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.

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.

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.

Depressed?

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?”

“No.”

“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?”

“Yeah.”

“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.”

“Oh.”

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

Old Post Office

I spent the first two nights of September at the Park Avenue Mansion, a bed & breakfast in St. Louis. It's located on Lafayette Park near our new home. We needed temporary quarters because we had not yet closed on the new house. Merry and Joli joined me for the second night after driving our VW to St. Louis from Syracuse.

The B&B is owned and operated by a man named Michael. On the second morning we were passing the time waiting for our real estate agent to arrive to drive us to the closing. Michael was regaling us with stories about the history of his house of which he had made a very close study. Having exhausted that source he moved on to discuss other highlights of St. Louis architecture. He insisted we visit the “Old Post Office” building downtown and claimed it was architecturally one of the most significant of all of St. Louis' buildings. To prove his point he told us the following unusual things about the building: (1) It has a two-story basement that once served as the US Treasury gold depository for the western US. He claimed that it featured its own underground railroad station so gold could safely be shipped in and out. (2) The windows can be completely covered with steel shutters that slide out from slots in the wall. He claimed the shutters were installed in the 1920's during a trial of organized crime figures as a defense against possible mob machine gun fire.

A few days later I was talking with a fellow judge at work, Tom Muldoon. Judge Muldoon informed me that the hearing offices for Social Security used to be located in the Old Post Office. He described the grandeur of his former office in the building and told me he had the good fortune to tour the building with an architectural historian following the building's renovations in the 1990s. He too told me of the steel shutters that pull out of the walls, but in his version they were original to the 1884 building and were intended to turn the building into a fortress against attack from forces hostile to the Union. He explained border conflicts occurred in Missouri for quite a time after the Civil War. He repeated the story about the underground train station and added that the open air space surrounding the two story basement was designed as a moat that could be flooded in an attack thus protecting the gold by covering it with two stories of water. Finally, he told me that to stabilize the massive building it was built on pilings that rest on giant cotton bales. He claimed the bales were inspected during the renovations and were still sound after more than 100 years in the ground.

The very same day after a hearing, Jane Lanser, my hearing reporter, told me she had a book on the Old Post Office she would bring in for me to look over, and by the way, had I heard the story about how the gold mysteriously disappeared from the vaults there. The vocational expert in the courtroom waiting for the next hearing added that during the 1904 World's Fair people wanted to see the basement of the Old Post Office because it was rumored to be the entrance to a tunnel to the center of the earth.

I had to go look. It is an amazing building and architecturally significant for a number of reasons [see attached photos]. The real eye opener, however, occurred this past week when Jane brought me the book she promised. It was published in 1979 by the Landmarks Association, a St. Louis civic group that was leading the efforts to save and renovate the building. This book includes the following (presumably reliable) information: (1) When excavation for the building was underway a large bed of quicksand was uncovered. Attempts to excavate the quicksand caused the surrounding streets and buildings to subside, so excavation was stopped until hundreds of yellow pine pilings were driven then capped with 4-6 feet of limestone slabs (not cotton bales) on which the building now sits. These pilings were inspected in the 1970s and found to be sound. (2) The building was furnished with its own underground railroad platform but it was never used because it was impracticable to stop a coal fired steam train for long underground. (3) The metal shutters were original and intended for fireproofing. (4) There is no moat, the space around the basement was designed to admit light to basement windows.

Great old buildings inspire the imagination and gather stories. There is no tunnel to the center of the earth where the missing gold can be discovered by the fortunate soul brave enough to open the right passageway – but there should be.

Unfavorable

Hello again everyone. Here's another short reflection on my new job. Thanks to everyone who commented on last week's entry. It's a bit lonely out here and the friendly contacts are certainly welcome.

After two weeks of hearing cases I've already discovered a rather surprising (surprising to me at any rate) basic law of judging Social Security cases. Finding in favor of someone and granting benefits is easy. It's gratifying, too. Claimants come to court convinced they are so disabled that they cannot work. They tell me their story. These stories are always heart wrenching. The claimants are sad, worn-out folks. Some have worked hard all their lives until an accident or bad judgment laid them low. Some are deadbeats, drug addicts, and lay-abouts who ran out of friends and luck. Some are ordinary people whose body has inexplicably turned on them. Many are mentally ill, undiagnosed and unable to care for themselves in any meaningful way.

During a hearing this week, as I listened to another sad story, I realized that I was going to have to deny this person benefits. I am certain that she believed she could not work, indeed it may be true that she can't work. The problem is she simply did not have any credible evidence to support her belief. Her good doctors had done their work well. According to them she had recovered most of her body's function. She hurt and was tired but I knew without a doubt that she could hold down a job.

