Tag Archives: fraud

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.

Scheherazade’s Superpower

Shahryãr the fabled Persian king discovered his wife’s infidelity and ordered her death. Burka03

Concluding that every woman is the same as the first, and each in turn would always be unfaithful, King Shahryãr marries a new virgin every afternoon, and at morning’s light orders his bride beheaded before an opportunity to dishonour him could arise.

Seems reasonable.

The king carries on for years in this way until the marriageable women are either dead or have fled and then it is Scheherazade’s turn.

Scheherazade is a storyteller.

On their wedding night, Scheherazade asks the king if she may tell her sister, Dunyazad, one last beautiful woman in oriental style with mehendi in hijabbedtime story.  The king grants her request.

Scheherazade skillfully relates an inventive narrative that captivates the king.  Shahryãr sits, with Dunyazad, and is brought along by each image, turn of phrase, suspense, and narrow escape.  Morning arrives, but the story is not complete and the king spares Scheherazade to finish the story.

The stories never end for a thousand and one nights.  By that time, Shahryãr’s heart is Scheherazade’s, and her stories have saved them both.

Story is Power.

Human brains rely on narrative to understand a complex world.  The tighter the narrative, the more direct, and simple, the more a person feels he or she has mastered the concepts and can extrapolate fundamental, guiding principles.  If information, later-received, falls outside of the story, it is discarded as untrustworthy.

I am not criticizing this way of understanding.  And even if I were, it is not negotiable.  It is the The Thinker Statue by the French Sculptor Rodinway of the human bean.  And, it is inadequate only to the extent that beans exclude contradictory information.

When contradictory information is accepted, when it is welcomed and considered, when thinkers allow it to challenge their assumptions, draw out questions, deepen consideration and enhance understanding … … why … … why that’s the scientific method!

Over the course of the past decade, there have been a thousand and one stories in various media telling of people committing fraud on Social Security.  

The Legal Reference Librarians at the Library of Congress have been so inundated with requests for information about the Social Security disability programs in recent years, that to manage them, they published a basic primer to which they could refer reporters.  

More recently there have been stories telling that the Social Security Disability fund is to run dry by the end of 2016.  It appears the funding issue is subtly related to the prevalence of the fraud stories – but perhaps not in the way you might think.

On January 6, 2015, the first day of the 114th Congress, Republicans in the House of Representatives amended a parliamentary rule restricting reallocations of monies between the Retirement, and Disability funds.  Such reallocations have uneventfully occurred eleven times in the history of the programs.

Capitol building Washington DC pink flowers garden USA congressWhen Social Security raised the retirement age, more people in the “disability-prone years” were both unable to work, and unable to wait until they reached retirement age and so applied for disability.  The effect was that the Retirement fund was advantaged, while the Disability fund was disadvantaged.

So, the Retirement fund is hella huge right now, and the Disability fund is bust.  Time for an uneventful reallocation.  With a reallocation, both funds would be solvent through 2033.

Recall the funding drought is subtly related to the prevalence of the fraud stories?  If the connection isn’t clear, the Representatives behind the rule change help to clarify:

Rep. Sam Johnson (R-TX), justified the rule change with an interesting back flip by saying:

In 2016 the fraud-plagued disability program will become insolvent.  If nothing is done, Americans with disabilities will see an across-the-board cut of 20% to their benefits.  Unfortunately, the President and Democrats support raiding the Social Security retirement program to bail out the disability program.

Huh?  The rule change you put forward is the reason the disability program will become insolvent in 2016.  It wouldn’t have been insolvent without you guys making that change.

Oh, I get it!  It’s one of those tight little narratives – direct and simple!   Now I’m supposed to feel I’ve mastered the concepts and can extrapolate fundamental, guiding principles therefrom!  bigstock-Happy-Black-Woman-12039302Now, if other information, later-received, falls outside that narrative, I’m to discard it as untrustworthy!   I see what you did there!   You got me, Representative Johnson!  You got me good!

