Monthly Archives: October 2013

Flatulence Stew

bigstock-various-food-ingredients--bea-25119776Beano is an over-the-counter product containing a natural digestive enzyme – alphagalactosidase that aids digestion of gas-producing foods thus preventing bloating, gas, and flatulence.   It works extremely well.

I know this because my scientifically-minded friend Mark tested the efficacy of Beano by making a ferocious concoction of every food that gave him gas, cooking it into a shocking slurry he aptly called Flatulence Stew as a challenge to Beano.

Flatulence Stew had expected ingredients – beans, cabbage, peppers, cauliflower, broccoli, hot dogs.   But Mark also threw in tuna.   Tuna?   Before the addition of tuna it was a marginally edible, vegetably chili basically.   Tuna?   I did not know tuna gave folks gas.   Apparently it does Mark.

Beano convincingly kicked the arse of Flatulence Stew.

This week, Fox News-Business television personality, and syndicated political commentator, John Stossel published Longing to be a Victim which appeared in  numerous publications.   When I read it, I was reminded of Mark’s Flatulence Stew.

Mr. Stossel wrote,

These days, being seen as a victim can be useful.  You immediately claim the moral high ground.  Some people want to help you.  Lawyers and politicians brag that they force others to help you.  (Emphasis in original.)

Although Mr. Stossel does not provide his reasoning, I understand him to say that having a portion of his tax dollars used to provide basic support to disabled people makes him feel forced to help.   In fairness to Mr. Stossel, the reason he does not want to help is that he believes the help does not … help.   He believes it is better for folks to overcome their “disabilities” and figure out ways to succeed despite their shortcomings.

Agreed.   It is better when a person succeeds despite challenges!  On this, Mr. Stossel and I agree.   On this, Mr. Stossel and the whole wide world agrees.

bigstock-LOS-ANGELES--FEB---Marlee-M-41805982Marlee Matlin, deaf, Academy Award-winning actress; Michael J. Fox, actor with Parkinson’s Disease; Professor Stephen Hawking, a brilliant scientist and mathematician paralyzed from a motor neuron disease … Helen Keller, a deaf and blind author and political activist – these people are heroes, and are held up as exemplars of pushing through difficulties.   They are to be commended and emulated to whatever extent possible.

And many ordinary, non-famous folk also push through to success too.   They rise above all manner of challenges, adversity, physical and mental impairments – and they succeed.

Even my severely disabled clients push through adversity to success.  It’s just that their successes are measured in acts such as not soiling oneself in public, getting out of bed despite debilitating depression, carrying a grocery bag up a flight of stairs.   Small victories, but victories and achievements nonetheless.

I don’t mean to minimize rising above, but honestly, it is so common, it can fairly be described as a part of human nature.   Rising above adversity is as much a part of human nature as adversity is a part of life.    Every person who has achieved anything has overcome something in so doing.

Mr. Stossel holds himself up as an example of overcoming a disability.  He says, “I had to overcome stuttering to work as a TV reporter.”   He is to be commended for that.bigstock-Orlando-Florida--January---29381096

So, here’s what folks don’t understand about people with disabilities – there are hierarchies of disabilities, just like there are hierarchies of … abilities to … sing, say.

So on one level there’s the person who can passably sing Happy Birthday in a group without too much embarrassment, then there’s the person who rocks the Karaoke bar, then there’s … Adele, singing Make You Feel My Love, Bonnie Raitt, singing Love Has No Pride, Lea Michelle, singing the Beatles’ tune, Yesterday, Whitney Houston, I Will Always Love You (of course), Lyle Lovett, singing She’s No Lady ….   These singers consistently fill concert halls with people who pay money to hear them sing.   Then, there’s the “Random Girl in the mall blows everyone away at the karaokemachine” that – for good reason – has gotten over 3 million views on the You Tubes.

There’s singing, and then there’s singing.   Seriously singing.   Well … there’s disability, and then there’s disability.   Serious disability.