As she told me that no one would hire her no matter how hard she tried, I looked at her lawyer. He is a well respected practitioner. He caught my eye. Somehow he saw that I had reached my decision and that it did not favor his client. I saw a slight change come over his face; a look of resignation, perhaps. As I noticed this change, he realized I knew that he knew the case was hopeless. At the end of the testimony I asked him if he needed more time to gather evidence that might convince me. He knew that such evidence did not exist and to his credit he did not pretend it did.

The next day I wrote the unfavorable decision. It took a lot of time to explain why I did not believe the testimony of the claimant and why her doctors did not provide adequate evidence of disability. This was hard work. Lonely work. Necessary work.

To my surprise, I did not shrink from this work or even find it distasteful. Judging means being striving to be fair. To be fair you need rules. It some cases the rules dictate some claimants lose. In order for me to do my part in this system of justice I have to apply these rules impartially, even when it means someone loses. It is hard work to be sure. I hope I can be worthy of it.

Judging

My “training” period came to an end at last after 7 hard weeks of not sleeping in my own bed. This last week our furniture arrived and I started hearing cases.

Let me set the stage. The Office of Disability Adjudication and Review (ODAR) in St. Louis is located downtown in a modern office tower called St. Louis Place (picture attached). It occupies three quarters of the ninth floor. The office is roughly shaped like a “U” with a waiting room and elevators in the center. There are ten judges organized into two work groups with five judge's offices located on either long end of the U. There are about 45 support staff including ten decision writers (all lawyers) and 10 clerks called Senior Case Technicians (SCTs), one assigned to each judge. Tara Achembo is my SCT. She is essentially my paralegal helping get cases ready for hearing and following up afterwards. The rest of the staff is general clerical workers and managers.

Along the long flat side of the “U” adjacent to the waiting room is a row of five identical courtrooms. Claimants, their lawyers and any witnesses enter the courtrooms through locked doors from the waiting room. Judges enter from the inner office through a wooden door with a peephole that allows a fish-eye view inside. The judge's courtroom doors are unlocked from the office side but cannot be opened from inside the courtroom unless you have an electronic key.

The courtrooms each have the judge's bench on a raised platform at one end with a large desk, a computer hooked up to the SSA mainframe and a seat for a hearing reporter and their computer. In front of the bench is a large table with a seat for a vocational expert witness (VE) and seats for the claimant and their representative. Since 90% of our files are fully electronic, the attorney's seat and the VE's seat are equipped with computers, and they often also bring their own laptops. Each seat has a microphone to allow for electronic recording of the testimony.

On Monday I put on my new Judge's robe for the first time and headed for courtroom #2 a few minutes before 1:00, the time for my first hearing. I opened the door and was surprised to find the morning hearings had not yet ended. I apologized for the interruption then went to find my group leader to figure out what to do. I was quickly assigned a different courtroom and a different court reporter, but we couldn't get the computers to work. Finally, a half-hour later I was on my way. The confusing start took my mind off being nervous. I looked out at the claimant and his lawyer, introduced myself and started my questioning. I had perhaps over-prepared for a routine hearing but I wanted to really know the case. After about 15 minutes I knew what my decision would be. It was not this claimant's lucky day. His lawyer knew it was not going well. I gave the lawyer, who was very well prepared and comfortable, plenty of time to question his client, then granted his request for more time to try to get key evidence. They thanked me and left. The first hearing was over. It was 2:15. Not bad.

The next case involved a very mentally disturbed very young man. After he testified his mother testified and told me that virtually everything the claimant told me was a delusion. The file was devoid of adequate evidence. The claimant could not afford medical care so this time I ordered the client to get psychological testing paid for by Social Security. Another hour gone. The last claimant failed to show up. I dismissed his case. I walked out of the courtroom at 3:30, half an hour ahead of schedule. I felt great.

It's been pretty much like that every day since. After the hearings I issue orders for further development of cases and write decisions (actually I mostly write instructions to decision writers who draft decisions for me). Before the hearings I read files and make notes to prepare and occasionally decide a case without having to hold a hearing. I expect to decide at least 12 cases a week, or about 600 per year.

The work is inherently interesting and it suits me. I have a fair amount of compassion for claimants, but I've seen enough to not be a fool. I know what claimant's representatives go through and how they think. What's so different about judging is the realization that I'm the one who decides what will happen next for these folks. They need to move forward, and until I decide their life is on hold. Win or lose, after I decide, their story continues.