Tag Archives: disability

Jessie Holds Court

people, children, technology, friends and friendship concept - hJessie was smaller and younger, but had by far the best ideas, so she was the ringleader.

We lived near a school that sometimes was in session when ours was not.  The school had large-windowed classrooms at its basement level, and if you were a little kid standing outside one of those windows, it was as if you were on a stage, framed in a veritable proscenium arch, optimal for entertaining the captive inhabitants of the classroom therein.

Think of the possibilities.

Once when they were in session, but we were not, Jessie had us dress up “like the girls fromTwo Little Girls Vintage Photograph Little House on the Prairie,” go to the school where we crawled to the window and looked with exaggerated longing into a classroom full of kids about our age.  We were not disruptive.  We were just there … sitting.   Jessie pretended to take notes on a pad of paper.  When the teacher eventually came to shoo us away, Jessie, stuttered out a wistful protest in the most hammed-up, corn-pone delivery imaginable … “we … we … we just want to learn.”

Brought-the-house-down.   Even the teacher.

Ha-ha-ha!  A delightful little childhood story from back in the day when families had five and six and nine kids apiece, and instead of having a helicopter for a mom, our perfectly competent mothers locked us out of the house with the admonishment to “go play.”  You heard the click of the lock, and you went off to … play.  Your mother went into the house to get after her work, and did not feel the least bit of guilt over the transaction.  Those were the days.

I could go on and on with adorable stories of tender childhood adventures and pranks, but as I people, children, misbehavior, friends and friendship concept -think of them … now with the sensibilities of an adult … I realize that a lot of what we did, and thought nothing of at the time, were actually pretty awful things.  No need to plead the 5th given that the Statutes of Limitation run by the time your moms pass on.  But no kidding … we did some pretty awful things.

Here’s one:  the church at the end of our block had a little yard with a swing set, slide and sandbox.  While playing in the sandbox one summer afternoon, Jessie and I discovered a door to the church had been freshly painted bright red.  It was beautiful and fresh and wet … and there we were … with the sand.  Though unimaginable to me now, we threw sand on the door and ran away laughing ourRed Door horrible little heads off.

Ha-ha-ha!  A delightful little childhood story from back in the day. Adorable little rascals, weren’t we?  

Devils more like.

And another:  we found an unlocked window which was a reliable way into the church building and snuck in on Saturdays to play in a classroom set up for Sunday school.  We played with toys and pretended to be teachers writing arithmetic problems and spelling words on the chalkboard.  Nothing profane.  But when we found a utility closet with a sizeable store of Dawn dishwashing detergent, we squirted whole bottles of it in a hallway, ran back and forth to a drinking fountain getting mouthsful of water and spitting them onto the floor creating a dastardly Slip-n-Slide that certainly was an hours-long horror to clean up. 

I knew it was wrong.  But the clean up was the only thing I considered … and then disregarded.  

Were there consequences my ten-year old self wouldn’t have considered?  Did an elderly person happen upon our handiwork and become injured by it?   I don’t know.   Jessie and I went Senior Woman Enjoying Cup Of Tea At Homeblissfully on our way.  Now, too late, I wonder.

In my early adulthood, I had a delightful, elderly neighbor who occasionally invited me in for tea and a chat.  She was mugged on her porch and in the violence was pushed to the ground and broke her pelvis.  It was shocking the degree to which her quality of life abruptly declined.  She was left quite depleted and depressed for the remainder of her days.

The muggers, she said, were “just teenagers.”

She recognized their acts were borne of youthful indiscretion. Indiscretion with a clear and direct potential for the debilitation that occurred though.  Squirting slippery detergent on a floor is not the same as a mugging.  I will restrain myself from obnoxious over-piety to equate them.  But the effect, for all I know, could well have been the same.

Making decisions with inadequate information are unavoidably how all decisions in youth are made.  And they’re often bad decisions.  Many of mine were.

I confess that not only did I make decisions with inadequate information, but I also unconsciously gave too muchTeenage girl depression - lost love - isolated on white backgrou weight to banal personal concerns – my standing among peers, and my fear of crossing Jessie. 

Jessie might have been the ringleader because she had by far the best ideas, but also because she was a bit of a devilish little bully if you didn’t go along with them. 

Disability determinations are often unavoidably made with inadequate information too.  Medical records are necessarily the primary source of information used to determine whether a claimant is disabled.  Medical records almost never directly address how patients function.  And in most cases how a person functions is  the only relevant issue to the question of disability.  

Even diligent scrutiny of every shred of medical evidence can leave a decision maker at an honest wobble as to whether the records prove up a disability or not.  (I attempt to get at this in If it may please the court, I’d like to whisper sweet nothings in your ear.)

