Tag Archives: civil discourse

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.

 

 

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

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

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

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

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

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

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

Interesting observations and questions!

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

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

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

My heart is unbreaking.

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

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

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

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

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

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

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

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

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

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

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

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

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

A bit of a Tower of Babel we have here.

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

It’s a start.