 8.

Got it.

Doesn’t matter what got said before the Big Game.

In Sochi, Natalie Geisenberger (Germany) won gold in women’s luge with the largest margin in any luge event at the Olympic Winter bigstock-Toboggan-in-Sigulda-Latvia-W-25966448Games since 1964 – a full 1.139 seconds ahead of silver medalist, Erin Hamlin of the United States.

Got it.   No trash talk necessary.   Ms. Geisenberger’s trash talk is just her lip-synching the German National Anthem while standing on the gold medal podium.

Sports are clear.

But often … life is clear too.bigstock-scoreboard-football-15279458

Despite the trash talk disabled people might do on social networking sites … life’s scoreboard reveals the disability.  

When a disabled person cannot work because of his impairments – impairments that are documented in medical records – life’s scoreboard will reveal he has been fired from jobs, lost his home, is living in relatives’ basement, or under bridges, he is hungry, and broke and depleted ….   It doesn’t matter what he says.   It doesn’t matter what he posts.  

The legal definition of “disability” doesn’t require that disabled claimants publicly own the disability.   They do not have to be branded with a scarlet letter D  for all to see.   They do not have to go forth, hat in hand.

In fact, a disabled person can be legitimately and legally disabled – all while throwing up a lot of subterfuge to those around him to make sure that they think … he’s not disabled.

Because sometimes trash talk … is just talk.

11 thoughts on “Sochi Security

  1. Anonymous

    You make a good point about claimants wishing to present a certain image via social media. But doesn’t an individual’s unwillingness or inability to present the truth in one forum have a bearing on his/her reliability in another forum? More to the point, why is a claimant who is an unreliable autobiographer on Facebook any more credible when he/she appears in a private hearing before an administrative judge? Doesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations? I realize that the financial stakes are modest compared to full-time, middle-class wages, but presumably every disability applicant has decided that even modest benefits are preferable to no benefits. Under the circumstances, why is “I never leave the house and can’t lift a gallon of milk” more reliable than a photograph of someone giving a child a piggyback ride at Magic Kingdom? I’m uncomfortable with the notion that we should take self-reports at face value only when they are consistent with disability, because it presumes that rational-yet-proud people would never overstate their limitations for money.

    Reply
    1. disabilitydunktank Post author

      Thank you so much for your thoughtful comments, and pointed questions. I so appreciate your willingness to engage in this important conversation.
      I agree that judges should not take self-reports at face value only when they are consistent with a disability. Absolutely not. My concern is that a photograph of ‘someone giving a child a piggyback ride at Magic Kingdom’ would be so prejudicial as to be given controlling weight in the face of other important evidence – but evidence that is much, much more difficult to comprehend, like medical records.
      The photograph seems to speak volumes about the life, but in the end, a photograph is a snapshot of a moment without context. The photograph doesn’t speak to the moments before, or the moments after.
      With considerable frequency I encounter family members of disabled people who encourage the disabled person to get out of the house, go to the grocery store, go with the family to the zoo … those kinds of normal things. And the disabled person will, with varying degrees of cooperation, play along. One of the first commenters on this blog was a man who both worked at Social Security and who had a disabled son, and wrote about that push-pull of knowing full well what needed to be proved to win a disability case, but who pushed his child toward wellness and building on strengths as much as possible … all while knowing in his heart of hearts that his boy was disabled and qualified. Complex emotional territory. Complex emotional territory that can be captured in a photograph and uploaded to Facebook to tell what a family member or a disabled person wishes were the truth.
      I am struck by your question, ‘[d]oesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations?’ Yes. During a hearing, the incentive for pecuniary gain does outweigh the natural tendency to minimize one’s limitations. In my view, the weight of your question lies in the phrase “during the hearing.”
      From my vantage point, I see these cases playing out not only during a hearing, but during the year and a half, two years, three years … that it takes to get to the hearing. What claimants endure during those enormous blocks of time: poverty, cast into the street oftentimes, failure, living without dignity in the basements of family-members, being deeply ashamed of themselves, not being able to access healthcare, my women clients … the unspeakable – is too high a price to incentivize these modest financial gains. When you have a front row seat to that show, you see how unlikely this is to be a complex con.
      I have so often wished I could play the audio files in hearings of clients’ messages left … their scramble to find shelter in extreme weather, their relatives sometimes screaming at me to hurry up and get the hearing scheduled because they ‘can’t stand this person living in their house’ anymore, the messages from workers in churches who are calling to ask how they can help this homeless person who keeps showing up needing food … on and on and on.
      I have often thought that the most difficult part of being an ALJ would be only to have before me the record and the relatively few moments of the hearing upon which to make my decisions. To me, that is a mere skeleton of the lives I see fleshed out before me.

