Sunday, October 26, 2008

Being Represented

Merry has been back in Syracuse this week getting 303 Summit ready to rent. I've been holding down the fort, walking the dog and deciding more cases. I think I'm starting to get the hang of it. Knowing how to effectively prepare for hearings is surely an art not a science. I've asked the lawyers who appear before me to send me briefs and medical records well in advance, but invariably I get them the day of the hearing. Actually that doesn't surprise me, I did the very same thing in my own practice.

When I review files for a hearing I find the cases can be divided fairly easily into three broad groups: (1) those that should obviously be paid, (2) those that should obviously be denied, and (3) hard cases.

I puzzle a short time about the small number of cases, maybe ten percent, that should obviously be paid. Why were they ever denied? Were they really that much less disabled just two years ago when they applied? I usually conclude that it is just very bad luck with the SSA bureaucracy.

About a quarter of the cases I review fall into the obvious denial category. I'm sure these folks think they are disabled. They are generally young, have no more than a high school education and have worked at unskilled, strenuous jobs. They are hurt enough not to be able to keep doing what they know how to do. Lighter work is hard to find. They are not motivated to get retrained for something they can physically manage. They have no savings and no back-up plan. Many are working for a temporary service or at odd jobs. When they come before me, I listen to their story, tell them about vocational rehabilitation and turn them down.

Because Social Security only pays attorney fees when a case is won, virtually none of these people are represented at their hearing. A few have tried to get legal assistance but were unsuccessful, presumably because the lawyer they consulted was smart enough to discover the case was going no where. Most have never even consulted a lawyer. They show up at their first hearing and are advised of their right to counsel. Their hearing is rescheduled, then they come back a second time without a lawyer and lose, or just never show up again. This pattern is so predictable that our office schedules an occasional special hearing day just for this type of case.

At least two thirds of the cases I review are quite difficult to decide. Most of these cases can probably be won with skillful representation. I'm fascinated by which of these claimants manage to hire competent counsel, which hire incompetent counsel, and which seem unable to find counsel even with significant effort. I've not heard enough cases yet to even form a theory about why this happens.

Let me give just one example of a case that looked like one I would deny when I reviewed it, but which was won easily by competent counsel. This week I held a hearing for a young (40) man who dropped out of school at age 12 (after sixth grade). He never worked at a real job, but sold drugs on the street. He spent nearly the entire rest of his life in and out of jail for petty offenses, mostly burglary. He has a congenital spine disorder that has gotten worse over the years, but is not now disabling. He has hepatitis C and is HIV+, but is not now symptomatic. His IQ was tested in school at 80, a low average. He is mentally ill, but his prison records did not show any loss of function. When I was reviewing the case all his medical care had been in prison and looked pretty routine. Now he was out of jail and applied for SSI benefits.

He tried a few times to get private lawyers to represent him, but failed. Fortunately, a legal aid lawyer took the case, got a competent psychological evaluation and easily won the case in my courtroom. Without representation he may well have lost. Being represented made all the difference.

Saturday, October 18, 2008

Lemp Junque

When we moved into 2115 Ann one of the things we noticed was the hole in the living room wall where a heat register was missing. A matching register adorns the dining room. It's of an unusual design. The heat duct is a hole about a foot square at the base of the wall. This hole requires a register with a frame shaped like a narrow right triangle that sits on the floor and holds a decorative grate that covers the vent. We did not notice the one missing in the living room during our inspections of the house probably because it was covered by furniture. Not a real big deal, but where would we find such an object? Our helpful real estate agent, Chuck, told us we might be able to get a suitable replacement on Cherokee Street.

We already knew that Cherokee St. is a near-by small shopping district consisting of several blocks of antique stores. Merry seemed to welcome the opportunity to seek this obscure object. Over the next few weeks she made several forays to Cherokee St., but no luck. She did get a tantalizing lead, however. She was told at the east end of Cherokee St. a guy operates a shop specializing in antique fixtures out of the abandoned Lemp Brewery. He has occasional hours. You can only tell he's there if a bicycle with a sign is chained out front. Merry drove by, but no bicycle, then found out he is only there on weekends.

