Brian Hoge was recently informed he’d be switching careers. His new vocation? An egg-packer.
It was baffling to Hoge, a former commercial fishermen and oil worker. Staring at the letter from the Alaska Office of Disability Adjudication and Review, he couldn’t make sense of it. He’d never even heard of an egg-packer.
“They don’t give you the answer to (how to get the job they determine); they don’t tell you how far you have to drive and so forth,” Hoge said. “I’m on five medications, and each one of them says, ‘Don’t be operating heavy machinery.’ Can you imagine what would happen if I were driving?“
Because the agency had determined that Hoge is fit to work, his application for Social Security benefits was denied. Hoge said he has been wrangling with the office to get benefits since 2008, when medical issues stopped him from working.
The Office of Disability Adjudication and Review, a wing of the Social Security Administration, determines whether an applicant qualifies for disability. If the applicant can medically do one of several thousand jobs from the Dictionary of Occupational Titles, a tome of American vocations published in 1991, he or she is judged to be not disabled.
Since then, he has lost his house and moved to Missouri, where he is staying with a friend who can drive him to medical appointments. He is still not receiving Social Security benefits.
Hoge, like more than a million other people nationwide, is wading through the long waits of the Social Security Administration. Many have waited years to receive a decision. Some have died waiting.
The mean waiting time to receive a decision, from application to conclusion, is 506.5 days, according to the Social Security Administration. In Alaska, it’s slightly less — 435 days, or about 14.5 months.
But in Alaska, the likelihood is significantly lower of being approved at all.
The waiting game
A little more than half of all the applicants for Supplemental Security Insurance— the category of benefits disabled people qualify for — have to go through an appeal hearing because their applications are denied the first time. Unlike some other states, there is no reconsideration in Alaska, so denied applicants go straight to an appeals hearing before a judge.
There are two judges based in Anchorage who handle disability hearings — Paul Hebda and Cecilia LaCara. Between Sept. 26, 2015 and Jan. 29, the two judges heard a total of 219 cases, according to the Social Security Administration’s public data files. Out of 158 decisions — 61 cases were dismissed — only 44 were awarded disability, either partially or fully. The rest were denied.
In the last quarter of 2015, the office received 192 new cases and has 836 waiting, according to Social Security Administration data. Anchorage is only third on the list of most heavily laden offices nationwide — there are many offices much further behind.
A lot rides on putting together an application that will be approved without a hearing because the approval rates in court are so low. For Dustin Clark, that didn’t happen.
Clark, of Kenai, has been trying to win disability benefits since he began experiencing seizures in 2011. He said he just received his first denial and was told he will not receive another appeal hearing until 2017.
“I’m getting really close to losing (my house),” Clark said. “They just sent a letter: 306 days. Well, do you think the bank’s going to wait 306 days?”
Clark is one of the approximately 80 percent of applicants Hebda denied between Sept. 26, 2015 and Jan. 2. From Sept. 26, 2015 through Jan. 29, 2016, Hebda and LaCara together approved about 20.1 percent of applicants, about 40 percent less than the national average of 57-60 percent.
Dave Fleurant, the executive director of the Disability Law Center, which advocates for people with disabilities in a variety of legal situations, said there is no reason why the approval rate in Alaska should be so much lower than the national average, he said. Fleurant has written several white papers, professional researched documents, on the situation in Alaska and called for intervention.
“The facts kind of speak for themselves,” Fleurant said. “The facts that I reviewed certainly label these (judges) outliers. I pose a couple of scenarios (in white papers), basically saying that someone needs to look at this, but I don’t know who.”
The low approval rates have led private lawyers to stop taking Social Security disability hearings in Alaska because they win so rarely that they do not get paid, he said. Lawyers are paid from the award of back pay in Social Security cases, and when a judge denies, dismisses or reduces an award, it makes it hard for the lawyers to make a living, he said.
Even the Disability Law Center has recently transitioned out of hearings, focusing more on getting individuals’ applications ready so they are more likely to approved the first time around without an appeal, Fleurant said.
The Disability Law Center has trained front-line social workers how to do the applications so when they encounter a homeless individual who was not receiving Social Security benefits, they could help them apply.
“Obviously, these are individuals who have some education, so they would go through this training on how to complete Social Security application, and it would take two or three days,” Fleurant said. “And we expect people with disabilities to do this on their own? It’s just ass-backwards.”
