Author Archives: disabilitydunktank

How-to make the sun rise in the morning

businessman on computer and cyber bullyingWhen you administer a blog, you see the search terms people use to get to your site.

Common search terms bringing folks to Disability Dunk Tank are:

– “how to shame losers”
– “how to shame losers on disability”
– “losers on disability”
– “how to shame disabled people”

The folks who come to me using such search terms gravitate to these posts:

I suppose such visitors are disappointed in the content they find in those posts.   MSummer metaphoraybe they’re heartened to learn that most disabled people who apply for and receive Social Security disability benefits feel plenty of shame just from the circumstance itself.

Learning ‘how-to shame losers on disability’ is as unnecessary as learning ‘how-to make the sun rise in the morning.’

Go ahead, check those off your to-do list already.

German Philosopher, Arthur Schopenhauer, wrote, “[m]ostly it is loss which teaches us about the worth of things.”  

To encounter adults who have lost the ability to work provides opportunity to assess human worth apart from earning power.  

Depressed Female Acne SuffererPeople have the ability to work for a finite period of their lives.   People do not usually have the ability to work when they are very young or very old.   Yet, people are valuable when they are children, and when they are elderly.

Disabled people who cannot work have the finite period of their work life, shortened.   Yet, they remain valuable.

Human value is not properly measured merely in economic terms.

And, for those who want to know ‘how-to shame disabled people,’ please know that you too may find yourself sick or injured or afflicted and learn first-hand that shame will come to you just from the circumstance itself.

Please … go now in peace and in good health.

 

 

The 2% Club

Close Up Of A Young Smiling Beautiful Woman Wearing EyeglassesA friend’s theory as to why she – an intelligent, beautiful, amazing, and awesome woman – is perpetually single is that … … she is too awesome.

Her theory is that when the panoply of an individual’s characteristics fall in the tiny 2% parts of the bell curve – on either end of it – that person will have more difficulty finding a suitable partner than someone who Gaussian, bell or normal distribution curve on digital tablet cofalls smack dab in the middle.

It makes a kind of sense.   She is an outlier, a card-carrying member of the 2% Club.

An online dating service, Intelligent Dating Net has sprung up to address the problem.

Even if being an outlier is not an advantage in the world of dating, being an outlier in the world of neoutlier, outsider or nonconformist concept - statistical graph ows is an advantage – and a big one.   Outliers are interesting almost by definition.

Almost daily there is news of individuals who have fraudulently sought, and received Social Security disability benefits.   These stories are interesting, but statistically, they are outliers.   As such, they do a poor job of telling the full story of the Social Security disability program.

Yesterday’s story concerned a private detective who applied for disability benefits eleven years ago, and was found disabled.   Then, five years ago, apparently having medically improved, he returned to work without notifying Social Security of his improvement.   He continued, fraudulently, to collect benefits.   Social Security’s Office of Inspector General investigated, the man was prosecuted, convicted, and sentenced to two years in prison, plus two more years of supervised release, ordered to pay $ 5,000.00 in fines, and $ 144,000.00 in restitution to Social Security.Breaking News

Crime and punishment.   Interesting.   Newsworthy.

The story prompted me to contact my friend whose sister was receiving disability benefits, but who I’d heard had improved and gone back to work.   I had not represented my friend’s sister, and I had only met her a handful of times.  But, I could not contain myself.  I had to find out of she was still receiving benefits, had to inform her of the rules if she did not know them, encourage compliance if warranted, and help her follow the rules in the likelihood she did not understand them.

My friend put me in touch with her sister and we had the following email exchange:

(In case you don’t remember me, I’m [your sister’s] lawyer friend.)

I just sent [your sister] an email telling her every time I read a story in the news of someone who is prosecuted for receiving Social Security disability benefits after going back to work, I think about you and worry.   

It’s my understanding that you’re back to work.   I don’t know if you are still receiving disability benefits or not.   But, if you are, I’d really like to make sure that you know the rules about that.

I really, really don’t want you to run afoul of the law and wind up with a criminal prosecution on your hands.

Please contact me!

Her reply:

I don’t receive disability any more.  While I did do contract work and some full time work this year, I submitted every pay stub to SSA in person.  (Emphasis added.)

I also told them I had taken on full time work with health insurance and they told me I would now enter my 9 month review period.   So that was done awhile ago and I received my statement [ceasing my benefits] from them and all is kosher.

Thank you for asking.   I was hyper aware of how they work so I made sure to submit EVERYTHING to them and keep a paper trail.  (Emphasis added.)

Do you think that is enough?

Yes.  I think that is enough.

While I find that exchange utterly fascinating, most would not.   Imagine the headline:Casual man lying on couch with newspaper covering head in bright

Formerly Disabled Woman Follows Social Security’s Rules to the Letter Asking for Cessation of Benefits When Health Improves.

When it comes to news stories, the interesting ones get the press.   Salacious ones get even more.   The mundane, ordinary stories in which systems and people function as they should, go unmentioned.   But those stories, numerically, exist smack dab in the significant middle of the Gaussian bell curve of normal distribution.

When the relative volume of salacious stories is far greater than the relative number of occurrences, a skewed perception of reality results.    The mythos does not reflect the truthos. Old School Myths

Here, the myth is that most people applying for and receiving disability benefits are criminals.   The truth is that criminals are in the 2% Club.   They are rare.   They are outliers.

The non-partisan Government Accountability Office reported that improper payments of Social Security benefits occurs at a rate of just 0.6%, however, the American public’s sense is that there is a huge problem.   Fox News’ Megyn Kelly said, “just because [the Government Accountability Office] didn’t unearth the fraud, doesn’t mean it’s not being committed….”   Ms. Kelly just knows it’s there.

The American public is served up a steady diet of interesting and unseemly stories about “rampant fraud and abuse” in the Social Security disability program.   The American public is mired, not so much in misinformation, but in too much information of a kind.

Joseph Pulitzer StampWhen the press focuses on occurrences of fraud and abuse in far greater proportion to its relative number of occurrences in the scheme of the entire Social Security disability program, a distortion of reality results.

Two major problems arise from this distortion of reality:

1)   The American public has a distorted sense of reality, but it collectively believes itself to be well-informed and knowledgeable, and

2)  The American public and policy-makers demand reforms to the parts of the Social Security disability program that are essentially functional, failing to focus on areas that do require reformative attention.

