“Get turned down twice, then get a lawyer”

“Everybody says, you get turned down twice, then you get a lawyer.”  Don’t know how many times I’ve heard that in the last few years, but I do know that “everybody” isn’t giving good advice about how to get a Social Security Disability award.

If you’re planning to apply for Social Security Disability benefits,  you’re better off if you don’t listen to those folks on the street.  Plan on getting your lawyer right after you file and before you fill out any forms other than signing the application.

Why?  Because your lawyer is your advocate.  He starts arguing your case  when he talks through the answer to that first baffling question, “what do you do from the time you get up until you go to bed ?”,  with you and helps you word it in a way that communicates how hard your disability makes it for you to get through the day.  It goes from there — every question on every form is an opportunity to drive that point home to the folks reading the file that you really have a problem that prevents you from being employed.

When you apply, the clerk asks you who your doctors are and what are their addresses. The Disability Determination Service writes to your doctors and asks for their records for the last year.  If you’ve hired a good lawyer  at the outset, he’ll wait about six weeks to give the doctors a chance to respond, then he will get a computer disk of the reports and read them.

Reading the reports early on lets your lawyer learn what your doctors write down about your visits and enables him to teach you how to be a little pushy and encourage the doctor to write down the information claims analysts look for.  After that, every doctor visit becomes a source of information on which your case will be decided.

Reading the reports isn’t easy. Your doctor’s handwriting is likely to be as bad as your lawyer’s, and doctors have their own shorthand way of saying what’s wrong and remembering who you are the next time they see you.  If things aren’t clear, your lawyer will send a letter stating what he thinks was said in plain English and asking the doctor to correct anything he missed. That letter becomes a medical exhibit in your file.  A medical exhibit written so that everyone can understand it.  Big words are handled the same way.  When I’m reviewing records, I spend as much time Googling words and names of medicines as I do actually reading the report.  My guess is that if I don’t know what it is, the fellow at Disability Determination may not either, and that if I don’t explain it for him, he’ll just turn to the next page in order to make it through the amount of work he’s been assigned for the day.

There is some truth to what the folks in the street say, that ‘most everyone gets turned down twice. They usually do,  but if your lawyer fills out the form asking for the next step, reconsideration or a hearing before the judge, he gets another chance to argue your case!  At each level you will be sent the same forms to fill out, and if you work through them with your lawyer, well, I ‘ve already told you what he does.

Because almost all lawyers take Social Security Disability cases on a contingent fee basis, the 25% of past-due benefits up to $6,000.00 as allowed by Social Security, it costs no more to establish that relationship early on.  Every time you meet with your lawyer to work on a form, he gets to see firsthand how you’re doing, gets a chance to learn how you express yourself so that he can plan how to ask you questions if you have a hearing, and gets a chance to coach you on how to keep putting more information into the file to support a favorable decision.

“Get turned down twice, then get a lawyer.”  Don’t  wait to do it.  Get a lawyer who will work towards a favorable decision at every step of the process.

Quitting Criminal Law

 QUITTING CRIMINAL LAW

After 29 years I’ve taken in the criminal law shingle.  25 years of defense work, four as a prosecutor (when I took that step I never did figure if it was a white horse or a black horse that I’d jumped onto!).  The change was occasioned primarily by the big increase in the number of Social Security l cases I’m currently involved in, but also because there is now a Federal Public Defender’s Office  serving the Court where I did many appointed cases. 

        Lord knows how many cases I was involved in over the years, but just offhand only three outright acquittals as a defense lawyer come to mind (I hope that there were more, but these three I remember).  In one, a felony charge of attempting to purchase a firearm after being convicted of a felony, I was able to convince the Court that my retained client was so dense that he didn’t comprehend that a cocaine charge in New Jersey was a felony;  in another, a court-appointed drug distribution case, I had been to the scene of the alleged offense, and  pointed out to an unhappy Court and prosecutor that it was impossible for an officer, despite his testimony, to have kept his informant under surveillance during the intervals before and after the buy;  the third, and oddest case,  involved road rage  before the term had been invented.  My retained client had seen a fellow cut him off at an intersection, adding  insult to injury by  making an obscene gesture. My guy followed the fellow to a shopping mall parking lot,  and approached the car on foot only to hear the doors locking  and see the window come halfway down, and a  furled umbrella poked out and brandished in his direction. My client grabbed the umbrella, then the arm, then pulled the man halfway out the window for a couple of good dope slaps, and was arrested for assault and battery!  The only argument that I could make on closing was that a person ought to pay some attention to who they make obscene gestures towards.  The law aside, my man was acquitted.  I think that the Judge went back to his Navy days and acted as though he was presiding at a Captain’s Mast rather than in the District Court!