Rep. Tom Reed (R-NY), a co-sponsor said,

My intention by doing this is to force us to look for a long term solution to [Social Security Disability Insurance] rather than raiding Social Security [Retirement] to bail out a failing federal (Disability) program.  Retired taxpayers who have paid into the system for years deserve no less.

Disabled taxpayers of Social Security Disability Insurance have also paid FICA taxes for years.  But let’s not quibble over details.

Story is Power.  But if you don’t have a story, just keep saying a thing over and over again until all the beans just think it’s so.  That’s power too.   

Sen. Rand Paul (R-KY) consistently states that “over half of the people on disability are either anxious or their back hurts…. Join the club.”  

That’s simple, understandable … a nice frame.  I think I’ve mastered the concept – the Disability program is riddled with fakes and frauds.  Got it.

Rand Paul is an ophthamologist.  One would think he  would appreciate gradations of medical conditions.  A person has “vision problems” if she is blind.  A person has “vision problems” if she only needs reading glasses.  The same is true for people with psychiatric and orthopedic conditions.  

Senator Paul’s simplistic statements are given more weight because he is a Senator, and because he is a physician.  His statements provide that nice, simple framework for all the beans to think they’ve mastered the complex concepts involved in “disability” and can extrapolate fundamental, guiding principles therefrom. 

Fox News’ reporter Shannon Bream says that 100% of people receiving disability benefits are receiving them “under false pretenses.”

100%.  Not only is that simple, it guarantees that any contradictory information falls outside the narrative, and must be discarded as untrustworthy.  

Seems reasonable. 

The connection between the stories of fraud, the overblown proclamations of fraud, and defunding the Disability program is taut.

fortune-teller with a shining crystal ballMadame Dunk Tank predicts the future … … the orchestrated insolvency of the Disability fund will be used as leverage to attack the program, to attempt legislatively to deplete it, to cut benefits, and to defame disabled people who either receive disability benefits or apply for them.

Madame Dunk Tank foresees the pitting of “good” retirees against “bad” disabled people.

Madame Dunk Tank advises you to prepare for more stories of fraud … prepare for more invective leveled at disabled people.  They are ripe for the picking on.

While the stories of fraud are drastically overblown, there are instances of fraud to be sure.  Some of the stories of fraud are true even if, statistically, they are a blip.

I do not minimize fraud.  Social Security rightly has a Zero Tolerance Policy on fraud.  The Dunk Tank has a Zero Tolerance Policy on fraud. 

Social Security’s Office of Inspector General puts great effort into policing fraud.  And they would appreciate your help.  If you have information of anyone committing Social Security fraud, report it.  It is easy to report, and you may do so anonymously.  Click here to report.

fraud bride and political or police corruption money corrupt cybHaving said that, statistically, fraud is not a major problem for Social Security.

The nonpartisan Government Accountability Office in conjunction with the Office of Inspector General researched the question of fraud in the disability program and found that 0.4% of disability beneficiaries were likely receiving improper payments. 

In West Law’s November 2014 issue of Current News, a private, subscription-only (which is why I can’t link to it) publication on Social Security, it was reported that Social Security’s Office of Inspector General had audited a seven year period in California to determine the accuracy of payments to beneficiaries reported by the state as deceased. Only 22 of 1.2 million Social Security card-holders, were erroneously being issued checks despite the recipient having died.   That is an astonishing 99.999% rate of accuracy!  

Social Security should be lauded for that degree of near-perfection. 

I never saw that in the press.   One could imagine the tight little narratives – direct and simple – about the 22 mistakes though … out of context … with the projected millions of misspent dollars.  Thankfully I never saw that in the press either. 

Although fraud is not statistically a major problem for the Social Security Administration given the scope of its reach in assisting elderly and disabled people, increasing numbers of erroneous denials of legitimate claims for disability benefits is a major problem.

