Monthly Archives: August 2013

So much bullpucky … so little time

bigstock-Halloween-Scarecrow-Art-Illust-8688778Now I know the folks up at the Think Tanks can wile away the hours, conferrin’ with the flowers, consulting with the rain … they unravel any riddle for any individ’le in trouble or in pain … but down here at the Dunk Tank … my head I be scratchin’ while my thoughts are busy hatchin’ … if I only had a brain!

In a recent article Surge in Disability Claims Is Gold Mine for Law Firms, Tad DeHaven, a budget analyst with the Cato Institute, makes his most impactful statement in the title, but the article itself is not well thunk through.

Can the Dunk Tank say that about work published by an established Think Tank?  Probably not, but here goes nuthin’.

Mr. DeHaven contends that the “federal government’s twobigstock-Peyruse-Boroffka-Lea----Je-41797240 main disability programs have experienced rising enrollment and soaring spending in recent years,” but he fails to give any reasons for that rise.  Mr. DeHaven explains that the “subjective disability determination process” creates an opportunity for attorneys who specialize in the area of law to “grab a piece of the action.”

By providing no reasons for the increase in numbers of claimants and beneficiaries of Social Security’s disability programs, the subtle message is that there are no good reasons.   By omission of facts, and unsubstantiated assertions that claimants and beneficiaries are marginally or moderately disabled, and capable of performing work, Mr. DeHaven disingenuously leaves readers with the idea that this is the cause for the increased numbers.  Readers are also left with the sneaking suspicion that ‘hey, I’m the only one out here haulin’ off to work everyday!’

But there are reasons for the increase in the numbers of claimants and beneficiaries of Social Security disability benefits.  Good, and innocuous reasons.  And the increases were foreseen almost two decades ago by Social Security’s Office of Chief Actuary.   Earlier this year, Stephen C. Goss, Social Security’s Chief Actuary testified before the House Ways and Means Subcommittee on Social Security, delineating the factors behind the increased numbers of claimants and beneficiaries of disability benefits.

Mr. Goss explained the factors used to accurately predict the increase:  a sizeable increase in the total population; the huge wave of aging baby boomers who are not only large in number, but who are in their disability-prone years; and the increased percentage of the population, primarily women, who entered and stayed in the workforce, paid Social Security payroll taxes, and who are now eligible for disability benefits.

That’s it.  Those are the factors.  The Office of Chief Actuary did not factor into their accurately predictive algorithm that the American people have become lazy bums because … that is a fiction.  Rest assured, you are not the only one haulin’ off to work everyday.  We still have rush hours.

That attorneys – competent and well-versed in the complex area of law that is Title 42, U.S.C., bigstock-young-lawyer-in-the-office-at-33836441Subchapters II, XVI, and XVII – step up to the plate to provide representation to this mass of claimants is simply free market forces at work.  There is nothing unseemly about it.

I would have guessed that the Cato Institute would look favorably on the well-oiled functioning of the American free market.   Am I missing something?   Okay, okay, I can’t even pretend to be that much of a doofus.  I get it.  It is objectionable even though it is a free market enterprise because it is assisting people who by definition cannot participate in the harsh, survival-of-the-fittest free market.  That’s the problem.  Also, there is just something vaguely contemptible about poor people, and average people having attorneys represent their interests.

But the nuance lost in Mr. DeHaven’s broad, unconsidered statement that having attorneys representing claimants is bad, is that there are important advantages to the Social Security Administration – and to the taxpaying public – when private attorneys are hired by claimants of Social Security disability benefits.

The services that attorneys provide their clients relieves the Social Security Administration and its work forcebigstock-Quality-efficiency-and-cost-45457141 from having also to provide those same services – at least to those clients.   Moreover, attorneys even provide information that Social Security workers are barred from providing that can diminish the work load for Social Security, and costs to taxpayers.

For example, private attorneys are able to dissuade claimants whose claims lack merit from proceeding, whereas Social Security workers are barred from doing so.  Social Security workers are required to remain neutral and are prohibited from providing legal advice to claimants.  So, a Social Security worker must provide the service of processing an application even if it lacks merit, whereas an attorney can explain to a potential claimant why their claim lacks merit and why an application for disability benefits is inadvisable.  Contrary to popular belief, this happens with regularity.

For example, I often receive telephone calls from potential clients who were advised by their physicians “to file a disability claim.”  Although the physicians are well-meaning, they do not typically know the legal definition of disability, and inadvertently give incompetent legal advice.  Just as I might give utterly preposterous medical advice.

When physicians care for a patient who can no longer perform the duties of his or her past work, they often conclude the patient would qualify for disability benefits.   But, that is not necessarily true.

The patient has to show not only that he cannot perform his last job, but also that he cannot perform any other job on a full-time basis as a result of a medical condition.   So, while the patient may not be able to continue working as a construction worker lifting 50 pounds of material with three herniated discs, there is not necessarily any reason he would not be able to be a cashier, or a telemarketer, or a security guard – in other words, a job that does not require such strenuous exertion.   To be eligible for disability benefits, a lamed-up construction worker would have to show he is unable to do lighter, or even sedentary jobs.

