Administrative Hearings and Human Stories: Social Security Disability on the Frontlines

Kyle McEntee:

We're joined today by Asha Sharma, a lawyer who's been practicing social security disability law for over 20 years. That's a lot of experience and a lot of time devoted to a fairly niche practice, yet it wasn't always an area of interest for you. In fact, you didn't originally set out to be a lawyer at all. You started off as a journalist. What prompted that initial pivot to law?

Asha Sharma:

Initially, I was a journalist and I loved it. Even at that time, I could see that the world of journalism was dwindling and wasn't going to be a long-term career possibility. So I was looking for something a little more stable and dynamic.

Kyle McEntee:

After law school, you served as a clerk within the Minnesota court system. What was it like being in chambers with all these different judges?

Asha Sharma:

So I worked in Rochester, Minnesota, clerking for two state district court judges. We saw criminal law cases, family law, contracts, discrimination, the works. And I really have been so fortunate. So with those two judges, as well as the judge I clerked for at the Minnesota Court of Appeals, judges who had had a lot of life experience, practiced a general practice of law, which is less and less common now.

And I was there to do legal research and they wanted to know what my opinion was. Yes, I do think this person was being discriminated against, or no, this person's not being discriminated against. That company hires a lot of people of color.

And then having the judge say, “yeah, they do hire a lot of people of color, but only to do the worst jobs in construction, roofing, and, you know, those roofers aren't given any other opportunities. Absolutely, there's discrimination going on.” So that kind of life experience that they were bringing to their review of legal arguments and their decision making was just fascinating.

Kyle McEntee:

Your next step was with the state of Minnesota in the Department of Human Services, basically in policymaking. And you did this for 10 years. That's a long time, but it doesn't seem like you were really ever satisfied. What was contributing to those feelings?

Asha Sharma:

I think I had this vague idea of … I'm going to be making a difference by being engaged in policymaking. So one of the first things that I did, for example, was called rulemaking. Literally, my title was Rulemaker, which sounds like a very powerful position. It is not.

Basically, I would sit in a room doing stakeholder meetings. So like the first rule was on foster care. So with foster parents, former foster children, social workers, psychologists, and so on. And basically, I'm there to make sure everyone's voices are heard in coming up with a rule that reflects a consensus. And I really enjoyed that, for a while. But the Department of Human Services, there's all these employees. Each one has a vast amount of knowledge about their particular cubbyhole of human services. The rulemaker thing, after a while, it just started to become a little more sitting in a cubbyhole, drafting things, and shepherding it around, and then redrafting, revising, and just was not satisfying.

I did that for a few years. And then I got into working with a demonstration project on health care for people with disabilities. And again, I was a generalist, and everybody else knew way more than I did. I felt like I wasn't contributing. I felt like my legal skills weren't getting used. I wasn't meeting with people outside the agency as much. And the people I worked with were wonderful. But just this feeling that these legal skills that I had learned, three years of law school, three years of clerkships, just were not being utilized.

Kyle McEntee:

So it sounds like you really just wanted to work with real people.

Asha Sharma:

Yes, I wanted to work with real people. I was looking for something that I could really just engage all of me. After trying a number of different things, I ended up in the field of social security disability.

Kyle McEntee:

Before we get too into the weeds on that, what exactly is social security disability?

Asha Sharma:

So everyone's heard of social security retirement. You're working, your taxes are taken out of your paycheck, and one day you retire, and you're going to get your retirement on a monthly basis. What a lot of people don't know is that those taxes also go to social security disability. It's for individuals who have a mental or physical condition that prevents them from doing any work in the national economy. Now there's exceptions to that, but in a nutshell, that's what it is. That's a very high standard. You have to be unable to do any job in the national economy.

So a lot of people apply on their own, and some will get approved. But generally speaking, about 30 to 40% of people are approved when they first apply. Then there's an appeal after that, only 10% get approved at that point. The majority of people will end up going to a hearing with an administrative law judge. S o that's where some of the human elements can be factored in a little bit more. The individual has an opportunity to talk to a judge and explain what's going on. And the attorneys have the opportunity to develop the evidence a little bit more to prove social security disability.