Pressure builds for Social Security aggressively to go after frauds, to go after the people who receive disability benefits, but who attempt to go back to work.   And Social Security goes after them with prosecutory zeal.

And they should, right?

Consider this story published today in The Des Moines Register titled, des.m0331watchdog6137[1]Dying advocate needs some help.   This is the story of Kris Gerhard,  a disabled woman who continued to work answering “crisis calls” from her home while receiving Social Security disability benefits.

She is described as having …

been a champion all her adult life for people who really need one – children with autism, foster kids, those with mental disabilities and others with mental illness.   But now that she’s facing a fatal illness and down to her last $ 600, she is hard-pressed to find anyone who will advocate for her.

Social Security discovered Ms. Gerhard’s work activity, opened an investigation, and determined her benefits should have ceased in July 2012, given her earnings.   Social Security determined there was an overpayment of benefits of more than $ 10,000, and stopped her checks in February 2013.

Ms. Gerhard appealed the cessation of benefits immediately, but Social Security has yet to get back to her.   The Des Moines Register writer finds this appalling.

The story goes on:

What’s really disturbing about the Iowa woman’s story, however, is that because others needed her services, she tried to keep working in spite of her deteriorating health – and that decision is now hurting her….

She’s so good at her work, one state official tells me, that Gerhard got appointed to serve five counties:  Dallas, Greene, Webster, Guthrie and Carroll. (Emphasis added.)

“She’s an excellent advocate. Lots of other people contact her with questions – magistrates, attorneys, social workers and other advocates,” said Beth Baldwin, a 5th Judicial District court administrator who has worked closely with Gerhard over the years.   “She’s very well-respected, and I’d say rightfully so.”  (Emphasis added.)

Although Lee Rood, the writer of the story, meant well, she published a good deal of information indicating Ms. Gerhard was able to work, and therefore should not have been receiving disability benefits.   Furthermore, Ms. Rood made it clear that Ms. Gerhard should have understood Social Security’s rules – she is after all a person magistrates, attorneys, social workers and other advocates contact with questions. 

This is pretty damning information.

IGroup of multi ethnic business people sitting at court housesn’t this the rampant fraud and abuse about which we are all up in arms?

Megyn Kelly, what do you think?

The scandal of the Social Security disability program is not that it is rife with fraud and abuse.   The scandal does not live in the pinched ends of the bell curve.   Those stories are too … awesome.   Rather, the scandal of Social Security disability is much more mundane and subtle.

The scandal of Social Security disability fraud is that the rules are complicated, poorly understood, and people, even when they mean to follow the rules, run afoul of them unwittingly.   As has done Ms. Gerhard.

The scandal is that Social Security, being led by the persistently bad press about “rampant fraud and abuse” responds by amping up its ability to prosecute, when it should be amping up its efforts at educating recipients of disability benefits about the rules and how properly to comply with them.   So that when disabled people try to do what is right, try to go back to work, try to follow the rules – the rules are made clear.

The scandal of Social Security disability is that disabled people are pre-judged nearly universally as frauds, and criminals … and are treated as such.   They are surveilled, indicted and convicted.   The process of obtaining disability benefits and getting off of them is made more difficult from start to finish.

The scandal of Social Security disability is that the emphasis on criminalizing work activity that is inaccurately reported – even when there is no criminal intent to do so – discourages work activity.

What I find really disturbing about Ms. Gerhard’s story is that she tried good luck, best wishes wish you the best of luck and fortuneto comply with Social Security’s rules, and still could not.   She called Social Security but was given incomplete, scattershot information regarding compliance with Social Security’s complicated and nuanced rules for working while receiving disability benefits.   This put Ms. Gerhard in a dangerous spot:   she was poorly informed, but believed herself to be well-informed and knowledgeable.   And then, Social Security sent her on her way with no reasonable supports.   Good luck, Ms. Gerhard!

Carolyn Colvin, Acting Commissioner of Social Security, recently announced Social Security will open seven new Cooperative Disability Investigation units.   Cooperative Disability Investigators are Social Security’s fraud police.

I wish instead Social Security had Tutor advising his studentannounced it would train and deploy teams of people in every state to educate disabled people on how properly to report earnings and impairment-related work expenses.   So that when they want to – 98% of the time – they have a fighting chance to do so.

I wish instead Social Security had announced it had developed user-friendly paper worksheets and effective online tools onto which working disabled people could enter and submit earnings, and impairment-related work expenses to report – honestly and accurately – that relevant information to Social Security – monthly, in writing.  

These educational supports and tools are necessary so that when the Ms. Gerhards of the disability world call to report they are working, Social Security has in place proper supports and tools that assist them in complying.

These educational supports and tools are necessary so that people like my friend’s sister do not have to “submit every pay stub to SSA in person” or “be hyper aware of how [SSA works] … making sure to submit EVERYTHING to them and keep a paper trail.”   It is as if my friend’s sister understood she would easily be deemed a criminal and so went above and beyond.   This should not be necessary.

I wish instead Social Security did not itself fall for the media hype, did not pre-judge claimants and recipients of disability benefits as criminals, and understood them to be like the rest of us – 98% Club Members – who are just trying to get it right, and need some help doing so.

A Master Sommelier of … disabilities

Man tasting a glass of red wineTo become a Master Sommelier through the famed Court of Master Sommeliers one must pass four levels of course work and examinations on theories of wine and spirits composition and production, must be able to perform hair-splitting analyses of complex wines and spirits by vision, smell and taste; must be able to identify wines in blind tastings, and be able properly to pair food, wine and spirits … all while maintaining proper “demeanor of the professional sommelier.”

The pass rate for the Master Sommelier examination is approximately 10%.  Smiling winemaker in cellar looking satisfied at a glass of whitOnly 211 people have been conferred with the title since 1977 when the Court was established.

To become a Master Sommelier of … disabilities I spent five years becoming fluent in American Sign Language and its variants.  This involved both course work and immersion into deaf communities and culture – attending deaf storytelling slams, and studying mime and deaf theater.