Stuttering can be extremely severe.   I do not minimize that problem categorically.   I do not know the severity of Mr. Stossel’s prior stuttering condition – it may have been quite severe, or quite mild.   I don’t know.   But the fact that he overcame it well enough to be a successful television personality – while wonderful – is irrelevant to whether another stutterer is also able to overcome it.   And, it has absolutely no bearing on whether a person with a brain injury, or schizophrenia, or a torn disc, or Crohn’s disease, or whatever – could also overcome their conditions.   John Stossel might just be the Stevie Wonder of stutterers – especially gifted.  And, good for him!

This is why it is so important that Social Security’s judges look deeply into individual claimants’ individual functional capacities to figure out if he or she particularly is considered “disabled” by Social Security’s stringent definition.   There are no shortcuts.

Mr. Stossel further surmises that “[h]ad today’s disability laws existed when I began work … [I might not have overcome my stuttering problem because] I might have demanded my employer ‘accommodate’ my disability by providing me a job that didn’t demand being on-air.”

bigstock-Young-handsome-businessman-in--45198436STOP right there, Mister!   Here Mr. Stossel conflates two very different legal definitions of “disability” and confuses matters incredibly!

Although Mr. Stossel’s overarching theme is criticism of the ne’er do wells on Social Security disability, he takes a swipe at working disabled people who are covered by the “reasonable accommodation” language of the Americans With Disabilities Act.

Mr. Stossel throws in Social Security disability, the Americans With Disabilities Act, a bit of this, a bit of that, beans, peppers, “disability-industrial complex,” hotdogs, “demanding” accommodations, cauliflower, “judges awarding benefits” … tuna … and stirs it all up into a ferocious, confused mess of … Flatulence Stew.

bigstock-Man-holding-his-nose-against-a-46822978Pfffbbttffsstt!    Oh my!   S’cuse you, Mr. Stossel!

It’s clear Mr. Stossel has strongly held opinions, but his articulation and support of them in writing resembles what could be the result of the spastic colon of one who ate Flatulence Stew … with no Beano!   Maybe Mr. Stossel is being accommodated in his job as a pundit while being unable to make sense!

Mr. Stossel supposes that had he been able, he would have demanded accommodation by being provided a non-on-air job.   Huh?   That doesn’t make sense.   In a non-on-air job your stuttering likely wouldn’t have mattered – no accommodations necessary.   I think the accusation you meant to make was that you could have demanded to be on-air despite your stuttering.   You could have forced an employer to help you because you held the trump card of “disability?”   Was that what you meant?

Honestly, what Mr. Stossel wrote is such a pot of incomprehensible Flatulence Stew, I don’t know what he meant, but … let’s talk about the level of disability addressed in the Americans With Disabilities Act – and differentiate it from the level of disability in the Social Security Act – just to clear it up.

Just like there’s singing and there’s really seriously singing ….   The Americans With Disabilities ActBusinesswoman - Apple Vs Orange covers disabled people who are able to work, but need some accommodations to do so, whereas the Social Security disability programs cover people who are more severely functionally disabled, and are unable to work any job at all on a full-time, sustained basis – no matter accommodations.

These are two distinct categories of disability, and it’s important to differentiate them.

Mr. Stossel pretends that workers, by asserting a claim under the Americans With Disabilities Act could “force” their employers to accommodate them, but that’s not true.

It’s not that any worker wanting an accommodation gets it.  Businesses are not required to keep workers in jobs when the workers can’t perform the jobs.   A gal in a wheelchair doesn’t get to be a high-kicking Radio City Rockette!

Businesses are only required to make reasonable accommodations as work-arounds for disabled workers who, with the reasonable accommodations, can do their jobs just fine.

bigstock-Cashier--Heres-Your-Change-6327027So, say a cashier can cashier perfectly fine, but has a physical problem that makes standing for long periods difficult – give her a stool, and she’s cashiering with the best of them.   That’s pretty reasonable, right?   We want people to overcome their challenges, and we want businesses to take reasonable measures to help them do so rather than casting them out.  That’s the point of the Americans With Disabilities Act.

