Monday, November 23, 2009

Social Security disability claims denied more often in Delaware

From The News Journal:

Pain has cut short the work lives of hundreds of people in Delaware.

Edna Jopson drove a school bus and waited tables but now wakes in the morning just long enough to take pain-killers and go back to bed.

Joe Jones rehabilitated houses until stopped by back trouble, knee surgery and schizophrenia.

Myrna Gonzalez (pictured) taught preschool before knotted shoulder muscles, osteoporosis, debilitating headaches, slipped discs, diabetes and myriad other health problems made that impossible.

"I worked all my life, since I was 14," said Mildred Quinones, a former child care worker whose spinal surgery failed to alleviate her constant pain. "I can't do it anymore."

Yet when they applied for Social Security disability benefits, administrative law judges in Dover told all of them to get back to work.

The Dover judges posted one of the highest denial rates in the nation, turning down 44 percent of the disability benefit claims they heard between 2005 and 2008. Claimants under 50 faced even more daunting odds, with one judge denying 70 percent of those cases last year.

Many claimants -- like Jones and Gonzalez -- eventually win benefits after a federal judge points out the Dover judges' mistakes. Those errors include:

•cherry-picking evidence to support their decisions while ignoring contradictory medical records.

•embracing the opinions of doctors hired by Social Security or the state to review medical records, yet dismissing the doctors who have been treating patients for years.

•concluding that because a claimant can sit through an hour-long hearing without obvious discomfort that they must be lying about their pain.

•dismissing the fill-in-the-blank statements that claimants' doctors submit as worthless, yet accepting the same types of forms submitted by consulting doctors.

Federal judges and the Social Security's Appeals Council sent back, or remanded, 10 percent of the Dover judges' decisions for such errors, compared with a national average of 6 percent.

This pattern of denial and delay by Dover judges has forced dozens of disabled workers in Delaware, Maryland and Virginia to wait years for the benefits they earned while healthy and paying taxes into the U.S. Social Security system.

Most unnerving to critics of the quasi-judicial system under which the Social Security Administration operates is the lack of accountability for the 1,300 justices -- former government and private attorneys -- who render decisions not from a courtroom, but from offices across the country. There's little anyone can do about an administrative law judge whose decisions are consistently reversed.

"If we had judges in Superior Court being reversed as often as these judges are being reversed, someone would be out of a job," said Dover attorney John Grady, who has represented hundreds of claimants before the Dover judges.

It is nearly impossible to remove an administrative law judge, experts say, because they are shielded by a powerful labor union and by laws designed to protect their judicial independence.

The chief judge of the Dover office is Judith A. Showalter, 61, who earns $162,900. After graduating from the University of Baltimore Law School in 1980, Showalter worked as an attorney in Baltimore before becoming a Social Security administrative law judge in 2001, agency records show.

The News Journal analyzed four years of decisions by ALJs in every state, more than 1.7 million records that show a huge disparity in how disability cases are decided by hearing office and region. The News Journal also filed a Freedom of Information Act request for the number or nature of any complaints about Showalter or any other administrative law judge, but SSA refused to release complaint records.

Last year, though, an inspector general's probe into 111 complaints about the Dover office found that 61 of them concerned Showalter, who refused to comment for this story.

Frank Cristaudo, the Social Security Administration's chief administrative law judge, defends Showalter and the other 1,300 judges he oversees.

"It really comes down to this: We allow the judges to make the decisions they think are appropriate," Cristaudo said. "We're trying to be very careful here about not directing the judges how to handle their cases."

Critics say that hands-off approach makes judges untouchable and leaves people with serious health problems vulnerable to an uneven bureaucracy. The odds are stacked against those facing a Dover judge, and some simply give up pursuing their case in frustration.

"No matter what you do, they'll find an excuse to turn you down," Grady said.

A 20-year-old worker, Social Security says, faces a 3-in-10 chance of becoming disabled before reaching retirement age.

Since 1957, Social Security has been paying monthly benefits to support people who can no longer work because of permanent physical or mental problems. With a few exceptions for younger workers, only those who have worked and paid into the system are eligible.

