Many Seeking Disability From Social Security Face Big Delays

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Many Seeking Disability From Social Security Face Big Delays

By Eckholm

http://www.nytimes.com/2007/12/10/washington/10cnd-disability.html?

pagewanted=1 & _r=1 & hp

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 President Bush

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 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 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, " she said.

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 an illness is expected " to result in death. "

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. "

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,

applicants are 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, 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 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 ,

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 on the problem.

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 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,

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 the course

of 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 Mr. 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-30's, 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 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, " Mrs. Wild, a nurse, recalled.

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 gun 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

that he cannot do his job. He is applying for disability, but knows

that he cannot expect an answer anytime soon.