As a sign language interpreter I was an “accommodation” permitting deaf people to understand course material, communications, keep up in meetings, et cetera.   Because my deaf clients were provided the accommodation of a sign language interpreter, they were able to stay in the game economically speaking.   That’s the point of the Americans With Disabilities Act.

So … Marlee Matlin, Michael J. Fox, Professor Hawking – these are people with disabilities who can – with accommodations – work.   They are different than the “disabled” people covered in the Social Security Act.   The “disabled” people the Social Security disability program addresses are more severely stymied by their impairments, and cannot work on a full-time basis – even with accommodations.

bigstock-Confused-woman--people-feelin-49050932When Mr. Stossel and others conflate these categories of disabled people, they confuse the issues, and reveal their own dotty befuddledness.   And do an astonishing disservice to the most severely disabled people in our society.

While I mentioned that I do not know the severity of Mr. Stossel’s stuttering, it is important to mention that stuttering – alone – is not disabling by the Social Security definition.  Stuttering would limit options for some kinds of work, but stuttering alone would not eliminate all work.   So, stuttering alone, would not rise to the level of a Social Security-type level of disability.   Stuttering alone, may or may not rise to the level of a disability covered by the Americans With Disabilities Act.

So, when Mr. Stossel holds himself and his overcoming his stuttering up as a reason why other people with other disabilities should not receive accommodations, and why they should not receive Social Security disability benefits, it’s incredibly disingenuous.

Mr. Stossel reveals that he wants no assistance whatsoever for people with disabilities – neither Social Security disability, nor accommodations under the Americans With Disabilities Act.   And his is a harsher, more radical position than most would take.   Most conservative think tanks arguing to limit the Social Security disability programs, hold the Americans With Disabilities Act up as an answer to keeping disabled workers in the workforce thereby reducing the need for Social Security disability.

It isn’t clear that Mr. Stossel understands this distinction.

Mr. Stossel, unfortunately, not everyone’s circumstances allows them to … overcome the stuttering, as you, thankfully, were able to do.bigstock-Paper-Family-In-Hands-30500855

And then, what?

Then … we’re forced to help?

If you want to think of it that way … yes … unless we want families burdened to the breaking point, unless we want large numbers of homeless people sleeping in our streets, we are forced to help.

What we don’t see

bigstock-young-woman-covering-her-eyes--46253803I don’t see the scamming.   I don’t see the easy, rollover judges.   I don’t see rampant fraud and abuse.   I don’t see collusion and conspiracy.   I don’t see the money running out.   I don’t see a problem.

I can’t see a problem.   I can’t see the problems you see.

My livelihood and my deep desire to help my clients depends on me not seeing a problem.

But, you don’t see the medical records.   You don’t see the pain and struggle of disabled people.  You don’t see them trying to make it in the world of work and repeatedly failing.   You don’t see that the business world cannot absorb people who cannot keep pace.   You don’t see that families buckle under the financial weight of disabled family members.   You don’t have professional relationships with disabled people that last for years on end, so you don’t see the longitudinal picture I see.   You don’t see the privileged information.bigstock-What-Is-This--43083412

You can’t see the problems I see.

Perhaps we are both wilfully blind.   We should each concede the point.

I watched, listened and took notes on the 60 Minutes episode, Disability, USA.   I read a variety of responses to it:   “’60 Minutes’ shameful attack on the disabled” printed in the Los Angeles Times; ’60 Minutes” Report Denounced For Disability Misinformation at Media Matters; ’60 Minutes’ Gets Disability Insurance All Wrong, and Outrage Grows Over ’60 Minutes’ Hatchet Job on Disability Fraud printed in the Nation’s online magazine; ’60 Minutes’ uncovers how the federal disability system is being GAMED in The Right Scoop, et cetera.

