- Associated Press - Saturday, March 19, 2016

DAYTON, Ohio (AP) - Rainey Cowgill is among more than a million Americans - including 40,000 Ohioans - caught in the federal government’s biggest traffic jam: the line of people appealing denied Social Security disability claims.

The system is overwhelmed with cases that grow by the minute.

Claims of waste and abuse are rampant. So are the tales of real suffering.

Some people die before their cases are heard. Others with serious physical or mental disabilities are left to live in squalid conditions or, in some cases, on the streets.

Cowgill of Middletown is one of those caught in a years-long limbo, not knowing when or if help will come.

A former linebacker for Middletown High School who spent much of his adult life working in concrete construction, Cowgill went to the emergency room in December 2013 with chest pains.

His days of physical labor were over: Cowgill, 48, underwent triple bypass surgery the next day.

His first application for Social Security disability benefits was denied, as was a second review. Last April he filed an appeal to have his case heard by an administrative law judge, a process that could take a year or longer.

He finally heard last week - more than two years after he fell ill - that a date in front of a judge has been scheduled for May.

“I feel helpless,” he said. “I can’t work. I’ve got no income coming in.

“Some days I just sit here and cry because I don’t know what to do. I’m sick of worrying about how I’m going to make it from one day to the next.”

The Social Security Administration started falling behind on processing appeals when Gerald Ford was president in the 1970s. By 2007, with the backlog up to 743,800 cases, a plan was launched to greatly reduce processing times, which had ballooned to 512 days.

The 38 initiatives in the plan included hiring more administrative law judges and increasing efficiency through automation and improved business processes.

A goal was set of reducing the number of pending cases to 466,000 by the end of the 2013 fiscal year.

Instead, the backlog went in the other direction, even as processing times improved slightly. Last September, the Office of the Inspector General reported: “As of March 2015, SSA had over 1 million claims awaiting a decision.”

It was the highest number ever recorded within the Social Security Administration and the biggest backlog in the federal government.

By the end of January, the queue had grown even longer with 1,103,830 Americans waiting to have their day in front of a Social Security Administration judge.

Not every claimant is found deserving of disability benefits. Historically, fewer than a quarter of disability claims are approved on the initial application, which leads each year to hundreds of thousands of Americans entering a four-stage appeals process that applicants find excruciatingly slow and judges who hear the cases say is antiquated.

“This is a disaster for due process. This is disaster for the American people,” Judge D. Randall Frye said while testifying in front of federal lawmakers in 2010. Frye was then president of the Association of Administration Law Judges.

Part of the reason for the bottleneck is the sheer number of people seeking disability each year, which has risen by 66 percent to 2.5 million over the past 15 years.

Experts attribute the increase to population growth, aging Baby Boomers, the increase of women in the workforce and a rise in the age for full Social Security retirement from 65 to 66.

Frye said the resources needed to handle the increased case load did not keep pace. As a result, he testified, judges were pressured to cut corners, which meant not reviewing all the evidence on individual cases.

“We are terribly concerned,” he told a joint House-Senate congressional committee. “There is a finite number that judges can do and do accurately.”

Doug Nguyen, a Social Security Administration spokesman, said the biggest reasons for the backlog are the lack of resources to handle the workload and the crush of hearing requests.

Nguyen said the administration hopes to have up to 1,900 administrative law judges seated by 2018, an increase of about 200 over the 1,697 that are in place now.

“The American public deserves timely, high quality hearing and appeal decisions,” he said. “Currently the wait for a hearing decision on a disability benefit is too long. Resolving this public service challenge is one of our highest priorities.”

Desiree Hensley of Fairfield has been waiting since last spring to get her case scheduled.

Hensley, 58, applied for disability in December 2014 because of degenerative arthritis that grips her back and hips.

She said she could no longer stand or sit upright in a chair for any length of time as she was required to do at a Liberty Mutual call center in Fairfield. She said she worked for the company for 35 years.

“I have been working since I was 14 years old, so it’s not like I’m looking for a handout, and it’s not like I haven’t been a productive, working person,” she said. “It’s ridiculous.”

