By Attorney Mary B. McKee
Courage doesn’t always roar. Sometimes courage is the little voice at the end of the day that says I’ll try again tomorrow. ~Mary Anne Radmacher
I remember in college, around the time this picture of me was taken, I took a creative writing course called “Daily Themes” in which we had to write a page a day. The assignment would be to write the dialogue for a conversation between two angry people, or to describe a scene in nature, or to look at yourself in a mirror for four minutes and then start writing. For the conscientious student that I was, it was grueling.
The teaching assistant asked me once why I so often began my compositions with quotations, with someone else’s words, instead of my own. I remember candidly telling him: “Because I haven’t suffered yet. I haven’t done anything, I don’t know anything about life yet.”
So now, 30 years later and likely having lived more than half my life, with gray hair and glasses on that same head, I can no longer point to that as the reason for starting with a quotation. Now, I find it comforting, and legitimizing or resonant in some way, to know that, as it turns out, the lives of the quotable people aren’t so different from mine. We’re all pretty much in the same quote.
When NOSSCR, the National Organization of Social Security Claims Representatives, recently sent out an e-mail asking for stories about “really tough cases,” I started to think about that during my interstitial time. (That’s a really cool word that means in between everything else.)
“Have a really tough case that has left you dazed and confused? Need a fresh set of eyes to review the facts and paint a new perspective or offer some new ideas? Email your issue or fact pattern to the presenters and it will be reviewed for possible inclusion in the Problem Case discussion at the November Disability Law Conference in San Antonio.” They suggested that issues could include “attorney fee issues, the ethics of submitting evidence, workers’ compensation offset, handling a consultative examination report, dealing with a difficult client or judge, and any other issue impacting Social Security claims.” And you thought it was a simple matter of us against them, put up your dukes for justice. Social Security Disability law can actually be quite subtle and complicated. But that’s not what makes it hard.
I’m not going to San Antonio in November, although I do try to go to the NOSSCR convention every other year. I did go to the NOSSCR in San Antonio 13 years ago. Brought my baby with me that year. I’ve told the story many times now about the Stetsoned gentleman sitting next to us on the flight back to Cleveland who, when I asked if it was OK if I nursed the baby, replied, gallant but dead serious: “Anything that keeps her quiet, ma’am.”
So, since I’m not going to the convention, you get my “Daily Themes” effort this time, although it’s more than a page long. But I’m twice as old now, so that should count for something.
We had a lot of hearings scheduled for last week – sixteen of them, many back to back. Lots of preparation, lots of driving into Cleveland, then trying to grab onto everything else that I had let slide, before it slipped away altogether. At one point, it occurred to me: What if I get tired of doing this?
When I tell someone new in my life what I do for a living, they are sometimes surprised that I would spend my day voluntarily the way I do. Working with sick and injured people who need money and hope, calling government agencies and medical providers, pushing myself and my assistants to give each client the attention she, or he, needs, without shorting the rest of the clients, striving to convince judge after judge that I know a disabled person when I see one. We’re a private, for-profit law firm, not a social service agency or a bank, we’re lawyers and paralegals and secretaries, not psycho-therapists—or psychics. We’re in business, but we’re human.
Here’s the kind of stuff I subject myself to every day, on purpose. This is why Social Security law is hard:
Listening to a 12-year old girl testify about the kids on the bus tossing her prosthetic hand around, but still losing her case because, with counseling, she had adjusted and was doing well in school. “Victory” can be subtle and complicated in these cases.
A trim, pretty lady telling the judge that she’d trade everything for just one more decent night with her husband, without the back pain and the morphine patch and the dread about how she’ll feel the next morning, now that there are no more operations to try, and they say she must learn how to “manage” her pain.
Or years ago—very pregnant (I was fortunate enough all three times to be working one day and have the baby the next…People in the elevator would be asking, a little uneasily, “When are you due?” And I’d be saying “Last Tuesday” or “Today, supposedly”)—trying to keep it together while a claimant about my age testifies about the lifelong steroids that have so deteriorated her bones that she broke her shoulder taking her sweatshirt off over her head. Even the name, “avascular necrosis,” still makes me cringe when I come across it now in someone else’s file. Like I said, we’re in business, and I was the lawyer in the room that day, questioning a witness, trying to win a case. We’re in business, we’re professionals, but we’re human.
I’ve been in hearings where the judge and I both know that the Bureau of Disability Determination in Columbus made a mistake and should never have made this person wait the two and a half years for a hearing. The judge will convene the hearing and the first words out of his mouth will be, “Counsel, what in tarnation are we doing here?” Sometimes a fully favorable bench decision will be issued right then and there. Fortunately, not only is the wait-time for a hearing coming down, but more of these clear-cut cases are being granted early in the process, thanks to early, “on-the-record” (without a hearing) programs at the hearing office.
I’ve had former clients come out of the woodwork, thanking me again for winning their case but wondering if they could get more money since they’re more disabled now than before. They lost another toe to diabetes or had a stroke on top of everything else. “Nope” is all I can say. Others ask whether I’m sure they’re getting all they’re entitled to, because it just isn’t enough to keep up the house their mom left them. Or enough to live anywhere but with their sister, or in public housing, and they’re a little afraid of both! And it’s not always just people who are on SSI only (the program that provides a subsistence-level income for people with disabilities who have not been able to contribute enough to the Social Security system, whether because of their lifelong disabilities or chronic conditions or because their career was in the unpaid work force raising children). Sometimes it’s people who worked every chance they got, their whole lives, but at such low-paying or sporadic jobs that their SSD benefit (the one for people who do contribute enough, and steadily and recently enough, to the Social Security system) is just plain on the low side.
Over the years, we’ve known clients who take in boarders just to make the mortgage, clients who live, for the duration of the case, in their ex-wife’s basement, clients who pray for jury duty just to get the $25 to use as the co-pay for their medicine, clients who sleep in tents with their kids in their parents’ back yard, and worry about winter coming. Clients who have to ask their own mother to use her income tax refund to pay off the utility company to keep the lights on. Clients who are so ashamed to ask their brother for money for a prom dress for their daughter, but do it anyway. If only we could grant presumptive benefits to all applicants at the outset, and then hold hearings to take the benefits away. If innocent until proven guilty works, how about disabled until proven not disabled? Not in our lifetime, I know.
Mine are typically not the cases where the injury is clearly catastrophic or the individual is at an unmistakably end-of-life (or end of life as they’ve known it) juncture. My cases are by nature the marginal ones, the dicey ones. Remember that about a third of those who apply for disability are granted, and I’m glad Social Security does the cherry-picking. That’s as it should be, especially under the new initiatives like “Quick Disability Determination” and “Compassionate Allowance.” The rest (at least those who don’t give up in dismay)—the unripe cherries, the not-so-quick, not-so-compassionate situations, are the ones who then seek legal representation from lawyers like me. And once in a while, a judge will look closely at a case and her office will call us the day before the scheduled hearing to say we don’t have to go to a hearing after all, it seems the cherry ripened almost overnight. But that’s as it should be, too. Even though sometimes the claimant and I might both feel a little deprived of “our day in court,” we’re still grateful for the result!
I admit that on occasion I wonder what would I do, what would my family do, what would my law partners do, if one day I couldn’t hear that little voice anymore, and I lost the courage to take on another case. So far, I have only to think about the hundreds of clients out there—past, present, and future—and straining, maybe it’s their voices I hear. “Courage” comes from the Latin “cor” for “heart.” Yeah, law with heart. That’s what we do here.