Slow pace of Social Security cases laid to judges, staffing

Disability claims in the Portland area take months longer to resolve than in other parts of the U.S.

The slow pace of a few judges and an overwhelmed staff at Portland’s Social Security hearing office are key reasons that people seeking disability benefits here endure some of the longest waits in the nation.

Across the country, it takes an average of 480 days to get a judge’s ruling on a Social Security disability claim — but 650 days if your case is in Portland.

The problems in Portland reflect a broader national crisis, according to Social Security Administration records obtained by The Oregonian under the Freedom of Information Act. Only about half the agency’s administrative law judges meet its minimum goal of clearing 500 cases a year. Only three of nine Portland judges hit that mark in recent years, agency records show.

Last year, according to the national records, 132 of the agency’s judges — about 11 percent — failed to reach even half of the agency’s goal, dragging out appeals of disability claims as people faced financial ruin, got sicker and even died waiting.

Productivity of the agency’s judges is under increased scrutiny as 768,540 Americans — the figure as of year end — wait for a chance to plead their cases for benefits.

Social Security typically forbids judges from speaking with news media. But the agency made a rare exception by allowing its Portland judges to talk to The Oregonian about the challenges they confront.

The two men who have been accountable for the Portland office in recent years — Chief Judge Richard Say and his predecessor, Thomas Tielens — would not be interviewed for this story. But three veteran judges from the Portland office agreed to speak.

“There’s a great frustration on the part of all of us in this hearings office,” said Riley Atkins, one of the Portland judges.

 “At bottom, we’re public servants, and we don’t like it that individuals we’re trying to help have been waiting a ridiculously inordinate amount of time.”

Social Security judges see their "role" to "protect Treasury and Social Security Fund"

Social Security’s 1,177 administrative law judges hear appeals by the avalanche of Americans whose disability claims have been denied. Most will eventually win their cases.

Judges usually hold hearings to consider the validity of claims, but they are also required to protect the Treasury and Social Security Disability Trust Fund against claims from people who aren’t disabled.

In October 2007, Social Security Commissioner Michael J. Astrue met with a delegation of judges from around the country and — dispensing with the customary gesture of shaking hands — complained that many were not productive enough, according to the union that represents the judges. Astrue also accused them of not wanting to be subjected to any professional standards.

The commissioner has testified before Congress that the bulk of administrative law judges are hardworking. But he has griped about underachievers, and the agency set performance goals that ask judges to clear 500 to 700 cases a year.

He appears to be making progress: Last year, judges cleared an average of 474 cases, up from 421 in 2005.

But Ron Bernoski, president of the union that represents the judges, said that kind of demand is arbitrary and only sets a lot of them up for failure.

“There’s no single group of employees at Social Security responsible for this backlog,” Bernoski said. “Continuing to focus on the judges isn’t going to solve this situation.”

Social Security’s inspector general recently found that low productivity of some judges and staffing levels added to the problems. Congress’ Government Accountability Office has also concluded that failures by the agency’s management have contributed to the backlog.

In addition, agency officials and some members of Congress are galled by the lack of accountability of the judges, who make up to $158,500 a year.

“The agency has not done any careful tracking to see how these judges are ruling or handling cases,” said Sylvester J. Schieber, chairman of the Social Security Advisory Board, an oversight panel. “You have to set some standards, and nobody has ever done that.”

Congress gave the judges independence to guarantee citizens the right to challenge the agency’s decisions. But Astrue complains that this independence gives his agency virtually no chance to discipline problem judges.

Ten judges were disciplined in the past three years for poor attendance, failing to process assigned workloads or not following management directives, according to an August report by Social Security’s inspector general. Their recommended punishments ranged from reprimands to suspensions of up to 30 days, but the report showed none had actually served a suspension.

Astrue told a House subcommittee on Social Security last February that even in cases of gross misconduct, his judges are protected by a federally prescribed disciplinary system that often takes two years to decide cases and “has a track record of just slapping them on the wrist.”