Oversight
Administrative law judges, who oversee Social Security disability benefits hearings, have little oversight from the Social Security Administration. The judges are all technically under the authority of the Chief Administrative Law Judge in Washington, D.C., but are protected by a union and cannot be dismissed directly by the Social Security Administration if there is an issue.
Much of the decision weighs on the judges. Because their cases are assigned randomly so one judge does not handle one type of case over and over, judges should theoretically have similar approval rates because they should be deciding cases based on medical evidence. That is not the case.
Prior judges in the Anchorage office, such as judge Jonathan Baird, approved 94 percent of his cases in 2010, when the Anchorage Office of Disability Adjudication and Review opened. Hebda, who has been at the Anchorage office since the beginning, approved 54 percent.
Hebda’s rate of approvals fell to 34 percent the following year, the lowest of the four judges in the office at the time. When LaCara arrived in 2012, she and Hebda had the lowest percentage of approvals among the judges at the office.
The Disability Law Center has called for an investigation into the difference between the approval rate in Alaska and the rate nationwide. Fleurant said he worked with former U.S. Sen. Mark Begich to seek answers, but since Begich’s election defeat in 2014, the work has stalled.
“Anyone with such a low approval rate is what they call an outlier that simply cannot be attributable to chance,” Fleurant said. “I think part of the problem is Social Security itself has few tools of what they can do with these semi-autonomous (judges).”
Attempts to reach the Anchorage Office of Disability Adjudication and Review were unsuccessful.
Social Security Administration Acting Commissioner Carolyn W. Colvin did respond to Begich’s requests for investigation in June 2014. She wrote in a letter that the Anchorage office’s low number of disability allowances could be attributed to the higher-than-average initial application approval — while the national rate was 32 percent, Alaska’s was approximately 44 percent.
“While we acknowledge that both (administrative law judges) in the Anchorage Hearing Office have allowance rates that are lower than the national average, an ALJ’s lower allowance rate does not necessarily indicate that the ALJ is denying benefits to qualified claimants,” Colvin wrote. “An ALJ may have a high or low allowance rate while his or her decisions still comply with our policies.”
The judges answer to the U.S. Merit Systems Protection Board, but by law, they have immunity from liability for their judicial acts. Administrative law judges can only be discharged for good cause based on complaints filed by the agency they work for with the U.S. Merit Systems Protection Board. If the judge disagrees, he can appeal and wait for a hearing with the board.
A hearing can take some time, as the office currently has thousands of cases backlogged.
Medicine and the law
To be approved for Social Security benefits, an applicant has to be examined by a doctor designated by the court. Disability Determination Services in Anchorage, a division of the Alaska Department of Labor & Workforce Development, contracts physicians and psychologists to determine eligibility for the programs. In Hoge’s case, a doctor determined that he could still work.
Hoge disagrees.
“I’ve tugboated. I’ve worked in commercial fish, I’ve worked on the oil rigs.” Hoge said. “But I can’t get clearance to get employed, so how can they say that I’m not disabled?”
When examining an applicant, a doctor has to evaluate the person’s capabilities against legal standards for disability set by the Social Security Administration. The definition of a disabled person states an individual “must be unable to engage in any substantial gainful work activity because of a medically determinable physical or mental impairment which is expected to last for 12 continuous months or result in death.” Partial or temporary disabilities do not qualify, and disabilities have to provable beyond a doctor’s opinion.
Many patients have complaints that the doctors are not fairly evaluating them and rule that they can still work, Clark and Hoge included. Disability Determination Services lists statistics on its website that claim the Alaska DDS office had a 98.1 percent determination accuracy rate for cases selected for quality assurance in 2012.
The process of proving medical disability can be protracted and draining. Suicides or homicidal behavior are common enough that the Social Security Administration has issued a section in its operating manual specifically to address those behaviors.
Clark said he felt that his own doctors should have more of a say in the determination and award process, but the documentation he provides is frequently dismissed, they said. The judges have seen his paperwork and dismissed it, which doesn’t make sense to him, he said.
“That would be seven surgeons, seven doctors that have said, ‘Yeah,’ and signed off on the paperwork that said, ‘You shouldn’t go back to work for the next at least 12 months,’” Clark said. “I think it’s just absolutely crazy that they’re pulling me through this along with people that have worked their whole lives and then had a traumatic experience.”
Reach Elizabeth Earl at elizabeth.earl@peninsulaclarion.com.
