Social Security Backlog Getting Longer

[RedGlitter]

December 10, 2007

Social Security Disability Cases Last Longer as Backlog Rises

By ERIK ECKHOLM

RALEIGH, N.C. — Steadily lengthening delays in the resolution of Social Security disability claims have left hundreds of thousands of people in a kind of purgatory, now waiting as long as three years for a decision.

Two-thirds of those who appeal an initial rejection eventually win their cases.

But in the meantime, more and more people have lost their homes, declared bankruptcy or even died while awaiting an appeals hearing, say lawyers representing claimants and officials of the Social Security Administration, which administers disability benefits for those judged unable to work or who face terminal illness.

The agency’s new plan to hire at least 150 new appeals judges to whittle down the backlog, which has soared to 755,000 from 311,000 in 2000, will require $100 million more than the president requested this year and still more in the future. The plan has been delayed by the standoff between Congress and the White House over domestic appropriations.

There are 1,025 judges currently at work, and the wait for an appeals hearing averages more than 500 days, compared with 258 in 2000. Without new hirings, federal officials predict even longer waits and more of the personal tragedies that can result from years of painful uncertainty.

Progress against the backlog, if it happens, cannot undo the three years that Belinda Virgil of Fayetteville, N.C., has worried about her future since her initial application was turned down.

Tethered to an oxygen tank 24 hours a day because of emphysema and life-threatening sleep apnea, Ms. Virgil lost her apartment and has alternated between a sofa in her daughter’s crowded house and a friend’s place as she waits for an answer to her appeal.

“It’s been hell,” said Ms. Virgil, 44, who finally got her hearing in November and is awaiting the outcome. “I’ve got no money for Christmas, I move from house to house, and I’m getting really depressed.”

The disability process is complex, and the standard for approval has, from the inception of the program in the 1950s, been intentionally strict to prevent malingering and drains on the treasury. But it is also inevitably subjective in some cases, like those involving mental illness or pain that cannot be tested.

In a standard tougher than those of most private plans, recipients must prove that because of physical or mental disabilities they are unable to do “any kind of substantial work” for at least 12 months — if an engineer could not do his job but could work as a clerk, he would not qualify — or prove that an illness is expected “to result in death.”

In a recent interview, the commissioner of Social Security, Michael J. Astrue, said that outright fraud was rare but that many cases on appeal were borderline. In addition, widely publicized charges in the 1970s that money had been wasted on recipients whose conditions improved led to tighter scrutiny.

Of the roughly 2.5 million disability applicants each year now, about two-thirds are turned down initially by state agencies, which make decisions with federal oversight based on paper records but no face-to-face interview. Most of those who are refused give up at that point or after a failed request for local reconsideration.

But of the more than 575,000 who go on to file appeals — putting them in the vast line for a hearing before a special federal judge — two-thirds eventually win a reversal.

Mr. Astrue and other officials attribute the high number of reversals to several causes. Those who file appeals tend to be those with stronger cases and lawyers who help them gather persuasive medical data. During the extended waiting period, a person’s condition may worsen, strengthening the case. The judges see applicants in person and have more discretion to grant benefits in borderline cases.

Requiring face-to-face interviews at the initial stage could reduce the number of appeals, Mr. Astrue said, “but given the huge volume of cases coming through, it would be incredibly costly, and the Congress is not willing to fund that.”

The growing delays in the appeal process over the last decade resulted in part from litigation and financing shortages that prevented the hiring of new administrative law judges. In addition, the number of applications is rising as baby boomers reach their 50s and 60s.

“Once the system got overloaded, it fell farther and farther behind,” said Rick Warsinsky, legislative director of the National Council of Social Security Management Associations, which represents managers from the agency.

If approved, those who have paid into Social Security receive income comparable to retirement benefits, averaging more than $1,000 a month and potentially more. The poor, and severely disabled children, receive Supplemental Security Income checks that will be $637 a month in 2008.

Charles T. Hall’s law firm in Raleigh has the state’s largest disability practice, with six lawyers representing some 2,500 clients, usually working on contingency and collecting 25 percent of back payments, to a limit of $5,300. Mr. Hall said that about one client a month died while awaiting a hearing. Far more clients, he said, run out of money and are evicted from rental units or lose their homes.

In the past, said Walter Patterson, a disability lawyer in Charlotte, N.C., clients who received a foreclosure warning were pushed up the waiting list for quicker hearings. But as the hearing offices have become overwhelmed, he said, they now expedite cases only after seeing an actual eviction notice — usually too late to help.