Mr. DeHaven’s article erroneously stated that “[o]riginally, the idea was that people would be eligible for disability benefits only if they could not work at all, but today the standards for ability to work are much looser.”   No, sir.  In fact, the standards are not looser.

Social Security’s legal definition of “disability” is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.”   “Substantial gainful activity,” essentially means full-time work.

As an attorney, when a potential client calls, it is my job to determine whether or not their claim is meritorious.  When I think it is not, en route to explaining why I will not represent the caller, I explain the legal definition of disability, and why it appears to me that she does not meet that standard, or would not be able to prove she meets that standard.  I have received telephone calls from people who had already spoken with several other attorneys who have declined to represent them, because their claims lack merit, and eventually they conclude that if they are hearing that their claim lacks merit from so many attorneys, maybe it’s not worth pursuing.  And they drop it.

A few glorious times after I explained the legal definition of disability a caller would declare essentially, “that ain’t me!  I ain’t that bad off!”   Much rejoicing as the caller realized he or she still had some residual functionality upon which to draw, and there were other employment possibilities to be pursued.  Thankfully they had other options because the disabled life is not … optimum.

Furthermore, private attorneys spend innumerable hours explaining program rules to their clients, thereby reducing the need for Social Security workers to provide those same never-ending explanations.

One of the services clients are paying their attorneys for is explaining the complicated statute, regulations and program rules to them in a way they can understand.  I could not begin to add up the number of hours I have spent explaining and re-explaining these rules to my clients.   To ensure understanding, and to effectively communicate, I developed easy-to-understand handouts, draw on a white board, wave my hands wildly in the air – interpretive dance – whatever it takes.   Private attorneys servicing their clients in this way eliminate the need for Social Security workers also to explain and re-explain to these claimants, thereby reducing the Social Security Administration’s work load.

Furthermore, attorneys who request, and are eligible for, direct fee payment are required to electronically file reconsideration and hearing appeals along with the lengthy, required “Disability Report.”  This requirement lightens the workload for Social Security workers, at least towards those claimants who are represented by attorneys.

Additionally, private attorneys are required to “develop” their files by submitting all relevant medical and other records for their clients whose cases are at the hearings level.  This means that the attorney gathers up-to-date information from clients, requests the records from each medical provider, educational facility, and employer – removing all of those duties from Social Security.

Furthermore, the attorneys also pay for the records – unburdening the Social Security Administration from those expenses completely.

Private attorneys provide an invaluable service to the Administrative Law Judge corp by preparing clients for hearings.  To do this, the attorney must explain the legal issues to their clients, and help them understand what is and is not relevant, so that the testimony in a formal hearing is directed at what the judge needs to know.   This saves an enormous amount of judge-time, and cuts down on the frustration of claimants meandering about not understanding what information is and is not relevant.

Mr. DeHaven declares that “… the vast majority of applicants who appeal a denial of benefits to an administrative law judge have legal representation,” but without support merely assumes that is a negative.   Au contraire, Mr. DeHaven!  Taxpayers should hope that most, if not all, claimants are represented by attorneys for the efficiency that provides to the Social Security Administration and to the taxpaying public.

If no claimants were represented by private attorneys, the Social Security Administration would reel under the loss of this privatized workforce that carries much of the burden of processing claims, and does not cost Social Security a penny.

Book ’em, Danno

bigstock-Distress-And-Suffering-44182258The big, big, big Social Security news this past week was of a massive alleged fraud scheme in Puerto Rico.  68 people arrested already,  with more to come.   A former Social Security worker as the ring leader, with doctors and fake claimants apparently also on the take.

White collar crime to beat the band.

Though the reporting is somewhat murky, it appears that Social Security’s Office of Inspector General, and the FBI have been investigating this ring since 2009 – comprehending the scope of the alleged scheme, and gathering evidence towards a well-muscled prosecution.   Book ’em, Danno!

In response, Representative Sam Johnson, Texas Republican and Chairman of the Social Security Subcommittee of House Ways and Means said, “I was outraged to learn of the unprecedented and widespread disability fraud arrests in Puerto Rico.  That such fraud could occur in the first place raises serious and troubling questions regarding Social Security’s management of the disability program.  Clearly this isn’t a case of just a few bad apples.”

Wait … what?   This is Social Security’s mismanagement?   I get the bad apples part, but Social Security’s mismanagement?

In 2011, an 11-year-old victim who suffered repeated sexual assaults, was accused by criminal defense attorney Steve Taylor, of being a seductress luring men to their doom.  “Like the spider and the fly.  Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?’ ” he asked a witness.

Social Security, you seductive little spider waving benefits before white-collar criminals … luring them to their doom.

bigstock-Missing-the-target-7478874Sam Johnson’s statement “that such fraud could occur in the first place raises serious and troubling questions regarding Social Security’s management of the disability program” takes aim at the wrong target:  Social Security.  And, it fails to appreciate that it was Social Security’s Office of Inspector General that ferreted out the alleged scheme. 

bigstock-Business-Woman-Shouting-Throug-29664110Hello!  I’m talkin’ to you, Chairman of the Social Security Committee:  It  was Social Security’s Office of Inspector General that ferreted out the alleged scheme.

