SGA

Every time I hold a Social Security hearing I briefly reflect on the value of work for pay in our society. Indeed, as I tell every claimant, the point of the hearing is for me to determine, using Social Security's rules, whether it is reasonable to expect that they have the capacity to work for pay. This presupposes that everyone ordinarily has the basic capacity for remunerative work. It also presupposes that a person can lose the functional capacity to work. In essence, a Social Security Law Judge is a person who is supposed to be able to tell the difference.

The unquestioned assumption here is that everyone can and should work if they are able. I suspect this assumption has always existed in human society. The unique feature of the modern era is the role of money in defining the worth of work. The birth of the very idea of work for wages is detailed in Adam Smith's The Wealth of Nations (1776). Karl Marx brilliantly expounds the social cost of wage labor in his giant Capital (1867). The spiritual heritage of wage earning is detailed in The Protestant Ethic and the Spirit of Capitalism (1904) by Max Weber. These three classics form the basis of my understanding of why people work for pay, the social tension created by inequalities of wages and the process through which commonplace wage earning is infused with meaning.

Social Security law is not concerned with such details. There is no mention of meaningful work in the regulations. There is little notice taken of the soul crushing effects of lifelong poverty. For Social Security the inquiry starts and stops with a simple question: can this person be expected to earn enough through work to constitute substantial gainful activity? As of 1/1/10 the regulations define substantial gainful activity [SGA] as the ability to earn $1000 per month from work of any kind. At the minimum wage of $7.25 a person has to work just 32 hours a week to reach this level. We're not talking deeply satisfying work here, we're talking basic survival.

As I rolled these thoughts around in my mind the last few weeks, I occupied my lunch half-hour sitting at my desk reading The Pleasures and Sorrows of Work (2009) by British essayist Alain de Botton. As a rule I dislike books that have a lot of illustrations, but the numerous candid black & white photographs by Richard Baker of people working are wonderful. I also really like the fact that the book closely examines various types of work. De Botton chooses warehouse logistics with an emphasis on tuna fish, cookie making, career counseling, satellite launching, oil painting, electrical transmission engineering, accountancy, entrepreneurship and aviation sales. He seems to see himself as a sort of Michael Moore figure padding around in these various venues asking probing questions of unsuspecting and generally cooperative informants. It's clear that independently wealthy de Botton has scant respect for his subjects. His greatest praise is for the middle aged slightly successful artist who obsessively paints the same tree year after year. His greatest scorn is for the workers in complex enterprises: office workers, factory managers, vocational experts, scientists, engineers, sales representatives and wide-eyed inventors. He sees all of them as mildly desperate souls trying to distract themselves from their own inevitable mortality. Judging from this book de Botton most admires the stoic philosophers.

Nonetheless this is an interesting book. While de Botton is too assured of his own intellectual superiority to be a person I'd ever like to meet, he asks good questions and does succeed in opening up his subjects in a way I've never seen before. His curiosity about the ordinary and commonplace reveals whole new worlds. I never knew there was a society devoted to admiring and visiting the various types of electricity transmission pylons. I had no vision of how the French launch satellites in the jungle of Guiana. The cut-throat competition between biscuit makers was unknown to me before reading this book. I often had to keep pushing through the author's stilted prose and arch commentary to reach his really interesting insights. It was worth it, even though it was often discouraging. I'm not the only one to feel this way about this book as can be seen from the NY Times Book Review from last summer: http://www.nytimes.com/2009/06/28/books/review/Crain-t.html?pagewanted=1&_r=1

It took me about a month of lunches to finish the book in small bites. The exercise left me more deeply appreciative of the value of wage earning. We spend much of our waking hours doing something to earn wages. We usually endow this work with meaning beyond the instrumental value of the money it produces. People are proud of their work and happy when they do it well. This psychic value helps us get up and go to work every day, not just pull the covers up and go back to sleep. If work somehow loses this meaning, people will stop doing it. If a physical or mental injury is severe enough to overpower the meaning of a person's work, the person becomes disabled.

Chicken catcher

The hearing was already over when Karen, my hearing monitor asked, “How do they get them in the crate with four in one hand and three in the other?”

I didn't know and forgot to ask. I summoned his attorney, who asked his client.

“Well Judge, see, two of 'em work as a team. One opens the crate, the other stuffs the chickens in.”

It had been a long and difficult hearing for a fellow from deep in the Boot Heel of Missouri. He had worked sporadically at a lot of different agricultural labor jobs. His longest employment was four years full-time as a chicken catcher on a big poultry operation. I questioned him pretty carefully on how he did this job because I knew it to be very physically demanding. I wanted my vocational expert to understand it clearly. I wasn't entirely sure she was all that familiar with the poultry business.

Commercial chickens intended for meat are generally raised in long metal buildings that each hold hundreds of birds of the same age. When they are large enough to be processed someone has to go in, catch them, crate them and put the crates on a truck. That, in a nutshell, is what chicken catchers do.

This is about the smelliest, most dirty, dusty and hot work available. In many ways it is also one of the most brutal. Animal rights folks often describe commercial chicken farming as one of the most objectionable types of farm animal cruelty due in part to how chicken catching is done.

For my purposes, I had to find out exactly what sort of physical abilities are required to be a professional chicken catcher. Only in this way could I decide if the claimant could theoretically return to that work. So I took a deep breath and asked.

On the farm where the claimant worked he and another guy would herd the chickens against the walls or into a corner then grab them by their necks. He said he would get four at a time in his right hand then three more in his left before stuffing them in the crate. After four trips, the crate was jammed with 28 chickens. They would load that crate onto the truck and go back for more. Eight hours later the chickens were gone and they went home.

After he finished testifying about the other jobs he held, I asked the vocational expert if she needed me to ask any further questions about any of the jobs.

“Just about the chicken catcher job, Judge.”

“OK, what do you need to know?”

“He said he typically carried seven chickens at a time. I need to know how heavy the average chicken is. I'm thinking about 3 pounds.”

I immediately knew where she was going. If each chicken weighs 3 pounds, then 7 chickens weigh 21 pounds and the job would be classified as light work. If the chickens weigh more, then it's medium work. I knew that it was in fact heavy work because of the weight of crates full of chickens, but I had failed to ask those questions.

“OK, sir, how much do you think those chickens weighed on average?”

“I don't exactly know, Judge. I expect about 5 pounds.”

“That's about what I was thinking. Ms. Expert, how does that sound to you?”

