Monthly Archives: September 2013

Meh

bigstock-Group-of-multiethnic-people-wa-48743327For the past week or so, the Google news-clipping service has delivered articles on Social Security disability to my inbox faster than I can read them.   There is U.S. disability rolls swell in a rough economy from the Washington Post;  Social Security Disability Insurance needs major reform from the Washington Post Opinions page; As jobs disappear, disability rolls grow from The Washington Times Communities; Disability Income Becoming Lifetime Unemployment Program from The New American … and about fifty more – most of which simply re-package the other articles.

The gist is that numbers of recipients of disability are rising and are unsustainable, Social Security’s disability programs have become a defacto unemployment program because of difficult economic realities, and the disability determination process is too subjective.   Admittedly I am giving these articles short shrift – they are worth reading – but I’m not at recapping them here.

Usually articles such as Dorothy-In-the-Poppy-Field-the-wizard-of-oz-4640408-1024-768[1]these full of think tanky talking points, and blinkered analytical methodology have me mumbling invectives, but this go ’round, I can barely  … … stay awake.    Zzzz zzzz zzzz ….

I am struck by policy conversations that assume disagreeable realities can be negotiated away merely because they are disagreeable, and they are called out as such.

To illustrate:  there are events and tasks and duties in my life that I do not like, and very much want to … negotiate away.

bigstock-Nervous-patient-about-to-be-ex-29642117bigstock-Dirty-dishes-41021827bigstock-Sexy-girl-cleaning-toilet-sim-15330869

 

 

 

 

 

But I cannot.

I will change diapers, scoop poop, clean toilets, clip toenails, floss teeth, go to the groin-ocologist, fold laundry, cook dinner, wash dishes, empty trash, get checked for glaucoma, age, lose my mental and physical capacities, get sick, burden loved-ones, and die.   I mostly cannot negotiate this stuff away, though I have tried.

When I read the articles about Social Security’s disability programs, it seems they’re trying to negotiate away what is not negotiable.

To my ear the articles seem to say they do not like the huge swell of baby boomers who are aging, bigstock-Dramatic-close-up-portrait-of--49964171becoming sick and injured, and now, after decades of paying taxes, require the assistance of Social Security’s disability programs.    Okay.   Me either … I guess.

Take note:   We did not so much mind that huge swell of baby boomers as they cranked up the heat in every aspect of the economy on their way from their bouncing babyhoods until now.   When they were filling up the schools, and universities, when the bell-bottoms were flying off the shelves, and they were starting families and buying homes – we loved ’em.   When the boomers were young and productive and consuming, they were all the rage.   But, now that they’re old and in the way, they’ve aged into unpleasant, needful takers.   Non-negotiable aged, unpleasant, needful takers.

The United States Census Bureau defines the demographic birth boom as occurring from 1946 to 1964, almost two decades.  Those born in 1946 are turning 67 in 2013.   We are in the relative front end of this population wave.   Olly olly oxen freeee … ready or not, here they come!

The articles also are very much opposed to the idea that Social Security’s disability programs might be functioning as long-term unemployment programs.   They do not like that the bad economy has made jobs scarce and so workers with weaknesses are unable to compete in this highly competitive job market – and they are passed over.   Okay.   I don’t like that either, but not liking it does not make it go away.

As an attorney, I sit across the table and look into the faces of people for whom this is reality.   These people are not negotiable.  Their illnesses are not negotiable.   Their financial plight is not negotiable.   The Administrative Law Judges who adjudicate their claims also sit across the table and look into the faces of people for whom this is reality.   The judges diligently read medical records, and do their best to determine whether these living, breathing human beings meet the rules for disability.   We stare this situation down.   It is not an abstraction to us.   It is reality.   We do our best to assist individuals, and families, and society through these hard realities.   We do not like it either, but we – the attorneys and the judges and Social Security itself – have not caused this situation.   We are doing our best to manage it.

