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Disability Cases Last Longer as Backlog Rises
By ERIK ECKHOLM
The New York Times
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 Warsinskey, 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
Statesville, 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.
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