The concern is whether decision-makers left in the lurch after all the evidence is considered would slip into using generalized information to make specific decisions in particular cases.

In Scheherazade’s Superpower, I mentioned that a dissenting opinion in a U.S. Court of Appeals case stated that when medical records are unclear, decision-makers are justified to tip the scales in favor of an assumption that a claimant is likely feigning the disability. The case cited a story of fraud.   (Ghanim v. Colvin763 F.3d 1154 (9th Cir. 2014)) 

This is the kind of generalized information I mean.  

It’s jarring to read this advice in case law, but … I rather appreciate the honesty.

EscapingThe stories of fraud, even when true, represent a tiny fraction of the scope of the disability program.  

Nonetheless, the stories are a huge embarrassment to the Administration, to its decision-makers, to private attorneys representing disabled claimants, and to the claimants themselves.  

Everyone is injured by fraud.  Everyone is implicated by fraud.  

Everyone.  Everyone.  Everyone.  Even all the law-abiding everyones. 

With the rise of stories of fraud in the press, and the documented decline in awards of benefits to claimants, one wonders whether these variables are merely correlated, or whether the rise of the stories is a cause of the decline.  The Ghanim case would suggest there is at least some causation. 

One wonders whether, in addition to Social Security’s stringent standard of what must be proven to obtain disability benefits, if claimants’ burden now also includes overcoming the presumption they are frauds at the outset. 

This would make obtaining benefits, even when truly disabled, quite a bit morePocket Watch Swinging On A Chain Black Background difficult.  Especially so if the burden wasn’t stated, but just hypnotically played itself out in the background of decision after decision after decision after decision.

Shhhh ….  When I snap my fingers, you will see fraud everywhere … when I snap my fingers you will see fraud in everyone … shhhh … decide … shhhh … decide … shhhh … decide.

The Social Security Administration is responding to fraud aggressively.  And they should.   They have increased the numbers of fraud units nationwide.  And they have announced it will be responding to fraud … even before it happens … by the use of predictive analytics.  

Predictive analytics allows fraud investigators to predict who might be a “risky person” in an effort to prevent fraud.  Preventing crime before it occurs makes sense.  Right? 

But using predictive analytics to implicate specific persons before commission of  a criminal act … that’s a bit like … like Spielberg’s film, Minority Report where crimes are foreseen by psychic “pre-cogs,” and prosecuted in advance of their occurrence!  

Tom Cruise at the Los Angeles Premiere of 'Valkyrie'. The DireTom Cruise playing the Chief of Pre-Crime bursts into a home, cuffing a suspect saying … “by mandate of D.C. Pre-crime Division, I’m placing you under arrest for the future murder of Sarah Marks, that was to take place today ….” 

It all made a kind of sense until the pre-cogs foresaw Cruise’s character planning a murder of a person he didn’t even know.

Predictive analytics would not be used to prosecute crimes before they’re committed, but would be used, according to Social Security’s Acting Commissioner Carolyn Colvin, to prevent fraudulent applications from being processed.”  

It’s unclear what … “preventing fraudulent applications from being processed” means … but it sounds like it’s … finally an articulation that claimants, or at least some of them, do have the burden to overcome a presumption they are frauds at the outset … before their applications for benefits are even processed, much less adjudicated.  

It’s jarring to hear this from the Commissioner, but … I rather appreciate the honesty.

people, children, television, friends and friendship concept - tWe need … to think this through.  We need to make informed, fully-conscious decisions.

At any rate, Jessie and I were darn lucky there wasn’t a Juvenile Pre-Crime Division back in the day. Although, in our case, we would assuredly have deserved whatever pre-punishment we got.

All people have an interest in disability determinations being made correctly.  The integrity of the program depends on it.

The devils, as always, are in the wayward little rascally details.

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.

 

 

Civil obedience … and other lawful rebellions

bigstock-Multi-ethnic-business-group-gr-26892467Recently an attorney-friend said, “not long ago, when I told people I represented disabled people – helping them to obtain Social Security disability benefits – I was met with admiration and kudos for helping vulnerable people … for being one of the ‘good guys.’   But not anymore.   Now I’m as likely to encounter an uncomfortable silence, or an expression of disdain, an uncomfortable, ‘oh,’ or even outright derision.

Now I am a villain helping scoundrels?   How did that happen?   I am doing what I’ve always done.  The change was sudden,” he says.bigstock-Angry-man-pointing-his-finger-46605823

Social Security disability attorneys have stood still, and public opinion has shifted 180° around them.

Standing in the center of this negative whirl are attorneys, Administrative Law Judges, the Social Security Administration itself, and … disabled people.   We stand together.