In Ghanim v. Colvin, 763 F.3d 1154, Chief Judge Alex Kozinski, in dissent makes an argument that when there is conflicting evidence that comes down reasonably on either side of the question of disability – especially where a claimant alleges a mental disability – that an Administrative Law Judge is well-justified to tip the scales in favor of an assumption that the claimant is likely faking the disability.  Judge Kozinski’s opinion actually cited the Wall Street Journal article Ex-NYPD Cops, Firefighters Charged With Disability Fraud.

bigstock-Portrait-of-judge-sitting-with-41940163And there it is.  Story is power.

Federal judges, and Administrative Law Judges do not remain above the fray.  They are human beans judging human beans.

Nothing more.  Even with the robe. 

Like the rest of us, judges read these tight, simple little narratives and the stories form the basis of their very human misunderstanding.

Like Shahryãr of the Persian folk tale who concluded that every woman would be unfaithful because his first wife had been, judges take the tight little narrative of the fraud stories and conclude every disabled person who comes before them is likely also to be a fraud.

This is perhaps why the most recent data from Social Security’s Office of Chief Actuary regarding awards of benefits shows a decline from 56.1% in 2000 to just 34.8% in 2010.  And the downward trend continues.

Erroneous denials of legitimate claims is a major problem.  

When a legitimately disabled person is erroneously denied benefits the person remains disabled.  That fact is not changed by the denial.  An erroneous denial does not change reality.

Let me explain it this way:

Social Security Retirement and Disability Benefits, and Supplemental Security Income are available to elderly people as a matter of course.  There is nothing to prove, other than age, to receive them.  So, there is no opportunity for erroneous denials in the case of the elderly.

Have you ever noticed the homeless population in the United States is mostly not elderly?  I had not noticed it myself until travelling in the middle east and Africa. 

The demographic of the homeless population is much older in countries lacking a well-run social safety net like Social Security.  Although homeless people almost always look older than their years, the people I saw sleeping in the streets in the middle east and Africa looked to be in their seventies, and eighties. 

I have never seen a homeless person in the United States in that age range.  And that’s the kind of thing I notice.

Homeless Man Sleeping On A Bench

Our elderly are spared the fate of living in the streets because Social Security reliably, and without question (with no erroneous denials) provides support.

If Social Security afforded Administrative Law Judges discretion in determining benefits to the elderly, there would be mistakes, and we would see homeless elderly in the United States. 

Living the life of a disabled person with (in most cases) absolutely no income for years and years and years, while going through the years’ long disability adjudication process is astonishingly difficult.  This is a lot of time.  And it is hard time.  It stands to reason disabled people are not doing this in a complex scheme to commit fraud.  

I know this is information that falls outside the simple narrative, but take it in.  Consider it.  

When a disabled person is awarded Supplemental Security Income he receives at most $733 per month.   At most.  The amount can be less, but never more.  

When a disabled person is awarded Social Security Disability Insurance benefits, the average monthly benefit is $1,165 per month.  This benefit is based on how much the person paid in FICA taxes, so the number is not a fixed amount – that’s why I can only give the average.

Madame Dunk Tank avoids technicalities so as not to bore, but it is important to know that a disabled person can receive a little from both programs, but that is only when the amount received from Social Security Disability is less than $733.  When that happens, Supplemental Security Income kicks in to “supplement” the Disability benefits up to $733.  So, even if a person receives concurrent benefits, the amounts are not more than the lower amount. 

News flash:  Nobody gets rich on disability. The benefits meet only very basic subsistence living.  Recipients of disability benefits are still either at or below the poverty line.  It stands to reason disabled people are not doing this in a complex scheme to commit fraud.  

An erroneous denial of a legitimate claim is a tragedy.  It is a tragedy for the disabled individual, for their families, and for the society that steps over and fears its disabled, desperate, homeless people who live in its streets.

An inadmirable Administrative Law Judge once told me, “it’s no skin off my teeth if I get it wrong. They just go away.” 

Seems reasonable. 

The claimant may or may not go away.   But assuredly the problem does not.  

Closeup of business crowd raising hands

By a show of hands, how many attorneys out there have had at least one client successfully commit suicide upon receiving a denial of Social Security Disability Benefits?

Yeah.  Me too.

But, given their options, after an erroneous denial,  the choice seems reasonable. 