About 7.4 million disabled workers, including almost 24,000 in Delaware, receive disability benefits. Payments average $1,100 a month, and each case costs the Social Security trust fund an average of $250,000 over the claimant's lifetime.

The program has been the fastest-growing part of Social Security as more of the baby-boom generation enters its disability-prone years. Over the past decade, the number of disabled workers receiving benefits has grown 52 percent nationwide and 66 percent in Delaware.

The recession has further boosted the number of people who cannot find a job that will accommodate their limitations.

Officials expect the total to reach 10.1 million beneficiaries by 2025, an increase of 36 percent from today.

Under such pressure, the backlog of disability cases has grown nationwide. About 722,000 cases are now awaiting a hearing and a judge's decision, a wait that lasts an average of 491 days. The average wait in Dover is 386 days.

Some claimants have died waiting; others simply give up in frustration, despite worsening health problems.

Mildred Quinones has been pursuing her disability case for four years. The 39-year-old Bear woman applied for disability benefits in 2005 after several years of debilitating pain in her back and neck. The Delaware Disability Determination Services, which reviews claims for the Social Security Administration, denied her claim in November 2005. Quinones asked the agency to reconsider, but it denied her again in February 2006.

She appealed, and it took until 2007 for Judge Showalter in Dover to hear her case. She was denied on Dec. 26, 2007.

Quinones asked Social Security's Appeals Council, a review panel in Falls Church, Va., to look at her claim. It turned her down in June 2008, so she appealed to U.S. District Court.

There, in October 2009, a federal judge criticized Showalter for, among other things, dismissing Quinones' and her doctor's claims because she sat through her one-hour hearing with "no particular physical discomfort." Showalter, the judge wrote, can't use her own observations to ignore a doctor's opinion.

The federal judge sent the case back to the Dover office for another hearing, which took place Thursday. Quinones has not heard yet how it has been decided.

"I've been fighting this case forever," Quinones said. "I've been waiting so long, I've forgotten what the whole thing is about."

The backlog of cases has dominated the attention of the agency, Congress and most disability advocates. Cristaudo said the agency is taking several steps, including adding more than 370 judges and opening 14 hearing offices nationwide, to chip away at the backlog.

Nearly ignored in the discussion is the wide disparity in how disability cases are decided.

Social Security's hearing system delivers results that are far from uniform.

Judges in the Social Security hearing office in Charleston, W.Va., denied only 12 percent of their cases between 2005 and 2008, agency data show. Meanwhile, judges in Dayton, Ohio, denied 53 percent of their cases.

Gary Blumenthal, a claimant attorney in Dayton, said he's not concerned he faces the toughest hearing office in the nation.

"This is where I live, and this is what I thought was normal," Blumenthal said. "Not only has this been 'normal' for us, my view has always been, fine, if you're not going to approve this case now, we'll appeal and we'll win.' "

The disparity is even greater among individual judges, who are assigned cases randomly within their offices.

Baltimore judge Louis J. Pucci denied fewer than 1 percent of his cases during those four years, while Houston judge Richard J. Abrams denied 93 percent of his cases.

That's clearly a problem, said Randall Frye, president of the Association of Administrative Law Judges, which is a professional organization and labor union representing the judges.

"I don't know how a judge comes out paying 98 percent of their cases," he said. "From my perspective, that's not realistic."

Brenda Greene of Houston, Texas, saw Abrams deny her disability claim because the judge said her doctor was incompetent, she said. He kept asking for more doctors to examine Greene, who suffered two herniated discs in her neck in 1995. In the end, it took more than four years of appeals for her to get benefits of about $800 a month.

"If you're incapacitated, by the time you get it, you're probably dead," Greene said. "If you're not dead, you might be homeless. If you're not crazy before you start this, you'll be crazy afterward."

What makes the Dover office's denial rate so high is that three of the four judges here between 2005 and 2008 had rates well above the national average. Judges Showalter and Melvin Benitz denied 56 percent of their cases, and Barbara Powell denied 50 percent of her cases, agency data show.

Judge Edward Banas denied 23 percent of his cases during that period, slightly below the national average of 28 percent.

Data from the 2009 fiscal year -- which are not yet available -- could show a drop in the office's overall denial rate because the agency moved Joseph F. Leary to Dover this year. As a judge in Wilkes-Barre, Pa., Leary denied only 27 percent of his cases, data show.

