Getting disability benefits may be fight of a lifetime

THE BALTIMORE SUN

What happened to Ray Meyer could happen to anyone. He got sick, so he couldn't work. He couldn't work, so he applied for federal disability benefits.

What happened next to Ray Meyer could happen to anyone, too. Instead of getting help, he got the fight of his life.

For months he's gathered extensive medical evidence for Social Security. He's filed and refiled forms -- some of them lost by the agency. He's been turned down twice, forcing him to hire a lawyer, who will get one-fourth of any benefits he may win. He's exhausted his savings, applied for welfare, asked his church for a loan, and now risks losing his small Catonsville home.

Tomorrow, Mr. Meyer finally has a hearing before an administrative law judge. Even if he wins his case, it will be four or five months before he gets any money.

"I never knew anything about bureaucracy, about the inefficiency," Mr. Meyer said. "They're going to take a good family and eventually destroy us and put us on the street."

But he may be successful in the end, because Social Security's own judges award benefits to 60 percent of the people who appeal. Critics say that proves that the agency, which initially turns down two-thirds of the applicants, is rejecting far too many deserving people. And they worry that many eligible people may be among the half-million a year who don't pursue the arduous appeals process.

"Denying disability insurance has never been the mission of the Social Security Administration, yet that is exactly what is happening," Sen. William S. Cohen, R-Maine, said during a Senate hearing this summer.

For years, Social Security's disability program has been attacked -- by Congress, by the federal courts and by many within the agency itself -- as a program bedeviled by complex regulations, delays, lost files and bureaucratic ineptitude. While significant reforms have been made, few have assured that the agency's examiners and judges interpret the law the same way or that people get benefits when they really need them.

"It's a tortuous system," says Robert R. Jenkins, a Baltimore lawyer who specializes in Social Security disability claims.

To get disability benefits, an applicant must have a physical or mental impairment that precludes any gainful work, not just his current job. The disability must be expected to last at least a year or to result in death.

Social Security says that these tough restrictions force disability examiners initially to deny two-thirds of the 1.5 million new applications a year.

When applicants finally see a judge, they often have gathered more medical evidence. Sometimes their condition has worsened, making it easier for the judge to reverse an earlier decision. But frequently, what the judge says boils down to this: "Somebody made a mistake a long time ago. You should be getting disability benefits."

By the time the judge writes a decision and Social Security pays up -- retroactively -- another four or five months have gone by.

When an administrative law judge hears Mr. Meyer's appeal tomorrow, he will be the first person in the year-long process to evaluate Mr. Meyer face-to-face.

After undergoing surgery for bladder cancer, Mr. Meyer, an architectural designer, applied for help last fall, knowing he faced either further surgery or months of chemotherapy that would keep him from working. He'd paid Social Security taxes most of his life. Based on his earnings of $35,000 a year, he figured he could draw roughly $1,000 a month.

Mr. Meyer first was denied benefits in November 1989. Social Security said that although he had cancer, the disease apparently was not progressing and he could work.

"At first I got disgusted and said, 'I'm going to drop the whole thing.' But that's the way the system wins," Mr. Meyer said. In late December, he asked Social Security to reconsider his claim.

By then, he had undergone chemotherapy, which had left him with a side effect known as peripheral neuropathy. He told Social Security he had little feeling in his feet or hands, making it difficult for him to walk on uneven ground, like construction sites, and impossible for him to draw.

At 57, Mr. Meyer thought the chances of finding any other kind of work were nearly impossible. His family tried to live on the small salary his wife earned as assistant manager of a fabric store.

Another 60 days went by before Social Security told him that part of his application was lost. He resubmitted the same forms, updating them with new evidence about physical therapy he was undergoing to regain use of his hands.

In April, Social Security sent him to a consulting physician.

"He pricked my finger, asked if I had an alcohol problem and how my sex life was. I was in and out of the office in five minutes," Mr. Meyer recalled.

A month later, he was denied again, on the same grounds as before. He asked for a hearing before a judge.

According to many familiar with the system, stories like Mr. Meyer's are typical.

"It's absolutely devastating on an individual basis," Mr. Jenkins says. "People are worn out, exhausted, depressed."

