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.

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