Monthly Archives: November 2013

Thankful for what I have not

images[6]I used to be thankful for what I have, for the positives – for the people I love; the things I have; the skills I’ve acquired … the many, many good times and memories I have racked up … … for my innumerable advantages.

I have learned from working with disabled people also to be thankful for what I have not – thankful for the diseases and disorders I do not have; the injurious events and experiences I have not endured; the painful memories I do not carry … … that I have been spared innumerable disadvantages.

Forced to help

bigstock-Portrait-Of-Man-With-Loop-Tie-46113469“GIVING IS VOLUNTARY, NOT FORCED!” a Facebook friend of a friend shouted in all caps.

“Lawyers and politicians brag they force others to help ….” Fox Business reporter, John Stossel wrote in Longing to Be a Victim.

OBLIGATED charity is, and should be seen as, theft,” was a comment left on a post at entitled, “Why should you be forced to help someone else?”

And the more I thought about it … the more I realized … I feel forced to help too.

There.   I said it.    I feel forced to help too.

When I was accepted into a top-tier law school I fantasized myself onto the sets of L.A. Law … The Practice … Ally McBeal.    I wanted the fancy clothes, the shiny shoes.   I wanted to say the kinds of things David E. Kelly writes.   I wanted to hobnob with hoity toits.   I wanted to spend my time in places where even the men get manicures.

I might have been fatigued from eight years of working in a “helping” profession as a sign language interpreter.   I bigstock-close-up-of-a-face-of-a-girl-w-35615399remember once a deaf client asking me what I planned to do after law school, and then telling me ‘when you’re a lawyer we expect you to represent disabled people.’   He signed, “we have you.”   Translation:  We own you.   I remember defiantly thinking, ‘z’at so?’

So here we are, you and I … we’re not so different.   We both feel forced to help … in different ways and varying degrees.

I like your way of thinking of this … when you say they’re mostly frauds … when you say so-called disabled people are perpetrating a complex con – that’s the way out.   I like it.

I see the structure of the argument … the numbers of recipients of Social Security disability are increasing – that seems fishy.   We’ve got towns where darn near 20% of the adults there receive disability benefits – again, fishy.  We’ve got Eric Conn, allegedly running a disability racket – super fishy.   Probably a lot of attorneys are just like that.   Lax judges, rushed judges, Social Security may be forcing quotas on judges giving them no choice but to rubber-stamp cases.   Doctors might even be in on the scam.  Our deadbeat neighbors and relatives in on it, too.  The “Disability Industrial Complex” … that sounds whopper fishy.

bigstock-Magician-Performs-Magic-With-B-45041116If we can just believe all of that … like magic … we are freed.

No longer forced to give.   No longer forced to help.   No longer forced to look deeply into these tough situations.

Looking deeply is what I most want not to do.   I don’t want to look.  I don’t want to see and hear … I don’t want to know.   I want it to disappear magically.

The summer between my 2nd and 3rd year of law school I interned in the Sex Crimes and Child Abuse Unit of the St. Louis Circuit Attorney’s Office.  There I saw photographed corpses of babies and children whose deaths were under investigation.   I very much did not want to look at those photographs.  I did not want to see.  I did not want to know.  But I looked, reasoning that if children were enduring this, I owed it to them not to look away.

I so badly want to look away.   I feel forced to look.   It’s my job to look.   It’s my job, in fact, to bigstock-Close-up-of-a-male-scientific--52841617look deeply.

When I meet potential new clients, at first glance, it is not clear that they are “disabled” – by the strict legal definition used by the Social Security Administration.   They walk in the door, say hello, shake my hand … seem pretty normal to me.

Lawyers make people nervous.   My clients try to impress me with how together they are, nonetheless they manifest behaviors that belie their confusion, disorganization, inability to focus and to understand even very simple concepts and instructions.   These attributes endorse their inability to function in work environments where the abilities to stay on task, keep pace, and produce without the need for special supervision or excessive breaks, are required.   (Those are the requirements for most jobs, especially unskilled jobs where employers do not tolerate unproductive attributes in workers who lack skills.)