It reminds me of Colonel Jessup’s speech from the famous “you can’t handle the truth” scene in the 1992 film, A Few Good Men:

Jessup: You can’t handle the truth! Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who’s gonna do it? You? You, Lieutenant Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know, that Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives! You don’t want the truth, because deep down in places you don’t talk about at parties, you want me on that wall. You need me on that wall. We use words like “honor”, “code”, “loyalty”. We use these words as the backbone of a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom that I provide, and then questions the manner in which I provide it! I would rather you just said “thank you”, and went on your way. Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don’t give a damn what you think you are entitled to!

Kaffee: Did you order the Code Red?

Jessup: I did the job that—

Kaffee: Did you order the Code Red?!!

Jessup: YOU’RE GODDAMN RIGHT I DID!![2]

images[3]Well, think tank article writers, you can’t handle the truth!  We live in a world that has sick people, and disabled people, and workplaces too busy to provide make-work projects for them.   The American workforce is the most productive workforce in the entire world, and sick and disabled people cannot survive there.   Our sick and disabled and aging people need to be provided for so they’re not littering our streets, so they’re not overburdening families to the financial breaking point.   Who’s going to take care of those people?   You?   Social Security has a greater responsibility than you can possibly fathom.  You bellyache about Social Security disability.   You whine that the adjudication of claims is subjective and complicated.  You have that luxury.  You have the luxury of not knowing what I know, what every Social Security worker and judge knows – what every hospital social worker knows.  And our existence, the attorneys and the Social Security Administration itself, while grotesque and incomprehensible to you, saves lives!   You don’t want the truth, because deep down in places you don’t talk about at parties, you want us adjudicating these claims.  You need us adjudicating these claims, dealing with the mentally and physically ill, and the aging people in our society.  We use words like “zealous advocacy” and “due process.”   We use these words as the backbone of a life spent defending something.  You use them as a punchline.  I have neither the time nor the inclination to explain myself to one who rises and sleeps on the safety net the Social Security Administration provides, and then questions the manner in which it provides it!  I would rather you just said, “thank you,” and went on your way.  Otherwise, I suggest you pick up a disabled, homeless, mentallly ill person, and take him into your home – for the duration.

Do I represent disabled people in their claims for disability?

YOU’RE GAHDAMN RIGHT I DO!!

 

Dear Uncle Ervin,

bigstock-Brass-Town-Hall-Sign-On-A-Door-1960540 An article at townhall.com, by Mike “Mish” Shedlock entitled Want to Get on the Disability Gravy Train?  There’s an App For That printed a letter from a reader:

Hi Mish,

I have a niece and nephew in their early thirties.  Both are perfectly healthy.  They have a son bigstock-Happy-Family-24684179with a slight learning disability.  The mom got him on disability and then applied for funds to take care of him and got it.  Her husband, an Afghanistan vet in supply never saw a moment’s action.  He worked at a desk.  When he came home he applied for disability claiming Post Traumatic Stress Syndrome and got on disability.  The wife then applied for money to take care of him.  She got it.  They are also on a long list of other entitlements like welfare.

They bought a new house a little over a year ago and a month ago they both went out and bought two brand new cars!  She actually brags about playing the system.

I have no doubt there are hundreds of thousands or millions doing the same thing.  Needless to say it boils my blood.

Ervin

If I could be so bold, I would like to interject myself into this communication … I would like to say:

Dear Uncle Ervin,  bigstock-Fraud-22749755

Your letter reveals an astonishing array of facts that, if true, indicate you have important personal knowledge of someone committing fraud ongoingly.

While your letter never mentions Social Security disability, but just “disability,” if it is Social Security disability, Social Security’s Office of Inspector General would like to hear from you.   The hyperlink I have provided, takes you to the relevant page on how you can report the alleged, ongoing fraudulent activity.

Social Security’s Office of Inspector General makes reporting such potentially fraudulent actions easy, safe, and secure.   You can reach them online, by telephone, mail, or by fax.   For your convenience I have provided the relevant numbers:

U.S. Mail:  
Social Security Fraud Hotline
PO Box 17785
Baltimore, Maryland  21235

Telephone:
(800) 269-0271 – 10:00 a.m. – 4:00 p.m. Eastern Standard Time
*If you do not reach an attendant, please call (800) 772-1213, which is Social Security’s general number.  Tell the attendant there your information, and it will be relayed to the Office of Inspector General.