Last Sunday we decided to try again. The brewery complex is huge, covering several city blocks. On one corner, next to the Interstate, chained to a light post was a beaten-up green antique bicycle with a small sign - “Junque.” All the windows in that area of the brewery are boarded up, the doors secured with rusty chains. There appears to be no way in. We walked along one side of the complex and looked down the next street. Part way down the block is another old bike chained to a post.

There is a gated truck entrance next to the second bike. The gate is ajar. Inside a passageway leads under interconnected brick archways to a freight dock and an open courtyard. Old machinery, giant gears, lumber and assorted tools are spread around this area. The disused freight dock is littered with an impressive assortment of wood working tools. As we wander through we can hear a small engine roaring. I spot a go-cart looping around the dirt courtyard between the boarded up buildings. Three men in work clothes are deep in conversation behind the dock. As we approach a tall thin man welcomes us to go inside and take a look around. We climb steps behind the dock and step inside.

We are in a cluttered warehouse space. We see more construction equipment and work benches, then dozens and dozens of bins, shelves, cupboards, drawers, salvage. Amazingly, it's all very well organized. A bin of broken black marble here, white marble there, terra cotta roof tiles in the corner – on and on. The proprietor finds us before we wander too far.

Merry describes our missing heat grate. He puzzles for a second walking deeper into the room. He mutters something about frames, grates and Chicago, I think. We come to a shelf covered by heat grates. He reaches into the heap and pulls out the exact thing we are looking for. He shows us the other grates in the stack. There is only one that looks like what we want. $25 is the price. We take it.

He leaves us to wander the room. There is an incredible assortment of building material everywhere. Mantle pieces, picture frames, mirrors, fire screens, hooks, pipes, wooden nickels, you name it. A small sign proclaims a 10% discount for materials to be used as public art. We explore for awhile.

It's exciting. An organized resource of ancient treasure. I woman appears and enquires whether we need any help. It turns out she's a friend of the owner sent to make sure we were alright. She tells us about the restaurant she's just opened that crosses an ice cream parlor with a martini bar. We discuss where in upstate NY her daughter, who wants to be a writer, should go to college. A few more people wander in. It's a contractor leading his clients on an expedition. They live in our neighborhood and are rehabbing a house. We acquire the contractor's card. The owner returns and we pay.

Back on the street the place seems like a hallucination. At home, the grill is an exact match.

Sunday, October 12, 2008

Paying attention

Recently a colleague asked me how, after more than 20 years of daily interaction with people with injuries or illnesses, I manage to avoid becoming hardened to the suffering I witness.

I believe this to be a cornerstone question for any work related to the suffering of others.

I understand how people become jaded to suffering. After working in this area for awhile, it's hard to keep the sad stories from running together. Instead of focusing on the unique details, it's just another case of low back pain with disc herniation at L4-5.

I think we become jaded toward suffering, not primarily because of monotony but to protect ourselves. In order to make sense of people's stories, you must possess empathy; it's necessary to the process of understanding. Exercising empathy takes a lot of energy. Mostly,it requires close attention to what the other person is saying.

But such attention necessarily opens a window into the other person's messy life. These details overlap the problem we are committed to solving. She cannot understand that we don't need to hear for the ten thousandth time that she is behind on her car payment, or that money problems are wrecking their marriage. We are impatient with his lack of concern for what we are trying to do for him. He doesn't say “Thank you” when we get him necessary medical care. We put ourselves out for them, listen to them rant, but they don't reciprocate. It's downright tiring. Worse, sometimes they are miserable, unhappy people who hurt so much they don't care how nasty they are to others.

