The Disability Morass

Hello everyone, I am the commenter, and now blogger, known as Don Zeko. By way of introducing myself to the community, I thought I’d scribble down some thoughts on the law of social security disability cases.

Since the great Recession, SSDI has become far more politically visible and controversial as it has become a much larger line item in the federal budget. Is it, as critics allege, becoming a “new welfare” in which able-bodied workers are paid to drop out of the job market forever, or is it an integral part of the safety net that prevents people from starving in the streets if a medical condition prevents them from working?

When I was a 2L in 2012, I interned at a very small plaintiff’s firm, and the majority of my time was spent on SSDI cases. Typically, I would get a binder full of legal paperwork and medical records with a client’s name on it. That client would be a person who had applied for SSDI, been initially rejected, and then filed for an appeal. Thus these were necessarily the edge cases; strong enough for my boss to take them on a contingency basis, and weak enough for the initial rejection. I would read the file in detail, which typically consisted of hundreds of pages of photocopied doctor’s notes, and write a 2-3 page brief to the effect that the client had a serious medical condition and could not under any circumstances hold down a job. Then I would do it again. A few months later, after I had moved on to other matters, my boss would go to perhaps a one-hour hearing before an administrative law judge in a tiny windowless courtroom. The client would get disability or not, and the firm would get paid or not.

Armed with this very small window into the way the system works, I’m not going to attempt to answer that question, but I will offer a few observations about where SSDI stands.

 

Disability rulings are arbitrary

In North Carolina, where I was doing this work, SSDI appeals are heard by a single judge and do not have a lawyer present to argue against a finding of disability. The only people saying anything in those hearings are the administrative law judge, the plaintiff’s attorney, the plaintiff, and whatever witnesses the plaintiff or the judge brings along. That might include a spouse or family member to testify as to how the plaintiff’s condition affects her everyday life. It might include a phone interview of a vocational expert who will testify that there are however many jobs available in North Carolina for a job seeker with a given skillset, a given age, and a given level of impairment. Very few of these cases are appealed past the post-denial hearing.

So in the absence of an adversarial process or an appeal, the judge you get makes a tremendous difference in the plaintiff’s odds of success. The jurisdiction’s administrative judges are assigned these cases on a rotating basis, meaning that for most of those cases I worked, the issue had already been decided one way or another by blind luck before I ever opened that binder.

To its credit, the social security administration does have policies to try to give the process some consistency and transparency. It maintains listings for common medical conditions and categories of medical conditions, setting out combinations of symptoms, ages, and skillsets that will prompt an automatic finding of disability. But in the sorts of cases I read, this simply meant there was an additional set of goalposts to target. I could either try to convince the judge that my client met the legal definition of disability, or I could try to convince the judge that my client met the requirements set out in the listings. In either case, subjectivity was rampant. Does this person’s back pain allow her to stand for four hours at a time or six hours at a time? Is this plaintiff unskilled, or do any of the dozen jobs he’s held over the past twenty years make him semi-skilled? It all came down to the judge. On a darker note, while I have no quantitative evidence to show disparities in outcome on the basis or race or gender, it would not surprise me in the least if that were so.

 

Disability rulings are slow

Again, these hearings would usually happen months after I wrote the brief to present to the presiding judge. Before I sat down to write the brief, it had usually been months since the client hired my firm, even longer since the plaintiff applied and was rejected, and longer still since the plaintiff’s medical condition first interfered with their ability to work. For once, the greatest delays were not usually caused by the court’s sloth. Rather, proving one of these cases usually requires a body of evidence that can only be built up over a long period of time. The plaintiff must be 1) diagnosed and must then 2) be treated. 3) The condition must persist after treatment, and the plaintiff must 4) continue to fail to find work. I would routinely read files with medical records from the late 90’s that were completely relevant. The fact sections of my briefs would often be a history of most of the plaintiff’s life, told entirely in terms of doctor’s visits, surgeries, changing opioid prescriptions, and failures to hold down a job.

 

Disability rulings are legally inextricable from economics

The plaintiffs in these cases almost invariably had two characteristics in common: their impairment was not objectively measurable, and they did not have a college degree. Most had conditions that caused chronic pain: rheumatoid arthritis, soft tissue injuries, spinal problems, fibromyalgia. A few had personality disorders, and a few had chronic malaise or similar symptoms. Almost all of them were clinically depressed and hadn’t worked in years. Could these people perform the duties of a minimum-wage job?

The answer, as per usual in the law, is “It depends.” Almost all of them could have worked for five to ten minutes just fine. The difficulty is in extending that to a full work week, and another after that. Whether or not they could do that depended upon their condition, but also on their own motivation, their mental resources, their desperation to keep a job or lack thereof.

The legal definition used by the social security administration to answer this question has two parts. First, are there jobs that the applicant can perform on a consistent basis? Second, are those jobs present in significant numbers in the local economy? And the fact is that in the middle of the recession in NC, jobs for an unskilled worker with physical limitations existed, but not in huge numbers. So if an applicant stands in front of a judge and says that he can stand for two hours a day and sit for four, maybe that means he’s got a whole lot of pain, or maybe he’s got a moderate amount of pain and doesn’t want to work. Maybe he wanted to work, got discouraged, and gave up. More likely a little of everything is going on and feeding back on itself. Beyond that, the judge has to determine both whether or not he can perform that job, but also whether or not he can be hired to that job. So the judges in these cases must determine, usually on their own, all sorts of things that they have precious little ability to determine. How skilled is the plaintiff? How much demand is there for those skills? How much of the plaintiff’s difficulty with sustained job performance is laziness, how much is depression, and how much is the medical condition? In other words, the judge must answer the big political question from the top of the post, and must do so on an individual basis with precious little evidence one way or the other.

I am ambivalent about much of what I saw working this job, but I do know one thing: I do not want to be an administrative law judge.Photo by MDGovpics The Disability Morass


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Don Zeko is the paper-thin pseudonym of a new-ish lawyer living in North Carolina and doing battle with the current legal job market. Professional interests include criminal law, trial advocacy, and evidence, while unprofessional interests include overthinking pop culture, eagerly awaiting new fantasy novels, holding strong opinions about board games, and trying to convince the two sides of the barbeque wars to bury the hatchet. When I'm not blogging here or doing real work, I watch Ally McBeal with my friend Katie so that you don't have to. I also tweet very occasionally at @Don_Zeko

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