Kyle McEntee:

Are you working with federal laws here, or is it a state and federal?

Asha Sharma:

So it's all federal law. And then the Social Security Administration has its own voluminous sets of rulings, guidance, and directives that technically aren't rules, but more or less have to be followed. And so the benefit of that is really I could move to any state in this country and practice social security disability, even with a Minnesota law license. It's federal law.

Kyle McEntee:

So we're in 2011, and you start your own shop with a friend to focus on this kind of work. What kind of issues are clients bringing to you specifically? Like, what are you trying to help them solve?

Asha Sharma:

So our firm assists individuals at all stages of the social security disability process. Application, appeal, representation with the judges, and then further levels of appeal all the way to federal district court. So the basic issue that prospective clients are bringing to us is, you know, I've got depression. I've got back pain. I have a hard time working. Someone suggested I apply for disability . So some of what we do is tell them after we do a short interview, I don't think you quite meet the criteria. You might want to get a second opinion. For example, someone who's in their 20s and says, I have some depression. I've got a little bit of back pain. It's hard for me to stand for six hours a day or eight hours a day at Chipotle. And that's where I have to tell them, you know, maybe you can't do the Chipotle job, but under social security disability law, you have to be unable to do any job in the national economy.

For someone who's in their 20s and they can't do those kinds of standing jobs, we have to be able to prove, why can't you do a simple sit-down job? Maybe you have some kind of congenital hip condition that makes it hard for you to sit, or maybe your depression is so serious you can't concentrate. You can't focus. You're making mistakes.

So first we tell them, in my opinion, in our opinion, do we feel they have the basics of a case? And we also, even if we take the case, we tell them there's no guarantee you will win. People think of social security disability, well, I just have to fill out an application. Well, it's not like filling out an application for unemployment. It's much more involved. It's a legal proceeding.

Kyle McEntee:

And that's why you are involved at that stage for some people, right? Because it is complicated. What they write does matter. The decision turns on facts. So you got to help put those facts in the light most likely to help your client get the outcome they're looking for.

Asha Sharma:

Absolutely. The vast majority of people who come to us, they are struggling. They don't have money. So what often happens, let's say someone's working. They can't work anymore. They don't have money. They lose their housing. They might lose their marriage. They lose their friends. Someone who's got physical issues often will develop mental illness, depression, anxiety. It just comes with the package. So people are in distress when they come to us and they're looking for help. They want a solution. A lot of the times we don't have a solution for them.

Luckily, we live in Minnesota, which compared to a lot of other states, it does have a reputation for being more generous. There are more services out there. Even if we can't help the person, we can say, you know what? Contact your local county. Contact the adult services unit. See if they can get you into housing. See if they can line you up at services. Sometimes someone will come to us and I believe that the person is depressed or anxious, but they haven't had any treatment. Without treatment, there's no psychologist notes. There's no psychiatrist notes. Without those notes, I don't have evidence. So I'll say, you know what? Please get that treatment lined up. Come back and see me in a few months. Or if someone is using substances, it's hard to get disability if you're using substances. Go into treatment. Come and see me when you're out of treatment.

Kyle McEntee:

So you mentioned that these clients don't have any money because they're not able to get employment. And yet you have a firm that focuses on this kind of work. Where does the money come from to pay you so that way you can afford to live?

Asha Sharma:

So this is what makes social security disability as a field, a challenging field to get into with no other resources. So basically, the way we get paid is we get a percentage of the back pay. And social security has strict rules about that. You get 25% of back pay that's capped at a certain amount that goes up every year. So let's say someone was in a car accident in June of 2024. They come to me August of 2025. “You know, I've tried to get back to work. I haven't been able to work for the past year.” We can file an application today and allege an onset date of disability of June of 2024. There's a five-month waiting period. Let's say the person gets approved. They can get back pay back to about November, December of 2024. So then now we have eight or nine months of back pay and we can get 25% of that.

Kyle McEntee:

Okay. And so that means that the money is not coming from any employer. It's coming from the federal government social security disability program. So you're getting 25% of the money the government is sending to the individual.