But …well looky here … It’s worth doing your own fact-checking.  Although the Associated Press articles I read did not give Sam Johnson’s full statement, it is available on the House Ways and Means page on the interwebz.   In it, he goes on to say, “The bottom line is that this fraud hurts those who are truly deserving of these vital benefits and undermines the public’s trust.  I commend the U.S. Attorney, the Federal Bureau of Investigation, the Social Security Administration Office of the Inspector General, and the Puerto Rico Police Department for bringing this fraud to light.”

Oh, that’s cool.  Never mind.  I really couldn’t agree more with that part of Rep. Johnson’s statement.  It’s importbigstock-Vector-oops-sign-34359290ant to read the whole statement … and not trust that the press won’t print only the part that suggests conflict where it doesn’t necessarily exist.

The Social Security Subcommittee will hold hearings in September 2013, “as part of its effort to get to the bottom of how this fraud occurred,” Rep. Johnson said.   I do so hope that in those hearings Social Security is given ample credit for the fact that according to U.S. Attorney Rosa Emilia Rodriguez, “there has never been a case like this in the history of the Social Security Administration.”   But that when there was, it was found out by the Social Security Administration itself.

Moreover, I do so hope that Social Security does not, in response to this alleged scheme, issue rules that tighten eligibility standards for “those who are truly deserving of these benefits” – as Rep. Johnson refers to them.

Indeed, this event should be taken as testament to Social Security’s apt management of the disability programs … even as they are busy seductively wooing flies to their parlor.

I’d like to thank the Academy …

bigstock-WEST-HOLLYWOOD-CA--FEB---O-30681218By a show of hands, who is creeped out when recipients of awards say they’re humbled to be lauded so?

Yeah, me too!

I always envision the Best Supporting Actress’ personal assistant sitting at home, cross-legged on the couch, head in hands, muttering, “oh my God … I’d like to sue the Academy … she was insufferable before, but now she’s won!”  And then, attempting to rally, “well, really … how much worse could she get?”

Oh honey, you’re going to be color-sorting M&M’s to her whims for quite some time … so humbled is she.

Okay, so clearly you do not know what “humbled” means – maybe English is your second Colorful bonbonslanguage, I don’t know … because winning an Oscar, or a Grammy, or being referred to as a national treasure … those kinds of things – yeah, those are all the exact opposite of being humbled.

If you want to know what it means to be “humbled,” try shopping at a food pantry with your sullen fifteen year old daughter.  That’s humbled.   Or … standing onstage at the Oprah Show after having lost 400 lbs showing a plastic surgeon – and all of America – enough yardage of your loose skin to make a pup tent – yeah, that’ s humbled.   Colonoscopies … are you getting it now?

Preparing clients for their hearings is one of my least favorite things to do.  Because when you prepare a person for hearing, you have to get them to stop exaggerating about their functionality.  You have to get them to start fessing up to their truly humbled state – not some bogus, ‘I’d like to thank the Academy, look at meeee … I’m so humble’ state.

The myth is that claimants lie by saying they can’t do things they can, but the reality is that they say they can do things they can’t … or they are things they aren’t.   They hang on to a positive sense of self.  And they defend it.

LOS ANGELES - MAY 8: Paula Abdul & Simon Cowell, two of the talIt is a bit like watching the first round of American Idol where people who really can’t sing, think they can.  And I have to be Simon Cowell.  But … … and I will deny ever having said this … I aspire to being … Paula Abdul. 

That’s a really hard sentence to write!

But, yes, I aspire to being encouraging, gushy, ever so slightly over-medicated, “I’m your biggest fan!!!” Paula Abdul.

So, here’s a typical example of me in a hearing prep:  “How long can you stand?”

“Oh, probably about an hour.”

“Okay, so if you and I went grocery shopping on the day before Thanksgiving, and the store was super crowded, there was a big, hour-long line for us to stand in together, you’d be able to do that?”

No way!  I’d have to find a bench at the front of the store.  Or go to the car … or just leave.  I’ve left stores Young woman in supermarket queue is missing money for paymentmany times, or I don’t even go in, if I can tell it’s crowded from the parking lot.  I need to get in and out as fast as possible because I can’t walk that long … or stand.”

“Okay, so how long do you think you can stand realistically.”

“Probably about 10 minutes.  My sciatica is the worst problem … and my left knee.  Yeah, probably about 10 minutes, then I’d need to sit.”

“Okay.  Got it.”

After a few hours of getting a person to look realistically at capacities, to quesion them on specifics, they begin to give voice to their incapacity.  

It is extremely difficult for most people to confront their shortcomings, and to give voice to them.  It is devastating for people.  Truly.  