Social Security Commissioner Gwendolyn King says that while most disability cases are handled properly, there are problems in the process, and "tragedy is often the result."

"We at Social Security should never lose sight of how important each person is who comes to us for help," said Ms. King, who has been head of the agency since August 1989.

Indeed, most American workers, particularly those with lower and middle incomes, rely on Social Security for long-term disability benefits rather than costly private insurance. It pays an average of $555 a month to a disabled worker and $975 to a family.

Last year more than 4 million disabled workers, their spouses and children received disability benefits totaling about $22.5 billion. In addition, more than 3 million Americans received roughly $9.6 billion through Supplemental Security Income, a taxpayer-funded program for needy disabled, blind and aged persons.

The long, tedious process of getting benefits is particularly demanding for the poor, says James R. Caudle, a former Social Security disability official who now works with Maryland's Disability Entitlement Advocacy Program, which helps many homeless and mentally ill people apply.

"How can you ask a guy who's on the street and homeless to produce the same kind of detailed medical evidence as a worker at Sparrows Point?" he asked. "Most rely on clinics and emergency rooms."

Mr. Caudle also says many applicants face problems because of varying interpretations of the law.

Unlike decisions about retirement benefits, which can be easily calculated based on a person's work record, those dealing with disability benefits become highly subjective ones determined by interpretation of volumes of complex and tedious law filled with terms like "residual functional capacity."

To complicate matters, the rules keep changing.

Congress passes laws or amendments involving the disability program, and the Social Security Administration responds with new regulations for about 24,000 bureaucrats nationwide who handle disability cases. Not infrequently, the federal courts step in with sweeping rulings that require more regulations.

"There is so much room for interpretation and judgment in this program," Mr. Caudle said. Not surprisingly, perhaps, initial approval rates vary by more than 20 percent from state to state.

"We see people with full-blown cases of AIDS, for instance, who are denied and others who are approved right away," Mr. Caudle said.

Even when benefits are granted immediately, there's no guarantee they'll continue.

In March 1987, Rick Clutts of Pikesville was diagnosed as having acquired immunity deficiency syndrome. He worked for almost two more years as a waiter in Baltimore County before becoming too debilitated to continue.

He applied for disability benefits in March. He was granted them under a provision that allows needy and seriously ill applicants to draw benefits immediately for three months while a decision is made on their application.

Mr. Clutts received checks for $374 in April and May.

Unable to care for himself any longer, he left Pikesville in late May and moved to Missouri so his mother could care for him. With help from a Baltimore County social worker, he filed the proper change of address forms with Social Security.

His mother quit her job caring for children; they expected to live off Mr. Clutts' disability checks. But June went by with no check, then July, and Kathy Clutts had to apply for food stamps and Medical Assistance.

"We called, but all they kept telling me was it's lost, and they're trying to track it down," Ms. Clutts said. "I kept telling them he only had three or four months to live. Maybe we could have taken a trip or something if we had the money."

On Sept. 6, Mr. Clutts died. August's check had arrived; he still was waiting for his June and July checks.

"Sometimes I feel they were holding back because they knew he wouldn't be here very long," Ms. Clutts said.

In a system dealing with millions of checks every month, such mistakes are inevitable, Social Security says. But many Social Security employees blame budget cutbacks for errors.

Overall, the Social Security Administration -- which also administers the nation's massive retirement system -- has lost 17,500 employees since 1984. Many of those cutbacks have been felt at district offices and at the state agencies that initially evaluate disability claims. "Budget cuts have caused backlogs, and further delays are a real problem," Louis D. Enoff, Social Security's deputy commissioner for programs, told a U.S. Senate committee this summer. The agency is seeking $50 million more next year for the state Disabilities Determination Services offices.

According to the General Accounting Office, case backlogs at DDS offices increased from 290,674 in June 1989 to 354,145 in June 1990.

In addition, the GAO says, the error rate among the cases denied increased "significantly."

"The situation is getting progressively worse at many levels," Joseph F. Delfico, a GAO official, concluded during a Senate committee hearing in July.