      Reply
  2. Anonymous

    This makes me think back to the appointment I had with a psychiatrist that SS hired to evaluate me. It didn’t hit me until a day later, but he’d asked me “can you cut grass?” And not wanting to humiliate myself as a male that couldn’t even safely cut grass any longer, I said yes. The truth is I can’t even get near a riding lawn mower because of panic attacks that sometimes end in seizures. And due to chronic and severe sinus disease, my ENT doctors always advise me against cutting grass without wearing a mask. I have asthma too, masks are taboo with my pulmonary doctor. But the reality was, I couldn’t afford to hire someone to do it, nor could I bring myself to make my wife do it. So I cut the lawn when necessary to keep a respectful house in the neighborhood and to try to hold on to a sliver of my manhood at the time.

    Reply
    1. disabilitydunktank Post author

      Yes. I completely get that experience. It’s funny, the common misconception is that disabled claimants exaggerate their dysfunction, but I find it is much, much more common for claimants to exaggerate their FUNCTIONALITY as a means by which to save face, and as you say … not be humiliated. I remember once asking a client why she said she COULD do things she really couldn’t, and she said, “because I didn’t want them to think I was a bad person.” This is a very difficult process for people.

      Reply
  3. holistichorsemanshipllc

    I often find my clients on disability take the conservative route and keep their lives entirely off of social media. It seems to be the safest route when social media could be used in their legal cases. I also keep them out of my business’s social media for their protection.

    Reply
  4. Anonymous

    I work with women – many of whom are learning disabled. They come to me and say that they only need help in Math, and they can read just fine. However, when tested and worked with, I realize many of these women read below the 6th grade level. They have no idea what they don’t know. They will adamantly deny that there is a reading problem. But they come to me for help. And it is sometimes really hard to help them when they think there is no problem.

    Reply
  5. Russ

    It may be difficult for those who read your words to understand, but you are right on! Once I decide to take a case and meet with the client for the first time, I spend a great amount of time explaining the realities of the SSA disability system to them. Perhaps 2 years later, when I am meeting with them to prepare for their hearing, one of the first rules I tell them is, “Don’t get proud on me!”

    Over the last 24 years, I’ve had numerous clients (often macho men, whose self-esteem is deeply wounded by their inability to work) start to tell the ALJ how much they can lift, carry, that they are NOT illiterate, etc. Some of them literally throw out their chests unconsciously giving a nonverbal cue. They know they need help, but they think because they’ve been an industrious worker for 30 years and are a good, tax-paying citizen, they are entitled to benefits.

    I’ve had to cross-examine my own clients after some of their assertions to make them admit that they can no longer do the tasks of which they have just bragged. I’ve saved some of these cases, but in others, they’ve given a devious ALJ the ammunition to scuttle their case.

    Reply
    1. disabilitydunktank Post author

      Oh my gosh! Yes! I have had that experience so many times. It is astonishingly difficult for people to admit to their failings and their weaknesses. (It is definitely true of ME!) It is a subtle reality that is not obvious to people who do not work intimately with disabled people who need to prove that they are disabled. Disabled people fight proving it SO hard.
      Those cross-examinations of clients to call them out on their … inaccurate positive assessments of themselves – are emotionally BRUTAL!
      I’ll tell you what, though – I love nothing more than being in a social setting where I think someone is giving me an ‘inaccurate positive assessment of themselves’ or inaccurate positive assessment of their abilities … and I just get to nod and agree … and not destroy their positive self-assessment. I LOVE that feeling of being able to go along … and suspend my skeptical disbelief and just cheerlead! I HATE, HATE, HATE being a professional take-down artist.

      Reply
  6. Kathleen Smith

    Another absolutely amazing article that so eloquently explains why it would be absurd to use social media to in effect spy on our poor clients and look for even more ways to deny their claims. What will they think of next? I have been representing these individuals for 23 years now and I know exactly what you are saying. It is very difficult for many of them to discuss their problems with us and I’m sure they don’t want to put them all out online for the world to see! The more I think about it, the madder I get!!! Thank you again for giving a voice to both the disabled and those of us who represent them.

    Reply
    1. disabilitydunktank Post author

      Thank you so much. I really appreciate you writing/commenting. I am never certain that what I write is useful to anyone. When I hear from you, I am encouraged to continue. Thank you very, very, very much.

      Reply

Let me know what you're thinking ... I'm listening ....