NYT: Disability Cases Last Longer as Backlog Rises

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December 10, 2007

Disability Cases Last Longer as Backlog Rises

By _ERIK ECKHOLM_

(http://topics.nytimes.com/top/reference/timestopics/people/e/erik_eckholm/index\

..html?inline=nyt-per)

RALEIGH, N.C. — Steadily lengthening delays in the resolution of Social

Security _disability_

(http://topics.nytimes.com/top/news/health/diseasesconditionsandhealthtopics/dis\

abilities/index.html?inline=nyt-classifier) 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_

(http://topics.nytimes.com/top/reference/timestopics/organizations/s/social_secu\

rity_adm

inistration/index.html?inline=nyt-org) , 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_

(http://health.nytimes.com/health/guides/disease/emphysema/overview.html?inline=\

nyt-classif

ier) and life-threatening _sleep apnea_

(http://health.nytimes.com/health/guides/disease/sleep-apnea/overview.html?inlin\

e=nyt-classifier) , 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.â€

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.â€

In a recent interview, the commissioner of Social Security, 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.â€

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.

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 , 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.

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_

(http://health.nytimes.com/health/guides/disease/arthritis/overview.html?inline=\

nyt-classifier) and _depression_

(http://health.nytimes.com/health/guides/symptoms/depression/overview.html?inlin\

e=nyt-classifier) . The

rejection letter he is appealing said, “We have determined that the condition

is

not severe enough to preclude work.â€

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 , 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.â€

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.

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_

(http://health.nytimes.com/health/guides/disease/diabetes/overview.html?inline=n\

yt-classi

fier) 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 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.â€

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.

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