“OK, I've got it. I guess I was thinking of the chickens without their hair.”

Everybody in court looked up suddenly. There was a split second of stunned silence before the claimant burst out laughing.

“I meant feathers!” the vocational expert sputtered, too late.

We all roared.

ADLs

I ask the claimant to describe an average day in his or her life in almost every hearing. In Social Security speak these questions about activities of daily living are called ADLs, of course. The point of this exercise is to get a better idea of the sorts of things a person can actually still do despite their disabling condition. Allowing for some inevitable exaggeration, this enquiry is often very enlightening.

I generally ask people to account for the 12 – 15 hours they are awake each day. What do they do for fun? What are their hobbies? Do they take care of any animals? A shockingly large number of people tell me they do nothing but doze in their recliner or watch TV all day. I've written about this before here: http://edpitts.blogspot.com/search/label/TV Still, at this point in the hearing many people relax somewhat and tell me things that really help me evaluate their case.

A person who lives on a small farm tells me about taking care of her goats.

A person tells me about how he doesn't throw a ball inside for his Chihuahua anymore after that time it broke its leg. “That was expensive.”

One person tells me about scrap booking; another about using the computer to make a family tree.

I ask everyone if they socialize at all. Even if they tell me they don't, I ask more probing questions. Do they ever visit with family members? How far away do they live? How do they get there? Do they go to church or AA meetings? How do they get to their doctor's appointments?

Recently I talked to an older guy who lived just outside of a rural town, who had worked as a janitor at a nursing home for quite a few years. He told me he never socialized with anyone, but he was a talkative and friendly sort of guy.

“Don't you ever go down to the Huddle House for a cup of coffee with your friends?”

“No Judge, I don't.” “Why's that?”

“Well Judge, I've got a little touch of homophobia, I think you call it.”

I heard a sharp intake of breath from Jane, the hearing monitor sitting next to me.

There was a 10 second pause as I tried to imagine what was he talking about. The possibilities seemed endless. I briefly tried to imagine that he might think the guys who hang out drinking coffee all day are gay – Nope, probably not.

The only thing to do was ask.

“What do you mean, how does that keep you from going for a cup of coffee?”

“See, I don't go to restaurants at all. I don't like to eat after anybody, like at a buffet or smorgasbord. I can't stand to use the same serving spoon as everybody else. I won't even eat off the same dishes as my wife.”

“Are there other things you are nervous about?” “Yeah, you know, like I can't stand it if my wife leaves even the smallest crumb on the kitchen counter. I've got to clean it up, or I can't do anything else. Or like one time at work one day a patient dropped a glass and I spent all morning cleaning up every little piece, then got real upset when someone found another tiny sliver.”

“Did you ever tell these things to your doctor?” “I think so.”

“Well sir, you seem to be describing something called Obsessive-Compulsive Disorder, or OCD.”

“Oh, right, I think my doc did say something about OCD.”

“A little OCD may not be a bad thing for a janitor, but if it's keeping you from seeing your friends you might want to talk to your doctor some more about it.”

“OK, judge.”

Dating service

One of the most enjoyable aspects of holding a Social Security hearing for me is learning how jobs are actually done. Some jobs are specific to a geographical area, so learning about them is part of understanding the fabric of place. I've described such jobs in prior posts on tow boats [http://edpitts.blogspot.com/search/label/Towboats] and the cotton module builder [http://edpitts.blogspot.com/search/label/Cotton%20Module]. In this same vein I was looking forward to a case this past week that involved a MetroLink operator. MetroLink is the light rail I ride every work day, so I had a lot of questions. Unfortunately, she overslept and missed her hearing.

Sure, it's possible to read a description of how to be a “hand packer” in a factory, but it's entirely different to hear a person who has worked for 10 years at a tea factory describe how you get 15,000 little tea bags into boxes every eight hours without going crazy. Since one of the first things I have to decide in every case is whether the claimant can return to his or her “past relevant work,” I need to get a pretty clear picture of how it was actually done. In my decisions I'm required to reference the job descriptions in the Dictionary of Occupational Titles (DOT) but that was last updated in 1992. I believe it's much more reliable to get the necessary details from the person who actually did the work. Almost everyone enjoys talking about their work, so it's also a good way to get a nervous claimant to relax early in the hearing.

Having practiced disability law for 20 years I feel I have a pretty good working knowledge of how most jobs are performed. I can tell you more than you want to know about what a certified nurse assistant or fork lift operator does to earn their pay. Despite this knowledge, nearly every week I talk to a claimant who surprises me with some part of their work description.

Recently, for example, I took testimony from a woman whose last job was at a dating service. I focused on this job because she was clearly disabled from all of her other past work. She had worked in factories, in fast food restaurants and as a retail cashier at Wal-Mart. She hurt her back and now could not stand continuously for the majority of an eight hour day. All her other past work required substantial standing, so I wanted to know why she couldn't still do her job at the dating service.

My mistake was to assume she worked as a receptionist or file clerk at the dating service. I jumped to this conclusion because she had no other experience working in an office and only a high school education. I assumed she would only qualify for an entry level unskilled office job. I proceeded to ask her about whether she answered the telephone or did filing. Yes, she did both. Did she have to sit all day or could she get up and move around when she needed to? She said it was a small office and that she could get up anytime she liked as long as she could hear the phone ring. The heaviest thing she had to lift was a stack of papers weighing a few ounces. Did she have to use a computer very much? Not too much, just to enter the basic data on the clients.

By this point I had pretty much pegged this job as unskilled sedentary work that allowed alternate sitting and standing. It was perfect for a person with her sort of back injury. She should be able to do it without too many problems. I needed to be sure.

What else do you do beside answer the phone and take people's applications? Well, she had to set up appointments, you know the dates. Oh, I didn't know the service set up the dates. No, that's not what she did. Her primary job was to match people up, then call them and arranged the introductions. Oh, so do you use a computer to match applicants? Nope, she just flips through the pile of applications and finds people with similar interests who sort of match up, then calls them to set up introductions. How much training did she get to do this? None, really, its just common sense.

I was surprised, to say the least. This woman was not an office clerk at all. She was the dating service.

So why did she stop working there? The service moved out of St. Louis. Did her back pain have anything to do with her stopping the job? Not really. She hurt after working for eight hours but she liked the work and the pay was OK. She would have kept on if the company had not moved. I see.