Asha Sharma:

Right. So you remember retirement comes out of your taxes, right? Disability comes out of your taxes. Now for some individuals who don't have a work history, they're not going to qualify for social security disability insurance based on their own work. But they can qualify for something called supplemental security income, which is a much lower amount. Typically it has all kinds of strings attached to it. But the medical qualifying rules are the same for both. But the vast majority of people, the 25% of back pay, it's their disability benefits that are being paid to them by the federal government, essentially from the taxes that you paid in to the system. And then for individuals who get SSI, that comes from a general fund.

Kyle McEntee:

And so you're not getting a cut of future money then, right?

Asha Sharma:

Absolutely not. So in terms of back pay, so let's say I have a hundred clients. The reality is some of them, let's say someone is terminally ill, that individual will get approved right away. There'll be little or no back pay. So be it. Other individuals will get approved after we file the application and medical records have been submitted or reviewed by social security.

A decision has been made six months down the road. Maybe we get $1,000 or $2,000. Or if they worked in a high paying job in the past and their monthly disability amount is fairly high, maybe we get $5,000, $6,000, $7,000, whatever. The reality is the vast majority of individuals will have to go to a hearing with a disability judge. At that point, it's a year and a half, two years of back pay. So this is how we make our living.

Now we don't control how quickly cases move through the system. We don't control how quickly judges are scheduling hearings. Some individuals, unfortunately, their cases get appealed to further levels. We've had clients where we've been working on their cases for five, six, seven years before they finally get approved. And then that's a lot of back pay. But those are the exceptions.

Kyle McEntee:

And you could see how the government would be incentivized to try to make resolutions more quickly.

Asha Sharma:

You would think so. Let me say this. I would say you could ask anyone at Social Security in the Social Security Administration, do you think decisions should be made quickly? I bet they would say, yes, they should be. But who's going to make the decisions? So Social Security Administration currently, they're at a 50-year low in terms of staffing. Meanwhile, the number of cases has gone up. Remember, they're not just handling disability cases. They're handling retirement. And under the current administration, there were incentives for people to retire or leave, take buyouts or whatever. Social Security Administration currently is under a lot of stress. There aren't enough bodies to do the work that's required.

And so ironically, yes, cases are taking a long time.

Kyle McEntee:

So a big part of your job is gathering and evaluating evidence. Well, we've seen an increase in online mental health services, some AI mental health services. How do you look at that kind of evidence? How do you evaluate whether that evidence will be persuasive to the people reading the applications?

Asha Sharma:

Well, thankfully so far, I mean, every client I've ever had, they have human beings as therapists and psychologists. And so that human element is in there. And we're not just calling the therapist and saying, hey, send me your notes. And that's the end of it. No, we're asking the therapist to write a letter. We have our own forms that we've put together, asking very specific questions. How does this person's depression, anxiety impact their ability to remain on task in the workforce? What percentage of the day will they be off task? What's their absenteeism level? What will that be like? Will they be able to work in proximity to others? So we're asking these kinds of questions.

The question that you're asking is a good one. I don't know how that's going to work. If someone's seeing an AI therapist, first of all, they're probably not going to fill out paperwork for me or for any other attorney. On the other hand, if programs get good enough, they might be able to say, this person will incur absenteeism of two or three days a month or more. And here is why. And then extract things from their notes. They're constantly showing up late for therapy appointments. They're constantly canceling. Or she told me she was calling in sick to work. So, I mean, who knows? I'm speculating.

Kyle McEntee:

So someone fills out the application, then they make a determination and there's persuasion going on there. How do you know what's persuasive?

Asha Sharma:

At the initial application levels, the decisions are being made by lower-level individuals at Social Security, not by judges. And I know this. I used to have a staff person who used to work in this area of Social Security who would tell me that they would be given guidelines and certain diagnoses in combination with certain work histories or whatever.

Maybe I'm misremembering this, but that they would look for very specific things. And then those are the individuals who would get approved. And realistically, the people who are getting approved when the application is first approved, those are the ones where their cases are so clear cut.

Someone who's had stage four cancer, someone who's had multiple hospitalizations and surgeries and complications. They also have special rules for people who are age 50 plus, and then that make it easier to qualify for disability. And then age 55 plus, it's even easier.