I learned that Alexander Graham Bell, the son of a deaf mother and husband to a deaf woman, was proficient in sign language and taught deaf children.   Bell’s work was shaped by his desire to penetrate and dispel the isolation caused by deafness, and it is theorized that the telephone was Bell’s failed attempt at developing a hearing aid.

I learned the rich history of the disability rights movement in the United States that paved the way for the Rehabilitation Act of 1973, and the Americans With Disabilities Act.

ProtestDisabled people fought for inclusion and access and for the elimination of arbitrary barriers.    They fought for the eradication of architectural and physical barriers, and the elimination of communication barriers.   They fought for curb cuts, ramps, accessible bathrooms.  Disabled people asked that information be printed in Braille, that spoken information be interpreted into sign language, and rendered in closed captioning.   Disabled people fought not to be institutionalized but instead to be able to maintain themselves in their own homes.   Disabled people fought hard for equal opportunities in education, public accommodations, housing, and the workplace.

In 1977, disabled people held a twenty-five day sit-in, occupying U.S. Department of Health, Education and Welfare buildings in Washington, D.C., and San Francisco successfully achieving their goal of the passage of  regulations that strengthened the Rehab Act.images[3]

There are Disability Pride Parades where disabled people show the world they are loud and proud!  The next to be held in Chicago, July 19th, 2014.

In 1990, when the Americans With Disabilities Act became law, my practice as a sign language interpreter flourished.  I was a “reasonable accommodation” and interpreted in educational, medical, government, business, and cultural settings.

NEWARK - NOVEMBER 9: Singer Gladys Knight performs for the 9th AI interpreted for Gladys Knight and the Pips, Colin Powell, Elie Wiesel, Barbara Jordan, Jonathan Kozol, Angela Davis, bell hooks, Newt Gingrich, music festivals … for blues diva, Kim Massie …  for comedians, among them, Kate Clinton ….  I interpreted for deaf-blind clients and knew a deaf couple who knew Helen Keller.

As an interpreter, my deaf clients were mostly achieving in school, andimages[6] professionally.   These deaf students were in undergraduate and graduate programs – they majored in biology, pre-med, law enforcement, graphic design, architecture, law – just to name a few.  I traveled in Spain and France interpreting courses for a deaf student studying abroad.   (That assignment showed me that deaf folks often feel no less at home in a foreign country where they can’t understand the language than they do in their native land where they also have difficulties with spoken language.)

imagesX401D8Y4I interpreted at Ralston-Purina, AT&T, the National Geospatial-Intelligence Agency, the National Personnel Records Center … job interviews, employee evaluations, business meetings, trainings of every variety.   Deaf workers were dedicated, valued workers.

I interpreted a speech at a conference on disabled people’s interests in which the speaker made the most interesting and cogent Young successful businessman jumping over gap. Risk and challengargument that ALL people are accommodated.   She estimated the cost of the roomful of chairs that cost the hotel many thousands of dollars.   But she, and the others in wheel-chairs, had brought their own.   They did not need the provision of chairs.   She went on to point out that the expensive, state-of-the-art sound system was an accommodation for hearing people … the lighting … an accommodation for the sighted.

And this is what I knew of disabilities and of people with disabilities.

Disabled people were accomplished, successful, connected, and proud.   They did not walk around in a state of shame, hat in hand.

One deaf friend of mine Deaf Persons Hand Demonstratingexclaimed he was thrilled to be born deaf when he was (1964) because there had been a German Measles epidemic during that time causing many babies to be born deaf.   He appreciated having so many deaf friends … and courting so many pretty deaf girls!

Disabled people needed an accommodation here and there, but then so did we all … it was all part of a continuum of abilities and disabilities that required accommodation in one way or another.

Being disabled wasn’t a big deal.

That is what I thought.

I have since learned that being disabled enough to be eligible for Social Security disability benefits is a big deal.

I have never known a disabled person applying for, or receiving, Social Security Unfortunate man portraitdisability benefits to describe themselves as proud, or to say they are happy to be in their spot.  They are mostly ashamed … desperate … and isolated.

When disability is defined as the “inability to engage in any substantial gainful activity …” – the legal definition in Social Security’s statute – that is quite a harsher, and more desperate definition of “disability” than would fit the loud and proud – and working – disabled, in other words, the disabled people contemplated in the Americans With Disabilities Act.

Although there is one word, “disabled” there are a variety of meanings and levels of severity it describes.

The Social Security definition of “disability” requires an inability to do any job at all on a sustained, full-time basis.   This version of “disability” describes a person who has little or no economic value in the market place, and who cannot support him or herself.

But the definition of “disability” in the Americans With Disabilities Act describes a person who possesses merely a “physical or mental impairment that substantially limits one or more major life activities …” but not necessarily a person who is unable to sustain a job on a full-time basis.   Indeed, the Americans With Disabilities Act contemplates that people meeting its definition can assert “reasonable accommodations” so their chances of success and achievement in the workplace are optimized.

Achievement and success of disabled people is largely the goal of the Americans With Disabilities Act.   But Social Security disability is meant to provide financial subsistence for people who cannot economically be in the game.

One word, two completely different circumstances.

As an interpreter, I had drunk plenty of the wine of disability, and alcohol drinks set isolated on a blackthought I knew what disability was … until I took a taste of the hard liquor of disability that defines the people for whom the Social Security disability statute is intended.

These different categories of “disability” are as different as a crisp chardonnay with pear-apple overtones is to an oak-y bourbon with a caramel afterglow.

Even disabled people have difficulty understanding the gradations of disabilities.  

I have seen deaf people say, “get a job!” in exasperation at disabled people who need the financial supports of Social Security disability.

Even disabled people have difficulty understanding that when a disability such as deafness is coupled with a cognitive impairment or a mental disorder or another physical impairment … the coupling is devastating.   The aggregating of disabilities one on top of the other is a state from which a person cannot often rise to productivity and self-support – no matter the accommodations.

From my vantage point, I see the disabled people I represent before the Social Security Administration as being the most disabled people I have ever encountered.

They are largely isolated from the disability rights movement, estranged from other disabled people, and what’s more … attacked from an endless barrage of criticism from an uninformed public that says, essentially, “why can’t you be like those good disabled people?!?”

Conference RoomAs a non-disabled person, I do not feel guilty that a hotel conference center provides me the accommodation of a chair, or a sound system, or light.   It has never occurred to me even really to appreciate it particularly.   I take it for granted.

