Disability claim with Social Security? In Portland, plan for a long wait

From the Oregonian, December 29 2008

Disability claims in the Portland area take months longer to resolve than in other parts of the U.S.

The slow pace of a few judges and an overwhelmed staff at Portland’s Social Security hearing office are key reasons that people seeking disability benefits here endure some of the longest waits in the nation.

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records obtained by The Oregonian under the Freedom of Information Act. Only about half the agency’s administrative law judges here meet its minimum goal of clearing 500 cases a year. Only three of nine Portland judges hit that mark in recent years, agency records show.

Last year, according to the national records, 132 of the agency’s judges — about 11 percent — failed to reach even half of the agency’s goal, dragging out appeals of disability claims as people faced financial ruin, got sicker and even died waiting.
Inspector General’s report

A report issued last August by Social Security’s Office of the Inspector General explored problems confronting its administrative law judges and their hearing office staffs. The report also pointed out misconduct by some of the judges during the past few years.
Tip: To see the document full-screen, click on the icon

Productivity of the agency’s judges is under increased scrutiny as 768,540 Americans — the figure as of year end — wait for a chance to plead their cases for benefits.

Social Security typically forbids judges from speaking with news media. But the agency made a rare exception by allowing its Portland judges to talk to The Oregonian about the challenges they confront.

The two men who have been accountable for the Portland office in recent years — Chief Judge Richard Say and his predecessor, Thomas Tielens — would not be interviewed for this story. But three veteran judges from the Portland office agreed to speak.

“There’s a great frustration on the part of all of us in this hearings office,” said Riley Atkins, one of the Portland judges.

“At bottom, we’re public servants, and we don’t like it that individuals we’re trying to help have been waiting a ridiculously inordinate amount of time.”

Dual role

Social Security’s 1,177 administrative law judges hear appeals by the avalanche of Americans whose disability claims have been denied. Most will eventually win their cases.

Judges usually hold hearings to consider the validity of claims, but they are also required to protect the Treasury and Social Security Disability Trust Fund against claims from people who aren’t disabled.

In October 2007, Social Security Commissioner Michael J. Astrue met with a delegation of judges from around the country and — dispensing with the customary gesture of shaking hands — complained that many were not productive enough, according to the union that represents the judges. Astrue also accused them of not wanting to be subjected to any professional standards.

The commissioner has testified before Congress that the bulk of administrative law judges are hardworking. But he has griped about underachievers, and the agency set performance goals that ask judges to clear 500 to 700 cases a year.

He appears to be making progress: Last year, the average judge cleared 474 cases, up from 421 in 2005.

But Ron Bernoski, president of the union that represents the judges, says that kind of demand is arbitrary and only sets a lot of them up for failure.

“There’s no single group of employees at Social Security responsible for this backlog,” Bernoski said. “Continuing to focus on the judges isn’t going to solve this situation.”

Social Security’s inspector general recently found that low productivity of some judges and staffing levels added to the problems. Congress’ Government Accountability Office has also concluded that failures by the agency’s management have contributed to the backlog.

In addition, agency officials and some members of Congress are galled by the lack of accountability of the judges, who make up to $158,500 a year.

“The agency has not done any careful tracking to see how these judges are ruling or handling cases,” said Sylvester J. Schieber, chairman of the Social Security Advisory Board, an oversight panel. “You have to set some standards, and nobody has ever done that.”

Congress gave the judges independence to guarantee citizens the right to challenge the agency’s decisions. But Astrue complains that this independence gives his agency virtually no chance to discipline problem judges.

Ten judges were disciplined in the past three years for poor attendance, failing to process assigned workloads or not following management directives, according to an August report by Social Security’s inspector general. Their recommended punishments ranged from reprimands to suspensions of up to 30 days, but the report showed none had actually served a suspension.

Astrue told a House subcommittee on Social Security last February that even in cases of gross misconduct, his judges are protected by a federally prescribed disciplinary system that often takes two years to decide cases and “has a track record of just slapping them on the wrist.”

Consider the case of Kelly S. Jennings, an Atlanta-based administrative law judge, who was placed on paid leave after Social Security officials learned he held two federal jobs in Georgia simultaneously — one as an agency judge and another as an Army lawyer.

Last June, another judge ruled that Jennings was double dipping, and Social Security sought more than $300,000 in back pay, with interest. In July, Jennings appealed his case. He remains on paid leave.

6,000 area cases About 6,000 people now await a ruling from one of Portland’s nine judges, and the three judges who spoke with The Oregonian said it’s not entirely clear why the waits here are so long.

“I don’t know a single lazy judge in this office,” said Dan R. Hyatt, a former trial attorney who has spent 11 years as a Social Security judge.

Hyatt and two other veteran judges — Timothy C. Terrill and Riley J. Atkins — have some of the highest production numbers in the Portland office. They said cases have grown more complex, with medical files that can run thousands of pages.

And they said the region seems to have more disability appeals that involve mental health and substance abuse issues, which can slow the process.

Delays can cause a tragic cycle: The longer a case sits, the more complicated it becomes, and those seeking benefits often grow sicker.

“These cases are not like wine,” said Atkins, who has 13 years’ experience as a judge. “They don’t age well. It only becomes more difficult to make a decision.”

Social Security, backed by additional spending by Congress last year, hired more than 180 new judges to speed up claims across the country. But only one of those judges was placed in Portland.

The trio of judges said a lack of support staff — including lawyers to help draft opinions — was a key factor in slow handling of cases. There are times, they said, when their dockets aren’t full because they don’t have enough staff to ready cases for hearings.

Hyatt said he could double his output with more staff. Terrill, who went to work as a Social Security judge in 1997, said he asks for between 50 to 55 hearings a month, but sometimes gets as few as 30.

“Almost to a person, judges here are getting fewer cases than what they want,” Terrill said.

414-case average

The inspector general’s August report also linked slower offices to low staffing levels. The report showed that the Portland office had 3.7 staffers per judge compared with a national average of 4.4.

The judges said it takes a lot more time to write a denial than stamp a case for approval.

“If I wanted to (pay) 55 cases a month, I could do it in two days,” Hyatt said. “But I have to watch out for the taxpayers’ money and at the same time try to do justice for the people who appear in front of me.”

Judges in the Portland office cleared an average of 414 cases in 2007, according to agency records.

The judge with the fewest cases cleared a year is Joel T. Elliott, who produced an average of 149 cases a year between 2005 and 2007. Until recently, Elliott was national secretary for the judges’ union. The union contract released him to spend up to 65 percent of his time on union business.

Two other judges in the Portland office, Catherine R. Lazuran and Linda R. Haack, have averaged 350 and 316 cases a year, respectively, from 2005 through 2007. Neither judge agreed to be interviewed for this story.

To speed up Portland’s work, Social Security shifted cases to the Eugene office, where the average judge now carries 1,065 cases — among the highest caseloads in the nation.

Sen. Gordon Smith, R-Ore., whose office has won praise from disability advocates for its constituent services, recalled a time four or five years ago when the situation was reversed. Eugene was the slower office, with Portland picking up its caseload.

Smith, who lost his bid for re-election in November, said he expects problems with the Portland office to grow more serious as people lose jobs in the deteriorating economy and seek disability benefits.

“That will happen in the downturn and make a bad situation in Portland even worse,” Smith said. “Obviously it will be up to Oregon’s members of Congress to keep the pressure on.”