Advocates for the disabled say examiners -- under the pressure of federal reviews, production schedules and staffing cutbacks -- look for ways to deny claims quickly rather than helping applicants gather the painstakingly specific documentation that Social Security requires.

Myrtie Adkins, director of the Maryland Disabilities Determination Services, insists that examiners still try to help qualified applicants get benefits as quickly as possible. But, for instance, with less money they now seek a consulting physician's advice far less often.

"Overall, we're doing more with less," Ms. Adkins admits. Between 1986 and 1989, the number of cases increased by more than 10,000, from 26,769 to 37,204, but the staff in the Maryland office dropped from 218 to 175.

In addition, the system is clogged at the hearing level, with more than 159,000 cases pending before judges nationwide. Most people wait an average of four or five months for a hearing, longer in some areas.

Still, most judges say such hearings are the only guarantee that the system ultimately will work.

"We feel we're the resource available to the claimant who says, 'The system has victimized me,' " said Robert Brown, chief administrative law judge for the Maryland Office of Hearings and Appeals. "The reversal rate is evidence that the system is slow but working."

But others say justice delayed is justice denied. Irreversible damage occurs in families like Raymond Meyer's before they win benefits. Mr. Meyer says the arduous appeals process actually encourages deserving people to drop out.

No one knows why half those initially rejected don't pursue their claims. Social Security argues that many have returned to work. But according to a 1987 General Accounting Office study, 58 percent of people denied benefits were not working three years later. Many had disabilities similar to those whose applications were approved, the study concluded.

Disability examiners and administrative law judges frequently disagree over an applicant's ability to work. Among the reforms studied for at least a decade, but never implemented apparently because of the costs, are early face-to-face interviews. Mr. Enoff says Social Security plans a small pilot project later this year with interviews at the first level.

In addition, several studies have recommended eliminating the second step in the process, known as reconsideration. It takes an average of 60 days to handle reconsideration, but about 85 percent of its initial decisions are confirmed.

Still, Mr. Enoff and other Social Security officials argue that decisions are made quickly in the clear-cut cases and that the majority of favorable rulings are issued at initial levels, not by administrative law judges.

Furthermore, Mr. Enoff says, the public -- misguided by physicians and advocates for the disabled -- simply doesn't understand the rules. He says Congress designed the program for people who couldn't work at all, intending it to be extremely limited.

"Our biggest problem is the need for a consistent understanding of the program and the education of the medical and advocacy communities," he said.

But advocates dismiss that reasoning, saying that administrative law judges -- and occasionally even higher authorities like federal courts -- clearly interpret the law differently. That gives thousands hope that ultimately they'll get the help they need.

Mildred Baldwin, a nurse's aide for nearly 20 years, suffers with painful arthritis and other problems stemming from a back injury suffered five years ago that forced her to quit work. There are many days, she says, when she can neither sit nor stand.

Since 1986 she has been trying to get disability benefits, only to be turned down by Social Security at every level. Recently, however, the federal courts ordered an administrative law judge to reconsider her case, saying the severe pain could leave her permanently disabled.

"I've given up a lot of things, but I've never given up hope that I will win," Ms. Baldwin said.

George McClelland shows that tenacity can pay off.

In May 1988, Mr. McClelland, of Essex, suffered a massive heart attack at the age of 49. Doctors wouldn't allow him to return to his job as a custodian at Stemmers Middle School in Baltimore County. He couldn't drive; even eating small meals brought on angina attacks.

After giving up hope of going back to work, Mr. McClelland applied for disability benefits in November. He continued to live on the extensive sick benefits accumulated with a near-perfect work record in 10 years at the school. In January 1989, he was denied benefits.

"The doctors were saying I could live five years, but Social Security treated me like I was trying to cheat the government," said Mr. McClelland, who has paid Social Security taxes all his life.

Within a week, he asked to be reconsidered. In March, his application was denied again. He hired a lawyer, and in September appeared before an administrative law judge, who approved his benefits. In December -- 13 months after he first applied -- his first disability check arrived.

"The whole process was as degrading as could be," Mr. McClelland said.

"How come I had to fight so hard to get what is legally mine? How come I'm dying and had to fight so hard?"

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