Monday, August 31, 2009

Massive Social Security backlogs mean millions of disabled people not receiving benefits they earned

From the Des Moines Register:

Todd Lindberg (pictured) has lived for a year and a half in a storage garage in northwest Des Moines. He sleeps on a well-worn couch in a dark corner of the building, amid construction equipment, tools and snowmobiles.

With most of one foot amputated and part of the other missing, he qualifies for federal disability benefits that would pay for an apartment and groceries.

But getting those benefits is not easy.

A massive backlog of unresolved disability claims at the Social Security Administration has kept Lindberg and millions of others waiting years for benefits they earned while in the work force. The delays have led to splintered families, foreclosed homes and suicides.

Last year, a 49-year-old Missouri truck driver died in the lobby of a Social Security office while waiting to be called into the office for a hearing on his three-year-old claim for benefits.

During the past year, the number of people waiting to have their claims processed has increased more than 30 percent, from 556,000 to more than 736,000. The head of the Social Security Administration, Michael Astrue, has acknowledged that the situation might soon get worse. The agency is "moving backwards" in its efforts to keep pace with a recession-driven influx of new claims, he said.

Nationally, applicants for benefits are waiting an average of 505 days to bring their cases before a Social Security judge for a hearing. In Iowa, the wait is slightly longer: 541 days.

Social Security's West Des Moines hearing office handles most of the cases from Iowa. Individual judges there have tried to catch up on their workload by hearing 70 to 80 cases each month, as opposed to their usual 50 to 60 cases.

"That's too many cases," said Denzel Busick, the office's chief administrative law judge. "We can do that for a while," he said, "but you wouldn't want us doing that on a sustained basis because, as a judge, you start to think, 'What am I forgetting here? What am I overlooking?'

"There are some judges who do these cases too fast, and they're not even giving the claimant the time of day. Well, all of these people deserve a fair hearing. You can't give short shrift to any of them."

Dan Allsup works with Allsup Inc., an lllinois company that helps disabled people pursue claims for benefits. "No matter how you look at it, this is a horrible situation," he said. "There has always been a backlog problem, but nowhere near the proportion of what we're experiencing today."

Until Lindberg's health began to fail in late 2006, he had what most people would call a good life. He worked steadily for 22 years and earned up to $50,000 annually.

But after being diagnosed with diabetes, Lindberg lost his job as a truck driver. His medical problems began to mount. Doctors had to amputate most of his left foot, then parts of his right foot. Now 40, Lindberg has been diagnosed with cystic fibrosis, blood infections and chronic digestive issues that have left him virtually unemployable.

Yet it took two and a half years for a judge to approve his application for federal disability benefits. And that was after U.S. Sen. Tom Harkin intervened to expedite his case - help that many disabled Americans don't get.

Last month, an administrative law judge who works for the Social Security Administration awarded Lindberg benefits of $1,189 monthly. He won't receive his first check for a few more weeks, which is why he still lives in his friend's storage garage.

"I showed the judge the pictures of my feet and all of my amputations," Lindberg said. "The judge said, 'I don't know why this wasn't approved before. We should have approved this back in 2008.' "

There are 7.4 million Americans who receive disability benefits. The average monthly check totals $1,063.

Not all applicants have to wait years for their first check. For some, particularly those with obvious physical disabilities, the wait can be as little as three months. Others never receive a check because they don't meet the federal definition of disabled.

Many applicants fall in the middle of those extremes: They are clearly handicapped, but there's some question as to whether they are truly unable to work for a living.

Answering that question can be difficult and time-consuming. Almost two-thirds of claims for benefits are denied at the outset. That can lead to a series of appeals that move through the system at a glacial pace.

Although applicants who go down that path often succeed in getting benefits, perseverance is the key: At some points in the appeal process, applicants must wait several months to advance to the next stage of having their case reviewed. For example, it may take 18 months to have one's claim reviewed by an administrative law judge, but judges approve 63 percent of those claims.