Consider the case of Kelly S. Jennings, an Atlanta-based administrative law judge, who was placed on paid leave after Social Security officials learned he held two federal jobs in Georgia simultaneously — one as an agency judge and another as an Army lawyer.

Last June, another judge ruled that Jennings was double dipping, and Social Security sought more than $300,000 in back pay, with interest. In July, Jennings appealed his case. He remains on paid leave.

6,000 area cases waiting to be heard by under-performing social security judges

About 6,000 people now await a ruling from one of Portland’s nine judges, and the three judges who spoke with The Oregonian said it’s not entirely clear why the waits here are so long.

“I don’t know a single lazy judge in this office,” said Dan R. Hyatt, a former trial attorney who has spent 11 years as a Social Security judge.

Hyatt and two other veteran judges — Timothy C. Terrill and Riley J. Atkins — have some of the highest production numbers in the Portland office. They said cases have grown more complex, with medical files that can run thousands of pages.

And the judges said the region seems to have more disability appeals that involve mental health and substance abuse issues, which can slow the process.

Delays can cause a tragic cycle: The longer a case sits, the more complicated it becomes, and those seeking benefits often grow sicker.

“These cases are not like wine,” said Atkins, who has 13 years’ experience as a judge. “They don’t age well. It only becomes more difficult to make a decision.”

Social Security, backed by additional spending by Congress last year, hired more than 180 new judges to speed up claims across the country. But only one of those judges was placed in Portland.

The trio of judges said a lack of support staff — including lawyers to help draft opinions — was a key factor in slow handling of cases. There are times, they said, when their dockets aren’t full because they don’t have enough staff to ready cases for hearings.

Hyatt said he could double his output with more staff. Terrill, who went to work as a Social Security judge in 1997, said he asks for between 50 to 55 hearings a month, but sometimes gets as few as 30.

“Almost to a person, judges here are getting fewer cases than what they want,” Terrill said.

414-case average  (Chief Judge wants 500 to 700 cases from each judge a year from Portland judges)

The inspector general’s August report also linked slower offices to low staffing levels. The report showed that the Portland office had 3.7 staffers per judge compared with a national average of 4.4.

The judges said it takes a lot more time to write a denial than stamp a case for approval.

“If I wanted to (pay) 55 cases a month, I could do it in two days,” Hyatt said. “But I have to watch out for the taxpayers’ money and at the same time try to do justice for the people who appear in front of me.”

Judges in the Portland office cleared an average of 414 cases in 2007, according to agency records.

The judge with the fewest cases cleared a year is Joel T. Elliott, who produced an average of 149 cases a year from 2005 through 2007. Until recently, Elliott was national secretary for the judges’ union. The union contract released him to spend up to 65 percent of his time on union business.

Two other judges in the Portland office, Catherine R. Lazuran and Linda R. Haack (click here too), have averaged 350 and 316 cases a year, respectively, from 2005 through 2007. Neither judge agreed to be interviewed for this story.

To speed up Portland’s work, Social Security shifted cases to the Eugene office, where the average judge now carries 1,065 cases — among the highest caseloads in the nation.

Sen. Gordon Smith, R-Ore., whose office has won praise from disability advocates for its constituent services, recalled a time four or five years ago when the situation was reversed. Eugene was the slower office, with Portland picking up its caseload.

Smith, who lost his bid for re-election in November, said he expects problems with the Portland office to grow more serious as people lose jobs in the deteriorating economy and seek disability benefits.

“That will happen in the downturn and make a bad situation in Portland even worse,” Smith said. “Obviously it will be up to Oregon’s members of Congress to keep the pressure on.”

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So what’s a Social Security judge got against a reporter watching?

I’ve got the invitation from a claimant, a letter from a congressman, and still I’m shut out of a disability hearing

Last fall, after investigating the glacial pace of Social Security’s disability claims process for several months, I decided to talk my way into one of the hearings in which people make their pitches for benefits.

Portland’s hearing office was one of the slowest in the country, and no one had adequately explained why. So I figured a look inside might show what a brutal system it was for thousands of people.

Trouble was, the hearing rooms were supposedly closed to the public — even though the judges inside award untold billions of dollars in taxpayer money each year.