     More importantly, I can look back and know that I did a good job for most of the rest of my criminal clients, minimizing the damage that they suffered by getting felonies reduced to misdemeanors or taken under advisement for subsequent dismissal.  I know that just about all of  my guys served less jail time because of my efforts, and  feel that other factors, such as  their  sociopathic personalities or just plain old guilt comparable with homemade sin, interfered with my efforts on behalf of the others.

      I’m proud of the work that I did as a criminal lawyer, but at age 56 I’m glad to be moving on to other challenges. That, and pleased to have my calendar set so that I can take the time to prepare my disability cases without the interruption of having to go and wait for docket call!

Lawyer Ethics Class

I’ve a been a little insulted that the State Bar has a yearly continuing education requirement in ethics — after all, aren’t we all Southern gentlemen like Atticus Finch?  He’s the one that got an amazing  percentage of us into this work, had by a paperback book in Grade 12 Literature!  On a more callous level, there’s that nagging realization in the back of your mind that if you screw up, the license comes off of the wall.  Judging from the quality of lawyer humor (or my perspective of it) there clearly is a need for such training.  As a sole practitioner in a small Virginia town, where there is a personal relationship among most of the members of the bar, and the population is small enough that if you don’t treat people ethically the word gets out and  you loose clients, I’ve been spared exposure to the basis for much of that humor.

Yesterday afternoon I drove over to the next town, to a new Best Wester’s conference room for the class.  I was pleasantly surprised.   The afternoon was organized around a series of video shorts depicting an overworked lawyer in a firm where she had no real supervisor or mentor, health and marital problems of her own, and a senior lawyer who’s only advice was “buck up! that’s what I did.”  After each vignette, the people at each table discussed the problems displayed — I was lucky, the two lawyers sitting with me were older members of the bar, the same gentlemen that I always call if I have such a question.   After our discussions, a claims attorney from the malpractice insurance company and an ethics attorney from the State Bar told us the “school solutions”, as we used to call them in the Army, an indication that there were other equally viable approaches, but this was the one that kept you in line with published doctrine and procedure.  Our solutions matched theirs, so I guess, at least for the afternoon, we were certified as ethical lawyers, knowing what to do ourselves, and when we are required to report our fellows for stepping out of line.

From a client perspective, I think that the lessons presented stressed that clients are entitled to confidentiality,  prompt attention to their cases by a lawyer qualified in the area of expertise,  clarity in explanation of the terms of the fee agreement between lawyer and client, and that whether or not that fee has been paid, at the end of the relationship, the client always, always, has the right to the materials in thier file.

While an admirable fellow, Atticus didn’t have the problems to deal with that the woman in the videos had (and, after all,  he had Calpurnia to look after Jem and Scout).  The class made me realize that I’ve made some good choices in my practice, such as learning to tell people “no” in order to keep my workload within limits that allow adequate attention to all matters.  As a sole practitioner I’ve already made my choices about where I fit on the competitive economic ladder.    It scared me a bit in terms of electronic security, how easily network security can be lost and client files compromised — the paper shredder, by itself, isn’t enough anymore.

However annoyed I may have been beforehand, I’m glad I went to the class.  My clients and fellow lawyers will benefit from my recollection of the rules being refreshed.  I just hope that they have the same crew there next year!

COOPERATE AND GRADUATE

“Cooperate and graduate,” that used to be the word in Army schools. Work with your buddies so that everyone gets through and a good result is achieved. It never ceases to amaze me how many clients are unable to adopt that attitude with their lawyer.

For example:

The speeding client who, having been advised to go to driver improvement school BEFORE the court date in order to show some good faith and repentance, does not do so, confident that their charm will outclass the officer’s radar gun in front of a judge you’ve seen in a thousand cases.

The grand larceny client, caught with a piece of construction equipment in his yard, recently re-painted with a not-so-good homemade paint job and with an extra digit added to the serial number, persists in claiming that he bought it from a buddy for a really good price, and had no idea it was hot.

The Social Security claimant that. after you’ve sent his doctor a functional assessment to fill out and a letter to the client saying MAKE AND KEEP AN APPOINTMENT WITH YOUR DOCTOR, THIS IS IMPORTANT, HE HAS A FORM TO COMPLETE ABOUT YOU, never does so.