Fax:
(410) 597-0118

You may report allegedly fraudulent activities anonymously, however if you choose to remain anonymous, please give very complete information because an investigator would not be able to contact you for further or clearer information should they need it.

Whether you remain anonymous or not, your report and identity will be kept confidential upon your request.

It is understandable that this boils your blood, but it is bigstock-Crime-watch-zone-18522968important that you do more than simply write an email to a columnist at townhall.com.

Social Security disability benefits are extremely important for those who need them.  When these programs are abused it is a very serious matter.

I strongly urge that you do not remain in collusion with your niece and nephew, and that you report their alleged fraud to the proper authorities.

Thank you for being a concerned citizen!

With respect,

DisabilityDunkTank.com

But wait … just one more thing … ….

Uncle Ervin’s letter is pretty breezy on the details.   It refers vaguely to “disability,” but doesn’t mention which disability program – Social Security?  VA?   It references an unnamed state’s programs for supporting caregivers of disabled people.   It mentions new houses and cars, but there’s no mention of how long it took to receive “disability.”   Was it years?   It normally takes years and years and years.

bigstock-Match-Box-with-used-matches-am-21975974The letter is an unpleasant confusion, but does reliably set sparks to the tinderbox.  The letter does serve that purpose well.

Uncle Ervin, I would like you to know that what I learn about my clients while representing them in a disability matter is quite intimate.   I learn some embarrassing facts about my clients.

I’ve had friends ask me to represent them, but  I always refer them to another attorney.   I want my friends and family members to be able to retain their privacy, their dignity.  I want them to be able to present to me their public face and public self revealing to me what they want of their mental and physical failings on their own terms.

This may be what you are seeing in your niece and nephew – what they carefully present to family – especially extended family.   Bragging about “playing the system” might be cover for some humiliating tidbits they do not run out at the family reunion.

When people tell me of folks they “know” are committing fraud, I give the information they need to report the activity.   These are important programs and they do need watchdogging.   Granted.

Mostly, the person backpedals, declining actually to report the matter presumably because they know in their heart of hearts they don’t know what they’re talking about.   Reporting is not mere gossip that makes you feel as if you’re in the know about the complexities of other people’s lives.

Established journalists, columnists, and bloggers receive lots of correspondence from people – naysayers and yaysayers alike.  Printing such correspondence, when it serves merely to shore bigstock-Nerd-Expressing-Doubt-20661956up stereotypic thinking, and ignite anger, but doesn’t offer anything worthwhile … hmmm.

It does fill space.  I will give you that.

 

 

Dropping antacid with Norman Rockwell …

Without apology, I love Norman Rockwell.images[1]

Mr. Rockwell’s paintings engagingly capture moments, and tell truths about human experiences, emotions, politics, conflicts … social unrest.  He was prolific and consistently masterful at wrestling story into two dimensions.   I respect that.

The word story is sometimes used to mean “lie,” and that’s not how I’m using it here.   The most powerful communication tool humans have are stories.  Stories can tell lies, sure – but stories can tell truths.   Stories are wired into the human DNA like almost nothing else.   The human brain looks at a house and sees a face.  The human brain relentlessly creates narratives to explain to itself its experiences.

In law school we were not taught rules cold, we were told stories into which the rules situated themselves – and it helped us remember and it helped us discern.

If I tell you res ipsa loquitur is a Latin term used in legal contexts to mean, “the thing speaks for itself,” that would be hard to remember – maybe even hard to understand.   But when I tell you the story of Mrs. Gray who complained for years of stomach pain, later to find via x-ray that there was a hemostat in her gut … you can see that ‘yep, there’s a hemostat in your gut … pretty clear the only way it got there was a surgical team leaving it there and sewing you up.’   The thing speaks for itself.   Res ipsa loquitur.   The story, the image … now, you’ve got it.  Gray v. Wright, 96 S.E. 2d (W. Va. 1957).