For the myths to persist …

Fairy With Staff, 3D Computer GraphicsThe myths of Social Security disability are that … it is easy to obtain, rife with mildly-impaired scammers, and a good life once received.

For the myths to persist, the public cannot know …

– the many, many years it takes to obtain Social Security disability benefits,
– the invasive nature of the personal information disabled people must divulge to Social Security,
– the shame and fear of going before a court to disclose personal incapacity,
– how arduous life is with no money for the years of waiting,
– the penetrating shame most disabled people bear….Treasure

And, for the myths to persist, the public cannot know how little is the financial gain … with the average disabled person eligible for Social Security Disability living on just $ 1,232.00 per month, or a disabled person on Supplemental Security Income receiving, at the most, $ 721.00 per month.

Like a bridge over troubled water … I will lay me down

Last week the New York Times reported 106 people were indicted for allegedly defrauding the Social Security Administration by faking psychiatric disabilities to receive benefits.   Newsday, the New York Post, the Wall Street bigstock-High-wave-breaking-on-the-rock-44534389Journal … all had stories reporting the same.

Troubled water indeed.

I have no opinion on the veracity of the allegations.   I simply don’t know.   And I have no way of knowing.

But I do know that many legitimately disabled people will be swept up in these stories of alleged fraud as readers generalize the allegations to bigstock-Round-hazard-sign-warning-for--41432773include all people, or most people, who receive and need Social Security disability benefits.   Honest people will unjustifiably be viewed as frauds too.

I do have an opinion about that.

Human beings’ brains recognize patterns.   Our brains generalize.   Pattern recognition is part of how we learn, how we order our world.   But human brains recognize patterns and generalize … to a fault.   The brain sometimes sees patterns where they do not exist, and makes generalizations that are false.

Generalizations … proclamations.   We draw the wrong conclusions, and develop strong opinions based on those wrong conclusions.

images[10]Gerald M. Edelman, M.D., Ph.D., won the Nobel Prize in Physiology and Medicine for his work (along with Rodney R. Porter) on the immune system in 1972.   Dr. Edelman also studied the neural physiology of the human brain giving rise to human consciousness.   In his book, Second Nature:  Brain science and human knowledge, published in 2006 by Yale University Press, Dr. Edelman wrote,

human brains operate fundamentally in terms of pattern recognition rather than logic.   [Pattern recognition] is enormously powerful, but because of the need for range; it carries with it a loss of specificity.”

Pattern recognition is enormously powerful … and necessary for bigstock-Digital-Eye-36592024learning, for drawing conclusions in a complicated world to be deciphered.   But pattern recognition has its shortcomings.

Does 106 = all?    No.   106 ≠ all.    106 doesn’t even = most.   Not even close.

Readers of these news stories would do well to rein in their brain’s natural reflexive creation of defective patterns regarding disabled people.   Yes, some people commit fraud, but there are many more who are legitimately disabled and who are not committing fraud.  Many, many more.

Most applicants and recipients of disability benefits would give anything not to need public benefits.   They would rather have the lives they imagined for themselves; lives in which they provide for themselves and their families … lives in which they are accomplished, and favorably acknowledged.   Lives in which they are in the game.

Many legitimately disabled people will feel themselves to have been unjustly accused – as if they were among the 106.   They will take that hit emotionally.   They will cringe when they hear the news.

It is as if I were to feel implicated as a mere bank account holder in a bank that got robbed.   The fact that my bank got robbed doesn’t mean I am a bank robber.   I am not complicit in any way.

bigstock-Portrait-of-judge-sitting-with-41940163It is important for Social Security’s judges not to get caught up – as  a lay person might – in creating defective patterns of mind about disabled people – patterns that would prejudice them in their decision-making.

Although I have seen judges take it on the chin in the press, I have known many who are masters of the art and craft of judging – who can remain fair-minded, continue to learn the applicable law, manage their courtrooms efficiently, and treat the people who come before them with respect.   Professionalism is a beautiful thing to behold in any profession, but maybe especially so in the profession of judging.