I was amazed. My Vocational Expert was briefly amazed, then tried to hide her surprise. It was clear that this claimant was totally unqualified to do this job as described in official vocational guides. Yet she did it day after day and no one complained or even questioned her ability. I re-evaluated what I knew about dating services. I realized my knowledge, if you can call it that, is based entirely on advertizements for eHarmony and the like. The services want us to think matches are done in a highly sophisticated manner, maybe by computer or a specialized questionnaire, but back at the office, at least in some cases, the actual work gets done by an untrained office worker flipping through forms.

CPMS and other ODAR acronyms

Merry's been away this week taking a load of fragile items and a canoe back to Syracuse, so there is no new picture for this blog. Check out her new pictures from the Adirondacks here: http://meredithleonard.blogspot.com/

I've been mostly focusing on work this week. I have a lot of cases pending and need to decide as many as possible before leaving for my new post in Syracuse. As I work through these cases I've been reminded of the amazing process Social Security uses to keep track of cases as they move through the adjudication system. If you are interested in knowing more than you need to about how this bit of bureaucracy works, keep reading.

The last Friday of every month is the “official” last day of the month for purposes of toting up what has been accomplished. For ALJs this means the “bean-counters” make note of the total number of cases assigned to each judge, the number scheduled for hearings, the number of final decisions issued and the number of cases pending in “judge controlled” status. They get their data from an electronic case management system called CPMS that can display a constantly updated listing of the current status of every case for every judge. When I'm reviewing a case before a hearing it's in ARPR. If it's waiting for my post hearing review it's in ALPO. Decisions waiting to be edited are in EDIT and decisions waiting to be signed are in SIGN. There are “benchmarks” assigned to every status. If a case remains in any status too long, someone, somewhere is bound to notice. Did I mention that four letter acronyms are dearly loved by your government?

This case tracking system applies to every employee at the Office of Disability Adjudication and Review [ODAR]. From the second a case comes to ODAR at the beginning of the request for a hearing until that case is finally closed, it resides in some status on CPMS and responsibility for the work is assigned to someone. Yes, there is a category of “unassigned” cases but that case is actually sitting for a day or two in a supervisor's cue just waiting to be assigned to the appropriate employee.

Not only are there benchmarks that apply to the time individual cases stay in a given status, there are “goals” for total numbers of cases decided. All ALJs nationwide have the goal of issuing 500 – 700 “legally sufficient” decisions per year. To achieve this overall goal, each office assigns sub-goals to every employee. Every month everyone knows exactly how many cases need to be completed to meet the goals at every level. Everyone is acutely aware that their numbers will be toted up on the last Friday of every month. To deal with this mutual stress the unwritten rule seems to be to pretend not to care about the pressure while keeping an eye on your goals. Managers, including the Hearing Office Chief ALJ [HOCALJ], the Hearing Office Director [HOD] and the Group Supervisors [GS], send out email updates on everyone's progress toward monthly and yearly goals so no one forgets they are watching.

So far as I can tell, nothing bad happens when goals are not met. Then again, our office has met or exceeded our goals for every month I've been here. Coincidence? I don't think so.

There is a very good reason for all this attention to numbers. Social Security operates the largest judicial system on the planet. More than 2.6 million people applied for some type of disability benefit this last year. Every one of those applications gets decided at some level. Over the past decade the “backlog” of applicants for benefits who are waiting for their case to be adjudicated has grown. Right now if a person is not approved at the initial level they can expect to wait 15 – 18 months for a hearing before an ALJ. In some parts of the country, especially the northeast, it's worse.

Everyone acknowledges that this is too long to wait. It's too long for the deserving applicant but also for those who don't qualify. People put their life on hold while they wait. We need to do better. This year agency-wide the top goal was to decide all cases pending 850 days or more. Last year it was 900 days. That's right, highest priority was to decide cases pending 2 1/3 years or more. When I left work Friday no official announcement had been made, but I know St. Louis met this goal on Tuesday.

This past Friday, Sept. 25, marked the official end of the federal 08-09 fiscal year. I took a look at my own first year numbers. I held hearings in about 675 cases, about 56 a month, or about 12 a week. That gives me about 3 hours to work on each case including preparation, a one hour hearing and decision writing. Since I did take two weeks or so off for vacation, the real averages are a bit higher. I issued decisions in about 540 cases. The remainder of the cases were postponed for future action. My productivity is speeding up a bit, so I'm confident I'll do slightly better next year.

After working in St. Louis for just over one year, I have over 800 cases pending on my docket. I started with about 500. Some judges in St. Louis have over 900. The situation is pretty much the same across the country. If every judge in the country issues 500 decisions a year [that's 700,000 cases] and if cases keep flowing into the system at the same rate, we won't ever reach a point where every case can be concluded in one year.

So, it's easy to see how numbers can become a fetish in my job. I try not to think about it too much. My work is to decide each case on its merits, not to meet a quota. Wish me luck.

I just call her mommy

One of the more interesting challenges of being an ALJ for SSA is the occasional need to decide a “child's case.” Some background – Social Security includes a provision to assist families of seriously disabled children who live below the poverty line. The policy goal is to provide a small monthly payment to such families to assist with the additional costs of having a disabled child in the household. Child's benefits are part of the Supplemental Security Income [SSI] program. As with SSI for adults, the income eligibility part of the child's benefit program is administered by a different part of the agency. I just have to decide whether the child is seriously disabled.

The disability requirements are complex. I'm supposed to evaluate functioning in six “domains” (1) acquiring and using information,
(2) attending and completing tasks, (3) interacting and relating with others,
(4) moving about and manipulating objects, (5) caring for yourself, and (6) health and physical well-being. In each of these domains there are quite different factors to consider depending on the child's age. Infants and pre-school children have their own criteria; elementary and high school children have different criteria. Children can come into the system at any age and are re-evaluated periodically so it's possible I would hear an appeal of a child at any age from just after birth to age 18. When a child turns 18, and if they have not successfully joined the labor force, they are re-evaluated as an adult. I not only have to read medical records in these cases but a wide variety of school records including Individualized Education Plans (IEPs) as well as IQ and other psychological testing.