Rockwell’s artistic and storytelling mastery is often overlooked.   The art world is not keen to bestow praise on artists, like Rockwell, who are accessible, portray the ordinary, use images idealized and nostalgic.  Also, Rockwell was prolific – a bulk practitioner of sorts – and that is always looked upon with suspicion.   ‘Well Maud, how good can they be if he churns ’em out faster ‘n you can make dinner?’   And Rockwell’s work was mass-produced on the Saturday Evening Post and Look magazine covers.  I imagine Rockwell’s work lined the bottom of  a good number of stylish bird cages in its day.   Picasso never suffered such a slight.

In 2010, filmmakers George Lucas and Steven Spielberg pooled their private Norman-Rockwell-Freedom-from-Fear-1943[1]holdings of Norman Rockwell’s art, exhibiting their collections in, “Telling Stories: Norman Rockwell From the Collections of George Lucas and Steven Spielberg,” at the Smithsonian American Art Museum.   Lucas and Spielberg revealed in a short, introductory film to the collection that they each have drawn on Rockwell’s images extensively in their films.

Mr. Lucas described his film American Graffiti as a “direct descendant of Rockwell.”   Mr. Spielberg’s World War II film, Empire of the Sun, borrowed heavily from Rockwell’s images, most notably in a scene in which Jim’s parents tuck him into bed on the night of the Japanese invasion of Shanghai … which is a filmed version of Rockwell’s painting, Freedom From Fear shown here.

Forrest Gump, directed by Robert Zemeckis, drew incessantly on images from Rockwell paintings.

People who write off Rockwell’s work as trite and simple forget his deep and jarring commentary andbth_norman-rockwell[1] chronicling of the American civil rights movement.   His piece The Problem We All Live With was met with stunned disbelief when it was published in 1963, but the painting did its part to advance the national conversation about desegregation and civil rights for black Americans.

As I sit with disabled people as they attempt to dissemble their weaknesses, endeavor to conceal their vulnerability while simultaneously revealing it just by asking for help … I find myself thinking of Norman Rockwell’s paintings and wondering … how might he paint these stories?

bigstock-Domestic-Violence-447645The people I know through my work are interesting to me, and no less human than the hoity-toits I run across.   They are ordinary and flawed … ashamed of themselves sometimes.   I am moved by what they are up against.

Some years into this work, I became convinced that the process of pursuing Social Security disability benefits is so soul-letting… such a difficult and exhausting endeavor … taking many, many years, that I concluded the human beings in my office were not there on a whim, not there as a part of a complex con.  With the rarest exception this was true – at least in my case load.

Claimants of disability benefits are consistently portrayed by a flippant and shallow press as cons, but they mostly are not.   I am not given to giving up – on anything – but I have almost entirely given up on the press.   They flit into the issue and out again on deadline so quickly they are unable to grasp the subtleties.   And then, of course, there are the think tanks feeding talking points which make it frightfully easy for a journalist to do very little thinking at all on complex topics.

Even when there is a dearth of evidence to prove a client’s disability, I know the disability exists.  I do not know that the evidence for proving the disability exists – but I know the disability exists.

Sometimes there is not evidence to prove what is true and real.

My rudimentary way of explaining this point:   If I were to ask you, “what did you have for breakfast last Friday morning?”   And, then when you tell me, I ask you to prove it.  Go ahead – prove it.

bigstock-Oatmeal-8133124Do you have witnesses to what you ate?  Will I believe those witnesses?   Do you have a photograph of empty dishes?  How do you prove what was in an empty bowl that has been washed?  How do you prove it was yours?  How do you prove when the cereal was in the bowl ?  How do I know that photograph is of last Friday’s breakfast?  Prove it.  How would you prove you ate nothing?

Proving what is true and real is astonishingly difficult.

I am not the best lawyer; I cannot ’20 C.F.R. 96 dash 9 p’ with even the worst of ’em.  Whenever lawyers and judges talk like that, it quickly turns into Charlie Brown’s teacher in my head.  For me the rules are meaningless unless situated in the story.

So I think about Norman Rockwell and his paintings … his enviable skill at encapsulating an entire narrative in a snapshot.  That seems to me a bit of what is required to do this work well.