Unhappy Woman Hiding Her Face With Hand On ItAnd, for the record, I tell my clients, “look, if you really can do that, you must say you can.  You must be honest.   But, I don’t want you to say you can do things you can’t.  Again, you have to be honest.”

I was asking vulnerable, humbled people to reveal embarrassing facts about their lack of functionality.  I was asking them to tell me how their bodies were inadequate, or their minds … or both.  I was asking them to reveal honestly how they can’t function … and why they need disability benefits.  

It was shockingly more difficult than I ever would have imagined.

For a person to reveal those things, it requires trust.  Or desperation.  I hoped for trust, but would settle for desperation.

I tried various things to help establish trust.  What I discovered worked best was to show clients copies of my own medical records.  I requested all of my own medical records, put them in a binder, and highlighted in bright yellow anything a normal person would find embarrassing.  

“See?  I ain’t perfect either.  We all live in bodies.”

But my medical records were relatively less dramatic, and a lot less humbling than my clients’ Healthcarerecords.  I pretty much have a clean bill of health all the way around.

At least it made the point that we were equals, that I was willing to be self-revelatory in ways I was asking them to be.

Wouldn’t it be cool if hearings started out with each person in attendance revealing at least one embarrassing fact about themselves – just to break the ice?

“Counsel, would you like to make an opening statement?”

“Yes, your Honor, before we get on to my client’s weaknesses of character and constitution, I would like you all to know that I have been told I snore, and I am a sole practitioner because my personality – again, I’ve been Relaxed business woman portraittold – is unbearably grating on other human beings.”

Helping clients prepare for what they are likely to encounter in a hearing depends upon which judge is assigned to the case.  

Administrative Law Judges are just like people – complex and varied.   Most are respectful, know the law, and do their jobs well.  A few judges behave so abominably in the courtroom one can charitably conclude they are sadists.  The best Administrative Law Judges remain admirably engaged despite witnessing a seemingly endless parade of human frailty.  

I remember with fondness a judge, now retired whose sense of humanity never failed.  We were in a hearing once in which a claimant was speaking to her physical impairments, explaining she could no longer lift, and stand, no longer walk, and cook, no longer Basting Brush And Bowl Of Barbecue Saucehost barbecues at her house, to which the neighborhood children would come.  She had no children herself, but loved kids, and … it was a loss.  

Just as she began to lose her composure and started to cry … the judge masterfully switched her up, asking, “did you make your own barbecue sauce?  I try to make my own, but it never turns out right.” 

“Oh yes,” she said.  

And the two shared recipes for a few minutes before moving on to other relevancies.  

Relevancies like all the ways in which her inadequacies required her to be in his courtroom asking for help.  

Fashion Elegant Woman Posing With Sexy Red Lips Holding Cinema CNot only was she unable to have the neighborhood children over as she used to, but she was unable to do the job she used to do … and loved doing.  

Movie stars – saturated in praise, and recognition – pretentiously affect humility. 

For people who are, in fact, humbled, it is quite difficult to yield the admission.

Breaking up is haaaard toooo do …

bigstock-A-chalk-outline-of-a-body-symb-22775177…  down doobie doo down down, caba caba, down doobie doo down down … breaking up is haaaard toooo do ….

I once had a romantic relationship that ended so elegantly  … we looked at each other for a long moment in a conversation where we were not connecting … and simultaneously knew … it was over.   No fight.   No sarcasm.  No venom.   No words at all … until, “do you want to … get your things?”

I relish that memory.   My favorite from a relationship that wasn’t all bad.

What in the world does that have to do with advocating for disabled Social Security claimants?   So … I’ve gotten dumped a fair number of times – by clients.  I consider myself particularly competent to pass critical judgment on the art form of the attorney-client break up.  I don’t mean to brag, but I’m a pretty good dumpee.

Common knowledge has it that people trying to get Social Security disability benefits think of those programs as a golden ticket they’d hang onto through a hurricane.   But when you sit across the table from disabled people and properly listen, wade through the bravado and posturing, you learn that the common knowledge … is … well, it’s common, I’ll give it that half.   The fact is, Social Security disability benefits are more of a hot potato a claimant’d toss off in a nano second if they didn’t absolutely have to hold onto it for their sheer basic sustenance.

In an earlier post, Yippee!  The gu’ment’s givin’ away free cheese!, I wrote “If I had a nickel for every time a client sobbed, ‘I’d give anything just to be able to work!’  … I’d have a boat somewhere sinking from the weight of all those nickels.”  Not being able to work leaves a human reeling.

Us working stiffs have a half-time job complaining about our full-time job.  We complain about our co-workers and our bosses and our darned parking spot.  We look forward to time off, and vacations, and probably even fantasize about retirement.  With all that complaining, it is easy to assume that not working is the deal.  The grass is glowinky green on that side of the fence.  It is easy to fail to appreciate how much it means actually to be able to work, to hold your head high, and even to complain about it.  But, wait until that last day of your working life … when you’re too sick to work, or too tired, or just too old.  You might find that the glowinky was toxic.