Only about 10% of the cases I hear are child cases. That means I've heard about 50 since last September. In 49 of the 50 the claim was initiated by the mother or grandmother. Only one case was initiated by a father, but unfortunately when that case was scheduled the father and child did not appear in court. No shows are quite common in all child cases. One reason is that a much smaller percentage of these cases have legal representation, thus there is no one to help prepare the case and to remind the claimant of the hearing. I never represented children in my private practice primarily because I had not studied this area of Social Security law and because the fees are relatively small. It's a lot of work for not much money. So about 2/3 of these cases have no lawyer; most of the rest are represented by Legal Aid.

I was quite daunted, therefore, when I encountered my first child case about the third week I was on the bench. That case involved a 3-year-old with sickle cell anemia. She has a twin sister with the same disorder who was granted benefits without a problem in initial application so the mom didn't understand why this child was being denied. It ended up being my job to explain that this child was just not as sick as her twin sister, not yet. Not a fun task.

Then there is the issue of how to take testimony from children. According to SSA rules, I'm supposed to ask adequate questions of the child to satisfy myself on whatever issues the case presents. How is this done? I was offered virtually no training in this area by SSA. I asked the other judges. Some never take testimony from children. Some let the lawyer do it, if they are lucky enough to have a lawyer. Most told me they just ask a few questions and observe the child's behavior in court. Nobody had much helpful to say. I decided to ask at least some questions of all children old enough to talk. If they had lawyers, I'd ask the lawyer to question the child and observe how they did it. I'd ask questions about school, pets, hobbies, going to the doctor, etc. and just see what happened. So far this has worked out well for me and I'm actually having a good deal of fun doing it.

I asked one six-year-old boy who the woman sitting next to him was and he said, “That's my mommy.”

“What's her name?” He looked puzzled. What was I asking? He looked at her. “Tell the judge my name, honey.” He looked up at me and sweetly said, “I just call her mommy.”

In another case I was questioning a ten-year-old about her need for glasses. There was nothing in the school or medical records on this, but her mother had just testified she could not see the blackboard without glasses. The girl was not wearing glasses in court. I asked her whether she always wore glasses when she went out. “Yes.” Why didn't she have them on now? “I forgot them.” Could she see me alright? “Yes.” I pointed down the front of the bench, could she read my name plate there?

She frowned and looked puzzled. “No.”

“Why not, is it blurry?“

After a second she smiled and said, “No, I can't read it 'cause you don't got no name tag.”

My hearing clerk got up and looked. Sure enough, she had forgotten to insert my name plate before court. If I had bothered to look, I would have seen it lying on the bench in front of me.

Next time I'll be more careful before inadvertently asking a child a trick question.

Buddhist Judging

I'm not a Buddhist, far from it, but I've been a fan of Buddhist writings on the practical aspects of spiritual practice ever since I encountered Zen In the Art of Archery by German philosopher Eugen Herrigel back in the sixties. http://en.wikipedia.org/wiki/Zen_in_the_Art_of_Archery

Recently Merry shared a Buddhist text that resonated with her. She observed that although the text deals with mastering the skill of meditation, it could easily apply to the process of mastering the skill of judging.

“When you see that you've acted, spoken, or thought in a skillful way conducive to happiness while causing no harm to yourself or others take joy in that fact and keep on training.”

This thought intrigued me so much that I tracked down the quote to a recent article in the journal Tricycle by Thanissaro Bhikkhu, called The Joy of Effort.

As I read the article I substituted the work "judging" for the word "meditation" just to see what happened. Here's an example of the result:

"...the key to maintaining your inspiration in the day-to-day work of judging is to approach it as play—a happy opportunity to master practical skills, to raise questions, experiment, and explore. This is precisely how the Buddha himself taught judging. Instead of formulating a cut-and-dried method, he first trained his students in the personal qualities—such as honesty and patience—needed to make trustworthy observations. Only after this training did he teach judging techniques, and even then he didn’t spell everything out. He raised questions and suggested areas for exploration in the hope that his questions would capture his students’ imagination, so they’d develop discernment and gain insights on their own."

While this may seem a bit too facile, for me it reveals one key to learning how to become a good judge. While obviously important, technical skills such as knowing the law and practice are not primary, instead skills like patience, curiosity, humility and honesty need to take precedence.

Perhaps one of the most difficult traits to learn and practice in any court is integrity. In my view, some aspects of the structure of our court systems actively discourages personal integrity in judges. I'm not referring here to explicit lies, double dealing, or graft. Our court systems and rules of professional ethics are actually quite sensitive to these types of dishonesty. When I think about integrity in this context, I'm more concerned with avoiding the loss of focus that can easily creep into the work and degrade its quality. In any job that involves a lot of repetition, it's easy to become complacent once you have obtained the basic skills of the job. What happens from a practical standpoint is that attention to the specific facts of each case can suffer from time of preparation through trial. I have about 1000 cases currently pending in my docket with more being added daily. There's a constant temptation, even incentive, to cut corners.

Monk Bhikkhu offers the following good advice on this point, "And the key to this honesty is to treat your actions as experiments. Then, if you see the results aren’t good, you’re free to change your ways."

Furthermore, in a job like judging where social status plays a major role, it's easy to forget that the status of judge is an artificial one, created by our culture for a specific end. Being chosen for this job is not a statement about the qualities, good or bad, of the person who is the judge. Nonetheless it's always tempting to confuse the role with the person. Being treated with formal deference can lead one to believe that by being granted the power to make judgements, the judge has somehow have been endowed with these special powers based on superior personal traits. This is not the case, but it's easy to get confused when being addressed as "Judge" or "Your Honor" repeatedly on a daily basis.

In the end the key to applying Buddhist teaching to practical skill is to remember to avoid getting wrapped up in the "eight worldly concerns," i.e., gain/loss, pleasure/pain, praise/blame and fame/dishonor. A skillful practitioner of any art simply focuses on the joy of doing the work and rejoices in each of the many complicated steps required by the practice. Achieving or avoiding the eight worldly concerns is totally forgotten and on a good day the result is a heightened awareness of the present moment.

I think of this heightened awareness as "being in the zone." When I achieve this state I read with greater comprehension, write more clearly, smile more and ask better questions. It's virtually impossible to tell an effective joke or give an extemporaneous speech unless I'm in the zone.

Om mani padme hum

Just a reminder, both Merry & I have put up web sites where you can see archived posts and view Merry's terrific photo essays (most recently about the new St. Louis “Citygarden”). Check them out when you have the time at: meredithleonard.blogspot.com and edpitts.blogspot.com

Towboat

I was in Cape Girardeau this past week holding hearings. One of my Wednesday cases involved a fellow who had worked as a deckhand on the river. Questioning someone about their past work is one of my favorite parts of a hearing. I almost always learn something new and the claimant usually enjoys telling me about work they were good at and generally enjoyed. Having never before lived adjacent to a major waterway I have a lot to learn about work on the river.