But Rockwell’s subjects – if you look, each embodies a single, cohesive piece of the story.  In The Problem We All Live With  – the six-year old girl, Ruby Bridges, embodies courage and vulnerability.  She is small and alone heading off to the whites only school where she will not, presumably, have federal marshals – the protective entity in the painting – shadowing her once in the building.  The smashed tomato and “nigger” scrawled on the wall graphically show racism and violence towards blacks.   It’s all there in the frame.   But each entity plays a singular narrative role.

In a disability case, the disabled person, is often as much at thwarting the lable of “disabled” as she is trying to prove it.  That’s not a single narrative, it is two frustratingly divergent narratives embodied in one entity.   And she’s a real person, not an actor – not someone I can affix to canvas.

So … my office is two short, straight blocks from a light rail stop.   A client was coming to my office for our first meeting, and was delivered to the rail platform on time.  She called me from there for further directions.  I gave her the street name on which she was to walk – just the two short, straight blocks to my office.   She verified that she was looking at the street sign while we were on the phone.   I expected her within 5 minutes or so, but after 10 or 12, I called her cell phone to see if she was lost.   She answered the phone and I learned that she was not on foot – she had gotten on a bus.  I asked her if she’d changed her mind about coming to see me, and she said, “no, I couldn’t walk up the hill, so I took the bus.”   The bus was heading in the opposite direction from my office.

Mr. Rockwell – any ideas?   Any ideas how I might get this piece of truth into evidence?

The incident clearly shows a difficulty with simple decision-making, an inability to follow simple one or two-step instructions.  You can well-imagine a person with these types of deficits having enormous difficulties in the workplace, not making it past the two-week probationary period, and giving management and customers absolute fits.

These facts are at the base of a disability case, but they are difficult to get into evidence.  I cannot testify to them myself, and people are so embarrassed by these events, they are disinclined to speak of them.

The client couldn’t tell me which direction the bus was headed, so I asked her to put the bus driver onbigstock--eleven-Store-35287220 the phone.   The bus driver told me where they were, and I asked him to drop my client off at a nearby 7-11 on his route where she would be safe.  He handed the phone back to her, and I explained that the driver would let her out at a 7-11 and she was to wait for me there.

I jumped in my car, drove a mile to collect my client so we could prepare for her hearing.

In our meeting, my client, while a little bit embarrassed about the mishap, did not recognize its relevance.  To her, the most relevant information about her disability was that she has ankle pain and asthma, and couldn’t take that hill.  To her, that was the crux of the problem.  I, of course, was less interested in the ankle pain and the asthma – because there are at least a katrillion jobs you can do when your only problems are ankle pain and asthma–I am interested in her cognitive deficits.

Lacking basic cognitive function seriously inhibits your ability to work in a competitive workplace.  The ankle pain and asthma don’t help either, but they’re minor factors in the scheme of things.

So then … I have in my care a vulnerable person … the type of person who might get on a bus say, going off in a direction – any direction – hoping it will deliver her to a building gaining distance in the rearview mirror.  She will miss doctors visits, forget appointment times, get lost on busses, and if she gets to her doctor, she will talk to the doctor about that annoying ankle.  And those records will be the bulk of what I have to tell this truth.

I dream of having an array of oil paints – burnt umber, titanium white, cerulean blue – and the talents of Mr. Rockwell – with which to tell these truths.

But all I have are these paltry medical records … and Tums.

Pssst … … …

bigstock-Beautiful-business-woman-point-21138083I got a secret I just gotta tell.    I got the lowdown on how it go down.

If you want to avoid becoming “disabled” … legally disabled – be born with some wicked-awesome talent if you can, or develop mad skills, mad useful skills – singing is good, funny is good, be able consistently to throw a 100-mph fastball ….   Last ditch option, get an education.   The more letters you get behind your name, the better.   Or be a successful entrepreneur.

You can have an awe …ful lot wrong with your body, and even your mind … make mistakes here and there … … give folks extraordinarily bad attitude … but if you’re skilled, you’re unlikely to be shown the door.   Especially if you own the door.  Even with your migraines, your flatulence, your bad attitude, and your gimpy-ole self, you’ll still be sitting at the grown ups table economically speaking if you had the foresight to get talented, skilled or educated.