My friend Lisa told me that when her 27-year-old mare, Sadye was literally put out to pasture because of arthritis and sciatica, the mare was cool with it for a few weeks, but then demanded, by pawing at the ground and whinnying incessantly at the gate, to be let out to do her job of giving riding lessons to Lisa’s students.  Lisa got the message, and let Sadye work a reduced load just to keep her from going nuts in the pasture.  bigstock-Horse-portrait-outside-in-fiel-46805071

In reality, there is little else that takes a toll on a person than not being able to work.  And I encourage my clients to try to work if at all possible.  In fact, I don’t personally know any attorneys who don’t encourage their clients to work.  I know – crazy.  It’s like we court being dumped.

I am told by clients that the effects of chronic boredom and of a lack of daily structure causes depression to affix itself like a relentless, soul-sucking leech.  The loss of the ability to provide for yourself, and to contribute to your family, is almost unbearable.

Once we get past the bluster, my clients describe themselves as valueless, as ashamed, of being always in a one-down position to virtually everyone.  It’s beyond difficult … and causes most claimants to want to isolate themselves from nearly all other people.  It eats away at a person.

So … when my client called to tell me his new medications were helping immensely, that he had been working successfully, full-time, for many months, he couldn’t have been more thrilled.  And I was thrilled for him.   He cheerfully asserted, “I want to dump this case and … I want to dump you!”

Awesome.  I love a good break up.

If it may please the court, I’d like to whisper sweet nothings in your ear ….

bigstock-texture-of-the-old-paper-16914953The sweet nothings of medical records.  Ahhh … proving disability by the use of medical records … I can feel my blood pressure rising as I write.

“Oh, it’s all in my medical records – it’s all there,” clients say.

This despite the fact that I have heard literally hundreds of the most graphic stories from clients telling me about their pain, anxiety, depression, suicidal and homicidal thoughts, suicide attempts – you name it – I would listen, and I would ask, “did you go to an emergency room?”   “Did you tell your doctor?”   The answers were almost always some version of, “no.  I just wanted you to know.”

No chance these stories were documented in a medical record.

To make the point that I have to prove in court the existence of symptomatology and the functional deficits therefrom, I would say something like, “well, if you didn’t go to an emergency room, it didn’t happen.  When you only have your sister come over to take care of you … unless she keeps medical recordsit never happened.”

Sometimes that gets through.

My clients almost always have a barrier to telling doctors about their problems.

This flies in the face of the commonly held belief that people who apply for disability benefits A business man bragging about the size of somethingexaggerate their symptoms, I know.  Certainly a fraction of people are exaggerators, but I find it much more common that claimants of disability benefits overestimate their capacities and under report their problems.

It’s true of me.   I overestimate my capacities and under report my problems.  Everybody I know is guilty of that to one extent or another.  It is part of human nature.  Even disabled people’s nature.  Even disabled people who are trying to prove they’re disabled.

It’s a subtle irony, I know.

Speak The Truth Even If Your Voice ShakesA friend of mine was telling me about her mother who is elderly and frail.  She refuses to use her walker though it has been prescribed by a doctor.  She has already fallen and broken her arm – twice – but gosh darn it, she is not going to admit she’s old, and frail, and … disabled.

Once I asked a client if he had any difficulty with stairs.  He said, “no.”  But his wife, sitting there incredulous, emphatically called him out saying, “you go up and down the steps on your butt!”  He said, “yeah, but … but I don’t have any difficulty with it.”

It’s all there.  It’s all in the medical records.

In conversations about the barriers patients have to telling doctors their problems, a friend who Young Doctor Checking Her Check Listis a professor at a medical school pulls the blame towards himself, to medical educators, and to the doctors themselves.   He assures me that a good deal of work goes into the design and implementation of curricula to help medical students overcome communication barriers, to listen better, etc.  He explains that many of his students are whip-smart, but lack the warmth and social skills that would allow them to develop sufficient rapport quickly so that patients are able to open up more readily.

Still, clients say, “it’s all in my medical records – it’s all right there.”

Stressed Out NurseShould I tell Mr. Smith his doctor’s handwriting looks like rudimentary ink marks made by the cephalopod limb of a squid – completely indecipherable?  Should I tell Mr. Smith he’s referred to as she at least a dozen times in his medical records?  Should I tell him that while the record documents the reason for his visit was “pain,” nonetheless the default “click-box” on the new-fangled electronic records was inadvertently left unaltered, so the record quibbles with itself by saying his pain level is “zero”?

Oh how I want just to cut to the chase and testify my own darn self!   By the time a hearing has come ’round, I’ve been privy to a whole lot of my client’s “functional limitations” – little of which got documented in medical records.   Trust me.

In fairness to the medical community, they’re keeping their records for their own purposes – not for the myriad of purposes their records might be used for by insurance companies, or by any variety of courts and tribunals.

Like in Torts class when everybody else was taking useful notes about the “reasonable bigstock-Punk-girl-smoking-a-cigarette-20688311person,” I spent the whole period doodling a picture of a punk rocker with a safety pin through her cheek … wondering ‘if she was the “reasonable person,” then would it be negligence?’  How was I to know my friend would miss that day and need to borrow my notes?