But, you can well-imagine, these attributes do not inspire understanding and compassion in most people.   Not even me.   Plodding slowness, confusion, disorganization, rudeness, body odor … those kinds of qualities engender disdain, harshness … mercilessness in most people.   And in me too.

bigstock-businessman-in-a-hurry-pointin-44023669I am busy, lack patience … and frequently battle to contain my frustrations.   This is not an easy clientele.   For me, it takes a great deal of self-control consistently to be pleasant when someone cannot tell me basic information I need and cannot get from any other source.  I am creeped out when I have to rummage through soiled papers to find information.   I must manage my emotions as I explain and re-explain and re-explain and re-explain and re-explain and re-explain and re-explain and re-explain and re-explain basic information.

A law student whose internship I supervised asked me, “now, why do I have to explain complex legal principles to retarded people?”

I avoid telling client stories for three reasons.   First, attorney-client privilege.  Second, I fear you will think I am making this stuff up.   Third, I still have ringing in my ears my friend John Schobel’s voice yelling at me, “WHY DID YOU TELL ME THAT STORY?!?!?   I will NEVER be able to get that out of my head!”

Remember the Saturday Night Live character, Debbie Downer?   Her theme song goes …bigstock-Business-woman-covering-her-mo-44493577

You’re enjoying your day
Everything’s going your way
Then along comes Debbie Downer

Always there to tell you ’bout a new disease
A car accident, or killer bees
You’ll beg her to spare you, ‘Debbie, please!’

But you can’t stop Debbie Downer!

I am Debbie Downer!   I stuff a sock in her mouth in social settings, but the stories run around in my head incessantly.

My client gave me permission to tell her story.  She enjoyed renaming herself Ramona for the telling.

Ramona is not overtly impressive.   She is white, overweight, and affects the demeanor of a child giggling and, in response to simple questions, launching into disjointed, fanciful stories that go bloody nowhere.   A friend has allowed her to live in his basement for several years because she has nowhere else to go.

I was relieved to find among her belongings a Social Security disk containing her file to explain what was going on in her case.   She had been denied benefits in 2009, 2010, and 2011.   The denial in 2011 listed her impairments as “fibromyalgia, obesity, pain disorder associated with both psychological factors and a general medical condition, and a personality disorder.”   When I looked through the evidence, the judge had disregarded, without explanation, a valid IQ score which showed her Full Scale IQ is 66, indicating “extremely low intellectual functioning.”

In our first meeting, Ramona claimed to have finished 9th grade.   I routinely request school records to verify educational information, and learned Ramona finished only the 4th grade, and sporadically attended the 5th before quitting altogether.

I asked her about the discrepancy and she said she hadn’t realized she dropped out that soon … she thought she’d gone to school longer.   She explained she was being taken out of school a lot by her father to … uh … um … … she’s trying to decide whether to trust me, and decides not to and says … “to babysit my siblings ….”

She’s a terrible liar.

“Ramona … babysitting?”

bigstock-Messy-Child-Against-A-Grey-Bac-6544768She changes her mind about trusting me, and with some hesitations and long pauses, divulges a chaotic story in which her father kept her home as a sex toy, forced her and her siblings to have sex with each other while he watched, and gave her away to a friend of his to take home with him.

She said, “I remember going off with him on his motorcycle … I was wearing a bathing suit.  He would take me swimming, and then … well, you can imagine ….”

As a very young girl, Ramona remembers her father giving her a lot of drugs, including having her “huff” toluene so that she was a more … willing participant.

You’re enjoying your day
Everything’s going your way
Then along comes Debbie Dunk Tank!

“Do you have any evidence?  I asked, not expecting there would be any.   There almost never is. bigstock-File-Stack-close-up-shot-on-wh-12177137  But, Ramona said “yes,” and within a few days brought me a sizeable box containing stacks of depositions, and trial transcripts from her father’s criminal trial.

I read the transcripts alone at home in the evenings with a good, stiff drink.   Just awful stuff.

