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May 4, 2012

ALJs Forbidden To Search Online For Info About Claimants

     From the Washington Times:
The Social Security Administration last month told its disability-claims judges they are no longer to seek out information from websites when deciding cases — taking away a tool some of those judges say would help in uncovering fraud. ...
Social Security’s ban covers all Internet sites, including social media such as Facebook.

But Sen. Tom Coburn, Oklahoma Republican and a top taxpayer watchdog, said avoiding the Internet means giving up a valuable anti-fraud weapon — one that he said even federal courts have relied upon in some disability cases.

“If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website, such information should be used by [adjudicators] to determine if the claimant was truly disabled,” Mr. Coburn wrote in a letter last week to Social Security Commissioner Michael J. Astrue.
      The problem with Administrative Law Judges (ALJs) searching social media sites for information on a claimant is what lawyers call ex parte evidence, that is evidence that the ALJ receives without the claimant's knowledge. Deciding a case on ex parte evidence is a serious matter. It goes beyond simply making a mistake. It's a denial of due process. Of course, it would be possible to see something online, send the claimant and his or her attorney a copy of what you saw and allow them to respond, which makes it acceptable but it's way to easy to forget to give the claimant a chance to respond.  The problem with banning this is that it may just drive it underground.


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    Anonymous Anonymous said...

    It's no different than the ALJ who looked out the window to observe the claimant walking across the parking lot brought up to the internet age (o.k., maybe it's closer to the ALJ surreptitiously parking in front of the claimant's house to watch him mow the lawn). Casual observation has always influenced adjudicators, but only the foolish adjudicator will cite the ex parte evidence in the decision.

    9:13 AM, May 04, 2012  
    Anonymous Anonymous said...

    The SSA computer system has long blocked access to social media sites, streaming videos, etc. Unless the ALJ uses a home computer or smart phone, the ALJ has no way to look up a claimant's Facebook page.

    As for SSA's concern that the searches will compromise personally identifiable information, the search would only involve the person's name and possibly location (to help narrow down the options for a common name), information that is public record to begin with.

    10:02 AM, May 04, 2012  
    Anonymous Anonymous said...

    I believe the ex parte comment was spot on. Observing a claimant is one thing; stalking them online and then using that as evidence against them, without allowing them an opportunity to rebut the evidence, is simply bad lawyering and downright contentious.

    10:17 AM, May 04, 2012  
    Anonymous Anonymous said...

    I don't recall anyone saying that they wouldn't have the opportunity to rebut the evidence. This is such a non-adverserial process that you can bet they would have every opportunity to argue why they had posted pictures of themselves sompeting in cage fighting at the hearing. I take it no one has ever worked on a worker's comp case where the insurance company sends out investigators that video tape the claimant painting his trailer, bowling for dollars, or cutting the grass? Why should SSA claimant's be given carte blanc when it comes to accountability, credibility, etc.? If it's afact, why shouldn't they have to answer for it? The ALJ has to base his decision on a consideration of ALL of the facts he can gather, not just what some rep has decided makes the record look good..

    11:30 AM, May 04, 2012  
    Anonymous Anonymous said...

    Anon 11:30, even though it's non-adversarial the claimant still has the right to due process. It's the same reason why an ALJ must proffer any post-hearing evidence he admits, i.e., post-hearing CEs or interrogatories, to the claimant and the rep unless he issues a FF. The claimant has a right to know what evidence is being decided and therefore, to rebut it. If an ALJ hears a case, goes home to look the claimant up on Facebook, and then uses whatever he/she finds as evidence to deny, then the claimant's due process has been violated because he was not given a chance to rebut. There's a story behind every picture, and no one says the claimant has to be an invalid to receive benefits. If the ALJ hears an explanation for incriminating Facebook pics and still finds a lack of credibility, that is fine. At least the claimant had a chance to tell his side.

    12:05 PM, May 04, 2012  
    Anonymous Anonymous said...

    Is there any evidence that there is a significant problem with ALJs (or their staff) going on Facebook or similar sites after a hearing and finding negative information and using it in a decision without allowing the claimant a chance to respond?

    In the rare instances where information has been found on Facebook or elsewhere online and the ALJ wanted to utilize it in my office, it was proffered to the claimant and representative.

    1:07 PM, May 04, 2012  
    Anonymous Anonymous said...

    “If an individual claims to be disabled, and then publicly posts a picture participating in a sport or physical activity on a social media website"

    One or two things stick out to me. The above comment seemed bias or preconceived. Secondly the article excerpt never mention regulations or,rulings. Are there any and what are they?

    Thank you

    2:40 PM, May 04, 2012  
    Anonymous Anonymous said...

    The SSA OIG does use the van and video tap route on some claimants.

    2:51 PM, May 04, 2012  
    Anonymous Anonymous said...

    The claimant's already sign a release granting SSA rights to obtain "all...information related to my ability to perform tasks."

    That's a pretty broad release and there is a strong argument that it gives SSA the right to gather ANY information, especially any information that is publicically available (in fact, there is an even stronger argument that no release would be needed to gather publically avaialable information).

    Seems like the regulations also already provide that any information used in deciding a claim must be presented to the claimant. This leads to a simple (some would say common sense) way to implement internet information. Let the ALJ, staff, etc. find whatever they want. The claimant is not prejudiced if they get the chance to explain, at the hearing, what was found.

    4:13 PM, May 04, 2012  
    Anonymous Anonymous said...

    Yeah this seems like a total non-issue to me with respect to the due process piece of it. The only problem here, as a previous poster said, is that SSA's firewall prevents employees from viewing social media sites anyway.

    1:13 AM, May 05, 2012  
    Anonymous Anonymous said...

    Question: Can other staff at the hearing office view the web and print out it as an exhibit for the e-file, PRIOR TO THE HEARING, as long as it is not the ALJ doing the search?

    8:41 AM, May 05, 2012  
    Anonymous Anonymous said...

    Isn't the issue is that the so-called evidence is not authenticated and can lead to due process violations. This trumps any Agency regulation.

    9:38 AM, May 05, 2012  
    Anonymous Anonymous said...

    Me thinks you are confusing criminal proceedings with administrative proceedings.. All one needs to do is ask the claimant, "Is this you chopping firewood?" We're not talking probable cause or Miranda rights or search warrants here. The Judges should be good steward's of the Trust fund.

    10:54 AM, May 05, 2012  
    Anonymous Anonymous said...

    Well, me thinks having a fair hearing implicates procedural due process rights thats all. And, what if claimant denies they are chopping the wood- what then? Or, what if someone else posts the picture or videos? And what if the ALJ doesn't believe the claimant, and makes a credibility decision based on that?

    1:29 PM, May 05, 2012  
    Anonymous Anonymous said...

    Me think it's possible for such a claimant to have some limited ability and still be disabled.

    2:44 PM, May 05, 2012  
    Anonymous Anonymous said...

    It is somewhat difficult for the ALJ to make his/her determination for evidence that was obtained through the same ALJ web search. If it were an exhibit, placed in the file by another person (or machine), the the ALJ would be better able to consider it as evidence. If it was observed and added to the file after the hearing, with no further hearing or waiver, this is alway a problem.

    3:29 PM, May 05, 2012  

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