Wednesday, August 04, 2010

Turner v. Comm'r of Social Security (9th Cir. - Aug. 2, 2010)

I'm a little surprised that Judge Gould hasn't gotten some flack for this one.

Not that I don't get his point. The question is whether James Turner was disabled as a result of PTSD back in the 80s and early 90s. There's a fair amount of evidence that he was, which I'll mention in a second.

But one of the central attributes of Turner's life is that he's a quasi-loner. He lives on a ranch in rural Oregon, feeding cattle, fixing holes in fences, and assisting in rounding up and branding cattle in return for lodging. He doesn't like people much -- he said he didn't "put up" with "most people" and doesn't like having a boss -- but he goes into town every couple of weeks for supplies and even marries during the relevant period. But the guy definitely likes what he likes, and he structures his life around those preferences.

The majority opinion affirms the ALJ's finding that Turner's able to work, but Judge Gould dissents, in part based on Turner's lifestyle. Judge Gould says:

"[E]ach day that Turner lives in an isolated area, bereft of the normal incidents of companionship that attend urban life and most jobs, stands as a silent confirming witness attesting to Turner’s real difficulties. Why else would he live in the middle of nowhere? "

Oopies. Didn't mean to insult everyone living in rural America -- i.e., "the middle of nowhere" -- I imagine.

Needless to say, there are lots of reasons -- lots -- why someone might rationally want to live outside of a city and avoid "the normal incidents of companionship that attend urban life and most jobs." It's a valid lifestyle choice. It's not necessarily, much less categorically, evidence of emotional disturbance. So the rhetorical question "Why else would [anyone] live in the middle of nowhere" actually has a lot of really fine answers, I think.

That said, I get Judge Gould's point. In Turner's case, his lifestyle choice may well be related to a problem, and an attempt to accommodate a disability. His background gives some hints that this may well be the case: he was a "tunnel rat" in 'Nam (no small feat), saw the remains of a half-dozen American servicemen skinned alive, has a big startle response, seems hypervigilent, freaks out at the sound of helicopters, etc. You can see why isolating yourself in the country might, in such a setting, be support for the proposition that someone has a problem. Hence, I think, where Judge Gould's understandable sentiment comes from.

I just might have chosen slightly different words. Rather than "Why else would he live in the middle of nowhere?", I'd leave out the "middle of nowhere" reference and maybe say something like: "The deliberately isolated manner in which Turner has elected to live his life strongly supports his disability claims."

It's easy to slam someone for an isolated sentence or two. Particularly when you're looking to do so, and want to create controversy. I think Judge Gould's heart is in a good place here. He could just be more careful.

And couldn't we all.