Ramona’s father was found guilty of being a “sexually violent predator” and died in prison.   Ramona was relieved when she heard of it.

After learning Ramona’s big secret, she was more forthcoming with information.   She had been seeing a counselor and psychiatrist who were treating her for post-traumatic stress disorder and anxiety.   She had not told me or Social Security about those caregivers, or those disorders – fairly typical behavior for people who are ashamed of their symptoms and resist divulging them.

I was able to submit ample evidence documenting significant symptomology of post-traumatic stress disorder, mild mental retardation, as well as the fibromyalgia, and finally, obtain disability benefits for Ramona.   Her benefits will help her move out of her friend’s basement, and live, finally, a more dignified life.  This after three times being denied by Social Security.

Where are all those lax judges?   I have not encountered them.   You have to prove these cases … in court … with evidence … carrying your burden.    And it ain’t easy.

I do feel forced to help.   But I am proud to do it.

It is not fun to look deeply into these situations, and into the realities of disabled people’s lives, but we, as a society, owe it to disabled people not to look away because it is uncomfortable … because it hurts us.

We owe it to ourselves not to fall for the fictional narrative that the numbers of recipients of Social Security disability are increasing because of fraud when it has been shown conclusively by Social Security’s Chief Actuary that the numbers have increased largely because of the swell of Baby Boomers reaching their disability-prone years.  It’s a tight little narrative, and if we believe it, it gives us an easy out … … but it is false.

These are our tax dollars hard at work.   I do not brag that I have forced anyone to help by paying their taxes, but I appreciate that people do.   And I appreciate the work that the Social Security Administration does to support our neediest people.

Together we create a more just and civilized society whether we do so while feeling forced or whether we do so willingly.   Or … a little bit of both.

To the milonga … we tango!

1441496_10202127114606917_1355058182_n[1]Someone posted this image and quote from former President Carter on my Facebook page, and ignited a firestorm there.

The opening salvo was:

Carter was the worst, after the present guy. Tax dollars have nothing to do with Christian values its a bunch of left wing BS. Christian values come from giving from the heart not the social justice the govt wants you to follow. I will give my money to whom I want not to whom the govt wants. The left thinks that paying taxes are part of giving…SORRY YOU ARE WRONG, GIVING IS VOLUNTARY NOT FORCED.

You know it’s going to be a romp when folks GO ALL CAPS LOCK right out of the gate.   Yikes!

There were dueling bible quotes and misquotes, cherry-picked history, misinformation about bigstock-Hear-No-Evil-4964652tax policy and economics, exaggeration, name-calling – the works.

Not only do you know it’s going to be a romp when folks go all caps lock, but you know there will be no movement in the conversation.   Nothing will be learned, no one will be convinced, nothing will be gained.   Everyone digs in, and stays dug in.

Such is the state of our public discourse, eh?

Sooo … if the Guinness World Records folks gave awards for the most hours watching You Tube videos of tango dancing, I might be in the running.

bigstock-one-caucasian-couple-man-woman-47156992If the dancers subtly affect combat, I am more drawn-in.   I like the dramatic arc of a tango to have the trajectory of a hard-fought romance between tough equals.   To differ, to oppose, to battle it out, and … finally to come together and resolve.   Resolution is everything.

In Alternative Dispute Resolution my law school professor, Jane Aiken said a simple thing that blew my mind wide open.   She said, “conflict is inevitable.”

Wait … … what?   Conflict is inevitable?   Think about that.  bigstock-Beautiful-young-surprised-woma-52599478

If that’s true … if conflict will arise at some point in every relationship for sure … make peace with that.   Roll with it.   There is no need to overreact to conflict, and there is every reason to develop the skills to resolve conflict peaceably and to positive ends.

To me that is profound … and liberating.

Conflict isn’t wrong … not to be feared.   It is a given.   It is to be expected.   You are not wrong or defective for being in conflict.   And, neither is the other guy.    There is no reason to vilify and demonize each other.

To me, this was a huge realization, and transformative.