The problem that disabled people have not being able to fend for themselves in the competitive economy is not only a personal problem, it is one that affects nuclear and extended families, communities, society, and the nation as a whole.   Disability has a ripple effect that first and most drastically devastates the person, then the family, and then dissipates as the circle widens, but still negatively impacts the wider community, including school systems, society and the nation.

bigstock-beautiful-woman-sitting-on-a-p-47465599Standing at a distance from people who are disabled, it is common to hold the opinion that their maladies are not real, their claims are fraudulent, their problems can be wished away.   Standing at a distance from people who are disabled, it is common to hold the opinion that the attorneys who help them obtain Social Security disability benefits are aiding and abetting a fraud … that the judges who grant the benefits are lax, incompetent fools.

But standing close in … the picture of disability becomes sharply focused.   Disabled people, their attorneys, and the Social Security Administration are understood quite differently when viewed up close and personal.

Up close and personal you see that disabled people have tried everything in their power to succeed, but they have been unable to do so.

Up close and personal you see that families with disabled family members struggle financially, and you see the heart-breaking decisions families are faced with that funnel their resources of money, time and emotion into the disabled person, leaving non-disabled family members wanting.

Up close and personal you see that the all-important safety net of family is small, and often inadequate to the task of supporting disabled family members.   And, up close and personal, you see that family needs support from community and from society.

Numerous times I have seen an individual shift position from thinking that the Social Security disability program is a poorly administered, bogus, mass-deception to understanding its value, and seeing its necessity as a national safety net that is much, much too hard to obtain.

This 180° shift happens pretty much on cue when a person suffers a traumatic injury; when they go from able-bodied to disabled – quickly.

Disability can happen to anyone … at any time.  

My client had been a hard-working, affluent, white-collar, upwardly mobile, family man.  He and his wife did everything right.   They followed all the rules.   When he was injured in a car accident, fracturing his pelvis, and damaging two discs/vertebrae in the lumbar-region of his spine, everything changed.

There were two failed back surgeries, a few years of chronic pain + more pain … immobility … weight gain … the pain-killing medications lost effectiveness … more pain …bigstock-Father-hugs-son-5655891 depression (of course) … despair.   My client’s wife worked full-time, but they could not afford their house on one salary.   They sold the house at a loss, and moved into an apartment, uprooting their children from schools, and friends.

My client came to me already having been denied benefits by Social Security.  His appeal period had lapsed, and he needed to reapply.  When Social Security denied the second application, he confessed his desperation to me, but not to his wife.   He said he lay in bed most days planning a suicide that would likely be viewed as an accident so his wife would receive his life insurance.

He said, “I never understood this before.  I never understood how precarious we all are.  How bigstock-Risk-Planning-46825366much anybody can wind up needing these benefits.”  He said, “I used to watch Fox News all the time listening to them accusing damn near every disabled person of faking.  Now I feel like they’re talking about me.  And I know they’re talking about you!   And they have no idea what they’re talking about.   I know that now.”

Up close the “situation” of a disability looks very different, and so do the cast of characters – the disabled people, the judges, the lawyers.

I am uneasy that people are more likely now than before to have a negative opinion of me and my colleagues, of our work, and of the people we represent.   But we know who we are.   And, we know what we’re doing.   We stand with people who lack economic and political power.   We stand with the families of disabled people who need our help, and need the help of society, and we take on their cause of obtaining that help.

I would like to fancy myself fighting for the poor and disenfranchised among the elite attorneys bigstock-Superman-isolated-on-the-white-34940144in history.   Attorneys who were truly persecuted.  Attorneys whose civil disobedience changed the course of history.   Nelson Mandela, for example, and his law partner Oliver Tambo were frequently prevented from traveling, forced to prove their professional status just to appear and speak in court, faced threats of disbarment because of their political activities, prohibited from gatherings, prosecuted and jailed.   They represented truly disenfranchised citizens in the context of unjust laws that afforded them few effective arguments.

I would like to pretend myself into that class of attorney, but in our time and place, we are not persecuted.  People who don’t know any better think and say bad things about us – and sometimes to us.   Okay.   We can stand up to that.

In our time and place, it is not necessary for us flagrantly to disobey unjust laws.   Civil disobediencebigstock-The-saying-Work-for-a-Cause-No-43914400 is unnecessary.   Our rebellions are far less dramatic inasmuch as they are compliant and decidedly obedient to an essentially just and proper law – 42 U.S.C., Titles II and XVI.   Ho hum.

As such, we toil away in oblivion.   Uncelebrated and unknown to the ages.   But we know who we are.   And, we know what we’re doing.   We stand with people who lack economic and political power … people who are sometimes viewed with disdain.   We stand with their families, and we take on their problems.

A quiet, obedient, lawful rebellion much appreciated by our disabled clients, by their families, and – when they understand it – by society.

 

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 Raptitude.com 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.