Thomas Airington, 48, who formerly ran a car-emissions testing business, was told his appeal, filed last spring, would be expedited when he showed officials an eviction notice. In the meantime he lost the house, which his parents had bequeathed him. A hearing date has still not been set.

“If I’d been approved in time, I could have saved my house,” said Mr. Airington, who is staying with a brother near Raleigh.

Mr. Airington has pins in his spine from a car accident in 1992, shattered a knee when he fell 30 feet in 2005, has nerve damage in his feet and chronic arthritis and depression. The rejection letter he is appealing said, “We have determined that the condition is not severe enough to preclude work.”

Mr. Airington said he tried a desk job but found he could not sit for long, and tried working as a stocker in a grocery store but could not reach for shelves. Whatever the outcome, he, like many applicants, is in limbo while he waits.

The extended delays can also mean extra burdens for state welfare agencies. In New York State, about half the 38,000 people now waiting on disability appeals, for an average of 21 months, are receiving cash assistance from the state, said Michael Hayes, spokesman for the Office of Temporary and Disability Assistance.

Mr. Astrue, the latest of several Social Security commissioners to promise speedier decisions, said the agency had already taken steps to ensure quicker initial approval for those most clearly eligible and was holding more hearings by video.

But by all accounts, a major increase in money, judges and support staff will be needed to have a significant impact.

Mr. Astrue said that if the budget impasse continued for too long, leaving the agency budget at its current level, “not only will we not do any hiring, we’re looking at furloughs.”

A first step of raising the number of judges to 1,200 will require at least $100 million extra for the agency beyond the $9.6 billion that President Bush has proposed for the 2008 fiscal year, Mr. Astrue said. Within a wide-ranging, $151 billion health, education and labor bill passed in November, the Democratic-controlled Congress voted for a $275 million increase for the agency. But Mr. Bush vetoed the bill, calling it profligate.

If the stalemate continues, the government will probably operate on the basis of continuing resolutions, which will keep agency spending at last year’s level and doom the plan to add judges.

Richard and Vicki Wild and their adult son Mark, of Hillsborough, N.C., were mystified that Mark’s case would ever require a judge.

Hospitalized with increasing frequency since his severe diabetes was discovered at age 19, when he was found unconscious in a bus station, Mark Wild was eager to work as a chef. But over 15 years, he tried and lost jobs as a waiter and a cook. He had to drop out of culinary school because he was hospitalized so often, his parents said.

“We had 10 years’ worth of hospital records and unanimous opinions from the doctors,” said Richard Wild, 62, who until recently was a computer analyst. But his son’s initial application was turned down in 2003.

The family had sunk into debt because of medical bills, nearly losing their house of 30 years, but found a lawyer to file an appeal. The son, by then in his mid-30s, had to wait two more years to get a hearing scheduled, with no income and little life outside his parents’ home and the hospital.

As his hearing date in October 2006 approached, Mark Wild told his parents that he feared another rejection. “It was his last chance at any dignity, and he said if they turned him down it would be too much to take,” recalled Mrs. Wild, a nurse.

On Tuesday, Oct. 17, 2006, just a few days before the hearing, Mrs. Wild woke up to find her son gone. On his desk lay his watch, his ring and a bullet.

On that Thursday, Mrs. Wild, 55, got a call at work from their lawyer. “I just wanted to give you the good news,” she said he told her. “Somehow the judge has already approved the disability, it’s a done deal, Mark’s got it.”

Two hours later, a deputy sheriff and a chaplain arrived to say that hunters had found Mark Wild’s body in the woods, dead of a self-inflicted gunshot wound.

“No one can say for sure, but we’re convinced that his despondency and fear about the disability decision contributed to his death,” said Mrs. Wild, who wears a pinch of her son’s ashes in a small tube on a necklace.

Mr. Wild has tried to go back to work, but says he is so depressed he cannot do his job. He is applying for disability, but knows that he cannot expect an answer anytime soon.

[Lon]

Part of the problem could be solved if the existing Appeals Judges would hear more cases each month. My old golfing mentor (now deceased) was an Appeals Judge that came into that position from practicing law in his own law firm and thus had the private practice work ethic. Most of the judges have not worked in private practice. He was highly critical of the few cases that the average judge heard each month and was hated by his associates for the 35 to 40 cases that he heard each month. They said it made them look bad. None of his cases were ever overturned on appeal.