Boundary-line and partition disputes — often involving family members (remember Jarndyce v. Jarndyce?) where clients on both sides have been nursing a resentment, which usually has nothing to do with the line or the property and  is seldom revealed, and are congenitally incapable of ascribing any good-faith action on the part of the other party or their counsel. It is impossible to break down this animosity on either side, and enormous amounts of time and energy are expended in finding Realtors, surveyors and inspectors with no connection to either party or either lawyer. Nobody seems to care if the house rots down while the trial is pending or everyone’s cattle constantly stray into the road, and the court usually decrees a solution that could have been negotiated in the first six months of the dispute.

My favorite is the client who, having spoken to lawyer so-and-so in the street knows he has a winner, or even better, the client who, having consulted judge so-and-so knows he can’t possibly loose. Of course he never paid the lawyer to look into the facts of the matter, and the judge is actually a FORMER judge — we won’t go into the reasons for the honorific!

After twenty-some years of this work, I’ve become a bit more astute about human nature, and try to protect myself against these cases, although I do sometimes get snookered. The initial interview is important. I remember asking a client in an assault case where he kept his stick in his truck, that I kept mine right behind the drivers seat, convenient-like! I asked the construction equipment guy how new the equipment was, what he paid, and then made an observation about the value of my ’67 Ford 8-N tractor that I use to bushhog the pasture. My recollection is that Oliver Wendall Holmes said that “ninety percent of the practice of law is in telling your client that he is a damn fool and should quit.” Just the other day I advised a client that “they didn’t have a dog in that fight,” and when they didn’t seem to understand, I said “let me make this a little clearer — it’s none of your business.”

Do physicians, accountants, or morticians run into this same problem? I don’t know. I spend my spare time with musicians and artists, and they’re not giving me any answers.

My point is this: explain your problem to your lawyer, get a clearly stated proposed course of action, and if you can accept it, follow through. If you don’t get a plain talk explanation of things, or if you can’t accept the advice put on the table, say thank you, pay your fee for the consultation, and go elsewhere.

Life’s too short to do it any other way.

The Importance of having a durable power of attorney

    A recent catastrophic occurance in a friend’s family brought home to me the importance of having a durable power of attorney.  For years I have told clients that the power of attorney is, for most of us, more important than a will, as Virginia’s intestacy laws make a pretty good job of taking care of your family, but we will all, at least for a short time, be incapable of making business and medical decisions during our lifetimes.  Last month I was presented with a real-life example of that statement.  In June my wife and I attended a wonderful outdoor wedding where the groomsmen came to the grove on wagon pulled by an antique John Deere tractor and the married couple left in a friend’s 1937 Packard convertible.  In October, the bride complained for several days of headaches and when her husband insisted that she go to the emergency room rather than staying home while he went to work, it was discovered that she had a brain tumor and was airlifted to the regional teaching hospital.  Emergency surgery ensued, leaving her unable to speak or move her right extremities.  A second surgery stabilized her somewhat, but she could only communicate by pointing and giving the thumbs up or down.  As one could imagine, medical decisions and  financial transactions loomed, not only for her care, but for dealing with student loans and lodging for her husband and family as they stayed by her bedside.  Her husband called and asked me to do a power of attorney for her, saying that they’d been intending to come in to get them done, but in the day-to-day flow of things it hadn’t seemed important.

I did the paperwork and that eveining my wife and I drove across the mountain to the hospital.  Fortunately the young  woman’s thumb-up thumbs-down lucidity continued and I was comfortable notarizing her best effort at a signature!  On the trip over I wasn’t sure whether or not I was going to be able to do that, despite my intentions of helping her and her family.

The “durable” bit means that  the document authorizes the holder to act on the principal’s behalf even if the principal is disabled, exercising his best judgment even though the principal is not in a state to intervene.  These powers of attorney are written with very broad language, and I include specific medical as well as business authority.  Because the holder can, quite literally,”sell the ranch”, and because an attorney-in-fact is not normally called to answer to the Commissioner of Accounts or the Court, I warn my clients to be cautious as to their selection of agent.  Sometimes the best person is not the closest living relative.

Durable powers of attorney, like wills, are typed on good, heavy bond paper.  I tell my clients that they can sit for years, unused, and still be as good as new.   One of their biggest benefits is peace of mind, one less thing to think about in the wee hours of the night.

Psychiatric Advance Directives

Just developing in the areas of disability law and estate planning is the Psychiatric Advance Directive, essentially a variant of the advance medical directive or living will that provides specific guidance for the provision of psychiatric services in the event of a person’s disability. I believe that these directives can be an effective tool for folks who have an episodic or chronic psychiatric disorder where a specific treatment with a particular provider has proven effective in returning them to normal functioning. Instructions for the gatekeepers, if you will, the directive has the potential to insure quick access to the most effective treatment.