Disabled people who require the financial supports of Social Security disability benefits, should similarly not feel shame … nor should they be shamed.   The fact that severely disabled people cannot make it in the work place speaks in part to the severity of their disability, but also to the harsh, Celebration. Hands holding the glasses of champagne and wine makcompetitiveness of the American work place.

Not being able to work in the competitive work force might be the measure of economic value, but it is not the measure of human value.

Let us raise our glass to that!

 

An ever e-x-p-a-n-d-i-n-g universe of fear

 

WormholeMy fears listed in 2-point type would stretch from planet Earth into the Hubble deep field … sucked by dark energy ever farther away … an endless and accelerating supply of mostly banal personal concerns.   I awaken with them sometimes in the middle of the night … a subconscious working them over in my sleep.

I attempt to cultivate courage … to affect a gravitational pull … over my shameful, ever-expanding universe of fears.

And so … … I think of the unknown man standing alone in protest before the tanks in Tiananmen Square, 8.-Rebel-by-Marco-Crupi-Visual-Artist[1]humbly holding his white plastic shopping bag.   I think of Nelson Mandela jailed on Robben Island … of Galileo Galilei persecuted for declaring his discovery that Earth revolves around Sun.   I think of Thich Quang Duc‘s self-immolation … of Maximilian Kolbe, sheltering Jews despite arrests a stamp printed in USA shows Frederick Douglass leader of the abby the Nazi regime – and eventually being sent to Auschwitz.  Mahatma Gandhi, Aung San Suu Kyi, Desmond Tutu, Emmeline Pankhurst, Edith Cavell, Odette Sansom, Abraham Lincoln, Sophie Scholl, Frederick Douglass, Malala Yousafzai.

I am not those people.

I am not even like those people.

The House of Representatives Budget Committee report, The War On Poverty:  50 Years Later frightens me.

The relentless, disproportionate reports of fraud perpetrated by claimants and recipients of Social Security disability benefits sends shivers up my spine.

The cultivation of an angry mob of well-meaning, but unknowing, people who hold a negative opinion of disabled people and who will demand policy changes based on misinformation, strikes fear into my heart.

Hearing an Administrative Law Judge say he is afraid to approve legitimately disabled claimants for fear of being called “outlier,” makes me break into a cold sweat for knowing what disabled people will continue to endure upon repeated, unfounded denials of support.

I think of brave people not to insinuate myself into their ranks.   I am not Abstract Businessman jets off with Rocket Pack.those people.   I quiver and ride my rocket ship of fear into ether.

I think of brave people to provide for myself a reference point.   And from it, I see the smallness of the courage required of me, and of judges, to do what is right by the disabled people who come to us.

We must endure criticism, be thought of as scoundrels, be misunderstood … fight for our clients, fight a political fight.

Malala_Yousafzai_at_Oval_Office_2013_cropped[1]Malala Yousafzai is a Pakistani girl who, at the age of 12, began blogging about her life in Pakistan under Taliban rule.   She was fearlessly outspoken, documenting human rights violations under the Taliban, and working to advance the cause of education for girls in her country.   She granted interviews to the BBC, the New York Times, eventually a documentary was made about her.   She was nominated for the International Children’s Peace Price … and then, the  Nobel Peace Prize.

On October 9, 2012, a gunman boarded a school bus on which Malala was riding, asked for her by name, and shot her three times.  Malala survived the attack.   The Taliban has reiterated its intent to kill her.   Malala continues to speak and to write.

I am not Malala.

Disabled people, attorneys representing disabled people, Social Security’s workers and judges must endure criticism in a rancorous political climate.   We must endure being misunderstood.   But we also must stand in this swirl and together fight this good and worthy fight … Pin-up Sailor Girls Showing Physical Strengthunderstanding that this fight – though important – is not asking very much of us in the way of courage – really.

We can rise to this occasion.

All hands on deck.

So … I’ve been thinking about what you said …

bigstock-crazy-man-39709744A reader of the Dunk Tank submitted a pointed, insightful comment in response to Sochi Security.   So interesting a comment … it shouldn’t be buried in the comment graveyard.

Here it is.

You make a good point about claimants wishing to present a certain image via social media.  But doesn’t an individual’s unwillingness or inability to present the truth in one forum have a bearing on his/her reliability in another forum?

More to the point, why is a claimant who is an unreliable autobiographer on Facebook any more credible when he/she appears in a private hearing before an administrative judge?  Doesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations?

I realize that the financial stakes are modest compared to full-time, middle-class wages, but presumably every disability applicant has decided that even modest benefits are preferable to no benefits.  Under the circumstances, why is “I never leave the house and can’t lift a gallon of milk” more reliable than a photograph of someone giving a child a piggyback ride at Magic Kingdom?

I’m uncomfortable with the notion that we should take self-reports at face value only when they are consistent with disability, because it presumes that rational-yet-proud people would never overstate their limitations for money.

First of all, as I said in Thank you, Mr. Juhoff … and all the Mr. Juhoffs, bigstock-Happy-Black-Woman-12039302I am extremely pleased with the caliber of comments and questions Disability Dunk Tank receives.   Whether publicly posted, or privately emailed to disabilitydunktank@yahoo.com, absolutely each one has been interesting, thought-provoking, and respectful.

I am heartened by the vigorous, skillful discourse occurring here while the cacophony of crazy about Social Security disability rages everywhere else.

But I digress.

I replied with:

Thank you so much for your thoughtful comments, and pointed questions.  I so appreciate your willingness to engage in this important conversation.

I agree that judges should not take self-reports at face value only when they are consistent with a disability.  Absolutely not.  My concern is that a photograph of ‘someone giving a child a piggyback ride at Magic Kingdom’ would be so prejudicial as to be given controlling weight in the face of other important evidence – but evidence that is much, much more difficult to comprehend, like medical records.

bigstock-concert-lighting-against-a-dar-38587648The photograph seems to speak volumes about the life, but in the end, a photograph is a snapshot of a moment without context.  The photograph doesn’t speak to the moments before, or the moments after.

With considerable frequency I encounter family members of disabled people who encourage the disabled person to get out of the house, go to the grocery store, go with the family to the zoo … those kinds of normal things.  And the disabled person will, with varying degrees of cooperation, play along.