Tuesday evening Merry and I walked along the waterfront at Cape. The downtown drops steeply to a riverside rail line backed by a high flood wall. The wall completely blocks the street view of the river. The town has tried to remedy this ugly situation by having the flood wall in downtown covered with interesting murals that depict important events in Cape history. At the foot of certain streets, however, the flood wall is open to the river. These openings can be closed by flood gates. To our surprise the flood gate at the foot of Themis St. was closed. The Broadway gate a block away was open.

People out walking the dog or taking an evening stroll gravitate to the river bank. The river was pretty high on Tuesday leaving only about 15 feet of walkway at Broadway narrowing to none at Themis where it was up to the flood gate. It's hard to imagine the power of the Mississippi. There are no rapids or waves or sound of running water to speak of but the current was silently rushing past carrying large branches and tree trunks. About a half mile downstream we could see the modern Cape bridge spanning about a half mile wide river.

A large barge was very slowly making its way up stream against the current. None of the other strollers seemed to pay it much attention.

The next day I took the deckhand's testimony. I learned there are four basic types of work on towboats: the pilots to navigate, deckhands to wrestle the load, engineers to manage the massive diesel engines, and the cook's staff to feed them all. Towboats push a fleet of barges that are lashed together with heavy one inch steel cables. Crew members work around the clock in six hour shifts, called watches, for thirty days straight, then have thirty days off. Towboats run 365 days a year.

Even though the raft of barges are always pushed by the boat they are still called “tow” boats. According to Wikipedia the term developed on American rivers post Civil War. When steamboat fortunes began to decline steamboats began to "tow" wooden barges alongside to earn additional revenue. Even long after boats began pushing barges the term stuck. In the rest of the world they are called pushboats.

Half of a deckhand's time is taken up doing routine maintenance on the boat: cleaning, scraping, painting and such. The other half of the time a deckhand deals with the load. This means loading the barges, usually with coal, gravel, wheat or other bulky items, lashing the barges together to form the load, and breaking down the load periodically so the whole thing will fit through the giant locks on the upper Mississippi, the Ohio or along the Inland Waterways.

When Merry and I met up in the evening she told me she had visited the waterfront again and noticed a guy standing there with luggage. She talked with him and found out he is a towboat pilot. After a little while a small boat put off from a towboat mid-river and came over to pick him up. As Merry watched them return to the towboat, the little runabout lost power, started drifting and ultimately had to be assisted by the Coast Guard who just happened to be passing by at the time.

Back at the hotel I wandered down to the bar for happy hour. There I met a young guy who works as an engineer on the river. He had driven up to Cape the night before to meet his boat. He told me that every river worker was assigned a “home port.” Getting to work meant reaching your home port at a specified date and time. From there the shipping company is responsible for getting you to your boat whether by van, taxi or even by air. This guy usually works only downstream from Cape, traveling to New Orleans then to Port Arthur, TX to unload and back again. He said he could do two round trips like this in 30 days. When the boat runs low on fuel he calls a tender and is refueled midstream. He said the engines never get cold, except at an occasional dry dock servicing. As with trucking, towboats try to get back loads for the trip up-river, but in these harder economic times they are mostly coming back riding high and empty.

The next day Merry and Joli visited Trail of Tears State Park where she was able to get a vantage point to get some terrific shots of towboats.

The internet has a lot more information on this subject. Of course, the towboat operators have a professional association called American Waterways Operators with a lot of information about jobs on towboats that you can visit at www.americanwaterways.com.

The waterways themselves are policed by the Coast Guard but under the management of the Army Corps of Engineers. There is a pretty interesting propaganda video about the importance of river transportation made by the Corps that you can watch at http://www.youtube.com/watch?v=rxHIk5ARHLI.

Best of all are the web sites of amateur towboat enthusiasts. I recommend you look at two of the very best: Towboat Joe at http://www.towboatjoe.com/towboat_info.htm and Dick's Towboat Gallery with photos of over 1200 individual towboats at http://www.towboatgallery.com/The_Towboat_Gallery.php.

Cognitive surplus

At every Social Security hearing I typically ask the claimant to tell me how he or she spends the majority of their waking hours. The point is to discover what activities the person actually does and match that, if possible, to the objective evidence of their impairments. In the vast majority of cases the person reports they spend anywhere from 6 to 15 hours per day in front of the television. I sometimes ask what shows they watch, but most cannot recall. I follow up by asking if they “do” something else during the day, but most seem too believe watching TV qualifies as doing something. I don't agree.

Since I don't believe that passive, mindless TV viewing constitutes doing anything, I persist in asking about other activities like house cleaning, pets, hobbies and such. Second and third on the list of activities these questions solicit are reading (usually the Bible) and playing on my computer (almost always games). In time spent per day nothing comes close to the time spent before the TV set.

I'm horrified that someone would come to the belief that watching TV constitutes an activity and that it's acceptable to “do” it for hours on hours daily. The sad fact is that even non-disabled people in America watch a lot of TV every day. According to the 2006 Nielson survey the average American watches 4 hours and 35 minutes of television each day.
 99% of all American homes have at least one TV, in fact, only 19% have just one. 50% of American homes have three working televisions or more. In 1975 only 11% had more than three TVs and 57% had only one.

So it's socially acceptable to watch a lot of TV. I'm convinced that many people also use TV as a sort of sedative, essentially a pain medication akin to hypnotism. TV by design distracts people from their everyday existence. For a person with problems, distraction is not only good, but necessary. Don't get me wrong, I'm not opposed to entertainment. I know that there are at least a few good shows on TV that provide quality entertainment. What I'm puzzling about here is not the person who turns on the TV with a specific goal, say to watch a sports event or a favorite show.

What would happen, I have to wonder, if people did not have the ability to use TV as a mindless time waster? I assume they would do something else to distract themselves. Some would read, some would find a hobby within their capacity, some go for a walk.

This leads me to the conclusion that TV is actually increasing the amount of physical and mental disability in America. People in general don't enjoy suffering and will do what they can to avoid thinking about their problems and pains. If there were no TV at least some substantial number of people would do something else with their time. I believe at least some percentage of this time would be used productively.