In law school we were asked to assert an argument on Side A, and then switch and strenuously assert an argument for Side B.   I resisted this exercise because it seemed to develop a dangerous ability to fight for something you believe to be wrong.   I feared becoming a tool for wrong outcomes.   I feared losing my principled bearings.

What if my formidable lawyering skills were unleashed in the service of eee-vil?   Could the world survive such a foe … as me?

What it actually did was help me see there is validity, and legitimacy to the interests on both sides of issues.   It showed me I have biases too.   And I have a bad habit of thinking I see things quickly, clearly, and wholly.   And, not to pile on, but I commit too quickly to what seems like the obvious right answers … given my assessment of the problem.   bigstock-Thinking-As-A-Team-For-Success-39163165

The Program on Negotiation at Harvard Law School, the contributions by Roger Fisher, William Ury, Bruce Patton and dozens of other scholars bent on teaching people how to … … tango … … how to move from conflict and disagreement to resolution would have us realize we need to understand more about the “other” side’s interests and concerns.

The Program on Negotiation’s Special Report, Dealing with Difficult People instructs that

if there is a common denominator in virtually all successful negotiations, it is to be an active listener, by which Ury means not only to hear what the other person is saying but also to listen to what is behind the words.   Active listening is something frequently talked about but rarely done well; it is a subtle skill that requires constant, thoughtful effort.   A good listener will disarm his opponent by stepping to his side, asking open-ended questions, and encouraging him to tell you everything that is bothering him.

As citizens we hear and read frightful, venomous speech, observe our political leaders’ complete inability to cooperate with the “other” to make decisions and come to resolution.   We look on as the United States government shuts down, as we repeatedly stand at the brink of failing to pay our debts.   Many of us fear encounters that betray our political beliefs with friends, family … neighbors because not only are conflicts inevitable, but we have few skills to resolve those conflicts.

We are all locked in to our positions.

This state of affairs is unacceptably detrimental to the country’s interests, and to citizens’ interests.   It is unsustainable and we must figure this out.

If we are ever going to make any headway and not just stay stuck, we are going to have to learn to … tango … … to differ, to oppose, to battle it out, and … finally to come together and resolve.   Resolution is everything.

If the common denominator in virtually all successful negotiations is active listening … perhaps bigstock-Cannot-Hear-You--24875327the first thing to do is ask open-ended questions, and understand what is behind this feeling of being “forced” to help.

This complaint was stated not only by my Facebook friend, “GIVING IS VOLUNTARY NOT FORCED” but also by John Stossel in his piece, Longing to Be a Victim  mentioned in the Disability Dunk Tank’s post 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.)

In Getting to Yes:  Negotiating Agreement Without Giving In, Fisher, Ury and Patton assert that

human beings are not computers.  We are creatures of strong emotions who often have radically different perceptions and have difficulty communicating clearly.  Emotions typically become entangled with the objective merits of the problem.

It is time to disentangle.

To the milonga … we tango!

The irrelevant elephant in the courtroom

banksy-elephant[1]A disabled person’s financial circumstances and living conditions are completely irrelevant in Social Security’s inquiry into whether the disabled person is considered legally “disabled.”

It is irrelevant whether a person is homeless.   Homelessness doesn’t equal disability.

It is irrelevant whether a person is forty-something and living with elderly parents who are on a fixed-income and struggling to make ends meet themselves.   It is irrelevant that the elderly parents’ limited resources are redirected to their disabled adult-child’s medications, doctors’ visits, hospitalizations, food, transportation, etc.   The fact that the elderly parents’ financial security is gravely compromised is not a factor in Social Security’s inquiry.

It is irrelevant whether a disabled young adult, without health insurance, is hospitalized such that the family’s financial resources are so stretched the family cannot afford to send their healthy children to college.   Other kids’ compromised opportunities are definitely not a factor in a disability case.

All of that is irrelevant.