One of the first commenters on this blog was a man who both worked at Social Security and who had a disabled son, and wrote about that push-pull of knowing full well what needed to be proved to win a disability case, but who pushed his child toward wellness and building on strengths as much as possible … all while knowing in his heart of hearts that his boy was disabled and qualified.

Let me just re-post his comment.  He said it so well:

I have to say that I’ve been on both sides.  Taking claims for years, doing support work in Baltimore lets me say you’ve described the business of disability.

We have law, regs, OIG audits that insist of an impartial, repeatable process.  And people who follow the laws, rules, regs and process.  It’s a job, there are pressures, if not actual quotas and the personal aspect is hard to keep; Getting involved with claimants is bad for a CR.  So the dehumanization of the claimant is almost inescapable.   We can’t approve you because we like you or your story moves us, we need “objective” proof.

But as a dad who files for his son, there was this moment of dissonance as I, the savvy dad, focused on Listings, highlighted proofs I obtained, prepared a package of evidence that linked to the listings, that answered the questions about ADL even before they were asked, and answered them in a form DDS employees understand.

Father Helping Disabled Son Walk In The Ocean Waves On BeachI was able to step away from my son the human being and make him my son the claimant while seeing him in both lights.   

And I did good, a presumptive dib and a final approval in 50 days.

But my wife?  Despite also working for the agency she couldn’t see her son like a claimant.  And that’s a wonderful thing.  But I know had she been the one to do the paperwork, it’d be a lot longer to get the claim approved.

For the reasons I said earlier, along with those from today’s blog post, filing for disability isn’t easy, trivial or a sure thing.  And the way it’s being painted as some sort of money teat for the lazy is just wrong.  (Yes, some folks do scam the system but that doesn’t diminish anything said in the blog or the replies.  Humans make mistakes, they steal, it happens.  But that doesn’t taint the program.)

bigstock-Beautiful-Black-Woman-3235736The rest of my reply to the original commenter:

Complex emotional territory.  Complex emotional territory that can be captured in a photograph and uploaded to Facebook to tell what a family member or a disabled person wishes were the truth.

I am struck by your question, ‘[d]oesn’t the incentive for pecuniary gain during a hearing outweigh the natural tendency to minimize one’s limitations?’

Yes.  During a hearing, the incentive for pecuniary gain does Angryoutweigh the natural tendency to minimize one’s limitations.  In my view, the weight of your question lies in the phrase “during the hearing.”

From my vantage point, I see these cases playing out not only during a hearing, but during the year and a half, two years, three years … that it takes to get to the hearing.

Grunge - PovertyWhat claimants endure during those enormous blocks of time: poverty, cast into the street oftentimes, failure, living without dignity in the basements of family members, being deeply ashamed of themselves, not being able to access healthcare, my women clients … the unspeakable – is too high a price to incentivize these modest financial gains.

When you have a front row seat to that show, you see how unlikely this is to be a complex con.

I have so often wished I could play the audio files in hearings bigstock-Siblings-Fighting-34299935of clients’ messages left … their scramble to find shelter in extreme weather, their relatives sometimes screaming at me to hurry up and get the hearing scheduled because they ‘can’t stand this person living in their house’ anymore, the messages from workers in churches who are calling to ask how they can help this homeless person who keeps showing up needing food … on and on and on.

bigstock-Highlighted-Nervous-System-3730601I have often thought that the most difficult part of being an ALJ would be only to have before me the record and the relatively few moments of the hearing upon which to make my decisions.

To me, that is a mere skeleton of the lives I see fleshed out before me.

 

 

Sochi Security

Last week the Dunk Tank criticized, D. Randall Frye, President of the bigstock-Protecting-Your-Facebook-Infor-48808871Association of Administrative Law Judges who complained in a New York Times opinion piece that Social Security’s judges cannot consult social networking sites, like Facebook, to help them determine whether a person is disabled or not.

Among other things, I said,

On the one hand, Judge Frye argues that Social Security’s ‘courtrooms ought to look more like what you see on Law and Order, or The Good Wife,’ but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts.

A reader of the post left the following comment on the Facebook page:

Interesting post.  One comment.  I’m not sure I understand why an applicant’s admissions against interest on a social networking site would be problematic to consider.  Of course, I don’t practice in this area at all.

To me, the comment is interesting and reveals an important subtlety not only about Social Security disability, but about disabled people that I tend to gloss over.

The subtlety is that disabled people who need Social Security disability, who apply for it, who fight for it, and who receive it … at some very basic level … DO NOT WANT IT.

  • Disabled people are often uncomfortable with their status as “disabled.”
  • Disabled people are often embarrassed by the conditions that disable them.
  • Disabled people often run from the label of “disabled.”
  • Disabled people often deny, and hide the parts of themselves that are deficient.
  • Disabled people often lie to cover up their disabilities.
  • Disabled people often present themselves as non-disabled to whatever extent they can.
  • And disabled people do ALL of this … even when they are … disabled.

As an attorney working to prove that my clients are disabled, I often find myself at loggerheads with my clients because it is very, very, very likely that they are vehemently disowning and denying the fact of their disabilities … while asking me to prove they are disabled. 

I try gently to draw out as much accurate information as a client is willing to reveal of their functional deficits, while simultaneously trying to protect them from the emotional hit of having to speak aloud the particulars of their functional deficits.   It’s an awkward little dance.

It is human nature to disown and deny weaknesses.

When I go to my doctor, I have difficulty bringing up my own physical … uh … foibles.   I am even more protective of my mental, emotional, and behavioral deficits.   None of us is particularly keen on those open-in-the-back hospital gowns, right?   We do not like exposing ourselves in harsh lighting.

A friend told me she wished she had “highly-evolved symptoms” to tell her doctor – rather than her embarrassing real symptoms.

Disabled bigstock-Denial-Concept--42598114people are no different than non-disabled people in this regard.   And … more often than not, they’re not trotting out their functional inadequacies on social networking sites.

Moreover, people – whether disabled or not – are often not even sufficiently self-aware to know what their impairments, diagnoses, symptoms, et cetera, are.   In medical records, this is deemed as the patient “lacking insight and judgment” as to whatever conditions or symptoms he or she has.