It is important also for attorneys knowledgeable of the realities of bigstock-Bridge-Over-River-532848disability and what disabled people face, to continue the important work of advocacy, to commit themselves to providing dignified, competent and lawful bridges over this troubled water ….

Like a bridge over troubled water … I will lay me down.

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.

Book ’em, Danno

bigstock-Distress-And-Suffering-44182258The big, big, big Social Security news this past week was of a massive alleged fraud scheme in Puerto Rico.  68 people arrested already,  with more to come.   A former Social Security worker as the ring leader, with doctors and fake claimants apparently also on the take.

White collar crime to beat the band.

Though the reporting is somewhat murky, it appears that Social Security’s Office of Inspector General, and the FBI have been investigating this ring since 2009 – comprehending the scope of the alleged scheme, and gathering evidence towards a well-muscled prosecution.   Book ’em, Danno!

In response, Representative Sam Johnson, Texas Republican and Chairman of the Social Security Subcommittee of House Ways and Means said, “I was outraged to learn of the unprecedented and widespread disability fraud arrests in Puerto Rico.  That such fraud could occur in the first place raises serious and troubling questions regarding Social Security’s management of the disability program.  Clearly this isn’t a case of just a few bad apples.”

Wait … what?   This is Social Security’s mismanagement?   I get the bad apples part, but Social Security’s mismanagement?

In 2011, an 11-year-old victim who suffered repeated sexual assaults, was accused by criminal defense attorney Steve Taylor, of being a seductress luring men to their doom.  “Like the spider and the fly.  Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?’ ” he asked a witness.

Social Security, you seductive little spider waving benefits before white-collar criminals … luring them to their doom.

bigstock-Missing-the-target-7478874Sam Johnson’s statement “that such fraud could occur in the first place raises serious and troubling questions regarding Social Security’s management of the disability program” takes aim at the wrong target:  Social Security.  And, it fails to appreciate that it was Social Security’s Office of Inspector General that ferreted out the alleged scheme. 

bigstock-Business-Woman-Shouting-Throug-29664110Hello!  I’m talkin’ to you, Chairman of the Social Security Committee:  It  was Social Security’s Office of Inspector General that ferreted out the alleged scheme.

But …well looky here … It’s worth doing your own fact-checking.  Although the Associated Press articles I read did not give Sam Johnson’s full statement, it is available on the House Ways and Means page on the interwebz.   In it, he goes on to say, “The bottom line is that this fraud hurts those who are truly deserving of these vital benefits and undermines the public’s trust.  I commend the U.S. Attorney, the Federal Bureau of Investigation, the Social Security Administration Office of the Inspector General, and the Puerto Rico Police Department for bringing this fraud to light.”

Oh, that’s cool.  Never mind.  I really couldn’t agree more with that part of Rep. Johnson’s statement.  It’s importbigstock-Vector-oops-sign-34359290ant to read the whole statement … and not trust that the press won’t print only the part that suggests conflict where it doesn’t necessarily exist.

The Social Security Subcommittee will hold hearings in September 2013, “as part of its effort to get to the bottom of how this fraud occurred,” Rep. Johnson said.   I do so hope that in those hearings Social Security is given ample credit for the fact that according to U.S. Attorney Rosa Emilia Rodriguez, “there has never been a case like this in the history of the Social Security Administration.”   But that when there was, it was found out by the Social Security Administration itself.

Moreover, I do so hope that Social Security does not, in response to this alleged scheme, issue rules that tighten eligibility standards for “those who are truly deserving of these benefits” – as Rep. Johnson refers to them.

Indeed, this event should be taken as testament to Social Security’s apt management of the disability programs … even as they are busy seductively wooing flies to their parlor.

Once upon a time …

bigstock-Text-Once Upon A TimeOnce upon a time a very bad and lazy man applied for Social Security benefits, and even though he had only very minor health issues, in short order, he received his disability checks, and lived happily ever after.  The end.

We read this story in the press every day.  It’s a well-known narrative – simple and complete – accepted as common knowledge.   But, it is completely false.