As proof of this assertion I offer Wikipedia. http://www.wikipedia.org/ It has been calculated that the current state of Wikipedia took a collective 100 Million hours to create. No one paid for any of this work or even solicited people to do the work except in the most general way. Yet there it is, a 21^st Century electronic encyclopedia that is actually pretty reliable, created by folks in their spare time.

Some have dubbed this internet phenomenon “cognitive surplus.” The concept is that people as a whole have a lot of time in the day where they are not actively using their minds to do anything remotely productive. For example this weekend Americans will spend 100 Million hours watching TV ads alone. If we all gave up watching just the ads we could create 50 Wikipedias or their equivalent a year.

I admit to being prejudiced in this area. When we moved to St. Louis I completely gave up TV. I don't miss it much. I admit my use of the internet has increased for things like checking the weather and to watch selected parts of the Daily Show. Even when I do have the chance to watch, I generally choose not to do so. Recently we did retrieve our TV from Syracuse, but only so we could watch movies.

So join me and kill your TV, or at least strangle it a little.

http://www.tvturnoff.org/ and http://www.turnoffyourtv.com/

Dwarfs

I never seriously considered dwarfs until I heard a case this week involving a 25-year-old African-American homeless man who is 4 feet 2 inches tall. In childhood he had operations on both legs to straighten them. The operations made it easier for him to walk, but left him with chronic leg pain and swelling. He has a high school diploma with an IQ of about 75. My job was to decide if he is employable.

The medical definition of dwarfism is a person of short stature with an adult height of less than 4 feet 10 inches (147 cm). Dwarfism is fairly rare occurring in about 1 in 10,000 births. While there are many causes of dwarfism, about 70% are the result of a genetic disorder called achondroplasia which results in limbs that are disproportionally short compared to the trunk. These people often also have a larger head with a large prominent forehead.

Like most people I first encountered dwarfism in literature. The use of the term "dwarf" was popularized by the Brothers Grimm in their fairy tale Little Snow White (1812), but had been used much earlier by Jonathan Swift in Gulliver's Travels (1726). I remember reading these and many later literary examples where dwarfs play a leading role including The Tin-Drum and A Prayer for Owen Meany. The term “midget” came into use after Harriet Beecher Stowe used it in her novels in the mid-1800, but the term is now generally considered offensive because of it's link to use of dwarfs in freak shows. Midget is still sometimes used by some to refer to a person of very short stature whose body parts are proportional.

The accepted plural of "dwarf" is "dwarfs", while "dwarves" is usually reserved for mythical creatures. Although the term “dwarf” is widely used and generally accepted, some advocates object to the term because of its mythical and fairy tale origins and argue that “little person” or “person of short stature” is more appropriate. The largest national advocacy group is called “Little People of America, Inc.” http://www.lpaonline.org/mc/page.do

Most of the dwarfs I've ever seen have been in movies: The Wizard of Oz, of course, but also Time Bandits, Willie Wonka, and ET where a dwarf in costume played the title role. Warwick Davis, a popular actor with dwarfism, plays Prof. Flitwick in the Harry Potter films. I've used photos of him to illustrate this story.

How was I to decide whether the little person scheduled to appear in my court was employable? First, I looked at the law. I found the Social Security Law and Regulations contain no specific reference to dwarfism except for a rule that told me I was prohibited from considering “body habitus” in reaching a decision. I initially concluded, therefore, that I had to assume body size is irrelevant and I needed to ignore it as much as possible. Accordingly, I arranged for a vocational expert to be present at the hearing as I would with anyone under the age of 50. My plan was to get a list of functional limits, then ask the vocational expert if such a person is employable and see what would happen.

As chance would have it, just after I prepared for this case Merry & I took a jaunt across the river to southern Illinois to see spring wild flowers on the Trillium Trail at Giant City State Park just south of Carbondale. The day was perfect and our timing was impeccable. We saw dozens of varieties of blooming wild flowers, many of them new to us. The setting in and among towering sandstone cliffs was worth the trip in itself. To find the trail we first stopped at the park visitor's center. I went to get a map while Merry headed to the restroom. The information clerk turned out to be a surly dwarf; a dwarf with a regular job. I was struck hard by the irony of a dwarf giving out information about Giant City.

I heard the case on Monday. The claimant was sharply dressed in a black tee shirt, black jeans, white shoes and a black ball cap with wrap-around shades pushed onto the brim. He was smaller than I expected with extremely shortened arms that did not reach above his head. He had not done too badly in high school but had to drop out of technical college because he couldn't master the necessary math. He tried to work as a bookstore clerk but the walking was too much for him. As we talked I started to get a detailed impression of all the accommodations necessary not only for work but just for everyday life. He was even unable to sit in the witness chair because it was too large, so he had to stand. He said he couldn't reach to stop cord on the bus, so he always needed to sit near the driver. All his clothing and especially his shoes had to be custom made or altered.

In the end I asked the vocational expert whether he was employable. The VE noted that were it not for the multiple accommodations needed, he was. I asked him to tell me realistically whether this person could be successfully placed in a job and he said it would be a challenge. The only hope would be if the person acquired a specialized skill or talent. I actually asked the vocational expert about a park information clerk job, but he said that job generally requires a college education.

I decided a person of abnormally small stature who requires multiple accommodations and special equipment with a high school education and with legs that did not allow standing or walking for more than a hour at a time is disabled.

As I reflect on this experience I have a new appreciation of all the dwarfs in show business who have turned their size into an asset. People are fascinated by difference. We stare and point. We laugh. I still can't stop smiling at the irony of the dwarf clerk at Giant City. In my opinion this cruel fascination can't be avoided. Like other prejudices, it can be blunted by coming to realize just what people need to do to live their everyday lives.

Catfish

I spent the last week hearing cases in Cape Girardeau, about 115 miles south of St. Louis. Cape is an old Mississippi River town, founded as a colonial trading center by the French, now pretty much reduced to the service capital of southeastern Missouri: strip malls, government offices, courts, a regional university and major health care center.

One of my cases involved an unrepresented young guy of very marginal intelligence who had been out of work for years. He previously ran a cut-off saw in a sawmill, loaded ice trucks and worked as a dishwasher. He's functionally illiterate, can't count money or make change. He seemed strong and healthy to me, so I was questioning him closely to find out why he was not working. As part of this investigation I often ask about hobbies. This question frequently turns up interesting answers.