So … speaking for myself, not only do I tend to hide or minimize my inadequacies, I will take it one step further and not even be able to see my own inadequacies.   This is utterly human, utterly normal.

Disabled people who create an online presence on social networking sites are very likely to conceal – consciously or unconsciously – embarrassing facts, and present themselves as non-disabled – even when they are, in fact, disabled.  

Disabled people who create an online presence often take pains to present themselves in a less embarrassing way than their medical records – or their applications for Social Security disability benefits – portrays them.   And it cannot be assumed that the Facebook depiction of the self is the truthful depiction.   In fact, I think it is highly unlikely to be … the truth, the whole truth, and nothing but the truth.    

Disabled people who create an online presence often present themselves as non-disabled to advance their interest in presenting a positive public face.  

The definition of admission against interest is:

an admission of truth of a fact by any person, but especially by the parties to a lawsuit, when a statement obviously would do that person harm, be embarrassing, or be against his/her personal or business interests.  A third party can quote in court an admission against interest even though it is only hearsay.   (Emphasis added.)

I would argue that online presentations of idealized selves on social networking sites are not admissions against interest.   The statements are often fabrications designed to diminish embarrassment, and to advance a personal interest in saving face.

So … when the President of the Association of Administrative Law Judges argues that Administrative Law Judges should be able to consult Facebook in disability determinations, without any mention that Social Security should also use the Federal Rules of Evidence, it makes me very nervous.  

I want, at least, an opportunity in court to argue that online presentations of an idealized self is not an admission against interest, and should be inadmissible on the basis of its being unreliable hearsay evidence.

Given my experience in administrative courtrooms, and in reading the decisions produced by Administrative Law Judges, the idea that Facebook posts could be given the same weight as medical evidence is alarming.

Regular readers of the Dunk Tank may recall the last post in which I discussed Judge Richard Posner‘s expression in oral argument of his frustration at Social Security’s judges’ bad habit of simply declaring claimants’ allegations and physicians’ opinions as “not entirely credible” without any analysis or explanation about why.

Judge Posner asked the attorney from the Office of General Counsel to …

get back to [Social Security judges] that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.

Indeed.

I absolutely guarantee that very seriously disabled people, who meet the rules for disability, and who very much need disability benefits for their basic support, are posting on Facebook that they are not disabled.

Guaranteed.

But, it does not change the fact that they are, in fact, disabled.

The thought that claimants’ Facebook utterances would cast their legitimate claims of disability, and their strong medical evidence, into the vast wastebasket of “not entirely credible” is a serious concern.

Let me put it to you this way:

bigstock-AUSTRIA--CIRCA----A-stamp--40403044Muhammad Ali is the greatest heavyweight boxing champion in the history of the sport.

Dubbed the “Louisville Lip,” Muhammad Ali is the greatest trash talker in the history of all sport.

In 1964 Muhammad Ali (then Cassius Clay) fought Sonny Liston taking from Liston the World Heavyweight Champion title.   The fight was determined to be a 7th round knock out when Sonny Liston couldn’t rise from his chair at the starting bell for the 7th round.

But before Cassius Clay took the title from Liston … BEFORE he was the World Heavyweight Champion – he talked the most glorious and wonderful trash talk EVER.  

Here is beautiful old film of a young Cassius Clay – accompanied by Liberace, of all people, on piano before the Clay-Liston fight in which Clay (predicting a win in 8 rounds) poetry-slam-trashes Sonny Liston describing, “the 8th round exactly as it will happen.”

Clay comes out to meet Liston, and Liston starts to retreat
If Liston goes back any farther, he’ll end up in a ring-side seat

Clay swings with the left, Clay swings with a right!
“Look at young Cassius, carrying the fight!”

Liston keeps backing, but there’s not enough room
It’s a matter of time, ere Clay’ll hit the moon!

Now Clay lands with a right, “what a beautiful swing!”
And the punch raises the bear clear out of the ring!

Liston is still rising, and the ref warns the crowd,
he ‘can’t start counting, ‘til Sonny comes down!’

Now Liston disappears from view …. The crowd is getting frantic … but our radar stations have picked him up … he’s somewheres over the Atlantic!

Who would have thought when they came to a fight that they’d witness the launching of a human satellite!

Yes, the crowd did not dream when they laid down their money
that they would see … a total eclipse of the Sonny.

Muhammad Ali’s trash talk was brash, creative, artistic … amazing.   But what made it most impressive was that Muhammad Ali delivered.   It was not just talk … his speed, his footwork, his ability to dipsy-doodle out of the way of most of Liston’s punches, his reach … that left hook.   It was bigstock-Super-Bowl-XLVIII-logo-on-Seat-58503986not just talk.

Sports are clear.   In sport, we see who beats who.

But, sometimes trash talk … is just talk.

Super Bowl 2014:
Seattle Seahawks 43, Denver Broncos 8.

Got it.

Doesn’t matter what got said before the Big Game.

In Sochi, Natalie Geisenberger (Germany) won gold in women’s luge with the largest margin in any luge event at the Olympic Winter bigstock-Toboggan-in-Sigulda-Latvia-W-25966448Games since 1964 – a full 1.139 seconds ahead of silver medalist, Erin Hamlin of the United States.

Got it.   No trash talk necessary.   Ms. Geisenberger’s trash talk is just her lip-synching the German National Anthem while standing on the gold medal podium.

Sports are clear.

But often … life is clear too.bigstock-scoreboard-football-15279458

Despite the trash talk disabled people might do on social networking sites … life’s scoreboard reveals the disability.  

When a disabled person cannot work because of his impairments – impairments that are documented in medical records – life’s scoreboard will reveal he has been fired from jobs, lost his home, is living in relatives’ basement, or under bridges, he is hungry, and broke and depleted ….   It doesn’t matter what he says.   It doesn’t matter what he posts.  

The legal definition of “disability” doesn’t require that disabled claimants publicly own the disability.   They do not have to be branded with a scarlet letter D  for all to see.   They do not have to go forth, hat in hand.

In fact, a disabled person can be legitimately and legally disabled – all while throwing up a lot of subterfuge to those around him to make sure that they think … he’s not disabled.

Because sometimes trash talk … is just talk.

