First Draft... let's kill my darlings! Kthx!
Posted: Fri Nov 01, 2013 3:50 pm
As if in a sleepless vigil, two banker boxes of documents stood guard over my employer’s desk. Ms. XXX, the attorney I worked for, specialized in social security cases. My role as her assistant recently entailed more responsibility. For the last few years I had assisted her in reviewing relevant medical and court files for each case, mostly by taking down transcriptions while she read aloud her thoughts on the material. I had begun to read and summarize the documents myself, sending her a roughly ten page long document highlighting crucial information for each case. On the basis of this, Ms. XXXX would shape her argument in court, and decide whether and which expert witnesses to call. These two banker boxes of documents were all for one case, a case which had been dropped on Ms. XXXX’ desk earlier that day. A case which was slated for the next afternoon.
I drove the documents back to my house, brewed a large pot of coffee, and began to read them. Sisyphean though the task may have seemed, I started with the first page and made note of the client’s date last insured and the date of application. I placed the page in a new pile, pages I had read. The two stacks began to slowly creep towards equilibrium as night drew near. Primarily I was looking for objective evidence regarding the client’s capacity to work and her active medical diagnosis. As was often true in the cases I read, there were a number of complicating elements and conflicting narratives. One was that of a woman who suffered from chronic and life altering illnesses, which, combined with her lack of secondary education and relevant work experience, made her unable to find and perform significant work. The other was a narrative of significant and pervasive prescription drug abuse and drug seeking behavior, material to her symptoms of anxiety and depression.
I continued to read the documents and this tension between the stories persisted. Some medical reports would push for a clear and favorable ruling for the adjudicator. An MRFC would find no evidence of drug or alcohol abuse, but the absence of evidence is not the evidence of absence. The most damning elements came from the first ruling, an unfavorable decision. The adjudicator ruled that she was under a disability, but that a substance use disorder was a material factor to the determination of disability. Despite not having enough evidence in the record to establish the requisite level of behavioral changes or physical changes associated with the regular use of substances that would meet the listings, he unilaterally decreed with what read like a papal bull that any medical expert who did not find a diagnosis of a history of drug abuse was deserving of little weight, since he believed there was clear and ample evidence in record to suggest a diagnosis of drug abuse. The most salient document to establish a positive diagnosis of drug abuse was a CDI investigation, which was given little credibility since it “consisted of hearsay evidence and opinions of laypersons with no established medical expertise.” I had begun to form small satellites of paper. A ten inch stack which supported the view of a person who suffered from chronic and painful disorders, which contributed materially to her inability to find work. A small stack, consisting entirely of the CDI investigation and the unfavorable decision, which directly cited a prescription drug abuse problem as being material, or even existing at all. Another stack, which seemed to speak to either story, depending upon how one wielded it.
I had jotted down in a notebook what I considered the most damning flaw in the adjudicator’s argument, “circular reasoning”, underlined and highlighted. In the absence of compelling evidence to the contrary, he decided that the client did in fact suffer from a drug addiction. However, this absence of evidence was only established by the adjudicator’s capricious dismissal of any medical testimony which did not corroborate his firmly held, and medically unsupported, diagnosis.
I called Ms. XXXX at three in the morning, when I was done reading the file. I explained what I had found, and asked her if she secure a medical expert to testify in the next day’s hearing. She could. I postulated that the adjudicator would be less likely to capriciously dismiss a medical expert’s testimony if the testimony was given in the first person. She agreed. I compiled everything I had found into a 29 page word document, rife with notes and formatting to assist Ms. XXXX in reading it. I printed it out and dropped it off at her house, along with the bankers boxes of documents, put back in their original chronological order, at 8:00 in the morning.
I tried to get some sleep that morning, but couldn’t. Instead I found myself thinking of this woman, who had such a great need for a favorable decision. She desperately needed the medical coverage that a favorable ruling would give her, as well as the personal validation. I thought of how frustrated she must have been with the first, unfavorable determination. Her urine analyses had come back clean consistently, and she had never done more than ask for an early refill on her pain medications due to passing a kidney stone. Yet she was labeled a drug addict, and was told that the only thing preventing her from meaningful work was a drug addiction problem she did not have.
I heard from Ms. XXXX later that day. The judge had admitted the testimony of a medical expert, who reviewed the medical evidence and found no basis for a diagnosis of drug addiction. Faced with this, he overturned his previous ruling, and the client was granted a favorable decision. I was overwhelmed with gratitude and respect for Ms. XXXX, and for the adjudicator. I slept well that night, and woke up the next day ready to take on the next case.
