Portland’s staggering Social Security backlog leaves disabled people waiting — and waiting

Street Roots, March 24, 2014

Social Security form with Denied stampLeone has a roof over his head, medical care and some money in his pocket. Having all this makes him “jealous of himself.” That’s because things weren’t always so gravy for Leone, who doesn’t want his full name used for this article.

“When you hear voices, and you try to figure out who’s talking, it makes it hard to communicate with people,” explains Leone, 61, who spent two decades living on the streets and “yelling at the wind.”

Leone began hearing voices decades ago while doing a repair job at a house. They were debating whether they should do “this,” whatever “this” was. They were also debating whether Leone could hear them or not. Eventually the voices figured out that Leone could hear them and that’s when his life changed. The voices told him to kill himself and kill others and “a lot in between,” he says. The voices would scream and curse at Leone to the point where he lost focus of what was around him.

No longer able to hold down a job, Leone became homeless. During this time, he recalls walking around screaming at the voices until he would collapse from exhaustion. He tried to avoid people, who might think he was talking to them. Once he remembers gathering enough bottles and cans for their deposits and ordering a hamburger at a McDonald’s. As he waited for his meal, the voices flared up. Leone began screaming back at them and left without his hamburger.

“It was an actual war to me,” recalls Leone.

Some nights, Leone came back to his camp exhausted from battling the voices only to find his gear had been tossed. He spent the night walking and shaking in the cold. Some days, his back ached so bad he would have to lay down for a day or two.

Leone’s life changed about four years ago (he doesn’t remember when exactly) when he qualified for Supplemental Security Income, a federal safety net program that provides him a modest income of about $700 a month and health insurance. After two decades of homelessness, Leone is in better health and his battles with the voices have subsided in their frequency and intensity.

The U.S., steeped in the Puritan work ethic and ideals of rugged individualism, has a strained relationship with giving taxpayer money to people who don’t work. This political current is older than the republic itself and is present in a national conversation over the future of two federal disability programs: Supplemental Security Income and Social Security Disability Income. Both programs grant a modest modicum of financial stability for millions of people too banged up physically, or otherwise, to work.

Almost everyone — including the attorneys who help people get their benefits, judges who determine who’s eligible and Congress, which oversees all of it – agree that these programs have problems. The number of people on both programs has swelled, causing them to become financially strained. There is a huge backlog of people applying for these programs, and the means of determining who is eligible has been called into question.

Street Roots analyzed the numbers behind these programs. Indeed, disability rolls have risen, and the backlog of cases is a serious problem. But critics who contend that it’s too easy to get a ticket to the disability gravy train ignore real barriers people face and the sometimes arbitrary way decisions are made. They also ignore the fact that it’s become harder to get disability over the years, not easier. Stuck in the middle are some of the country’s most medically fragile people. Portland has much at stake on the issue: The city carries a backlog of cases nearly twice as high as the national average.

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The federal government provides two safety net programs that provide cash payments to individuals who are unable to work because of a disability. Supplemental Security Income (SSI) was created in 1972 as part of a welfare reform effort that brought state-administered programs for the disabled under federal purview. Social Security Disability Insurance (SSDI) was created in 1956. It’s for individuals who have a work history and have paid taxes into the Social Security trust fund, which pays out the program’s benefits.

Individuals apply for these benefits through state offices. If they’re denied (the average allowance rate for initial claims over the last five years is 36 percent), the applicant can take their case before an administrative law judge (ALJ), Social Security Administration employees tasked with reviewing claims.

When a disability applicant wins a case, they are often paid back benefits for the time they spent waiting on their appeal. Most applicants are represented by lawyers or non-lawyer advocates, who get paid with a cut of the back benefits.

Over the last decade, the number of claims to both programs has ballooned. Between 2003 and 2013, the number of claims nationwide rose 18 percent to over 3 million, according to an analysis of Social Security Administration data by Street Roots. The growth is typically attributed to aging baby boomers becoming more disability prone and the lingering effects of the recession. As of January, a record 16.5 million people receive either SSI or SSDI benefits, putting financial strains on the programs. The fund for SSDI benefits could be exhausted as soon as 2016.

The rise in claims has created a backlog. In 2008, Congress turned its attention to the problem, and the Social Security Administration devoted more resources to addressing the backlog. A report from the Office of the Inspector General found that the average processing time for claims dropped from 514 days in 2008 to 353 days — about one year — in 2012.

But the backlog still isn’t resolved. In 2013, the ALJ’s union, the Association of Administrative Law Judges, which didn’t return a call seeking comment, sued the Social Security Administration. Describing the adjudication process of disability claims as a “system in crisis,” the suit alleged that the administration’s goal that judges clear 500 to 700 cases a year amounts to an illegal and unreasonable burden.

