Families face long waits for Social Security disability benefits

Jim Nicholas and wife Yvonne Nicholas fought for full Social Security benefits for about a decade.
Jim Nicholas and wife Yvonne Nicholas fought for full Social Security benefits for about a decade. (Karl Merton Ferron, Baltimore Sun)

Jim Nicholas lay in a hospital bed recovering after a heart procedure when his attorney called with life-changing news: The Social Security Administration would pay him more than $206,000 in disability benefits, bringing an end to his nine-year court battle.

Ever since he began suffering from heart failure, Nicholas and his wife, Yvonne, had been trying to prove he was sick enough to get benefits from the agency, which not only administers Social Security but provides support for those too disabled to work. As they waited, they watched their middle-class status slide into poverty.


The Dundalk couple was dogged throughout the process by denials and delays, a common experience for permanently disabled Americans looking to collect benefits, as the Social Security Administration struggles to manage a larger-than-ever caseload. The growing number of aging baby boomers, combined with a weak post-recession job market, has put unprecedented stress on the federal agency and the safety net it maintains.

"This is how the system works: Usually, people give up or they die," Yvonne Nicholas said. "I wasn't going to let that happen."


About 2,000 cases were dismissed last year because the claimant died, according to the agency.

The claims process often spans years: Most people who apply for disability benefits are denied and then must appeal to an administrative law judge and then in court, if necessary. The process can get bogged down by overcrowded dockets and the hunt for reams of required medical documentation that most patients don't have on hand or never had because they lack insurance.

While Social Security benefits are paid out when workers reach retirement age, people who have suffered permanent disabilities that prevent them from holding a job must apply for benefits from the Social Security Administration. The agency paid out $9.7 billion to disabled workers in June, and $44.7 billion to retirees, according to the latest data.

Efforts to collect disability payments often turn into legal battles that critics say are stacked against the claimant. The agency denies an average of two-thirds of applications from low-income individuals who are disabled and more than half of claims submitted by disabled workers. And some administrative law judges are far less likely than others to approve claims.


Then there's the wait.

More than 63,000 claimants waited at least 635 days for an initial appeal hearing and decision in 2007. While the agency has made strides in making the process quicker, the goal this year is to close the backlog of cases older than 310 days.

And that's after individuals wait an average of 150 days for a claim to be denied and then reconsidered by agency personnel before appealing to an administrative law judge.

The agency declined to comment on individual cases as a matter of policy, but Judge Patricia Jonas, executive director of Social Security's Office of Appellate Operations, said significant reforms are under way. Officials also emphasized that claimants who die while their cases are being considered may have died for reasons unrelated to their disability.

"Contrary to popular anecdote and innuendo, we have made extraordinary gains improving the speed and quality of our hearings and appeals process over the past five years," Jonas said told a Senate subcommittee last month. "We have done so against extraordinary obstacles, including demographic challenges, the economic downturn and fiscal belt-tightening."

Nicholas' attorney, Bruce D. Block, said the system must do better by the people who have paid into it.

"This is a hard-working man who comes from a hard-working family," Block said. "They have four children they raised. He supported his family, and for almost 10 years he had to fight the system. Think about the stress that these people had to go through."

Timothy E. Mering, a Baltimore-based attorney who specializes in Social Security, acknowledged that the agency is an easy target for criticism and said officials often make the right decisions. But, he said, a wrong decision can have devastating consequences.

"It's always easy from our side to wave the red flag and say how bad Social Security is," Mering said. "It is a very, very complex beast. They have two problems they face every day: The phone never stops ringing, and people never stop coming in."

Waiting for disability check

Jeffrey Henline of Ellicott City said the agency's failure had devastating consequences for his family.

He watched as his late wife become weaker and more ill as she waited for the Social Security Administration to approve her request for disability benefits. Marie "Terry" Sorbello died six months after she received her first disability check, following a three-year struggle for benefits, Henline said.

While she waited for approval, Henline said Sorbello dropped from 132 pounds to 88, and her list of ailments grew to include abnormal blood leakage in her heart, muscle atrophy, seizures and extreme fatigue. She died on June 25, 2010, at age 52.

After her death, Henline said the agency came after him to collect more than $14,000 in benefits paid to Sorbello's son, Stephen Hunt, whom Henline continued to raise. The agency claimed it was an overpayment, and Henline went back to court to settle the dispute. An administrative law judged ruled in his favor in June. His attorney, Mering, represented him pro bono on that case.

"It's been six years that I have fighting with these people," Henline said. "You're not only dealing with Social Security, but all of the hospital issues, the billing department issues and the financial issues."

On top of that, Henline said he had to bury his wife.

"She was the bravest person I have ever known," he said.

Sen. Tom Coburn, an Oklahoma Republican and ranking member of the Senate subcommittee on investigations, said at a recent hearing that the Social Security Administration is on a precipice. He said oversight by Congress — especially to ensure the agency's long-term solvency — is critical.

"The flood of Social Security disability applications over the past few years has tested the agency's resources and personnel," Coburn said. "As a result, disabled Americans are waiting longer and longer before receiving the benefits they deserve."

Coburn's panel in September revealed the results of an 18-month investigation that found administrative law judges overturned agency decisions to award benefits despite insufficient or incomplete evidence in more than a quarter of 300 cases.

One judge wrote "etc., etc., etc." in case files rather than explain the decision, and some held perfunctory hearings that lasted less than five minutes, according to the subcommittee. Senators raised concerns that people with questionable claims were getting disability payments, depleting the Social Security trust fund.

On the flip side, claimants and their lawyers raised concerns that some administrative law judges were denying benefits to deserving workers. The rates at which judges approve claims vary wildly across the nation.