So a lot of people will get approved at that initial level, not so much because we're persuading them about anything, but because of the facts of the case. So the reality is at that initial level, I can only think of a few instances where it was our persuasion that I felt won the case.

Kyle McEntee:

But it's different at the hearing level, right?

Asha Sharma:

Yeah, but even at the initial level, even though maybe we're not persuading, but we're making sure that all that paperwork is being handed in, which may seem like, how hard can that be? The vast majority of our clients have mental health issues. Even the ones who have something physical as their primary issue, chronic pain, they have depression, they have anxiety, which makes it hard to do things like paperwork. People get overwhelmed. They don't turn things in on time. So we're there, my staff, making sure that paperwork is being turned in, all the medical sources are being reported.

If someone has an exam scheduled by social security, calling them and reminding them to go. Sometimes I have to get involved. I had a client who had to get his parents involved and he got drunk and belligerent. And I had jumped it into the parents that you gotta get him to that exam. The police showed up, they convinced the police to take him to the exam.

Kyle McEntee:

All right, so let's talk about these hearings then. What kind of preparation are you doing? So that way you're as effective as you can be once you're in front of that judge.

Asha Sharma:

A lot of the preparation is reading the medical records. And some of these files are thousands of pages, 600 pages. To the point that I have two cases coming up where I only have 100, 150 pages of medical records. Those are probably not gonna be good cases. So the majority of my preparation is reading the medical records, writing a brief.

Now a brief is not required. It's something that we do. And the judges do appreciate that. And looking for things in the file that I can extract and pull out and point to the judge as examples of why this person could not hold on to even a really simple job, eight hours a day, five days a week.

And preparing the client, which you don't coach the client, you don't rehearse them. Our clients get super anxious. A lot of them have underlying anxiety to begin with. So here are the kinds of questions that will come up. Here's what the judge is wanting to know more about. And then I spend a fair amount of time preparing my questions.

Questions that I'm gonna ask my client at the hearing. And then preparing cross-examination questions for the vocational witness who will be at the hearing. They have vocational witnesses. Why? We have to prove this person can't do any job in the national economy. The vocational witness is there to answer the judge's questions. Types of jobs that might be available for any given individual with limitations similar to my client. What kinds of occupations are there? And what are the job numbers for that occupation?

So the cross-examination is to challenge whether those occupations actually fit the limitations that my client has. And then to challenge, where's the vocational witness coming up at those job numbers? So this is a growing area of litigation in our field.

And I've attended a lot of webinars and seminars and conferences to try to understand this. So that's my preparation.

Kyle McEntee:

So when I think of a courtroom with any kind of judge, I think of there's two sides arguing. You're not arguing with the vocational witness, right? Is there someone else who is advocating on behalf of the government to say, “no, your client is not disabled in this kind of way?”

Asha Sharma:

So this is administrative law. So it's not a trial court. It's not a real court in that sense. It's an administrative proceeding. It's an administrative hearing. So there's a judge and a vocational witness. Sometimes there's a medical witness. There's no attorney on the other side. And so the impression then might be, well, that should be pretty easy. All you gotta do is go in and just have a nice little conversation with the judge and try to persuade them. It is not that easy. I wish it was.

It was a little bit more like that 20 years ago when I first started out. The selection process for judges, they tended to get individuals who were kind of nearing the ends of their other legal careers. And these were individuals who were looking to give back and had life experience similar to the judges who I had worked for before.

Now it's more of a professional career and younger individuals going into it. And there was also a fraud case that happened in about 2011, 2012. There was an attorney in Kentucky who colluded with a psychologist and a doctor and an administrative law judge to approve thousands of clients. And I mean, this was big. And there's an Apple TV documentary about it if you're interested. Believe it or not, his name is Eric Conn, C-O-N-N. And the story is unbelievable. But basically the impact of that was huge.

Even though the vast majority of attorneys, really almost all attorneys, were not engaged in fraud. And the attorneys and their clients are not engaged in fraud. There's so much evidence. It's so easy to tell, at least from a judge's point of view, whether or not someone meets disability criteria or not. But the impact of that fraud case was a toughening of the rules and a toughening of the evidentiary rules in particular.