Such a wide disparity among judges is clear evidence of something gone wrong, said Gregory Ogden, a law professor at Pepperdine University and editor of the Journal of the National Association of Administrative Law Judges.

"When you have that extreme set of results, that's a problem," Ogden said. "That's an abuse of something by the judge. That indicates they're not deciding cases on the merits."

Cristaudo said the disparity is normal in a justice system run by human beings who must examine detailed medical records and interpret a complicated Social Security policy the best they know how.

"Everybody wishes it would be obvious: This person is disabled, and this person is not," Cristaudo said. "But it's a complex decision."

Proving disability, though, shouldn't require proving a claimant is destitute and half-dead, critics say.

"Being disabled doesn't mean being a vegetable in a dark room," said Dover attorney Stephen Hampton, who specializes in Social Security disability cases. "It means you can't maintain stable full-time work."

Federal judges often find problems with the way a Social Security judge in Dover has handled a case.

Two years ago, U.S. District Judge Sue L. Robinson pointedly criticized the way Showalter decided the case of Edna Jopson. The Townsend woman had worked as a school bus driver and waitress until fibromyalgia and depression caused her to miss so many days that she couldn't keep a job.

After Showalter denied her claim, Jopson appealed to the federal court. Robinson sent the case back to Social Security, saying Showalter lacked enough evidence to deny Jopson's claim.

Specifically, Robinson faulted the way Showalter dismissed the opinions of two doctors who had been treating Jopson for several years.

Showalter had criticized the "fill-in-the-blank" forms the doctors had submitted that noted Jopson's physical and mental limitations. Yet Showalter embraced the opinions of the state's consulting doctors, who only briefly examined Jopson and submitted similar "fill-in-the-blank" statements in their conclusion that Jopson could work.

Showalter's decision was "curious at best," Robinson wrote in explaining her decision. "In fact, if any expert opinions were based on an incomplete evaluation of the record, it was the state consultants."

Robinson went on to criticize the way Showalter selected facts that supported her denial of benefits while ignoring other facts.

For example, Showalter cited doctors' notes that Jopson's memory was excellent, her judgment was good and she had good motor strength and reflexes. However, Showalter did not mention that the same doctors diagnosed Jopson with depression and that she "suffered from multiple issues such as compression, fibromyalgia and a large need for medication."

Finally, Robinson criticized Showalter for dismissing Jopson's testimony as unreliable, dismissing her doctor's medical opinion and making her own conclusions from Jopson's "long history of laboratory studies."

"While the ALJ undoubtedly has considerable experience with legal matters, the court puts more stake in [the doctor's] interpretation of plaintiff's medical history," Robinson wrote.

In 2008, Showalter again denied Jopson's claim, so Jopson sought a review by the Social Security's Appeals Council. That appeal is pending.

Disability applications are initially approved or denied by a state agency under a contract with the Social Security Administration. In Delaware, it's the Department of Labor. Applicants who are denied at that level can appeal to have their cases heard by an administrative law judge.

Because Delaware approves a high percentage of those initial applications -- 43 percent, compared with 36 percent nationally -- those who have been denied are more likely to be truly unqualified for benefits, Cristaudo said. If they appeal, a Dover judge is more likely to agree with the initial decision and turn them down, he said.

But the comparison isn't so simple because the Dover judges also hear cases from throughout Maryland's Eastern Shore and Accomac, Va. Maryland's initial approval rate is slightly below the national average, while Virginia's is 41 percent.

A few years ago, the denial rate in the Dover office, which opened in 2004, attracted the concern of Kathy Abey, an aide to U.S. Rep. Wayne Gilchrest, R-Md.

"It wasn't just the volume" of denials, Abey said. "It was that the terminally ill were being denied."

One such case involved Charlie Sullivan, of Salisbury, Md. He had owned a taxi company but sold it when his health began declining around 2002. By 2004, when he applied for Social Security disability benefits, he had been diagnosed with lung cancer, depression and personality disorder.

His wife, Marjorie Sullivan, said his illness left them nearly broke and dependent on friends to survive.

