Last week the Dunk Tank criticized, D. Randall Frye, President of the Association 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.
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.
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.
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:
Muhammad Ali is the greatest heavyweight boxing champion in the history of the 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 not 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.
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 Games 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.
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.