The PAD, however, also has the potential to complicate or thwart rational treatment decision making. I can envision circumstances where an episodically ill person preparing a PAD during a period when their illness is in remission, might give instructions that limit or prohibit treatments that while previously effective in returning them to their baseline functioning, were unpleasant or distasteful, or names an authorized individual to make treatment decisions that does not agree with the opinions of family or treatment providers.

That, of course, goes to the central controversy in mental health treatment, who makes the decisions and how the interests of the individual are to be protected. Although Virginia makes mention of the PAD in its Involuntary Civil Commitment forms, there is as yet no statutory provision recognizing the directives. It will be interesting to observe how the treatment/civil liberties balance is achieved!

     Thinking back over the last few Social Security Disability claimants who have come through my office, it occurs to me that a frequent reason that people are turned down on their initial applications is that they do not provide sufficient information in their application interviews.  When I reviewed those files, the applications clearly showed that the claimants told the interviewer what doctors they had seen in recent months, but in all of them one or more of the physician’s reports were missing from the materials considered by the Office of Disability determination.

These clients had shortchanged themselves by not providing full addresses for their doctors.  They provided the doctor’s name, but rather than giving a full street address, they said “Staunton Medical Center”, the name of the building complex where the doctor’s office is located, or “Grubert Street Medical Center,” which is what a lot of people call the complex.  The Office of Disability Determination does not, apparently, take the time to consult a telephone directory to get physician’s addresses, and their reviewers made the decisions without information that could likely have resulted in a favorable decision at either the application or reconsideration stage.

Similarly, these same clients had shortchanged themselves by not answering every question on the application or the disability report form that they were subsequently mailed and asked to return.  It’s easier to fill out a long form by writing “N/A” in some of the spaces, but every question is there for a reason, to provide information needed to determine if a person meets the disability listings.

A claimant may, for example, be tempted to skip the question about medication side effects — after all, they just started a new prescription and everything seems to be going well.  They forget that the last three medications all had bad side effects — an important consideration for two reasons, the side effects, and the bigger picture that their condition does not respond well to medication over the long term.  People also  often fail to completely or honestly  answer the questions on a disability report because even though they are applying for disability they  give in to the human tendancy to  minimize their  difficulties,  putting a good “game face” on things.  If you vacuum the house despite the pain in your back, don’t just say that you do the job.  Explain that you have to work at your own pace, resting frequently, and that because it takes twice as long, you never get the laundry done!

Unfortunately, paperwork is what controls the Disability application process at the first two stages, the initial application and the request for reconsideration if the application is denied. You must communicate well with the Social Security clerk who takes your application, making sure that they understand your condition so that they can get the information into the file.  When you are sent a disability report, fill it in completely and return it, along with the accompanying medical release forms before the suspense date given in the cover letter.

Try those techniques.  They will result in a more complete record, and a greater likelihood of approval of your application.  If you are not successful at that stage, pay attention to the suspense dates and contact a qualified Social Security lawyer.

Governor Kaine’s Executive Order expanding the reporting of court-ordered outpaitient mental health treatment will no doubt result in a few more individuals being added to the roster of those prohibited from posessing firearms but is not as large a step as it might first seem. This is because the Special Justices who hear committment cases enter such an order in only a small percentage of the proceedings that come before them.

Mandatory outpaitent treatment is under utilized because while Virginia Statute allows for such a disposition of a Petition for Committment, there is no structure in place to effectively monitor the subject’s subsequent follow up with the community’s clinic. If an individual ordered into treatment does not make and keep a clinic appointment, there is no procedure to bring him or her back before the court for a review to determine if inpatient treatment is then warranted.

The Virginia Supreme Court is presently studying the committment laws and procedures. Let us hope that this gap in the provision of services for the mentally ill can be closed.

Social Security Disability

(SSDI and SSI) A large percentage of people who apply for Social Security Disability have their cases denied at the application and reconsideration level. It has been my experience that a large number of those people can qualify for benefits if they appeal the denial of their reconsideration request to the next level, which is heard before an Administrative Law Judge.

Although these hearings are somewhat informal, it is my opinion that an applicant needs experienced counsel in order to prepare the case for trial, filling in gaps in the record that may have led to the previous denials, and to present the case to the Judge. This helps the claimant tell their story in a way that is both compelling and provides the information that the Judge needs to grant a favorable decision. I have twenty years’ experience in these cases, with consistently good results at both the Administrative Judge and Federal District Court levels.

I have handled disability cases involving various mental health issues such as depression and bipolar disorder, back and neck problems, fibromylagia, heart disease, chronic pain syndrome, arthritis, and many other disabling conditions.

I accept these cases on the contingent fee arrangement approved by the Social Security Administration, 25% of the past-due benefits up to $5,300.00.