That’s how it works.

If you didn’t manage to accomplish any of the above … the rules for you are different.  You’re a Doughnutsdime a dozen, and if you step out of line – show up late, miss work for doctors’ appointments, can’t manage pieces of your job, have a bad attitude – you’re quickly and unceremoniously – replaced.   Buh bye.

There is a relationship between skills and what employers will tolerate.   So, highly talented, skilled or credentialed folks have a lot of leeway.   Unskilled folks?   Uh … no.

That’s why 30 Rock‘s Liz Lemon has to put up with the insufferable Jenna Maroney, and the unprofessional Tracy Jordan – they’re the talent.  That’s why Jack Donaghy can always have a drink in his hand – he’s the boss.   And, it’s why the lowly Page, Kenneth Parcell‘s quirks are all about the ridiculously high service he provides – otherwise, buh bye sweet Kenneth.

LOS ANGELES - APR 29:  Jack McBrayer arrives to the Anti-BullyinIn comic writing, if the lowly Page was the screw-up and he was not disciplined or fired, it would be a device used to show that the organization or the boss is idiotic.

In real life, bosses are not idiots.   Okay fine your boss is an idiot … but most bosses are not, and most businesses are not.  And they don’t readily accommodate unskilled or low-skilled workers who don’t just keep their heads down and produce … consistently – keeping pace, and not causing problems.

If, for some inexplicable reason, you do not regularly partake of the genius of Tina Fey and 30 Rock, and need bigstock-Nerd-crazy-scientist-man-portr-44215624examples from real life … this is how we get the absent-minded professor, the mad scientist, Dr. Gregory House, or … Robert Downey, Jr.

Chana Joffe-Walt, of Planet Money said in her poorly considered piece Trends With Benefits that aired on National Public Radio’s All Things Considered and This American Life that the definition of “disability” is “squishy.”

“Squishy enough that you can end up with one person with high blood pressure who’s labeled disabled and another who’s labeled judge.”   Ms. Joffe-Walt concluded that “[w]hen it comes down to it, all disability is is the label we as a society give to people who, when we hear their story, we decide they’ve suffered enough, and it’s not fair to make them work anymore.”

Huh?   That’s what Ms. Joffe Walt Surprised / shocked face expression of woman. Surprise and shockconcluded about the meaning of “disability?”  Really?

Joffe-Walt’s conclusion reminds me of the Miss Teen USA Pageant contestant who said, in response to the question, “[r]ecent polls have shown a fifth of Americans can’t locate the U.S. on a world map.  Why do you think this is?”   The contestant responded with,

“I personally believe that U.S. Americans are unable to do so because, uh … some people out there in our nation don’t have maps and uh … I believe that our education like … such as in South Africa and, uh … the Iraq … everywhere like … such as, and, I believe that they should … our education over here in the U.S. should help the U.S., uh, or, uh … should help South Africa and should help Iraq … and the Asian countries, so we will be able to build up our future … for the children.”

But, in Miss South Carolina’s defense, she was just 18 years old, was asked the question cold, under enormous pressure … cameras and white-hot lights on her – and since has redeemed herself to great comic effect.   Also, given a few days to reconsider her answer said,

“well, personally, my friends and I, we know exactly where the United States is on a map.  I don’t know anyone else who doesn’t.  And if the statistics are correct, I believe that there should be more emphasis on geography in our education so people will learn how to read maps better.”

But, Ms. Joffe-Walt claims to have researched Trends With Benefits for what was billed as a “six-month-long obsession with our nation’s disability programs.”   And … has not corrected any of the misinformation in the piece.   Wow.

Ms. Joffe-Walt went on to describe her editor who “has a herniated disc, and he works bigstock-Businessman-lying-on-sofa-with-47108581harder than anyone I know.”