“Well judge, my hobby is fishing, but you see I have to be careful not to catch any catfish.”

Now that is something. As I'm sure y'all know, the channel catfish is the official state fish of Missouri. Not being able to catch catfish in southern Missouri is surely a pretty serious problem.

“What's the problem with catfish?”

“Well judge, I'm allergic.”

It turns out he can't touch catfish, eat catfish or even smell catfish cooking without a very severe allergic reaction that actually sent him to the emergency room on several occasions. When he saw I was impressed, he decided to play the tune louder. He insisted he once lost a job as a dishwasher because the restaurant served catfish. His wage records showed he worked at that restaurant part time for four years. I guess it took a long while for the essence of catfish to reach the dish room.

Fishing for catfish is taken pretty seriously out here. The bigger rivers and lakes boast some truly awesome catfish. There are three types of large catfish native to Missouri waters. Channel cats are the most abundant and weigh in at 20-35 pounds. More common than you might think in slow water is the flathead cat. The biggest flathead ever caught in Missouri weighed 77 pounds. Out in the Big Muddy you can find lunker blue catfish that weigh 100 pounds or more.

When catfish get this big, good old southern boys go a little crazy. When I told the catfish allergy story to another judge, he asked me if I had ever heard of “noodling.” It turns out “noodling” involves catching massive catfish with the bare hands.

Flathead catfish live in holes or under brush in rivers and lakes. Their sedentary nature makes them the prime target for noodlers. To catch one a noodler wades and dives in the shallows looking for holes or brush along the silt bottom. When the noodler finds a likely hole, he or she swims down and wriggles a few fingers inside in hopes of attracting the attention of a big 40-50 pound flathead catfish. If all goes as planned, the catfish will swim forward and latch onto the fisherman's gloved hand, usually as a defensive maneuver in order to try to escape the hole. Once the fish grabs a hand all the noodler has to do is drag the animal out of the water without drowning first.

Hand fishing for catfish like this is illegal in most states, but not Missouri. Last June Missouri opened its first season of legal hand-fishing, due to persistent lobbying by a group called “Noodlers Anonymous.” Legalization seems not likely to make much difference. The legal hand fishing is limited to only three rivers. There are 2000 estimated noodlers in Missouri, but only 21 applied for the new $7 hand-fishing permit.

Anyone who wants to learn even more about noodling should definitely check out this link to YouTube:

http://www.youtube.com/watch?v=bAgw6d3kLPI

Enough about the fine art of sport fishing in Missouri.

I have had several requests lately for copies of earlier blog entries to share with friends. I don't mind anyone forwarding what I send you. However, given the number of entries accumulated so far it seems like a good idea to post them all on the internet where anyone can access whatever entries strike their interest. Starting today you and your friends are invited to view my new blog site “St. Louis Sojourn.” To take a look go to http://edpitts.blogspot.com. Please note there is no “www” in this address. I still intend to email each blog entry weekly as always. I've already posted all prior entries the site and will continue to do so weekly. Entires posted to the internet will probably have fewer pictures, but the same text. As always, your comments are appreciated.

Lost in Translation

I had to take the testimony of a Bosnian woman a few days ago. She speaks almost no English although she's been in St. Louis since 2002. That might seem odd until you consider the Bosnian community here has grown over the past decade to more than 50,000. A fairly large part of South St. Louis centered in the Bevo neighborhood has become “Little Bosnia” complete with stores, restaurants, a newspaper, doctors, social service agencies and mosques. As a complete coincidence on the same day of this case Merry and I had a crew of Bosnian carpenters at our house to build a new wood fence for our backyard. The contractor proudly informed us he hires Bosnians because they are dependable, hard workers.

I was not worried about the trial. As a claimant's attorney I'd participated in dozens of trials over the years where the claimant could not speak English including hearings with Spanish, Vietnamese, French Canadian, Polish and sign language translators. Because I considered myself pretty experienced I made no special preparation for the trial, just read the medical evidence and made notes.

It was not until I was on the bench that I realized my mistake. Unlike the trials in which I represented a non-English speaking claimant, this time I would be required to ask virtually all the questions. Use of a translator entails a stop after every sentence so the translator can repeat what I said, then another stop after the answer, and so on. My trials ordinarily last 45 minutes. If I conducted a normal hearing with all my normal questions this hearing was sure to run at least twice that long, if not longer – and I had three other trials scheduled for that morning.

The translator and my vocational expert arrived. Fortunately the translator, a middle-aged Bosnian woman with the oddest pinkish-orange hair I've ever seen, had participated in many Social Security trials. She knew the routine. She also knew the claimant's lawyer who, I learned, represents almost entirely Eastern European claimants and had a Bosnian speaking staff member along with him to help. We were off to a good start.

I summoned the claimant and her lawyer to the courtroom and began. I decided to cut the length of my questions in half - just the basics – in a hope that the trial could be concluded in an hour. I had not considered in advance how difficult this would be to do on the fly. Try it for yourself. Take any paragraph of simple dialogue and cut it in half before you know what the other person is going to say. Now try it with a person who is constantly in tears. Believe me, this work is not for the faint-hearted.

For example, I usually say this at the opening of every hearing:

“You're here because Social Security previously denied your claim and you asked for a hearing to present your case face to face to a judge. This is that opportunity. I'm going to hear whatever you have to say about why you can't work, then apply Social Security's rules to those facts and decided if you are disabled under Social Security's rules. I am not bound by the previous decision in your case. I plan to make an entirely new, independent decision based on the record as I see it.”

That paragraph became:

“I'm going to ask you some questions about why you're not working, then make my own independent decision about whether you could work according to Social Security's rules.”

I carefully made my way through a series of simple questions about her background and past work. I asked about her medical care then about her activities of daily living. Finally the direct testimony was over. I had a vivid picture of the claimant's condition and had made up my mind. Only 30 minutes had elapsed on the courtroom clock.

Now it was time for the claimant's attorney to ask questions. I started by asking him if he spoke Bosnian. He claimed to know a little, but would be using the translator. Of course, I know by heart the questions most lawyers would ask in this situation, so I usually cover them in my questioning. This means most claimant's lawyers only do a small amount of questioning to fill in any gaps. Not so this time. Because of his knowledge of Bosnian life in St. Louis he had a few entirely new questions to ask. “When did you last attend mosque?” “Have you been to a wedding lately?” “How does it make you feel to have your sons take care of you?” “Do you still sew?” “Do you own a telephone and can you use it?” I had asked about whether she could drive a car.