“When the goals are too high, the easy way out is to pay the case,” Randall Frye, president of the Association of Administrative Law Judges and a judge in Charlotte, N.C., told The Associated Press. “Paying the case is a decision that might be three pages long. When you deny benefits, it’s usually a 15- or 20-page denial that takes a lot more time and effort.”

A 2013 report from the Office of the Inspector General supports this claim, finding a direct relationship between judges who clear cases quickly and their likelihood of approving benefits.

All these new claims have created a backlog. The median case backlog for the 170 hearing offices spread throughout the country is 4,967. For the Seattle office, there are 5,791 cases waiting a decision. In Portland, it’s 8,008 cases.

No one is really quite sure why Portland has such a bad backlog. Some speculate that the decline in timber industries has driven many to seek disability. Others suggest that the area has a high population of homeless people.

U.S. Rep. Earl Blumenauer, D-Portland, calls the wait time for Portland’s office “appalling” and the worst of any of the administration’s regional offices. Blumenauer says that processing these applications require labor and resource, which government agencies have been starved of in recent years.

“There are a number of people who are on a jihad to slash government services,” says Blumenauer. Eligible disability applicants (at least those with legitimate claims) can spend years with little or no medical treatment or income, says Blumenauer. Some don’t live long enough to claims benefits, he says.

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Desere knows this purgatory.

“I already lost, for all intents and purposes, my life, except for my human body,” say Desere, who doesn’t want her real name used because she has had a claim open since 2011.

Desere’s pain pills make her drowsy and she drinks caffeine to stay awake. When reached by phone, Desere was preparing to drive to Portland the next day and stand before a judge who will make a decision that will likely determine her material well being for the rest of her life.

Desere was born with scoliosis. In 1987, a truck cut her off, causing her to smash into an embankment. After that, she was in a custom-made body cast for months and was in and out of physical therapy.  She worked as a waitress, spending long days on her feet, which strained her back. She later took a series of jobs as a caregiver for the elderly, all of which she says further damaged her back. She remembers times when clients would collapse, throwing all their weight on her.

“By that time I was just so banged up, I was horizontal the rest of the week recuperating,” says Desere. “So it was clear to me that I couldn’t work.”

In 2011, unable to make rent, she moved out of the apartment she had been living in for 25 years, beginning a period of on-and-off homelessness. She has stayed with friends and family and, at other times, has lived in a 2003 Toyota Camry a departed friend left her. In September, she moved into a subsidized apartment that she worries she will lose. Throughout this process, she’s had no income.

Even if she does get benefits, she owes debts to family, friends, her doctor and the IRS. Even with the benefits, she will be at the poverty level for the rest of her life — a situation she would still be grateful for.

“I’ve begged, borrowed and not stolen just to survive,” says Desere, who spends most of the day lying down in her apartment with a pillow between her legs to keep the pressure off her back.

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As disability rolls have risen, they’ve attracted more attention — and much of it has been negative. In January, 100 former New York police officers, firefighters and others were indicted for fraudulently obtaining benefits after some posted pictures of themselves on Facebook riding motorcycles, fishing, playing basketball, smiling and looking not so disabled.

In 2013, NPR ran a series on the increase of the nation’s disability rolls. The series was criticized for being one-sided and misleading by antipoverty and disability rights groups. The television news show 60 Minutes produced a similar segment that ran shortly before the U.S. Senate held a hearing examining the increase in disability rolls and the backlog. The hearing focused on an infamous case involving a Kentucky lawyer who aggressively recruited people to claim benefits, while colluding with doctors and judges to get their claims approved.

Shortly before the hearing, Sen. Tom Coburn, an arch-conservative from Oklahoma, released a report that found an alarming rate of benefits have been awarded with questionable evidence. His report also noted that some judges have astronomically high allowance rates, sometimes as high as 90 percent.

But Coburn’s report left out two important facts. By the numbers, it is actually harder to get on disability today than in years past. According to a data analysis by Street Roots, the average allowance at the initial claim level in 2008 was 38 percent. In 2013, it was 35 percent.

The number of people approved at the hearing level has also been in decline. In 2005, 72 percent of decisions in hearing offices resulted in an award of benefits. According to an analysis of data, that number dropped to 54 percent in fiscal year 2013.

And while some judges have very high allowance rates, Coburn left out that some judges have dismally low approval rates, sometimes as low as 20 or even 10 percent.

The wide discrepancy highlights just how capricious the decision to award or deny benefits can be and how a judge’s bias can enter their decision.

Just ask Omar Zuber.

Suffering from severe agoraphobia, Zuber, 40, thought that the only way he’d leave his parent’s house in Gresham was in a body bag. He applied for disability and had his parents attend his hearing. Zuber called in on speaker phone. Zuber describes the judge as being antagonistic, cutting him off and suggesting his paperwork was fake. The judge denied his claim.