Hensley said resting prone is the only way she can find relief from her condition. But, she said, “you can’t lie down on the job.”

Hensley said her claim was first denied with a notation that she should be able to comfortably work by shifting in her seat.

“They had got letters from my doctors saying that I could not sit, stand or walk for any length of time. And they’re saying, ‘well you can shift in your seat,’” she said. “That’s still sitting.”

Hensley was denied a second time last year during a phase called reconsideration. Her family, which includes a 30-year-old autistic son who needs constant care, is scraping by on her husband’s Social Security retiree benefits and the money they receive by slowly selling off their home to another son.

“I’ve been waiting since June of 2015 for a hearing,” she said. “Why would it take this long?”

There’s “no question” the wait times are too long, said Daniel Boda, a Dayton native and partner at Mitchell + Pencheff, Fraley, Catalano & Boda Law Firm with offices in Columbus, Mansfield and Springfield. Boda represents about 75 clients each year in Social Security disability cases.

Boda said many claimants already wait half a year or more for an initial determination of their eligibility. Then the clock starts ticking again if a denied claimant requests a hearing with a judge.

“Given time between a denial and filing for the next level of appeal, you may be six or seven months into it before you even file for a hearing,” he said. “Then on top of that it’s about 16-18 months now.”

That long wait typically ends in a small government conference room with a 45-to-60-minute hearing in front of a judge. Also in the room are a court reporter, a vocational expert and the claimant’s attorney. Sometimes a neutral medical expert is present, but rarely, Boda said.

He said some of his clients have spouses with jobs and are able to weather the wait while others get to the point of homelessness. A couple of his clients have died waiting.

“It actually surprises me I haven’t had more,” said Boda, who has been practicing 40 years.

For Patrick Ciciliano of Dayton the wait started in 2003. And he’s still waiting.

“It drives me crazy because I think I should get it and they keep telling me no, no, no,” said Ciciliano, 48.

He said multiple behavioral disorders, including post-traumatic stress from an abusive childhood, leave him incapable of holding a job for any length of time.

He lives with Stephen Bickford, who took in a homeless Ciciliano more than 15 years ago. They share a Dayton apartment near downtown. Bickford’s own experience with the system was smoother. He receives permanent disability for a faulty heart and other conditions.

A former civilian architect with the Air Force, Bickford advocates for Ciciliano, whose case is now in front of Social Security’s Appeals Council for a second time. It was twice rejected by administrative law judges in Dayton, most recently by Judge Elizabeth Motta last December.

Bickford said his roommate’s low IQ and personality problems are known to those who spend time with him, but might not be evident to a judge during a short hearing.

“She just disregarded all the doctors’ reports,” Bickford said of the hearing before Motta. “She talked to him for 15 minutes, which gives her next to nothing to go from,” Bickford said. “And she decides that he shouldn’t get it.”

Motta determined that much of the evidence Ciciliano and his attorney submitted didn’t come from certified medical sources or licensed psychologists or psychiatrists, according to a 21-page ruling denying his claim. She found one licensed doctor’s report of little relevance to the case and another’s “seemingly inflated and overly pessimistic.”

She also cited Ciciliano’s lifestyle as evidence he can function normally. “He enjoyed casino gambling, dining out, going to movies, shopping at pawn shops, building models and searching the Internet,” she wrote. “Thus, while the claimant argues that he lacks the mental capacity to work, he demonstrates sufficient mental capacity to engage in wide-ranging activities in which he is interested.”

The vocational expert on hand at Ciciliano’s October hearing testified that there were 25.3 million jobs ranging from heavy to light exertion existing in the economy that someone with Ciciliano’s vocational profile could perform. Examples included bakery helper, landscape laborer, hand packager, laundry worker and kitchen helper.

A frustrated Ciciliano is taking the case again to the appeals council located in Falls Church, Va.

“It makes me mad because I did work for 20 years and I paid into Social Security, so I should have a right to be approved to get it,” he said.