This was all very interesting until he started asking about her experiences during the genocidal war in Bosnia. I knew from her records that she lost a large number of family members and had lived in a refuge camp for a few years. I had chosen not to ask about these things because they were well documented in her psychological records. He waded right in. Before I could stop him he had reduced his client to uncontrollable sobbing. She softly told the translator she was about to be sick. I excused her and the lawyer's staff member helped her to the restroom.

Once she was out of the courtroom I bluntly told her lawyer to discontinue that line of questioning. I explained that I only have to decide if a claimant can work. In the questioning process I do what I can to assure all claimants maintain their basic human dignity. He said he was sorry. When his client recovered enough to return to court he had no further questions.

Now I just had to take some brief vocational testimony and I'd be done. The vocational expert [a VE in Social Security speak] testified the claimant couldn't do her past work. What did the VE think about the battery of tests she had been administered recently showing her job aptitudes and skills? Well, it turns out it is improper to administer these tests to a non-English speaker using a translator, so the results are invalid. OK, but even if I throw out these test scores can the claimant perform competitive work? No. OK, thanks.

The hearing was over. One hour exactly had elapsed. All the parties exited. I put my head down on the bench. I was really, really tired. After resting a few seconds, I sat up and called the next case.

Rocket docket

Hello friends. This week I've written a sketch of recent courtroom activities for those of you that are interested in that sort of thing. If the minute details of social security procedure don't rivet you, just skip to the end where you will find a fun picture of the birthday cake made for me as a surprise by my court room hearing monitor (whose other business is cake baking). Otherwise, read on. You have been warned.

Yesterday five of the ten St. Louis Social Security judges conducted what we term a “rocket docket.” The idea was to schedule as many preliminary hearings for unrepresented claimants as possible on one Saturday morning. We would bring them in, advise them of their right to counsel, review their medical evidence briefly and order consultative examinations for those who needed them. Their cases would then be rescheduled in two or three months.

Gary Jewell, our Hearing Office Chief Administrative Law Judge (HOCALJ) is the brains behind our rocket docket. He realized that a significant part of the backlog of cases is created by unrepresented claimants who show up at their first hearing only to announce they now want to hire counsel. By law we must adjourn their case to give them time to find a lawyer. This means we set aside an hour for their hearing, but the hearing only lasts ten minutes. They later get another hour hearing. This may not seem like a big waste of time, but the true waste is behind the scenes. Each ALJ spends at least an hour reviewing medical evidence in preparation for each hearing. When hearings are adjourned or cancelled not only has the judge spent time needlessly preparing but the staff spent hours and hours obtaining medical evidence, preparing the files and sending notices for hearings that never happen.

About 30% of our claimants are unrepresented. An astounding 50% or more of unrepresented claimants simply never show up at their hearings. Of course, we don't know they are not coming, so we soldier on, spending hours preparing for hearings that never happen. The result is that court rooms often sit empty. Courtroom staff sit twiddling their thumbs. We prepare and wait for those who never come. Other claimants who need hearings are delayed while we process claims that never go anywhere. Enter the rocket docket.

Yesterday each of the five rocketeer judges had 20 – 25 unrepresented claimant cases scheduled for the morning from 8:00 – 11:30 at 10 minute intervals. In all 110 cases were scheduled. Since our office completes about 285 cases a month this is a pretty significant docket. Between the time notices went out and yesterday's hearings about 30 of these claimants hired counsel, so we adjourned their cases for a future hearing leaving 80 cases to hear. Of these, only 35 actually showed up so we only averaged 7 hearings apiece. We dismissed the other 45 cases. Of the 7 cases I heard only 1 decided not to hire a lawyer. We gave everybody a handout about how to contact lawyers. We scheduled independent consultative exams for about half of the people we saw. In all a very productive morning, 65 cases moved forward efficiently, 45 dismissed without a lot of wasted effort.

Going in I expected this process to be pretty easy. I imagined I would give a short talk on the right to counsel, glance over the medical records to see who could benefit from an exam, and done. My first case actually followed this pattern. But, as you all know, life has a tendency to be a little more complicated than that. My second hearing involved a claimant who only spoke Arabic. We had no access to a translation service on a Saturday. Fortunately he brought a friend who spoke English to translate. We began. I said a sentence. The friend turned to the claimant and whispered into his ear. “No, say it out loud, so I can hear,” I admonished. Things went pretty well after that until I asked the key question, “So, do you think you want to hire a lawyer?” This provoked an extended conversation in Arabic between the two friends. I stopped them and explained that the conversation had to be between me and the claimant. Many apologies later the claimant decided it would be best to hire a lawyer. Whew.

All the remaining cases were also fairly complicated. I struggled to help these folks understand their rights in Social Security's byzantine system, including a 23 year old woman with developmental disabilities and irritable bowel syndrome and a man with psychosis accompanied by his only somewhat less psychotic brother and sister.

The last case of the day for me involved a 35 year old man. Small and mild mannered he explained that he had hired a lawyer, but that they recently refused to keep representing him. I checked the file and sure enough found a withdrawal from representation. What happened? He didn't know; they didn't tell him. I looked at his records: blind in one eye, deep vein thrombosis in the left leg with chronic pain and anti-coagulant therapy, and HIV+. From the point of view of a claimant's lawyer a pretty good case on the face of it. So why had his lawyers fired him? After a few more questions I discovered that he had returned to work for a few months. Now he was out again. Work had proved too strenuous for him. His only work was as a day care provider. His employer does not know of his diagnosis, and he doesn't want to tell them. In fact, other than his doctor and the Social Security world no one knows of his diagnosis.

I explained his rights. He plans to get a new lawyer. I suggested he get some counseling to help him deal with his situation and directed him to some local HIV/AIDS resources. He thanked me and left.

As I stepped outside into a suddenly blustery day, I could not help but wonder about our so-called social safety net for citizens with disabilities of our county. Are we serving them well? Do we dare call ourselves a civilized country? Just a block down Broadway on the steps of the Old Courthouse where Dred Scott was tried about 300 gay rights activists were demonstrating in the cold.

We're a young and foolish country still, I mused, but the idea of civil rights for all is still warm, deep in our national consciousness. We will grow up some day and grant those rights freely to all. I turned my coat collar up and carried my surprise birthday cake back to my car.

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.

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.