Despite the common fallacy that judges and attorneys are all in cahoots, you can’t just schmooze it up with the judge, and just tell him or her the facts.  Even when you’re super honest and trustworthy.  That is not how it works.   An attorney cannot just tell what is going on.  The attorney has to – through “documentary evidence,” i.e., words written down on paper – usually written by doctors and nurses and therapists – prove the existence, persistence, severity, and duration of symptomology that would prevent the bearer of those symptoms to be unable to hold down even the simplest of jobs.

I came to think of the process as an elaborate game of “Telephone.”   Do you know what I mean by that?   You remember the “Telephone Game,” right?  Just in case you don’t …

So, okay, you get a bunch of kids all in a line.  And the first whispers a random sentence into the ear of the next kid, and the second kid whispers it to the third, and the fourth and fifth and so on ear to ear to bigstock-Illustration-of-Little-Male-an-46531597ear until the kid at the end reveals the convoluted, radically-altered statement he understood, saying, “Mr. Horse farts toads in the cauliflower punch?”  What?!?  Peels of laughter!!!!  Hilarity ensues.

I used to love that game.   Until I realized I was playing the most dismaying version of it every darn day as an attorney advocating for disabled clients.

So, here’s the disability version of the Telephone Game:

Okay, so the first kid is always the kid with the disability.  Now, he’s supposed to square up, face his demons and fess up and whisper in the ear of the second kid all of his symptoms and foibles and failings.  Got it?  Now, hopefully that second kid is a doctor, or nurse, or therapist, or someone who’s actually going to write it down.  But, the second kid is usually the first kid’s friend, or his sister, or his lawyer.  If it’s his friend or his sister, the message goes nowhere, but if it’s his lawyer, the lawyer, says, “now, maybe you should tell that to your doctor.”  And the first kid says, “no, ’cause she’ll put me through a bunch more tests, or change my medications, or maybe even put me in the hospital.”  And the lawyer says, “we’ll I don’t know how else we’re going to prove you’re disabled if you won’t tell your doctors what’s really going on.”   So, then the disabled kid, exhausted from living with no money, and feeling awful all the time, and losing job after job to symptoms, and sorta-kinda trusting what his lawyer says, decides to give it a whirl and the whole group shoves the doctor kid next in line, and the disabled kid tells the doctor kid what’s really going on to the best of his ability, which might not be very fully descriptive, but it’s all we got.  Okay.  So.  Now the very busy doctor kid writes some version of the information down in a medical record, and sends it on to the medical records kid who won’t whisper the message on to the next kid – citing HIPPA – so the lawyer kid faxes the HIPAA-compliant releases, and pays the medical records kid for the records, and finally the medical records kid sends some weirdly edited version with some of the dates missing, that no one can figure out why.  But everybody’s relieved that the message has moved on.  So the lawyer kid gets the records, and sends them to the Office of Disability Adjudication and Review, where the judge kid is  … and then we all hold our breath waiting to find out … … … what’s in the cauliflower punch?

Tabasco, my dog – pictured here

e006 (11)Arriving home from work everyday, I was greeted by my beloved dog Tabasco.  All dogs have amazing greetings, but Tabasco’s greeting was unlike any dog’s I’d ever experienced.  I opened the door, sat down immediately on the step at his level, and he pressed his body as hard against me as he could … and cried and cried and cried … for at least two minutes.  He would just bawl.   After a day of being a shoulder to cry on for my disabled clients … it seemed appropriate.   I just kinda laughed at him and hugged him and told him, “everything’s okay … I’m home … I’ll always take care of you.  I’ll always take care of you.  C’mon, you probably gotta pee ….”

Tabasco repeated this for every family member as each came home at the end of the day.    Tabasco even greeted our next-door neighbor Ann this way when she arrived home at the end of her day.

It was his way.   He did it all the years we had him.   He was just so relieved to have everybody in his world accounted for.

So … that was all in the past tense – you know what’s coming.  I’m sorry to have to do this … but … they have such brutally short lives.

Tabasco was a dog who was frequently at the vet.   He had skin allergies that were wildly symptomatic in the spring and fall especially.   When he developed a cough I discussed it with his vet, but the vet didn’t make much of it.    Then, one day, Tabasco coughed and spit up a little clot of blood or tissue, or something – I wasn’t sure.  I brought him to the vet immediately with the – something – in a zip-top bag.  The vet x-rayed his chest, and found an enormous lung tumor.  We had a specialist biopsy the tumor, and though the tests were inconclusive, they were pretty sure it was cancer, and even if it wasn’t cancer, it was the largest lung tumor the vet or the specialist had ever seen in a dog.

… … “I’ll always take care of you.  I’ll always take care of you….”

We consulted a veterinary oncologist, considered a lobectomy, chemotherapy – the works.  Our family ultimately concluded it was best not to put Tabasco through a lot of scary and painful medical procedures – his prognosis wasn’t good.  Also, having those procedures would have required him to be separated from his family for several weeks – that alone would have killed him.  Not the best use of the short amount of time he had left.