Claimants who are approved draw payments from the Disability Insurance Trust Fund, which is supported by all workers and their employers. Each pays in 6.2 percent of the first $118,500 in earnings. Self-employed individuals pay 12.4 percent which can be offset by income tax provisions, according to the Social Security administration. A separate trust fund covers retired workers, dependents and survivors.

The amount of money at stake is mind-blowing. Each case approved can cost the trust fund $300,000 over a lifetime.

Cases that crawl through the appeals process are often complex and labor-intensive, requiring multiple sources of information. And that’s part of the problem, those involved in the system say.

“We don’t have the experts - the medical experts that we need. We don’t have lawyers working for us to assist us. We’re kind of in a do-it-yourself operation,” said Judge Linda Stagno, a ranking official with the Association of Administrative Law Judges. “We’ve given the agency many, many suggestions on how to tighten up the process.”

Stagno said some of those recommendations include tightening procedural rules, adding clerical staff and highly-trained paralegals with a medical background, and bringing in medical experts to assist on complicated cases.

“We are not doctors but we have to make medical judgments,” Stagno said. “Some of the law is 30 and 40 years old; it hasn’t changed over time.”

Judge Marilyn Zahm, the association’s president, said each case is a very labor intensive process that requires judges to weigh the evidence and determine the extent of physical or mental functional limitations involved with each claimant and provide a detailed written decision required by federal courts.

“Every case is somebody’s life and you do want to do a careful, thorough job in making a determination,” Zahm said. “They sometimes have as many as five to 10 impairments. You need to make findings on all of them.”

Zahm said the size of the case files has exploded in recent years, particularly as new regulations have been added. As a result, up to 30 percent of the files now contain more than 1,000 pages of medical evidence, she said.

“Do you have any idea how long it takes to review 1,000 pages of medical evidence?” said Zahm. “We are the only adjudicatory body that I’m aware of that allows such loose requirements for representatives.”

A work analysis study commissioned by the Association of Administrative Law Judges in 2014 found it would take a judge more than seven hours to process and render a legally sufficient decision on a case containing 652 pages, the national average for that year.

But with an expected quota of at least 500 dispositions a year, a judge would have available only 2.5 hours per case, the study found.

As one fix, the association recommended removing the reconsideration phase, which it says prolongs a claimant’s wait, wastes government resources and results in a different decision in only about 2 percent of the cases.

“That does not serve the American people,” Frye said in his 2010 testimony. “It is not fair to make them wait nine more months for a reconsideration level when they could get to a hearing more quickly.”

Ultimately, judges must decide if the claimant before them can hold any kind of job, and that process too is flawed.

The federal guidebook judges are instructed to use is the decades-old Dictionary of Occupational Titles first published in 1938 and updated last in 1991.

The dictionary includes jobs like four-horse hitch driver and gas-station attendant, but the words online or Internet aren’t found in the nearly 30,000 listings. Likewise, the judges and vocational experts can find Sousaphone maker, station telegrapher and phone book deliverer in the antiquated reference book, but no jobs dealing with smart phones.

“There’s not one computer-related job in the Dictionary of Occupational Titles that we use,” Stagno said.

The administration has started testing a new Occupational Information System to replace the Dictionary of Occupational Titles but it is not yet operational.

A number of other reforms have launched, including establishing five regional hearing centers that do teleconferencing to speed the process for hearing claims.

Social Security Administration Commissioner Carolyn W. Colvin also rolled out a plan in January called CARES that is intended to address the growing wait times and number of pending hearings. The plan calls for additional funding to hire more administrative judges to reduce the wait time for a hearing to 270 days by 2020.

“High quality decisions are at the heart of our initiatives to reduce wait times and better serve the American public,” Nguyen said.

As Desiree Hensley waits for word on her disability claim, her health is declining.

She is in the process of transitioning her autistic son William to a residential provider, Bittersweet Safe Haven Farms in Middletown, and she hopes the staff there can give him more support than she can.

She struggles with letting him go.

“That was a very, very hard decision for me to have to come to - to relinquish him living with me,” she said. But, she added, “I can’t take care of him.”


Information from: Dayton Daily News, https://www.daytondailynews.com

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