What I needed was a claimant willing to invite me inside his or her hearing, preferably one unencumbered with a lawyer. I talked to a few people, but their cases were all set for distant dates.

Then a guy named Bruce E. Moyer showed up at my office.

On Oct. 13, Bruce had walked into Portland’s downtown hearing office and tripped the burglar alarm. Turns out it was Columbus Day, a federal holiday, and somebody had forgotten to block access to the office.

Bruce had followed stories that reporter Brent Walth and I had written about Social Security’s massive backlog of disability claims. He figured we might be interested in what he described as lax security at an office full of sensitive medical files.

I asked Bruce why he’d gone to the office in the first place, and he said he’d popped in to drop off papers for his hearing, which was in three weeks. Turns out he was planning to represent himself.

The next morning, Bruce and I walked into a Starbucks to talk. He was 59, unshaven, his gait stiffened by a ruined back. I handed him a short coffee with a shot of espresso; he handed me a packet of papers chronicling his disabilities.

Bruce had once earned big bucks on West Coast waterfronts, most recently as a port engineer. But when his back went out for good in 2003, he wound up living off the generosity of his successful son, who had put him up in an apartment on Naito Parkway.

When Social Security bureaucrats twice denied Bruce’s disability claim, he poured himself into proving them wrong. He compiled an impressive chronology of his back injuries dating back decades, complete with supporting documents.

I shared my idea about attending a hearing, and he said I was welcome to sit in on his.

Social Security and the judge hearing Bruce’s case denied my written requests for access to his hearing, saying the public was kept out of the proceedings to protect the privacy — and sensitive medical histories — of the claimants.

It didn’t seem to matter to the agency that Bruce had already waived his privacy rights and shared a mountain of medical files with me.

The agency also pointed out that its judges can bar anyone with no bearing on the outcome of the proceedings.

But I knew a judge had permitted Michael J. Astrue, Social Security’s top official, to attend a hearing. I would later learn that judges frequently permit friends and family into the hearings, and that they have in the past admitted law students, academics and congressional staffers.

It seemed the only class of people denied access, after having been invited by claimants, were news reporters.

Later, Jamie Horwitz, a spokesman for the union that represents most of the agency’s judges, said his group thinks the agency is singling out journalists and that the union’s position is that judges should have the discretion to allow reporters in.

Bruce contacted the office of his congressman, U.S. Rep. David Wu, which had closely monitored the progress of his disability claim. I talked to a couple of his staffers, too, explaining the situation.

On Oct. 30, Wu sent a letter to Timothy C. Terrill, the judge who would hear his case. Wu explained that because Bruce wanted The Oregonian to attend his appeal, no privacy rights were jeopardized. Wu also cited federal regulations that gave Terrill the discretion to decide who attended the hearing.

“Further,” the congressman wrote, “I believe that there is an important public interest that is served in documenting this critical aspect of the Social Security disability process.”

But Terrill barred me from the hearing.

On Nov. 3, I watched Bruce disappear into Social Security’s inner sanctum — the hearing was on the 17th floor of the ODS Building in downtown Portland — and return 40 minutes later. So I missed my chance to tell readers what goes on inside these secretive hearings.

But not entirely.

Terrill gave Bruce an audio recording of the hearing.

The judge opened the hearing by telling Bruce that it was his job to decide whether a reporter was necessary to help him decide the case.

“I’ve decided,” he said, “that it’s not necessary.”

The rest of the hearing was standard stuff. Terrill took testimony from Bruce about the extent of his disabilities, and he heard from a vocational expert about whether he thought someone like Bruce could continue working.

At one point, the judge began to laugh.

“I’m only laughing, Mr. Moyer,” he said, “because this is more detailed, thorough and helpful than most of our attorneys submit.”

“Well,” Bruce said, “I have a lot at stake, sir.”

Both men laughed.

But thousands of people — with just as much at stake — aren’t laughing, because they don’t have the snap of a Bruce Moyer or the luck to draw a judge like Timothy Terrill, one of the swiftest in a slow office. Terrill approved Moyer’s claim three weeks later.