President of the Association of Administrative Law Judges Makes Argument to Abolish Administrative Law Judge Corps in Favor of Federal Courts

D. Randall Frye, President of the Association of Administrative Law bigstock-Stock-illustration-of-tool-bel-52168489Judges, penned an opinion piece published in The New York Times entitled Fixing Disability Courts.   In it, Judge Frye makes his case for changing the adjudicatory process for Social Security disability hearings from a non-adversarial process to an adversarial one, so that, as he puts it, “the courtrooms look more like those in Law and Order and The Good Wife,” and so that “each side” has an advocate.

Judge Frye also covered other ground:  he expressed discontent that judges are constrained from reviewing claimants’ created online presence on social networking sites such as Facebook and Twitter.   He asserted that judges should be able to submit claimants to psychological testing designed to ferret out malingering.  And, Judge Frye admonished President Obama to replace acting Commissioner, Carolyn W. Colvin with a “permanent leader with recognized professional experience in the field of social insurance.”

In support of the idea that disability hearings should be adversarial, Judge Frye wrote, “[in hearings] taxpayers have no advocate on their behalf to ask questions, challenge medical evidence or review the 500 – 700 pages of materials that make up a typical case file.”

Au contraire, mon frère!   These tasks are under the purview of the Administrative Law Judges themselves!   These, in fact, are essential functions of the Administrative Law Judges’ job.

I would encourage informed taxpayers to know that Administrative Law Judges:

  1. are able to ask questions,
  2. can challenge medical evidence, and indeed,
  3. must review the case files assigned to them – no matter the number of pages.

These are essential functions of their jobs.  Most Administrative Law Judges do them.   And do them well.

Moreover, Social Security and its Administrative Law Judges are:

  1. permitted to request medical evidence,
  2. permitted to contact claimants’ physicians for more information or for clarification,
  3. permitted even to send claimants to consultative physicians of its own choosing – at will – to assess claimants.  (Failure to attend such an appointment can be grounds for denial.)

Administrative Law Judges are hardly constrained or knee-capped in any way to perform the duties of their jobs.

bigstock-man-plays-chess-against-himsel-50875502In fairness to Judge Frye, he seems to be at expressing frustration at the tensions that exist in performing the competing tasks required of Administrative Law Judges.  It is said that Administrative Law Judges in non-adversarial proceedings wear two hats:  they are advocates and decision-makers.  Perhaps it is a bit like playing chess with yourself?

But, many jobs require tasks that seem diametrically opposed.  For example, parents nurture and discipline.   Pizza delivery drivers need to be fast, and yet drive safely.   I would grant that it is challenging to figure out where the contours of one task ends and the other begins – but it is doable.   And, what’s more, it’s what is required.   For highly skilled and well-remunerated Administrative Law Judges, we should expect they can manage these dichotomies.   Most Administrative Law Judges can, and most do.

While it is reasonable to argue that it is a challenge to carry out competing tasks simultaneously, it is not reasonable to argue that being a decision-maker in a tribunal is a disadvantage.

Indeed, to be the decision-maker … is to hold the trump card.  It is not a bigstock-Royal-Flush-1234650disadvantage.   Ever.

I know a mother of three who wears a t-shirt that says, “because I’m the mom, that’s why.”   If I were an Administrative Law Judge, I might embellish my robe with, “because I’m the judge, that’s why” just for fun!

As an attorney practicing before Administrative Law Judges in the non-adversarial Social Security court, I understand myself to be at a technical disadvantage because the judge deciding the case, is also my “opposing counsel.”

bigstock-Injustice-system-court-gavel-h-20900147When an Administrative Law Judge asks questions I think objectionable, to whom do I raise my objections?   To the judge herself?   How is she to rule?   Against herself?

Enlightenment philosopher, John Locke, whose writings influenced the American revolutionaries, wrote in Two Treatises of Government that “it is unreasonable for men to be judges in their own cases, that self-love will make men partial to themselves and their friends.”

To advocate for a position, and then be able to rule on that position – is bigstock-Business-Woman-Day-Dreaming-Lo-50172461an advantage I can only dream of … in my wildest of professional dreams.   “No … I’m sorry, I’m right again!”

But, Judge Frye seems not to appreciate that claimants and their attorneys might be disadvantaged in non-adversarial proceedings where opposing counsel is also the judge.   To my utter amazement, Judge Frye assesses this circumstance to be an advantage to … the claimant.   Wow.

An attorney friend recently called me to commiserate about his experience in a hearing before a Social Security judge.   Although my friend had never handled a Social Security case, he is a litigator with decades of courtroom experience in administrative, bigstock-Businessmen-having-a-fight-50282621state, and federal courts.   He called extremely upset because he had encountered an Administrative Law Judge whose behavior was so out of control, and abusive that he was sputtering with anger, saying, “I have never encountered such unprofessional behavior from a judge – ever!   She wouldn’t allow me to question my client … she kept accusing him of lying whenever he tried to speak – even just to answer her questions!”

He complained that there was no one to turn to in the courtroom … no neutral arbiter … no one to rein in a tyrant.

“Yes,” I said, “this is the counter-intuitive downside of ‘non-adversarial’ proceedings.”

On December 14, 2010, oral argument was heard on three cases whose bigstock-Gavel-on-court-desk-52663684appeals were consolidated for the purpose of efficiency at the Seventh Circuit, Court of Appeals.   A three-judge panel was convened including Richard Posner, Ilana Rovner, and Kenneth Ripple.

It was almost painful to hear the federal judges excoriate the poor quality of the work produced by Social Security’s Administrative Law Judges.   The Court of Appeals’ judges’ frustration was palpable.   It was clear they were exhausted by the quality of the Social Security decisions they were repeatedly hearing on appeal.

Catherine Seagle, the attorney from the Office of General Counsel who had the unenviable job of defending one Social Security judge’s decision, characterized the decision by saying, “… while the decision is very streamlined …” but she was interrupted mid-sentence by Judge Posner retorting:

It is not ‘very streamlined!’  It is very inadequate!
How much do we have to put up with this?
The Social Security Administration doesn’t seem to pay any attention to our decisions.  We’re still seeing this ridiculous bit of boilerplate about ‘not entirely credible.’  What exactly did [the Administrative Law Judge] find to be not credible?

