The Elder Law Forum

The Elder Law Forum by Professor Michael Myers Editor's Note: The Elder Law Forum is a public service of the University of South Dakota School of Law, an extension of the SENIOR LEGAL HOTLINE available at no cost to persons 60 and older at 605-677-6343 and during regular business hours. The Elder Law Forum delivers information and educational material by radio, a weekly newspaper column, and Law School research papers placed on the USD School of Law Web site. Professor Myers teaches Elder Law at the School of Law.

It's a "Jungle" Out There

"It's a jungle out there," professors are known to tell students while preparing them for entry into the marketplace of lifetime employment. What they don't tell students � because it would be premature � is that as workers age their commercial value often ebbs, exposing them to a jungle far more hostile than the one they entered during their early 20s.

A 61-year-old caller to the USD Senior Legal Hotline (1-800-747-1895; mmyers@usd. edu) described her personal jungle.

She said she was diabetic, had deep-vein thrombosis that prevents sustained standing, and experiences panic attacks brought on in part by having lost her job last spring. She had spent her modest IRA savings, had just received her last unemployment check, and her rent was due.

"I've lived alone in this apartment for 17 years and been able to scrape by through a frugal lifestyle," she said. During that time she worked on an assembly line for a company that closed eight years ago, after which she joined the company from which she was terminated.

"Why were you terminated?" I asked. "It was after I was hospitalized with my thrombosis condition. I had a supervisor that didn't like to see anyone sitting down. They said I made two assembly mistakes. I asked if they could show them to me and they said they had already corrected the mistakes and the parts were gone."

She had applied for Social Security disability benefits but had been turned down. She had just received a denial of her petition for reconsideration when she called. She had contacted HUD for possible assistance with her rent and was told the list of applicants was lengthy and HUD was out of money.

Her doctor has her on four prescription drugs, which she is paying for out-of-pocket. And, she is paying $310 per month for health insurance under her COBRA eligibility, which will terminate within 11 months, after which she will be virtually uninsurable.

I identified two areas of potential elderlaw assistance. First, I recommended that she immediately appeal the denial of her Social Security disability claim. There are four stages to the process: (1) The application; (2) Request for reconsideration; (3) An appeals hearing, and (4) The courts.

She is at the hearing stage, where she will be able to present evidence of her disability directly to an administrative law judge.

"Secondly," I advised, "we should examine the circumstances surrounding your termination." It appears her employer built a good paper trail, documenting a progressive system of oral warning, written warning, suspension, then termination.

"It's a long shot," I said, "but let's take a look at it. There may be some bad faith here." Life can be hard in the jungle.

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