I mostly see, hear, and read the things that make me think I’m right.  You mostly see, hear, and read the things that make you think you’re right.

bigstock-A-Sign-Of-Conflict-2463660And here we are … in a seemingly perpetual national consternation.   Not a productive national conversation.

Sometimes I can agree with you.   I try.   I want to advance the conversation.   But when I have agreed, at the end of the agreement, there are no solutions.   There is nothing to help people.   We are left where we started – with problems that need solutions.

I can agree with some of the criticisms of the process.   I can agree that some people could try harder to work.   I can come over to your side.   But when I walk over there and look around, I see that you have ended your thinking at criticisms of the process, criticism of the technicalities, criticisms of the people – but you offer no solutions.   And so I’m left wandering around in a desert of … we still have problems to address.   But your thinking ends there.

As an attorney, I can’t just leave it there.  I am looking into the faces of people who I believe meet these rules – despite that you think they’re subjective and difficult rules.   I do not have the luxury of having no solutions.  I can’t just turn away and say, ‘wow, sorry about that homelessness thing.  I guess it really sucks being you.  Bummer.’

I don’t have that luxury.

Marilyn D. Zahm, the Administrative Law Judge from Buffalo, NY who was interviewed for Disability USA on 60 Minutes explained the problem:

People run out of employment insurance.  They’re not going to die silently.   They’re going to look for another source of income.  It is not unusual for people, especially people over forty, to have some sort of an ailment or impairment, so they will file for disability benefits based upon that.  For many of these people a plant closed.  There are no jobs in their communities.  What are people supposed to do?

Senator Coburn, to Mr. Kroft’s comment that “some of these are desperate people” replied,

“Absolutely desperate.  I agree.  But what you’re really describing is our economy and the consequences of it.  And we’re using a system that wasn’t meant for that because we don’t have a system over here to help ’em.  Which means we’re not addressing the other concerns in our society and that’s a debate Congress oughta have.”

Sen. Coburn understands!   He gets it.   He wants Congress to have these important debates.

Sen. Coburn is only objecting to people receiving benefits through the Social Security Disability imagesCARKSN29Insurance Benefits program because it would be more proper for them to receive benefits through the Unemployment Benefits program!   Sen. Coburn’s point is that, if the actual problem is that they have lost jobs, not really because of a disability, but rather because of an economic downturn – they should receive Unemployment Benefits.   Oh, I get it!

Now, leaving aside for the moment that the disability determination process does evaluate claimants’ impairments relative to jobs in the economy – so jobs in the economy are properly factored into the equation … … anyway, leaving that aside for the moment – it’s just that Sen. Coburn wants desperate people to get Unemployment Benefits, not Disability Benefits!

Eureka!   I feel you, Sen. Coburn!  Put it there, Brother Tom!  These are tough times.   You get it!  You understand!

bigstock-Shocked-woman-reading-the-news-38613811But wait a minute … … it is extremely difficult to take Sen. Coburn at his word when you look at his voting record on Unemployment Benefits.   He voted “nay” on extending Unemployment Benefits every single time the issue came to a vote in the Senate.   All six times.

Sen. Coburn, Congress has been having the debate you say they “oughta have” – it’s just that Sen. Coburn’s contribution to it has been to close off the possibility of people to turn to Unemployment Benefits as a solution.

Moreover, Sen. Coburn, you voted to limit eligibility for the Supplemental Nutrition Assistance Program, and to end the payroll tax cut … you voted against Low-Income Home Energy Assistance.   I’ll stop there, so as not to pile on, but honestly, you seem to want to foreclose any options for people.

Sen. Coburn, I want my hug back.

Judge Zahm had said,

People run out of employment insurance.  They’re not going to die silently.   They’re going to look for another source of income.