At Sullivan's first hearing in 2006, Banas denied him benefits, saying he could still work. Two months later, doctors found four inoperable tumors in his brain.

In October 2006, Banas approved Sullivan's benefits retroactive to 2004, instead of 2002, when he got sick. The first check arrived in December 2006, and Sullivan died two months later.

"He said, 'I am not dying until that disability check comes,' " said Marjorie Sullivan, who now lives in Texas. "It was such a sad thing to have to think about at that point in his life."

Abey's concern about such cases spurred Gilchrest to ask the Social Security Administration's inspector general to investigate.

The inspector general found it was taking the Dover office almost twice as long as Baltimore's to process terminal-illness cases. In one case, the decision came 79 days after the claimant's death.

Gilchrest also had sent the agency a list of 111 cases that involved complaints, according to the inspector general's report. Sixty-one of the cases concerned Showalter.

Gilchrest left office in January, and Abey said no other political leader has pushed the issue. Several claimants also have sought help from then-Sen. Joe Biden and Sen. Tom Carper, who referred their complaints to Social Security.

"My office was assured by both the Social Security Administration and the Office of the Chief Regional Judge that complaints are looked at and are taken seriously," Carper said in an e-mailed statement.

Sen. Blanche Lincoln, D-Ark., who chairs the Senate Subcommittee on Social Security, Pensions and Family Policy, would not comment on the disparity.

Rep. John Tanner, D-Tenn., who chairs the House Subcommittee on Social Security, also would not comment on the disparity directly, but issued a statement that "Ensuring fair decisions in disability cases is a goal that we all share."

Recently, attorney Gary Linarducci and others who handle Social Security cases in Delaware organized a section of the Delaware Bar Association to voice their frustrations with the Dover hearing office. The effort may yield little, though, because the judges there have not been receptive to the attorneys' past concerns, he said.

"It's gotten to the point of absurdity," Linarducci said.

Claimants and their attorneys often say a judge's decision shows they're biased against them. Proving that's true is almost impossible, but a few cases elsewhere have come close.

The clearest case involved Russell Rowell, an administrative law judge who worked in the hearing offices in Washington, D.C., and Harrisburg in the 1980s and early 1990s.

Rowell called claimants "no-goodniks" and "malingerers" and said Hispanics would often fake mental illness. Though Rowell died in 1994, a group of claimants alleged bias in 1998 and asked for new hearings. Two years later, a federal judge in Pennsylvania determined Rowell had indeed harbored a general bias against claimants and ordered new hearings for the claimants Rowell had denied.

In another instance, Judge Franklin T. Russell in Rochester, N.Y., denied 63 percent of the cases that came before him.

After claimants and attorneys complained, a federal judge determined Russell routinely denied benefits without sufficient evidence. In some cases, Russell would disregard the opinions of treating doctors. With other doctors, Russell would pick and choose only their comments that supported his denial.

Social Security officials started an investigation, but Russell retired and the matter was dropped.

About seven years ago, attorney William Kuntz of Riverside, Calif., lodged a complaint about Keith Varni, an administrative law judge in San Bernardino, Calif. Varni has the nation's second-highest denial rate, at 82 percent.

Kuntz said Varni finds ways to deny benefits. For example, if a claimant doesn't take pain medication, Varni says he must not be in pain; if he does take medication, Varni says the pain is being managed.

A year after his complaint, Kuntz said, he received the agency's reply: Varni isn't biased against Kuntz's clients because he treats all claimants the same way.

"He knows there's nothing they can do to him," Kuntz said. "Unless he goes across the bench and actually attacks someone, they can't do anything to him."

Since then, Kuntz has refused to argue cases before Varni. He tells his clients to move out of the area, if possible, to draw a different judge for their case.

"We tell them that if you stay here, you're going to lose," Kuntz said. "I don't care where they go; any place is going to be better than Varni."

That's little consolation to people who present their cases to one of Dover's administrative law judges.

Joe Jones of Dover kept pressing his claim for disability benefits, even though he was turned down by Judge Benitz in 2007. Earlier this year, he finally won his case and collected two years of retroactive benefits.

"You put money into it," Jones said, "and you should be able to get money out of it when you need it."