… … “I’ll always take care of you, buddy.  I’ll always take care of you….”

That care involved taking Tabasco with me to work everyday, feeding him steak and ice cream, and whatever the heck else he wanted to eat, and lying on the floor rubbing his belly … and bawling.  This time, just me.  Tabasco was suddenly stoic.

We talked to the vet about how we would know whether Tabasco was suffering, and how much he might be suffering so that we could help him out of this world humanely.

The vet said, “… so, that’s hard to say.  He’s not going to let you know he’s in pain if he can at all help it.  That’s not in an animal’s nature.  When an animal is vulnerable, it does everything it can to hide its’ vulnerability.  It’s part of how an animal protects itself when it knows it’s too sick or injured to defend itself anymore.”

Yes, of course.  I knew that about animals.  Everybody knows that about animals.

Everybody knows that about animals.  Everybody knows that about animals ….    Hey, wait a minute … humans are animals.    We are mammals.   Oh my gosh, is that what I’ve been witnessing in my clients for these fourteen years?   Maybe that’s one of the reasons they won’t tell their doctors what the heck is really going on with them.  Eureka!

It’s not just that it’s embarrassing to speak these things about themselves.  It’s not just that bigstock-Perplexed-Gorilla-With-Laptop--190368they’re fearful of being hospitalized as they often told me.  It’s not just that they feel insufficient rapport with their busy doctors to reveal the intimate details … … it’s that not telling is part of an ingrained vestigial animal-response to perceiving one’s vulnerability and resisting broadcasting it to the world.  Maybe?

Huh.  Well, I’ll be a monkey’s uncle.

Once upon a time …

bigstock-Text-Once Upon A TimeOnce upon a time a very bad and lazy man applied for Social Security benefits, and even though he had only very minor health issues, in short order, he received his disability checks, and lived happily ever after.  The end.

We read this story in the press every day.  It’s a well-known narrative – simple and complete – accepted as common knowledge.   But, it is completely false.

Anyone who has gone through the Social Security disability process knows that it is false.  Full length portrait of an embarrassed naked man in underwear, iAnyone who has ever been in a courtroom with their medical records splayed out before a judge confessing under oath their “functional deficits” with a vocational expert in the courtroom testifying to what jobs this person could do, and a medical expert hired to testify how the person does or doesn’t “meet a Listing”  … knows that it is patently false.

Proving your disability is no fairy tale.

Yes, there are people who commit fraud – just like there are folks who shoplift in the grocery store.  But the fact that there are those who shoplift groceries doesn’t mean that honest shoppers can’t complain about the high price of breakfast cereal.

When disabled people who are really and truly suffering, go through the many, lengthy, time-consuming, and humiliating steps they must go through to acquire Social Security disability benefits tell their stories – they are not heard.  They are prejudged as frauds, folks turn away saying in essence, “the price of breakfast cereal doesn’t matter, you’re probably just a shoplifter anyway!”

One barrier to the press being able to tell an accurate story about really and truly disabled Closeup portrait of troubled man looking at camera, worried.people is that really and truly disabled people are loath to tell what is really and truly wrong with them.  It is embarrassing.

Another barrier to the press telling the story of really and truly disabled people and what they go through to receive disability benefits, is that it’s not fun to write about and it’s not fun to read about.

Writing the stories of disabled people who are in the process of applying for Social Security disability requires the press to research the statute, the regulations, read court decisions, medical records, digest statistics.  It’s complicated, and …  bo-ring!

Reading about really and truly disabled people and what they go through to receive disability benefits requires considering people in pain, people in and out of hospitals, people battling health insurance companies, people enduring the waiting rooms of clinics trying to get medical care when uninsured, people losing homes to foreclosure, people sending their children to live with relatives while they descend into poverty ….  Depressing.  Blech.  Who wants to read about that?

But … who doesn’t love a good fraud story???  Those are simple, straightforward, and better yet – salacious!

Writing about fraud is fun!  Reading about fraud is fun!

Even I love those stories about folks who bury deceased relatives in the backyard just to keep receiving their Social Security checks.  Part of the fun is they’re so … Jerry Springer!   Imagine … carrying the body of a loved-one to the backyard, digging and digging and digging – maybe even in the cover of darkness.   Can you do that by hand?  Do you have to rent a back hoe?   Think of the logistics.  Think of actually tossing that body in.  Gah!   It’s ludicrous … and so uncommon as to be statistically irrelevant – but that’s what reporters write about.  That’s what people read about.  And the public is up in arms!  Dammit!   I’m up in arms!

That’s why I use titles like “Good morning you loser piece of dung, good-for-nothing, fraudulent drain on society … how can I help you?”   I’m just trying to compete.

In the “once upon a time” story of the bad and lazy man who applied for Social Security benefits … he received his benefits “in short order” and that is a key piece to the erroneous story.  It is important that the reader/listener of a story believe it is a snap to apply for and receive disability benefits.  Spit spot, you apply, you get it, you’re on vacation for life!