“The judge said to me, for all I know you want the money to get alcohol and drugs,” recalls Zuber. “I don’t even drink!”

Zuber got representation for his case and eventually won, getting $945 a month. He also gets health insurance, which he hadn’t had in 10 years and found out that he is diabetic. He now takes medication for his agoraphobia.

In 2011, after five years of being unable to leave his parent’s house, he took his first steps outside and had trouble recognizing his own street. He now visits friends and spends time with his niece and nephew. He even made it to his 20-year high school reunion.

“I can be a part of stuff that I need to be a part of,” says Zuber.

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Disability hearings are hard to scrutinize because they are not public, but attorneys and representatives say that judges have biases.

Portland’s Mellani Calvin has worked as a non-attorney representative since 2010, helping clients navigate the SSA bureaucracy and assemble the documentation they need to make their cases. She says that it’s often easier to make the case for a disabled white collar worker who has had steady health insurance and documentation of their medical problems.

“We have records to prove his case,” she says. “But a homeless person hardly has any of these things, and they’re ruled out really quickly.”

She remembers representing two young educated women who had careers before developing chronic illnesses. She recalls the judge “falling over backwards” to award them benefits. But it was a different story when she represented a man who didn’t have health insurance and was reluctant to go to the doctor because of the cost.

Richard Sly, who has worked as a disability attorney for three decades, says that judges can be hostile to poor people who smoke and have other bad habits and have worked menial jobs all their lives.

“The guy who’s been an electrician all of his life, he’s age 52. There’s no question about his work ethic,” says Sly. “He wrecked his back doing his work. They’re more sympathetic to that. But I got a guy who’s mentally ill, no medical care. That’s going to be a harder case.”

Under the law, someone qualifies for disability if there is no job in the economy they can work. Calvin says some judges will suggest jobs like egg-washer, button-sewer or potato chip-sorter for clients.

In October 2013, the Social Security Administration settled a class-action lawsuit filed against it on behalf of eight applicants who were denied benefits. The suit alleged that the applicants ran into a “brick wall of bias” from five of the eight judges staffing the administration’s Queens, New York office, which had one of the highest denial rates in the country. According to the suit, the judges engaged in “bullying and unprofessional behavior,” cherry-picking and manipulating evidence to support pre-ordained conclusions. Under the the settlement, 4,000 denied applicants will receive new hearings.

Emilia Sicilia, director of disability benefits advocacy at the Urban Justice Center, which litigated the case, says the suit didn’t make any allegations of systemic bias beyond the Queens office. However, she did say that it provided for the issuance of a policy on judge bias by the Social Security Administration.

“There has never been a lawsuit quite as large as this one because it involved more than one ALJ,” says Sicilia, who adds that biased judges and the case backlog are two separate issues.

The backlog, depending on who you ask, is partially attributable to the rise of disability law firms that base their business on volume, which has earned them the disparaging moniker of “disability mills.” Critics says these firms file as many claims as possible, regardless of merit, with the expectation that enough of them will be approved to make a profit. This model involves the aggressive recruitment of clients. If you watch daytime TV, you will likely see an ad for a company promising you the benefits you deserve. Calvin says she’s heard rumors that representatives will visit meal services geared toward the homeless in hopes of picking up clients.

“When you are working with that kind of volume you are not giving quality representation,” says disability lawyer Cheryl Coon, who only handles 12 hearing per month. She estimates that some firms are handling hundreds of hearings per month. “It’s that simple.”

In addition to adding to the backlog, Coon says these bulk operations also bring questionable cases before judges, which makes them more skeptical of all claims.

The most well-known is New York City-based Binder and Binder, which didn’t respond to a request for comment. In Portland, Schneider Kerr & Gibney also takes on a large volume of cases.

Kevin Kerr, a partner at Schneider Kerr & Gibney, says that the large volume of cases his firm takes on allows it to represent people who have difficult cases that other attorneys would be reluctant to take.

“We’re erring on the side of helping people,” says Kerr.

This isn’t the first time that disability programs have drawn national attention. Edward Berkowitz, a professor of history and public policy at George Washington University, says that there is often an uptick in disability claims following recessions, which provokes a backlash.

When Ronald Reagan was elected he and his allies passed legislation that cut the disability rolls, says Berkowitz. A similar uproar, he says, occurred during the 1990s. Berkowitz says that the pendulum swings the other way when people realize the human cost. “Horror stories,” says Berkowtiz, of people having heart attacks or committing suicide emerged after disability rolls were tightened in the 1980s, prompting Congress to backtrack.

“There’s all this emphasis nationally on all these judges that approve people,” says Coon. “But when you consider the human cost of disapproving a person, the more serious problem in this country is the number of people who are getting disapproved.”