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Take it from the judges: Disability cases too drawn out

By Dan Herbeck
The Buffalo News

The Social Security Administration is making some progress in its efforts to cut the backlog of disability cases in Buffalo and other offices.

But not enough progress, according to Social Security Administration judges who came to Buffalo for a conference this week.

Many people with serious illnesses or injuries still wait two years or more to get a hearing, and the judges say that is a source of frustration.

“People deserve the right to have their cases heard within a reasonable amount of time. The current waiting time is not acceptable,” said Marilyn Zahm, an administrative law judge in the Buffalo district.

“I once received a letter from a family member of a man who waited for a long time for his case to be heard, and before it could be heard, the man died,” said Randy Frye, an administrative law judge from Charlotte, N. C. “It made me feel terrible. . . . That just shouldn’t happen.”

Frye is the president and Zahm the vice president of the Association of Administrative Law Judges, a national union of judges that held an educational conference Tuesday, Wednesday and Thursday. About 130 judges attended the event in the Hyatt Regency Buffalo.

The two officials said the system in which they work is in a “crisis.” According to the judges, the long wait for hearings is only one of several serious problems that affect a system on which millions of Americans depend.

Among the other problems, according to the judges:

  • Far too many applicants — about two of every three — are turned down, sometimes for no logical reason, when they first apply. Later — only after months of waiting and having to hire attorneys — most of those people are approved for disability.
  • The system has little or no flexibility. The judges are required to approve disability pay for life to a person who, in their opinion, should receive it for a year or two.
  • They are pressured by Social Security Administration officials to rush cases through the system, when, in some cases, they would like to spend more time researching a case in the best interest of taxpayers and applicants.

“Right now, the only pressure we get from Washington is to push the cases through the system,” Frye said. “That seems to be the only priority.”

Mark Hinkle, a national spokesman for the Social Security Administration, disagreed. He noted that 7.5 million Americans and their dependents now received $106 billion a year in Social Security disability benefits.

“There are no pressures, goals or quotas for judges. We’re just trying to do the best job we can for the American public,” Hinkle said. “I don’t think you’ll find anyone who feels that the waiting times are acceptable.”

Long waiting times for disability applicants — some of them desperately ill — have been the subject of controversy in Western New York for years.

In May 2007, the Social Security Administration office based in Buffalo took an average of 688 days — nearly two years — to process a disability claim. That made the Buffalo office the seventh-worst of the 142 offices nationwide.

Since then, that situation has improved, both nationally and locally. The government says the Buffalo office now takes an average of 582 days to process a claim. The government has hired more judges and staff members, and has also made more hearings possible by allowing some to be conducted by teleconference.

Buffalo cases still take much longer than the national average, which is 493 days, according to statistics released by the law judges association.

“Even in the face of . . . the worst recession since the Great Depression, we have reduced the hearings backlog for nine consecutive months,” said Michael

J. Astrue, commissioner of Social Security, who announced progress in the government effort last week.

“They have knocked down the waiting time considerably in Buffalo. There’s still a long delay, but the situation is improving,” said Richard G. Abbott, a Kenmore attorney who handles many disability claims.

Similar comments came from Jeffrey Freedman, another disability claims lawyer, who operates 13 busy law offices in the region.

“It still takes a lot longer than it should take for many people to get an answer from the government,” Freedman said.

He, Abbott and the two judges all said they believe that a major problem exists with the way disability claims are handled when they are first filed.

Disability claims in New York State are initially reviewed by the state Office of Disability Determinations, which is contracted to conduct the reviews for the federal government.

Statewide and nationwide, about 64 percent of applicants are turned down in the initial review, according to government statistics.

According to Zahm, Frye and the two attorneys, a substantial number of those cases should clearly have been approved at the first level of application.

“I wouldn’t say it’s frequent, but it is routine,” Frye said. “Every month, most judges see a case that should have been paid at the first level. There are cases where it’s obvious.”

“If you approve the meritorious applications when they are first filed, you cut into the backlog for hearings,” Frye said.

Zahm concurred, as did the two claims attorneys.

Abbott recalled a client whose feet were amputated after a workplace accident in a factory. He applied for Social Security disability, and his initial application was turned down.

Months later, after the man hired an attorney and filed an appeal, his application was approved by a judge, Abbott said.

“There was absolutely no doubt that he was eligible for benefits. . . . To me, it’s almost criminal to make a person wait for a hearing in a situation like that,” Abbott said. “I’m a firm believer that applicants do not get a fair shake on their first application, but they do get a fair shake when they go before a judge.”

“When people get turned down on their first application and they come to us, 85 percent or more are successful on appeal,” Freedman said. “It’s not because I’m a genius. It’s because they have legitimate claims that should be approved after their initial application.”

Anthony Farmer, a spokesman for the state office, referred a reporter to the Social Security Administration. Hinkle said he disagrees with the contention that cases are improperly turned turned down at the first level.

“Overall, we’d say that cases are being legitimately denied at the first level, or the applicants’ situations have changed by the time the case gets to a judge,” Hinkle said.

“The judges see a case months or a year after it is initially filed, and sometimes you have new medical information or new records to consider.”

Last week, the Social Security Administration said 722,822 people were waiting for disability hearings nationwide, which was a decrease of more than 37,000 from a year earlier.

In a news release, Astrue said that this was the first time in a decade that the agency had completed its fiscal year with fewer disability hearings pending than in the previous year. He said the situation is improving because of the hard work of Social Security employees and additional federal funding.

Social Security judges rarely have the opportunity to speak publicly about their concerns, but Zahm and Frye said they are allowed to do so because they are union officials.

There are about 1,350 judges who hear Social Security disability cases throughout the country. Each judge hears about 500 cases a year, Frye said, and the judges make salaries ranging from $120,000 to $165,000.

Frye said he expects the number of people filing disability claims to skyrocket within the next year, in part because of the recession.

“We do care about the people who make these claims,” Zahm said. “We’re seeing more and more cases of the working poor — people who make too much money to get welfare or Medicaid, but not enough to pay for quality health care.

“A lot of them are nursing home aides who hurt themselves trying to lift elderly people who fall down. We see some very sad cases.”