PrintThe time it takes to resolve a disability case is not measured in months – it is measured in years.  Years and years and years.  And not just years and years and years, but hard years and years and years.  Hard because you have no income, or precious little of it.  As I have written before, I have never figured out how people actually manage to live with no money.

One client I had was a woman in her fifties who, while her case was pending had become homeless.  Homeless, like so many people who have applied for disability and are hoping and praying and waiting.  She came to my office to prepare for her hearing before an Administrative Law Judge.  It was summer, she was wearing shorts.  I noticed she had quite a number of bruises … especially on her inner thighs.  I asked her about them, and she evaded with, “oh that,” but didn’t answer my question.  She attempted to move the conversation away, but I pressed her with more questions, “no really, what happened to you?”  She dismissively waved her hand, and said, “Look … I was raped by a few guys a couple nights ago.”

What???  I was so horrified I could barely speak.  A few guys?  How utterly revolting.  I didn’t know bigstock-Woman-Depressed--Black-and-wh-27250094what to say.

It was clear she did not want to talk about this.  I could tell by the way she was steering me from conversation about this gang rape that there was no way she had reported it to the police.  Her demeanor revealed that she didn’t even take it in as a violation worthy of reporting.   Her use of the word “few” was such an incongruous diminution of the experience.   Nonetheless I sputtered around and asked if she had reported it, or if she had gotten herself to a hospital or … anything.  She said, “oh honey … that’s my rent.  It happens a few times a month.  It’s my rent, that’s all.”  As if she were trying to console me.

So I guess that is how people manage to live with no money.  For years and years and years.

It is difficult for me to give the national average for the length of time it takes for a worthy claimant to go through the disability appeals process – there is a good deal of variability.

Among my clients, they would typically apply, and receive a denial within about three to six months.  A claimant has sixty days to file an appeal.  The next level of appeal in most states is to “Reconsideration.”

I practice in Missouri, a state that does not have the reconsideration level of appeal, so I’m a bit fuzzy on how long reconsideration takes in the states that do have it.  But, in Illinois, where a few of my clients live, they do have reconsideration, and the claims were processed within about another six months give or take.  Assuming a denial (and all of my clients were denied at the reconsideration phase), the next appeal is to the “Office of Disability Adjudication and Review,” where the Administrative Law Judges mostly are.

The wait for a hearing date to be scheduled at the Office of Disability Adjudication and Review is in the range of a year and a half to two years, at least in my neck of the woods.

Then, once you have the hearing – and let’s (for the sake of brevity) assume you do not have to have one or two “supplemental” hearings … you will have to wait another two months or so for the written decision to be generated.

So … if you were to have received a favorable decision by the time you had gone before an Administrative Law Judge you would already have lived without income for … somewhere around three and a half years.  That’s a fairly optimistic time line, though.

And, there are two more layers of appeal past the Office of Adjudication and Review – to the “Appeals Council” and to federal court.

Be aware that sometimes the appeals process is not a linear track.  For example, you can be denied by an Administrative Law Judge, appeal to the Appeals Council (where your case will be for about two years pending a decision), and have it sent back to the same Administrative Law Judge who denied you before, where you will wait in the queue again at the Office of Disability Adjudication and Review to get a new court date.  Then, you will have the hearing with the same judge who denied you before, and wait the two-ish months for your decision, find out you lost again, and then appeal again to the Appeals Council … wait some more … and maybe have the case sent back to an Administrative Law Judge again.  I have heard tell of cases sent back as many as three times from the Appeals Council back to the judge to do it again.

If the Appeals Council does not send the case back, but instead denies it, you can appeal to federal court … where you will wait and wait and wait some more.

During that time … how do you pay the rent?

To follow-up on the homeless client who paid her rent by being raped … she had such a hard time proving her disability.  Though she was so ill, she had such a difficult time under her circumstances making it to her doctors’ appointments.  She routinely missed them.  And when she did go, her personality was such that she would not divulge much about her symptoms, she did not go to her docs with a tidy list of her complaints and concerns as I might do.  Her doctors didn’t have the time to pull information from her.  So, medical documentation of her impairments was … weak.

Because she would not report her many, many gang rapes to the police or to her doctors … there was no way to get this information into evidence before the Administrative Law Judge, except by asking her in a hearing … and there was no point to that.

But, legally, the rapes were quite besides the point.  Being a victim of crime doesn’t make you disabled.  Having a seriously hard-luck story does not make you disabled.  But, at any rate, the judge never even knew.  And I wished he had, at least so he could hurry up his decision – whichever way it was going to go – because the quicker we could get this lady a safe place to stay, the better.  Unfortunately, this particular judge is a plodding sort who takes his time making sure all the t’s are crossed and all the i’s are dotted ….bigstock-Movie-ending-screen--Vector-E-38593006

So for her anyway the fairy tale might go something like … once upon a time there was such a good and worthy woman with very major health issues, who waited and waited and waited for her disability, but it never came … and she died on the street.    The end.