So, Sen. Coburn, there you have it.  When you close off the possibility of continuing on Unemployment Benefits, when you cut off nutrition and energy assistance – people will look for another source of income, and not just die silently – the only other option you seem to want to leave open.






Imagine my surprise …

bigstock-Beautiful-lady-portrait-drinki-42763756Imagine my surprise when a clienta client who is seeking Social Security disability benefits – regales me with how wrong she believes the Social Security disability programs are, how they make people lazy and entitled.

“Huh?   I thought you wanted me to help you get Social Security disability benefits.”

“Yes.   Yes, I do.”

“But … if it’s wrong … why do you want to do it?”

I really need it.   And I’m not faking.   Most everybody else is,” my client informs me.

The client then proceeds to tell me her story, her symptoms, her situation … and it’s essentially the same story, symptoms and situation that most everybody else has told me too.   To me, this person is indistinguishable from the ones she is certain are faking.bigstock-Businessman-With-Boxing-Gloves-11017220

I feel antagonized by these encounters, as though I am being conscripted into an enemy army.   I am required to advocate for this foe.   But I am hostile.   For a spell I can’t muster compassion, and listen just to build a case for why she sounds like a faker, she’s nothing but a whiner, she’s a drain on society.

I want to serve up the same smelly tripe she vomited onto everyone else she is no better than.

These encounters teach me that the rhetoric about people faking to acquire disability benefits is so pervasive that even disabled people themselves believe it.    And it teaches me that we lack imagination about others’ circumstances, and are ill-equipped for empathy.

bigstock-Serious-teenage-girl-serving-a-35524694Several years ago I represented a child in foster care as a volunteer guardian ad litem who “came into care” in an unusual way.   Most children in foster care get there because abuse or neglect is reported to authorities, who decide that the child should be taken away from the parents, and they do it.    But, in this case, my client’s young mother relinquished her child voluntarily.

She was attempting to support herself and her son on wages earned as a fast food worker.   Impoverished and struggling with her son’s health issues, she figured out that she could not manage, and one day, after her shift, she got on a bus with her boy, brought him to child protective services, and surrendered him to the custody of the state … while still wearing her uniform.

The profundity of her choice, and the execution of it, I cannot fathom.   I cannot imagine it in any real way.   The detail of her wearing a fast food uniform always gets me.   I can picture that.   And, the fast food uniform positions her into a class of person I would so easily write off as … a nobody.   No one particularly interesting or worth knowing.

But, I wish I could know her.

I’ve thought about her and wondered about that shift, imagining her taking customers’ orders that day, counting out change, handing over trays and bags, wiping off tables, sweeping floors … “$ 4.62, please.”   Ordinary tasks, ordinary encounters, an ordinary person in an ordinary job bracing herself to give up her son at the end of the day.   Extraordinary.

Did she seem distracted?   Did she cry?   Did she make mistakes?   Were any of the customers rude to her?

Victor Hugo’s Les Misérables is considered one of the greatest novels of West end London 1the 19th-century.   It weaves together so many plots and sub-plots it is impossible concisely to summarize it here.   I am hoping you know the story.

Hugo’s heroine, Fantine – also impoverished and desperate, relinquished her young daughter, Cosette, to the care of others more capable (she’d hoped)  of providing for Cosette’s needs.   In the hands of Victor Hugo, the pain and selflessness of Fantine’s act are so clear, but in real life, without an artist’s assist, we mostly miss it.

I wonder if any of the fast-food patrons that day perceived that the young worker serving them was a 21st-century Fantine?

Probably not.   I wouldn’t have.bigstock-Men-holding-the-word-wrong-Co-47089363

We think we know.  We categorize, pigeon-hole, stereotype and stigmatize ….   We know who’s faking, who’s not, who’s worthy, who’s not – it’s always the other guy who’s faking, who isn’t worthy….

We think we know.

We don’t know.

We have no idea what we’re seeing half the time, and declaring that we do, prevents us from looking deeper.