The family is the first and most important safety net in society.  bigstock-Extended-Family-Relaxing-On-So-13907567Families are expected to bear up under the weight of caring for their most vulnerable members – the babies, and children, the elderly, sick and disabled.   And families do bear up under that weight.  Families take care of their own.

Parents stay home with babies and children, lose sleep, willingly shell out thousands of dollars for childcare, nannies, sideline careers, worry, spend substantially more on housing in good school districts, or pay for private schools, tutor, coach, worry, freeze half to death at soccer games, check homework, counsel, serve in Parent-Teacher Organizations, bake for bake sales, worry, drive carpools, et cetera.

bigstock-International-nurse-day-concep-43928512Families of every stripe drop everything when their elderly family members’ inevitable illnesses hit.   Family is there.   We visit, transport, grocery shop, cook, clean, launder, sort medications into pill boxes, bathe, cut toenails, diaper, feed, move to be closer to them, move them in with us, we listen and worry and fuss and sometimes fume.   Eventually we mourn.

My sister Linda, a skilled nurse, has reorganized her life for months on end to be there for family members when we have needed her care.   It’s amazing and beautiful and so so so … appreciated.

Families buck up spectacularly.

bigstock-Breaking-Rope-2861999Despite the fact that family members give these essential services – for the most part – willingly, they come at a substantial cost to caregivers, families, and to society.

The familial safety net is not without its breaking point.

The AARP Public Policy Institute published Valuing the Invaluable:  2011 Update where they quantified the monetary value of family caregivers providing care for adults during 2009 at 450 billion dollars.  (This figure does not include care provided to children under age eighteen.)

The study determined that those who take on the unpaid role of caregiver put themselves at sizeable risk of emotional and physical stresses, and serious financial hardship.

The report articulated that:

A key theme to emerge from systematic reviews of family caregiving studies over the past 30 years is that family care can have negative effects on the caregivers’ own financial situation, retirement security, physical and emotional health, social networks, careers, and ability to keep their loved one at home.  The impact is particularly severe for caregivers of individuals who have chronic health conditions and both functional and cognitive impairments.

bigstock-Elderly-Woman-Holding-Head-4780368“I just called to tell you Vicky tried to kill herself again this weekend.   She’s in the hospital.   Call me when you get a chance.”   The woman’s voice in my voicemail is one well-known to me.   There is no need for her to say her name, or my client’s last name.   We both know this drill.   She and her husband are in their mid-seventies, and have several children, one of whom is very, very mentally ill.

For my purposes, all I really need to know is which hospital they’ve gone to so I can request the records.   They always go to the same hospital.   I guess I could just not call her back.   I call because I know she needs an ear.

When we talk, she tells me she and her husband volunteered at an event at their church for a few hours, and returned home to find their daughter unconscious and bleeding.    “We just can not leave her alone anymore.”   Her anger and exasperation are plain.

For these parents there is no end in sight, no end to the intensive, daily care their middle-aged daughter needs.   As the AARP study had said, the negative impacts on caregivers “is particularly severe for caregivers of individuals who have chronic health conditions and both functional and cognitive impairments.”   And that is this family’s reality.

One irony is that some Administrative Law Judges will look upon this and determine that the primary reason the adult child is being cared for so intensely is that the parents crave and encourage their child’s dependence.   A judge once told me, “all that kid needs is a good, swift kick right out the door.”

Several years before, Vicky had moved out.   She got and was fired from several jobs, could not manage caring for an apartment, fought violently with her roommate and a neighbor, and eventually wound up homeless with numerous run-ins with police.   She could not be trusted to manage her medications and symptoms of her illness on her own.   She wasn’t safe.  Society wasn’t safe.   Not seeing any other solutions, her parents brought her back home.

Families take care of their own.bigstock-Retirement-Fund-Bankrupt-5379198

“Can we tell the judge how hard this is?   Can we tell the judge we’re going broke?  Can we talk about how much we worry about what is going to happen to her when we’re gone?”

I try to listen, to express my understanding and concern about their plight … but the caregivers’ circumstances are not a factor in the disability determination process.

The familial safety net is not without its breaking point.   And that is relevant.