In Dallas, Judge Gilbert Rodriguez had a 5.28 percent approval rating for cases in which he issued decisions from October 2011 to August 2012. That's compared to a 99.35 percent approval rating by Judge Gerald I. Krafsur in Kingsport, Tenn. Rodriguez issued 303 decisions to Krafsur's 468.


Judge Randall Frye, president of the Association of Administrative Law Judges, said the circumstances of cases heard by an individual judge affect approval ratings. For example, missing medical records led to denials for many Gulf Coast claimants after Hurricane Katrina devastated the region in 2005.


"Disability judges work to protect the Treasury as well as to insure that every claimant gets a fair hearing," Frye said in a statement.

Jonas, who runs the agency's appellate operations, said improvements have been made in recent years, yielding "quicker, higher quality disability decisions." She noted that the decisions among judges are becoming more consistent. Since 2007, the number of judges who grant awards in more than 85 percent of cases has dropped by two-thirds.

She also said wait times for hearings are shorter. The agency began using video conferencing to alleviate scheduling conflicts, simplified regulations and established productivity expectations for administrative law judges to help eliminate the backlog of old cases, Jonas said. And the agency has nearly doubled the number of judges over the past two decades.

But the caseload continues to balloon. In 1992, an average of 826 judges issued more than 356,700 hearing decisions. This year, more than 1,500 judges are expected to complete more than 800,000 cases.

"The Supreme Court has recognized that we are 'probably the largest adjudicative agency in the Western world,' and we take very seriously our responsibility to issue timely and accurate decisions," Jonas told the senators at the recent hearing. "Of course, opportunities for continued improvement remain."

Prolonged legal battle

Nicholas applied for disability in August 2003, shortly after he blacked out in his living room and fell head-first onto his coffee table. He was hospitalized for a month, underwent heart valve surgery and had a pacemaker implanted.

By the time his lawyer called this year to tell him his fight against the Social Security Administration was successful, Nicholas was back in the hospital. He figured he had lost the case and expected to hear condolences from his lawyer.

"When I got that phone call, it just lifted me up," Nicholas, 62, said. "My spirits were lifted up."

The Social Security Administration acknowledged early on that Nicholas had become too ill to work, and officials determined that he qualified for a $500 monthly benefit through the low-income disability program called Supplemental Security Income.

The agency denied him benefits under a program that would have paid him more. That program, Social Security Disability Insurance, is available to workers who have contributed enough payroll taxes into the system within a defined period of time. The difference in his case was about $1,500 per month.

Nicholas said he had put in 70-hour weeks at Holly Poultry in Baltimore as he worked his way up from delivering chicken to running the company. But by the time he was in his early 50s, a condition that began with chronic breathlessness rendered him too sick to work.

He left his job in the late 1990s and eventually went on to try his hand at running a salvage business. He bought dented cans and short-dated products from grocery stores and resold the merchandise to discount outlets.

Nicholas said that by 2002, he was relying more and more on his wife to run the business as his health declined. Eventually, the business fell behind on rent. The landlord locked them out and confiscated their forklifts, equipment and merchandise.

He filed his claim for disability benefits, was denied, and waited for years as the appeals process played out. Meanwhile, the Nicholases watched their standard of living slip away.

Yvonne Nicholas continued to work, but only part-time so she could continue to care for her husband. The couple also worried that the Social Security Administration would decrease the disability checks it sent to Nicholas if she earned more than part-time pay. His benefits were tied to the couple's income.

The couple moved from a Bel Air home into their daughter and son-in-law's house. By June 2006, they were living in a Dundalk apartment and seeking government assistance to help pay rent and buy food. Yvonne Nicholas took a housekeeper position at the apartment complex so she could stay close to her husband during the day.

Over the years, Nicholas' disability checks from Supplemental Security Income rose from $500 to $671, but the increase didn't cover their expenses.

Administrative Law Judge Robert W. Young rejected Nicholas' appeal in October 2006, three years after he first submitted his application. Nicholas appealed to the 4th Circuit Court of Appeals in Richmond, Va., and the case was sent back to Young. He rejected it again in August 2009, based in part on the fact that Nicholas continued to work for a period after claiming he was disabled.

Eventually, Nicholas' case came before a second administrative law judge, Frances P. Kuperman, who approved his claim for disability insurance in May. His monthly benefits were set at $2,031.

Block, Nicholas' attorney, said a major sticking point for Young was the lack of medical records; the cause was a break-in at Nicholas' doctor's office. Social Security disability claims are won and lost on medical evidence, he said.

"A very significant problem with the system is that a lot of times when people lose their jobs, they lose their health insurance. And the medical evidence for those in need or who lack health coverage is just sparse," Block said. "This is what's happening to middle America. We see this every day."

After 30 years spent practicing law, Block said that Nicholas' back-benefits award is one of the largest he's seen. Many of his clients die waiting for the Social Security Administration to issue a decision, Block said.

Nicholas recalled the details of his struggle from a hospital bed in the living room of his Dundalk apartment. He struggles to make the walk to the bathroom or kitchen, and his apartment is too small for his electric wheelchair. Managing the two steps in and out of the home takes all of his strength.

"This room is my jail," Nicholas said.

The couple said the money is life-changing, but they have big concerns about their future needs and ability to manage their health care costs and living expenses. Yvonne Nicholas said she dreams of finding a new place to live, one where her husband can come and go freely.


"There has never been anything we could fall back on through all of it," Yvonne Nicholas said. "It's always been, 'If something happens, what do we do?' It's a terrible, terrible stressful feeling. Every day, I would think, 'What if he needs something?' It's every single day."

Since the court award, however, she's hopeful: "I feel a lot better knowing that should something happen, that's going to be there."


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