I had previously had some sincere reservations about becoming a lawyer. I had seen the grueling demands of a quick turnover and a large caseload, the stress of an adversarial court room, and was unsure if I could meet these requirements emotionally. After having this high degree of personal involvement in an intense case, I was and remain convinced that the rewards significantly outweigh the costs. As this quick anecdote hopefully detailed, I have the capacity to succeed as a practicing attorney, and while pursuing my J.D. I can read voluminous case documents and find meaning within the noise. I can strategize and plan to achieve a stated goal. I also hope to have convinced you of my passion to use this capacity as an advocate and lever for my clients. I’m proud to say that I helped Ms. XXXX’ client, and am confident that with a J.D. from XXXXXXX I will be able to help my own.
I drove the documents back to my house, brewed a large pot of coffee, and began to read them. Sisyphean though the task may have seemed, I started with the first page and made note of the client’s date last insured and the date of application. I placed the page in a new pile, pages I had read. The two stacks began to slowly creep towards equilibrium as night drew near. Primarily I was looking for objective evidence regarding the client’s capacity to work and her active medical diagnosis. As was often true in the cases I read, there were a number of complicating elements and conflicting narratives. One was that of a woman who suffered from chronic and life altering illnesses, which, combined with her lack of secondary education and relevant work experience, made her unable to find and perform significant work. The other was a narrative of significant and pervasive prescription drug abuse and drug seeking behavior, material to her symptoms of anxiety and depression.
I continued to read the documents and this tension between the stories persisted. Some medical reports would push for a clear and favorable ruling for the adjudicator. An MRFC would find no evidence of drug or alcohol abuse, but the absence of evidence is not the evidence of absence. The most damning elements came from the first ruling, an unfavorable decision. The adjudicator ruled that she was under a disability, but that a substance use disorder was a material factor to the determination of disability. Despite not having enough evidence in the record to establish the requisite level of behavioral changes or physical changes associated with the regular use of substances that would meet the listings, he unilaterally decreed with what read like a papal bull that any medical expert who did not find a diagnosis of a history of drug abuse was deserving of little weight, since he believed there was clear and ample evidence in record to suggest a diagnosis of drug abuse. The most salient document to establish a positive diagnosis of drug abuse was a CDI investigation, which was given little credibility since it “consisted of hearsay evidence and opinions of laypersons with no established medical expertise.” I had begun to form small satellites of paper. A ten inch stack which supported the view of a person who suffered from chronic and painful disorders, which contributed materially to her inability to find work. A small stack, consisting entirely of the CDI investigation and the unfavorable decision, which directly cited a prescription drug abuse problem as being material, or even existing at all. Another stack, which seemed to speak to either story, depending upon how one wielded it.
I had jotted down in a notebook what I considered the most damning flaw in the adjudicator’s argument, “circular reasoning”, underlined and highlighted. In the absence of compelling evidence to the contrary, he decided that the client did in fact suffer from a drug addiction. However, this absence of evidence was only established by the adjudicator’s capricious dismissal of any medical testimony which did not corroborate his firmly held, and medically unsupported, diagnosis.
I called Ms. XXXX at three in the morning, when I was done reading the file. I explained what I had found, and asked her if she secure a medical expert to testify in the next day’s hearing. She could. I postulated that the adjudicator would be less likely to capriciously dismiss a medical expert’s testimony if the testimony was given in the first person. She agreed. I compiled everything I had found into a 29 page word document, rife with notes and formatting to assist Ms. XXXX in reading it. I printed it out and dropped it off at her house, along with the bankers boxes of documents, put back in their original chronological order, at 8:00 in the morning.
I tried to get some sleep that morning, but couldn’t. Instead I found myself thinking of this woman, who had such a great need for a favorable decision. She desperately needed the medical coverage that a favorable ruling would give her, as well as the personal validation. I thought of how frustrated she must have been with the first, unfavorable determination. Her urine analyses had come back clean consistently, and she had never done more than ask for an early refill on her pain medications due to passing a kidney stone. Yet she was labeled a drug addict, and was told that the only thing preventing her from meaningful work was a drug addiction problem she did not have.
I heard from Ms. XXXX later that day. The judge had admitted the testimony of a medical expert, who reviewed the medical evidence and found no basis for a diagnosis of drug addiction. Faced with this, he overturned his previous ruling, and the client was granted a favorable decision. I was overwhelmed with gratitude and respect for Ms. XXXX, and for the adjudicator. I slept well that night, and woke up the next day ready to take on the next case.
I had previously had some sincere reservations about becoming a lawyer. I had seen the grueling demands of a quick turnover and a large caseload, the stress of an adversarial court room, and was unsure if I could meet these requirements emotionally. After having this high degree of personal involvement in an intense case, I was and remain convinced that the rewards significantly outweigh the costs. As this quick anecdote hopefully detailed, I have the capacity to succeed as a practicing attorney, and while pursuing my J.D. I can read voluminous case documents and find meaning within the noise. I can strategize and plan to achieve a stated goal. I also hope to have convinced you of my passion to use this capacity as an advocate and lever for my clients. I’m proud to say that I helped Ms. XXXX’ client, and am confident that with a J.D. from XXXXXXX I will be able to help my own.