Ella Tilton of Columbus Junction spent almost five years fighting the Social Security Administration's decision to deny her benefits.

Fifty-five years ago, she was born without a right hand. More recently, arthritis crippled her left hand.

In August 2004, Ramona Schuenemeyer, then the acting regional commissioner of the Social Security Administration, wrote to Tilton to explain the agency's initial denial of benefits:

"You said that you are disabled because of a missing right hand and problems with the left arm, hand and shoulder due to overuse. ... Even though you do not have your right hand, you had good use of your left hand. You were able to stand and move about. You still had good use of your legs, arms and back."

That's not how U.S. District Judge Robert Pratt saw it, calling the evidence of Tilton's disability "overwhelming." He rejected the agency's finding that because Tilton was capable of some activities, she wasn't legally disabled.

"There is no provision in the law which requires her to vegetate in a dark room," Pratt wrote. "The evidence in this record is transparently one-sided."

He recently ordered the agency to begin paying Tilton the benefits she first claimed five years ago.

Jan Thelen of Wall Lake filed for benefits in June 2003 on the advice of her doctors. She suffered from constant migraines that led to vomiting, memory problems, blurred vision and recurring trips to the emergency room.

Over the next five years, the Social Security Administration denied Thelen's application for benefits five times. During those years, Thelen lost her health insurance and her house, racked up thousands of dollars in medical bills and underwent a divorce, which her husband attributed to her illness.

Four weeks ago, U.S. Senior District Judge Donald O'Brien ruled that the Social Security Administration had "relied on facts that were clearly erroneous" in denying Thelen benefits. He said the agency apparently "misunderstood the nature of migraines," diagnosed in Thelen by no fewer than 10 doctors.

O'Brien could have ordered the Social Security Administration to consider the case for a sixth time, but, he said, that would result in additional delays. He ordered the agency to immediately begin paying Thelen her benefits.

It will likely take another four or five weeks before Thelen receives the first installment of her past-due benefits.

"Had I been getting that assistance all along, I think things could have been manageable for me," Thelen said. "Having to wait six years has put me so deep into debt that I don't think things are salvageable. I can't even go to my local clinic because they won't see me until my past medical bills are paid. So now I go to the emergency room - which, of course, is even more expensive."

For some applicants, the process of pursuing a claim for benefits presents a Catch-22: The truly disabled are often ill-equipped to navigate the bureaucratic maze that leads to a finding of disability and benefits being awarded.

Some people who find themselves disabled and out of work see their lives spin quickly out of control. At the point where they become unable to generate income to pay for food and shelter, they're also hit with large medical bills.

Those who lose their home or apartment may become transient - living out of their cars while trying to track down, collect and submit the medical records that will help them collect disability benefits. Homelessness can lead to depression, which further erodes a person's ability to pursue a claim.

Four years ago, Kara Schroeder of Iowa City was living out of a van in California and picking up her mail at a homeless shelter. The Social Security Administration sent her a notice that she needed to be seen by a doctor to verify that she still was disabled. But the notice was mistakenly sent to an old address, and by the time Schroeder saw it, her benefits had been cut off.

Schroeder appealed the decision and explained the address mix-up. The agency agreed to reconsider the matter and told Schroeder to contact the agency within 10 days - but, again, the agency sent that information to the wrong address.

After moving to Iowa City, Schroeder visited her local Social Security office and asked Jana Laubenthal to help get her benefits reinstated. Laubenthal tried, but her colleagues in the Social Security Administration offices in California took two months to send her Schroeder's old case file.

Schroeder eventually enlisted the help of a Legal Aid attorney, who recently established that Schroeder was still disabled. But her problems in collecting benefits have continued. Earlier this month, some of her Social Security benefits were correctly routed to her bank in Iowa City, but others were sent to a bank account she closed years ago in California.

Three weeks ago, the agency sent her a letter telling her she could visit her local Social Security office for an explanation of her benefits, but the letter was mailed to the nonexistent city of "Iowa City, Mo."