Yes, Ms. Joffe-Walt, but he can take unscheduled breaks, and no one freaks out if he has a steroid injection in L4-L5 and either takes a day off or works while lying down on a couch … a couch he has in his office.   In fact, people would applaud him, for being at work at all – “he works harder than anyone I know!” the Planet Money team would gush!   But he would not have to lift, he would not have to stand, he would not be maneuvering a transmission into a Chevrolet ….   He has skills that utilize his brain … not his brawn, and he has skills that afford him unquestioned accommodations.

Whereas, a stocker in a big box store with a herniated disc and sciatica, would not be able to lie You're Fired - Pink Slip In Envelopedown for half her shift, refuse to lift anything over 5 lbs, and be short-fused with the customers.  She would be replaced – immediately.   No accommodated soft landing.

‘Ms. Dimadozen, where would you like us to send your last check?’

While the editor and the stocker have the same physical impairment, and maybe even similar physical limitations, judges have to squish on through the muck of assessing what residual capacities – talents, skills, and credentials –  a claimant has to determine whether the person is defined as bigstock-Muddy-Feet-In-The-Tideland-24009269“disabled” or whether they still are economically useful.

Squish on, your Honor.  Squish on.

Thank you, Mr. Juhoff … and all the Mr. Juhoffs

bigstock-Thank-You-46347529Disability Dunk Tank has existed for a very short time, however, I have been amazed at the numbers of people reading it.  I cannot begin to thank you all enough.

I know this is a niche topic.   I know the posts are long.   And, I know what I say sometimes flouts commonly held beliefs.   And, people don’t easily subject themselves to ideas that challenge their beliefs.   I know that; I am guilty of that.   So, again, thank you.

Moreover, I am extremely pleased with the caliber of comments and questions Disability Dunk Tank has received both publicly posted, and privately emailed.   Absolutely each one has been interesting, thoughtful, and respectful.   Thank you, thank you, thank you.

In response to So much bullpucky … so little time a commenter going by the name of Robert Juhoff asked engaging questions that have me thinking … and understanding something a bit better than I did before.

In bullpucky, one of the observations I made was that I often encounter claimants who applied for disability benefits on the suggestion of physicians who may be extremely knowledgeable of medicine, but who don’t know the legal definition of “disability” used by Social Security, and whose advice to apply was wrong-headed.

Mr. Juhoff asked, “[d]on’t these observations which appear to paint a number of treating physicians as sympathetic advocates for their patients call into question the wisdom of Social Security regulations that place a significant premium on treating source opinions?  Because lawyers are generally more attuned to disability requirements than doctors, isn’t there a tremendous incentive for claimants’ representatives to exploit a doctor’s sympathies by asking him/her to simply check a box indicating that the claimant’s pain prevents him/her from being able to focus on tasks for two-thirds of the workday or sit for more than fifteen minutes without lying down?  In your experience, are there any professional repercussions for doctors who “just sign on the dotted line,” so to speak?”

Interesting observations and questions!

I responded with, “I have not observed your underlying premise to be true, i.e., that treating physicians are sympathetic advocates – even when they tell a patient to file for disability….”   Did that answer your question?”bigstock-Man-holding-arms-up-in-praise--14031791

Mr. Juhoff wrote, “Yes, thank you for responding… it’s good to hear another perspective.  I think my own perception might be skewed by the sample size.”

First of all – WOW!  Civil discourse … “it’s good to hear another perspective.”  What?!?   Oh my gosh … learning from each other ….  I thought high-quality public discourse like that had gone the way of Lawn Darts.

My heart is unbreaking.

My personal experience with needing forms completed by doctors is in the context of my children’s pediatricians – forms for school, camps, and participation in sports.   Most well-run pediatricians’ offices have a system for the completion and delivery of immunization records, “well-child” or “pre-participation” forms.  My pediatrician’s policy is that you may have one copy per paid appointment, but if you request another copy (before your next paid visit) they charge a fee.  Pediatricians’ offices have a system for producing these forms, because virtually all their patients need them, school districts require them, and it’s simply part of the service pediatricians’ offices reasonably must provide.

Physicians I encounter professionally as an attorney asking whether they would be so kind as to complete one of my questionnaires called “Medical Source Statements,” are exceedingly unlikely to grant my requests.