As a judge I've become even more aware of the amount of energy it takes to adequately pay attention to people's problems. I spend hours reading hundreds of pages of medical reports, then an hour asking questions of each claimant about the details of their disability. At the end of the day I'm tired and emotionally worn out.

Over the years I have adopted some strategies for maintaining compassion and a healthy distance at once.

First, I remind myself daily that my role in other people's lives is quite limited. In this regard I try to implement some basic Buddhist concepts regarding humility. Every day for the past year I've read the “Eight Verses on Mind Training” in the morning before leaving for work. This practice helps me remember to keep my ego in check. [I've attached a copy of the verses for those of you unfamiliar with them.]

But I'm not a Buddhist. I don't subscribe to the most basic Buddhist beliefs. I know that the world and other sentient beings exist totally separate from my consciousness. The key insight for me is that I need each and every one of these others to bring me joy. I receive this joy at the moment of each conscious genuine interaction. When someone does something that takes me by surprise, even something distasteful, I feel this joy. The more I pay attention to the details, the more things take me by surprise. Paying close attention becomes its own reward, its own source of energy. In order to pay attention, I need to clear the noise of modern existence out of my mind. I do this by taking a little time to meditate and get focused before taking on my daily routine. I know if I fail to pay attention to the stories and lessons out there, my life will be governed by petty routine and become impoverished.

To the extent I can control my ego and open myself to what is outside of my limited consciousness, I can tap into the energy of existence. It's in nature and it's in other people. People with illnesses or disabilities carry this energy too. Partaking of their energy in this way does not reduce them; on the contrary, it affirms them.

Most days that's what keeps me going.

Saturday, October 4, 2008


This past week I heard a case where the disabling impairment was severe depression. After the preliminaries, I needed to ask a series of questions concerning activities of daily living (known, of course, as ADLs). It was hard going. The claimant was tearful and confused. Most questions elicited head shaking or blank stares. My questions seemed to be pushing the claimant ever closer to the brink of a complete break-down.

I turned to her attorney and asked him to carry on with the questioning in the hope that his familiarity with the client would calm her down and elicit helpful responses. It didn't. In fact, the more he questioned his client the more anxious and tearful she became. I took over the questioning again.

During his questions he did manage to extract two pieces of information I thought might form the basis for questioning – that the claimant had two dogs and that she watched TV virtually continuously. I decided to try questions about her dogs.

“So, you have two dogs. What kind are they?”

“Little dogs.”

“What breed are they?”

“I don't know. One's old and fat. I think it's a schnauzer.”

“What's the other one?”

“A chihuahua.”

“OK, do you take them for walks?”


“You said your older dog is fat, how much does it weigh?”

“I don't know, maybe twenty pounds.”

“Do you ever pick it up?”

“Oh no, I never pick them up.”

“What do you do all day with your dogs?”

“We just lay there. They like to lie down with me.”

Well, this line of questioning wasn't getting me much information, but at least the claimant had stopped crying. I decided to switch to TV shows.

“What TV shows do you like to watch?”

“I don't really watch shows, the TV is just on.”

“Don't you have any favorite shows?”

“I like Boston Legal.”

“Is that the one with William Shatner? Do you watch that a lot?”


“That's an hour program, isn't it? Can you follow the story for a whole program?”

“No, I don't watch the whole thing, I just like that William Shatner.”

“Why don't you watch the whole thing?”

“I can't follow the story. Can you?

I couldn't help myself. I just blurted out, “Of course I can, but I've got special training.”

I smiled a sly, broad smile. Around the court room I could see the vocational expert suppress a laugh. My hearing recorder gave a quiet snicker. The claimant's lawyer had a grin on his face for the first time since the beginning of the hearing.

The claimant's face didn't change. Nothing registered.

I tried again. “You know, special training, I'm trained as a lawyer, that's why I can follow the story.”


I knew at once I had discovered a new clinical test for depression. I paid the case.