The Legal Intelligencer – Allison Eberle-Lindemuth –
The intersection between Social Security disability and workers’ compensation and the American work ethic may not be apparent until one practices in the field.Working with clients on a weekly, if not daily, basis has led me to two conclusions. One, to some degree a good work ethic is helpful to a social security disability case (SSD). Two, to some degree it is detrimental to a social security disability case.
This is the paradox. Though I do not practice workers’compensation, the attitude of a client would be the same in either area of law and the observations made in this article can be extrapolated for workers’compensation as well.
The positive aspect of a good work ethic is, firstly, the typical client with a good work ethic often has a long, strong work record. This indicates a willingness to work and is desirable to judges because it proves that this claimant has always attempted to workup until his or her disability or injury. This is especially true when the client has worked for an extended amount of time in a physically demanding job, such as a union construction worker. I have noticed that these healthy work records are an indication of credibility and believability. The second part of this work ethic that is beneficial is the attitude of the claimant. Often, the people who have these strong work records are perceived to be desirous of working, but are simply physically or mentally unable to do any job. Specifically, judges see this desire not only as a sign of credibility, but basic truthfulness. “If not for my disability, I would be working.” Indeed, most of the union workers would be making significantly more money if they were working for their unions than if they were receiving social security disability payments. Compare two-thousand dollars per week to five-thousand dollars per week. This basic mathematical difference is logical and suggests that many people have no motivation to seek benefits beyond financial survival.
The detriment to a case when a client has a strong work ethic is illustrated best by what I term “the tough guy.” Many clients, both men and women who have strong work ethics, are reticent when it comes to their impairments and inability to work because, ostensibly, it makes them seem weak or lazy. This fear or embarrassment, a holdover from the viewpoint of the American work ethic in early American life, can work against a client when they cannot or will not articulate their problems for a judge or even their doctors. Appearing lazy to some Americans is simply unacceptable. It seems that these clients are fighting a new, emerging image of Americans: the lazy American. This was a topic of discussion in the New York Times in the fall of 2011. In a discussion posted online, the debate charges: “Hard work is part of the national self-image. How has our definition of it changed? How can we describe the American work ethic today?” (What Happened to the American Work Ethic, The New York Times, The Opinion Pages, October 9, 2011). Imagine that you have had a twenty to thirty year career in which you supported yourself and your family – then you are injured in some way before retirement age or before you have acquired your pension, union or otherwise. You have no other choice but to apply for disability, which by many is seen as a form of public assistance. These people have to fight their own images of welfare recipients and the prejudices by others. These internal struggles can radically change the way a client responds to questions by a judge. I often have to tell my clients that they must express their pain and restrictions, as embarrassing as it seems. I have often adopted a philosophy of one of the partners at Pond Lehocky Stern Giordano. Sam Pond has stressed that access to social security disability is a right that each individual gets when they pay into that Federal insurance system year after year. They earn those credits to insure that if, God forbid, they are injured or disabled, they have a fall back plan. When I explain the social security system to clients in this way, I often get better results.
Another problem that stems from this work ethic is a sense of pride. Though not unwarranted, I have had clients respond to vocational experts in an adversarial manner. Vocational experts are unbiased third parties that are used to “offer relevant evidence within his or her expertise or knowledge concerning the physical and mental demands of a claimant’s past relevant work, either as the claimant actually
performed it or as generally performed in the national economy.” 20 C.F.R. § 404.1560(b)(2). This sense of pride, connected to the work ethic, can have a negative effect on the client’s testimony at least in context of answering questions about their past work. Clients are often under the impression that the vocational expert should be listening to everything they say about their past work; if the vocational expert strays away from that core testimony clients get agitated unduly. To counteract this, I usually ask the client about their past work ahead of time and discuss with them the occupational title that I think will likely apply to their past work. (See Dictionary of Occupational Titles available online.) This also provides me with a sense of what the vocational expert will testify to at the hearing.
These vocational experts often describe possible jobs that are below the past work of the client in both wage and status. Many clients are offended by these suggestions. One way that I have chosen to counteract this possibility is by giving examples of jobs that clients are often insulted by, such as a laundry worker, parts assembler, or food service worker. These jobs require hard, honest work. However, many clients will not view them in that light. When that happens, I simply explain that these examples are not something that they are actually supposed to perform, but just examples of something they are physically able to do. I also stress that the judge does not have to agree with the vocational expert’s opinion. Additionally, I explain that social security’s definition of disability has to do with the physical requirements of a job, not necessarily wage, prestige, or actual employability. This is often difficult for clients to understand; however, it is easier to explain before the hearing than after the hearing. Clients are often happier with the outcome if I have explained all of this ahead of time. When I have the time, my preparation with a client is usually one full hour the day before the hearing. Though this is relevant to how many clients I have per week, I find that the more I explain ahead of time, the happier the client, regardless of the outcome of the hearing.
In the end, I treat each client on an individual basis. I gauge what I will explain and say based on
their personal information gathered in their file, as well as their responses to me when I speak with them.
Regardless of their position, I often explain most of this anyway as a way to prepare them for their
hearing. Overall, this work ethic can easily go one of two ways; it is up to the attorney to plan accordingly for each individual client
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