Schroeder says the agency now wants her to repay benefits she collected while living in her friend's van - the theory being that the benefits should be reduced by the value of the free shelter she was offered.

"It never ends," Schroeder said. "There's this web of complications that you have to go through, and hurdles you have to clear, and it just never stops."

There is almost universal agreement about the cause of the disability backlog: Funding and staffing levels at the Social Security Administration have gradually dropped to their lowest levels since 1972, while the number of Americans applying for disability benefits has increased. Early this year, the number of unresolved cases was declining, but the economic crisis is making things worse: As the job market tightens, people with limited abilities have fewer job opportunities.

Federal officials now estimate they'll receive 3.3 million new disability claims this year. That's 300,000 more claims than last year and 13 percent more than was expected.

The Social Security Administration is hiring and training hundreds of additional judges and support staff, and it hopes to have the backlog under control by 2013.

Allsup, whose company helps disabled people pursue claims for benefits, thinks more can be done. For years, his company has lobbied the agency to provide applicants with a list of experts in disability law who, for a fee, help them navigate the process.

"People know they can go to the accountant down he street to get help with their taxes, but they're not aware that help is available when filing for disability benefits," Allsup said.

Professional assistance would expedite claims processing and reduce the Social Security Administration's overall workload by screening out claims that have no merit, he said.

To help address the backlog of cases in Iowa, the agency has transferred cases out of the West Des Moines hearing office to California and Utah, where the agency is not overwhelmed.

That has resulted in Iowa applicants arguing for benefits via closed-circuit video, explaining their disabilities to a judge who can see them only on a TV screen. Busick said the video hearings satisfy all constitutional requirements for due process, but are not ideal.

"In most cases, it's good enough," he said. "But in cases where pain is a factor, well, you're sitting there trying to determine, 'Is this person really experiencing pain?' And you can't tell that quite as well on the TV as when they're sitting right in front of you."

Nancy Hays, a Des Moines woman who works as an advocate for the disabled, says a judge conducting a video hearing sometimes can see only the person who is testifying, such as a medical expert.

"So the camera doesn't show my client, who can't bear to sit for more than 20 minutes. That means the judge can't see that he is standing up, hanging onto the back of a chair and grimacing."

Busick said that if all of the nation's administrative law judges processed 40 to 45 cases per month, the agency could chip away at the backlog. But the judges' productivity isn't easy to measure.

Astrue, head of the Social Security Administration, has said he believes some of the judges aren't pulling their weight. But the entire process through which the federal government processes claims for disability benefits is exempt from public oversight, with few exceptions.

Applications for benefits and the decisions of the Social Security Administration's administrative law judges are sealed from the public. Only the cases that are appealed to federal court are subject to any sort of public disclosure. As a result, it's not clear how diligent individual judges are in reviewing claims.

In April, a federal court rejected one administrative law judge's denial of benefits for a Fort Dodge woman, saying the judge had "shrugged off ... sidestepped or completely ignored" key elements of the woman's case and had rejected her testimony with "virtually no justification."

A few weeks later, the court found that a southern Iowa woman was unfairly denied benefits by an administrative law judge who ignored "overwhelming" evidence that the woman was "disabled by unrelenting pain." The court ordered the Social Security Administration to begin paying out benefits the woman had applied for almost six years earlier.

Thomas Krause, a Des Moines attorney who specializes in disability cases, says administrative law judges have a difficult job balancing the need to process cases quickly while giving each claimant a full, fair hearing.

"They do try, but they are pressed for time," he said. "And I think there's a lot more pressure on them now to hustle cases through the system than there was five years ago."

Busick defended his staff's efforts and expressed hope the backlog can be cleared - with sufficient personnel.

"The thing is that we do care," Busick said. "There are a lot of people in this agency working hard, and we're trying to move these cases forward with the resources that we have.

"It's not a hopeless situation. It's one where if we keep working at it, and if we can keep enough people in the agency, we can handle this. But if we backslide on it, well, then we're going to have problems."