Physicians are notoriously pressed for time, the questionnaires are outside their customary bigstock-Female-physician-checking-wris-48025592professional responsibilities and services, and doctors I know personally, tell me they often don’t know the answers to the questions about their patients’ functional capacities.  Functional capacities are things like how much weight can the patient lift or carry occasionally, frequently, continuously; objectively how much pain does the patient have; does the patient require breaks, and if so, how often and for how long; is the patient limited in the abilities to interact with the public, maintain socially acceptable behavior, complete a normal work day without interruptions from symptoms.   Those kinds of things.

Most physicians’ offices don’t respond at all to my requests to complete a Medical Source Statement.  When I call to follow-up, office staff inform me of their policy not to complete such forms.  Some physicians return the questionnaire having written on it, ‘see medical records,’ or ‘these require disability specialist.’   One doctor called me and said, “stop sending me these things.  I’m not going to fill them out.  I could get sued.”   And, I suppose there is a possibility that a questionnaire could be used in two contexts – one towards proving disability, and another towards proving medical malpractice.  Those would be dire “professional repercussions for doctors who ‘just sign on the dotted line.’   I get it.

Physicians really are incredibly busy, and have many good and legitimate reasons for not completing Medical Source Statements.   Doing so is not compulsory.   I completely understand why physicians don’t complete them, and I am terrifically appreciative when they do.

Twice I had clients’ physicians call me to offer to write a letter informing Social Security of their professional opinion of their patients’ functioning.  I believe I soiled myself.

Mr. Juhoff’s comments gave me a sense of what is behind what I have noticed over the years – that Social Security workers and judges don’t trust the Medical Source Statements, and give them little weight.   That the statements are viewed as the result of attorneys “exploit[ing] a doctor’s sympathies by asking him/her to simply check a box indicating that the claimant’s pain prevents him/her from being able to focus on tasks for two-thirds of the workday or sit for more than fifteen minutes without lying down.”

Full disclosure:  if I could exploit a doctor’s sympathies, I would.   I ain’t gonna lie.   But, I have literally never gotten a client’s doctor on the telephone to attempt it.   I can barely get my own doctor on the phone.

bigstock-Knotted-Tongues-40775197The piece about “simply check[ing] a box” is something I’ve thought quite a bit about over the years.   And, while I certainly understand why some might write off check boxes as simiplistic and meaningless, I do not.   Here’s why:  doctors and lawyers – including judges – are not speaking the same language.  Check box-type questionnaires confine doctors to weighing in on what is relevant to Social Security, and they function as interpretive devices between these two professions.

Here’s what I mean:  The word “disability” is a legal term, with many, many, many legal definitions.   For Social Security’s purposes the meaning of “disabled” is “the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.”   But, for the Americans With Disabilities Act, “disabled” is “a person who has a physical or mental impairment that substantially limits one or more major life activities, a person who has a history or record of such an impairment, or a person who is perceived by others as having such an impairment.”   There are yet different legal definitions of “disabled” in Workers’ Compensation, for the Veterans’ Administration … Individuals With Disabilities Education Act, No Child Left Behind Act, the Special Olympics, et cetera, et cetera.   And, of course, the word “disabled” has yet other meanings in plain, everyday, ordinary English.

So, when a doctor writes, “Dear Social Security, My patient is disabled.  Love, Doctor.”   It is literally meaningless to Social Security.   Physicians are hamstrung from  communicating in English, because … it is, in this context, insufficient to the task.

At best, judges ignore such letters.   At worst, they are rubbed the wrong way by them.   When judges see such a letter, he or she thinks two things:  1) you don’t know what the word “disabled” means, and, 2) back off, dude – it’s my entire job to decide whether your patient is “disabled.”   How ’bout you stick to medicine?bigstock-Stressed-Businessman-41009869

So here we are … claimants don’t tell their doctors what’s wrong with them, medical records are minimally communicative, medicine and law do not have a common language, and check box-type questionnaires are viewed as suspect.

A bit of a Tower of Babel we have here.

I am consoled at least by the fact that Mr. Juhoff and I seem to be communicating effectively.

It’s a start.