Later, Judge Posner asked, “does the Social Security Administration and the Justice Department automatically defend every single case in which there’s a petition for review filed in a court?”

Ms. Seagle:  “No, your Honor, we go on a case by case basis.”

Judge Posner:   “Do you use judgment?”

Ms. Seagle:  “We do.”

Judge Posner:  “Well you do it very badly because you keep getting reversed ….  And nothing seems to have trickled down to the Administrative Law Judges….”

Ms Seagle admirably hung in there trying to defend the abominable decision, replying, “the [Administrative Law Judge] did assess some limitations …”

But Judge Posner was having none of it.   He said, “that is not responsive to my question.  Is there any communication between your level and the Administrative Law Judges?”

Ms. Seagle:   “Certainly.   Certainly.   We have trainings.”

Judge Posner:   “Could you get back to them that there is dissatisfaction with the way these ALJ opinions are prepared and this boilerplate about ‘not entirely credible’ is extremely unhelpful to a reviewing court because it doesn’t say anything.”

Judge Rovner added, “and their lack of doing their job makes our job a lot harder.   And it makes your job impossible.   My heart really goes out to you today to have to come here and try to defend this utterly shocking piece of … garbage.”

I bring this oral argument up to make the point that Social Security’s Administrative Law Judges should be at improving their decisions, making sure they are supported by substantive and substantial evidence.  Administrative Law Judges should not be arguing that they should be able to use Facebook – of all things – to make their decisions.

It is an embarrassment that an Administrative Law Judge, and especially the President of the Association of Administrative Law Judges, would publicly argue that judges should be able to use one of the most bigstock-Pressing-Dislike-Button-43389322unreliable, unverifiable sources of gossip known to humankind – social networking sites – to make legally binding decisions.

While Judge Frye may be able successfully to rabble-rouse laypersons who read his op-ed in the New York Times, I can only imagine the tongue-lashing he would receive by arguing to knowledgeable legal thinkers like the Judges Posner, Rovner, and Ripple that Administrative Law Judges should be able routinely to use Facebook posts in their decision-making.

Might Judge Rovner say Judge Frye’s argument, and his trotting it out publicly in the New York Times, is an utterly shocking piece of … unprofessional … garbage?

On the one hand, Judge Frye argues that Social Security’s “courtrooms ought to look more like what you see on Law and Order or The Good Wife,” but on the other hand, Judge Frye seems not to consider that in a real courtroom, with adversarial proceedings, the Federal Rules of Evidence would bar as inadmissible, absent an exception, hearsay evidence like Facebook posts.   Judge Frye seems to want it both ways.

Judge Frye put his name to the following untruthful and disingenuous paragraph in his op-ed:

Neither the staff members of the Social Security Administration, who review initial claims, nor judges like myself, who hear disputed cases, are allowed to look at Facebook in the context of a case.  Even if something in the case file suggests a claimant is not telling the whole truth, Social Security Administration policy prevents us from looking at social media, for fear that we cannot be trusted to properly assess the information gathered there.  No Facebook, no Pinterest, no Twitter, no Tumblr.  None of the sources that most employers routinely use to check the credibility of potential employees are available to us.  (Emphasis added.)

Social Security’s reasons for barring its employees from clicking around on social networking sites are sound.   Policy instruction AM-12053 articulated an inhibition of adjudicators and reviewers from using social media for two important, and well-considered, reasons:

1)  it is impossible for adjudicators and reviewers to determine the accuracy of uncorroborated information found on the Internet and social networking sites, and
2) “entering claimants’ ‘personally identifiable information’ on an internet search engine or social media network may compromise the confidentiality of [that information’].”

Social Security has an enormous concern that their judges make correct bigstock-Bored-At-Work--54028996decisions, using proper information.   Proper information is dominantly the difficult to read, voluminous, and mind-numbingly dull medical records of claimants.   It would be easier – and a helluva lot more fun – for Judge Frye, and other Social Security judges to clickety-click around on Facebook … read a bit of gossip … view the uploaded photos there to decide cases!   But those decisions would not be supportable on review.

Just ask the poor, beleaguered Catherine Seagle, and other Office of General Counsel attorneys, who would try, and likely fail, to defend those decisions in federal court.

Furthermore, the Social Security Administration, and the American bigstock-Warning-Computer-Security-Thre-55293470public, has an enormous and legitimate concern that Social Security workers do not compromise the confidential, private information they hold.   Allowing Social Security workers to enter personally identifying information into non-secure search engines and social networking sites should strike fear into the hearts of anyone in this country whose Social Security number Social Security has.

bigstock-Yes-You-Can-Rubber-Stamp-43655509Furthermore, Social Security’s Administrative Law Judges and reviewers are not barred from accessing social networking sites – when there is suspicion of wrong-doing.

Policy Instruction AM-12053 allows adjudicators and reviewers to obtain information from social networking sites when there is a suspicion of fraud.  They must, however, request the information through the fraud investigating unit of the Social Security Administration called the “Cooperative Disability Investigative Unit.”

When Judge Frye complains that Social Security Administrative Law bigstock-Happy-Man-Pointing--Retro-Cli-49777829Judges are not even permitted to look at any “of the sources that most employers routinely use to check the credibility of potential employees” someone should point out to Judge Frye that Social Security’s Administrative Law Judges are not potential employers, they are employees of the U.S. federal government who are bound by constitutional, statutory and regulatory rules and considerations far above “most employers.”

Despite my vehement disagreements with Judge Frye in his reasoning, in an odd way … I find myself in agreement with him.

The adversarial process is tried and true.   Claimants of Social Security disability benefits have high-stakes claims, and they should arguably be granted the gold-standard of processes.   The American public has an interest in these decisions being made well, and properly.   To follow the argument to its logical end, Judge Frye’s complaints beg the question:

Why should Social Security not do away with the hearing level of the administrative process, allowing claimants to exhaust their administrative remedies after reconsideration, allowing them to proceed directly to federal court?

Federal courts are established, adversarial courts, like the ones seen in Law and Order and The Good Wife that lack the flaws Judge Frye claims exist in Social Security’s non-adversarial administrative courts.   Social Security need not reinvent that wheel.

Judge Frye seems inadvertently to have made an argument for doing just that.