Anyone who has gone through the Social Security disability process knows that it is false.  Full length portrait of an embarrassed naked man in underwear, iAnyone who has ever been in a courtroom with their medical records splayed out before a judge confessing under oath their “functional deficits” with a vocational expert in the courtroom testifying to what jobs this person could do, and a medical expert hired to testify how the person does or doesn’t “meet a Listing”  … knows that it is patently false.

Proving your disability is no fairy tale.

Yes, there are people who commit fraud – just like there are folks who shoplift in the grocery store.  But the fact that there are those who shoplift groceries doesn’t mean that honest shoppers can’t complain about the high price of breakfast cereal.

When disabled people who are really and truly suffering, go through the many, lengthy, time-consuming, and humiliating steps they must go through to acquire Social Security disability benefits tell their stories – they are not heard.  They are prejudged as frauds, folks turn away saying in essence, “the price of breakfast cereal doesn’t matter, you’re probably just a shoplifter anyway!”

One barrier to the press being able to tell an accurate story about really and truly disabled Closeup portrait of troubled man looking at camera, worried.people is that really and truly disabled people are loath to tell what is really and truly wrong with them.  It is embarrassing.

Another barrier to the press telling the story of really and truly disabled people and what they go through to receive disability benefits, is that it’s not fun to write about and it’s not fun to read about.

Writing the stories of disabled people who are in the process of applying for Social Security disability requires the press to research the statute, the regulations, read court decisions, medical records, digest statistics.  It’s complicated, and …  bo-ring!

Reading about really and truly disabled people and what they go through to receive disability benefits requires considering people in pain, people in and out of hospitals, people battling health insurance companies, people enduring the waiting rooms of clinics trying to get medical care when uninsured, people losing homes to foreclosure, people sending their children to live with relatives while they descend into poverty ….  Depressing.  Blech.  Who wants to read about that?

But … who doesn’t love a good fraud story???  Those are simple, straightforward, and better yet – salacious!

Writing about fraud is fun!  Reading about fraud is fun!

Even I love those stories about folks who bury deceased relatives in the backyard just to keep receiving their Social Security checks.  Part of the fun is they’re so … Jerry Springer!   Imagine … carrying the body of a loved-one to the backyard, digging and digging and digging – maybe even in the cover of darkness.   Can you do that by hand?  Do you have to rent a back hoe?   Think of the logistics.  Think of actually tossing that body in.  Gah!   It’s ludicrous … and so uncommon as to be statistically irrelevant – but that’s what reporters write about.  That’s what people read about.  And the public is up in arms!  Dammit!   I’m up in arms!

That’s why I use titles like “Good morning you loser piece of dung, good-for-nothing, fraudulent drain on society … how can I help you?”   I’m just trying to compete.

In the “once upon a time” story of the bad and lazy man who applied for Social Security benefits … he received his benefits “in short order” and that is a key piece to the erroneous story.  It is important that the reader/listener of a story believe it is a snap to apply for and receive disability benefits.  Spit spot, you apply, you get it, you’re on vacation for life!

PrintThe time it takes to resolve a disability case is not measured in months – it is measured in years.  Years and years and years.  And not just years and years and years, but hard years and years and years.  Hard because you have no income, or precious little of it.  As I have written before, I have never figured out how people actually manage to live with no money.

One client I had was a woman in her fifties who, while her case was pending had become homeless.  Homeless, like so many people who have applied for disability and are hoping and praying and waiting.  She came to my office to prepare for her hearing before an Administrative Law Judge.  It was summer, she was wearing shorts.  I noticed she had quite a number of bruises … especially on her inner thighs.  I asked her about them, and she evaded with, “oh that,” but didn’t answer my question.  She attempted to move the conversation away, but I pressed her with more questions, “no really, what happened to you?”  She dismissively waved her hand, and said, “Look … I was raped by a few guys a couple nights ago.”

What???  I was so horrified I could barely speak.  A few guys?  How utterly revolting.  I didn’t know bigstock-Woman-Depressed--Black-and-wh-27250094what to say.