It used to be I could submit an opinion from a doctor. Okay, the judge would more or less accept it. If it was more or less kind of consistent with the evidence. Now, if I had an opinion from a doctor that says, this person has stage four cancer and stage four cancer isn't mentioned in the records at all, of course, the judge would not accept it. But if it was more or less consistent, they would accept it. Since then, there's been changes in the law. Judges do not have to give what they call control and weight to treating physicians.

They basically, essentially have to give it no more weight than social security's own doctors who maybe are spending five minutes, 10 minutes, 15 minutes reviewing a file and saying, “oh, I think this person could lift 50 pounds. I think this person could do simple work.” So this has been a huge change in our profession and absolutely added to the stress, not just for the attorneys and the clients, I would suspect for the judges as well.

Kyle McEntee:

I'd imagine to combat these experts that are not really reading the files very closely, or they just don't have the time to read them very closely, that you increasingly need to have an even better understanding of medical records. That way you can be effective in these cases. Is that right?

Asha Sharma:

That is absolutely correct. And that has been one of the challenges for me or for any attorney working in this field is to get conversant with medical terminology. That's just a basic. Spinal disorders, back pain is so common. The difference between spondylosis and spondylolisthesis, what is the difference? So a lot of Googling involved, reading articles on the Mayo website, attending conferences.

We have an organization, NOSSCAR, National Organization of Social Security Claims Representatives and they put on excellent seminars as well as monthly webinars and so forth. So that's definitely been challenging. And I mentioned a lot of our clientele are people with mental health issues. I've had to really learn about mental illness. It's surprising how common it is. And learning about depression, anxiety, PTSD, schizophrenia, cognitive disorders. And so that's definitely been very challenging.

Kyle McEntee:

It sounds like this is all really complex and the landscape is ever changing. How do you make sure other people in this disability ecosystem are up to date and on the same page?

Asha Sharma:

So when I worked for the Department of Human Services, I've gotten to know a lot of social workers when they heard that I was working in the disability field. They started referring cases and I would get phone calls from social workers, psychologists and others saying, explain to me why my client didn't get approved. And I'm trying to explain the complexity of the law or sometimes social workers would be upset that I wasn't taking the case in the first place.

And then just as a practical matter, I started saying, can I offer you some free training for you and your staff and how this all works? Because I understand it's a big mystery. And so we often present now at the Minnesota Social Workers Conference on an annual basis and to other agencies.

And really the topic is, why did this person get approved and this person with the same exact conditions did not get approved? Why is that? And what it boils down to is documentation. One person has all the documentation, the other one does not. And the documentation might come because one person doing a better job of getting the treatment they need or their social workers are helping them get the treatment they need. So we've tried to educate social workers on the importance of helping to develop that documentation and that they can also improve their own documentation.

“You know, I visited client's home. She was still in bed, even though it was 2 p.m. She looked very depressed. She was anxious. Her apartment was extremely messy. Clearly, she's not keeping it up. She said she had not left her home in three days.”

That's great documentation. So I urge social workers to do that.

Kyle McEntee:

It doesn't sound like there's a ton of money in this, but a lot of impact. Has it been everything you were hoping for when you made the shift?

Asha Sharma:

You can make a decent living doing this, but you're probably not going to become a millionaire. You know, I had mentioned earlier on, why did I make the shift from policy to this? I wanted to work with real people, so to speak, and I wanted to engage more of me.

And that is happening here. I'm really using my brain with all the medical stuff, expanding my sense of compassion, feeling even more of a sense of mission to be effective advocates for our clients. These are among the most vulnerable of our society. These are people on the margins. Not only are they low income, but they have a physical disability. They have a mental disability and often are very alone.

And we're not going to be millionaires, but we're making a difference. And over the years, I've just developed wonderful relationships with my clients to the point. There are some clients who you just, you think, oh, this person's so difficult. They're yelling at you and whatever. And a year and a half later, you get a Christmas card saying, “hey, you're a great lawyer. I love you. Merry Christmas.” So it makes it all worthwhile.