It was clear she did not want to talk about this.  I could tell by the way she was steering me from conversation about this gang rape that there was no way she had reported it to the police.  Her demeanor revealed that she didn’t even take it in as a violation worthy of reporting.   Her use of the word “few” was such an incongruous diminution of the experience.   Nonetheless I sputtered around and asked if she had reported it, or if she had gotten herself to a hospital or … anything.  She said, “oh honey … that’s my rent.  It happens a few times a month.  It’s my rent, that’s all.”  As if she were trying to console me.

So I guess that is how people manage to live with no money.  For years and years and years.

It is difficult for me to give the national average for the length of time it takes for a worthy claimant to go through the disability appeals process – there is a good deal of variability.

Among my clients, they would typically apply, and receive a denial within about three to six months.  A claimant has sixty days to file an appeal.  The next level of appeal in most states is to “Reconsideration.”

I practice in Missouri, a state that does not have the reconsideration level of appeal, so I’m a bit fuzzy on how long reconsideration takes in the states that do have it.  But, in Illinois, where a few of my clients live, they do have reconsideration, and the claims were processed within about another six months give or take.  Assuming a denial (and all of my clients were denied at the reconsideration phase), the next appeal is to the “Office of Disability Adjudication and Review,” where the Administrative Law Judges mostly are.

The wait for a hearing date to be scheduled at the Office of Disability Adjudication and Review is in the range of a year and a half to two years, at least in my neck of the woods.

Then, once you have the hearing – and let’s (for the sake of brevity) assume you do not have to have one or two “supplemental” hearings … you will have to wait another two months or so for the written decision to be generated.

So … if you were to have received a favorable decision by the time you had gone before an Administrative Law Judge you would already have lived without income for … somewhere around three and a half years.  That’s a fairly optimistic time line, though.

And, there are two more layers of appeal past the Office of Adjudication and Review – to the “Appeals Council” and to federal court.

Be aware that sometimes the appeals process is not a linear track.  For example, you can be denied by an Administrative Law Judge, appeal to the Appeals Council (where your case will be for about two years pending a decision), and have it sent back to the same Administrative Law Judge who denied you before, where you will wait in the queue again at the Office of Disability Adjudication and Review to get a new court date.  Then, you will have the hearing with the same judge who denied you before, and wait the two-ish months for your decision, find out you lost again, and then appeal again to the Appeals Council … wait some more … and maybe have the case sent back to an Administrative Law Judge again.  I have heard tell of cases sent back as many as three times from the Appeals Council back to the judge to do it again.

If the Appeals Council does not send the case back, but instead denies it, you can appeal to federal court … where you will wait and wait and wait some more.

During that time … how do you pay the rent?

To follow-up on the homeless client who paid her rent by being raped … she had such a hard time proving her disability.  Though she was so ill, she had such a difficult time under her circumstances making it to her doctors’ appointments.  She routinely missed them.  And when she did go, her personality was such that she would not divulge much about her symptoms, she did not go to her docs with a tidy list of her complaints and concerns as I might do.  Her doctors didn’t have the time to pull information from her.  So, medical documentation of her impairments was … weak.

Because she would not report her many, many gang rapes to the police or to her doctors … there was no way to get this information into evidence before the Administrative Law Judge, except by asking her in a hearing … and there was no point to that.

But, legally, the rapes were quite besides the point.  Being a victim of crime doesn’t make you disabled.  Having a seriously hard-luck story does not make you disabled.  But, at any rate, the judge never even knew.  And I wished he had, at least so he could hurry up his decision – whichever way it was going to go – because the quicker we could get this lady a safe place to stay, the better.  Unfortunately, this particular judge is a plodding sort who takes his time making sure all the t’s are crossed and all the i’s are dotted ….bigstock-Movie-ending-screen--Vector-E-38593006

So for her anyway the fairy tale might go something like … once upon a time there was such a good and worthy woman with very major health issues, who waited and waited and waited for her disability, but it never came … and she died on the street.    The end.