MADISON, Wis. – U.S. Sen. Ron Johnson wants to know whether the Social Security Administration is playing a “shell game” with its hefty disability benefits caseload, to the detriment of claimants’ due process rights.
The Oshkosh Republican, in his capacity as chairman of the Senate Homeland Security and Governmental Affairs Committee, sent a letter this week to the Government Accountability Office asking for a review of the case-transfer practices of SSA’s Office of Disability Adjudication and Review, or ODAR.
“Transfers may be sensible in some circumstances to expedite case processing. However, if the practice is merely a shell game to artificially reduce an office’s APT (average processing time), the transfers may needlessly delay adjudications for claimants,” Johnson wrote to Comptroller General Gene Dodaro.
Johnson’s request is driven by due process concerns of former Milwaukee ODAR senior case technician Ron Klym. In the lead story of Wisconsin Watchdog’s investigative series, “Deadly Delays,” Klym provided documents showing hundreds of cases languishing in the system for nearly two years – in some cases, much longer.
Average processing times from initial application to reconsideration, if the request is denied, can be more than a year.
Cases are then appealed to the administrative law judges at ODAR for review and final judgment.
Milwaukee’s average processing time is at 620 days.
Klym provided Wisconsin Watchdog with records showing cases from Green Bay, the Upper Peninsula of Michigan and other smaller communities in the Milwaukee ODAR coverage area had even longer backlogs in recent years.
Dozens of cases on appeal took more than 700 days to complete. One Green Bay case clocked in at 862 days to dispose of. A Marquette request for benefits hit 1,064 days, and another was completed in 1,126 days.
“We had two clients who stopped in the office yesterday wondering what’s going on, and they have been waiting for 21 months,” Jessica Bray, partner at Upper Michigan Law in Escanaba, Mich., told Wisconsin Watchdog in May. Her colleague handled the noted cases that topped 1,000 days. “I sent a letter to the Milwaukee office, but I don’t think it’s going to do any good. Those cases haven’t even been assigned yet.”
Klym said the long delays are impairing applicants’ civil rights. While those seeking Social Security disability benefits don’t have an unquestioned right to the payments, they do have a right to due process, he said.
“No one can guarantee the benefit. I know a case where someone has filed for a benefit 26 times,” Klym said in the May story. “It’s not the result, it’s the opportunity. If your opportunity has been waylaid, to paraphrase (George) Orwell, we’re all equal, but some are more equal. That’s a process issue.”
ODAR’s massive backlog, north of 1 million cases as of the last federal review, is no secret. But its policies on moving cases to other offices is not well known to the public.
Klym, who was fired in August after speaking out, describes the process as a “shell game.”
In May, he told Wisconsin Watchdog the Milwaukee office’s case disposition numbers have at times drastically improved because managers in the chain have dumped off scores of cases to other regional offices.
“They are wholesale shipping cases out,” the senior legal assistant said. The impression is that the offices are performing at a better rate than they actually are. “When you ship 1,000 cases to somewhere else, then you do an audit, it looks better.”
An SSA spokesman repeatedly has declined to comment on personnel matters but has acknowledged the “high average processing time for disability appeal hearings, and we are working to address the issue.”
“The Social Security disability program is an important resource for people with disabilities, and we work tirelessly every day to provide the best service possible,” said Doug Nguyen, communications director for the Social Security Administration’s Chicago region.
Klym said there are several people in the region who are aware of the practice.
Bray certainly is.
In the May investigative report, Bray said her colleague has seen some 50 Upper Peninsula-based cases shipped off to Oak Park, Ill. In 2004, she said, dozens of cases were sent to New Hampshire and Oakland, Calif. Cases in Green Bay were assigned to an office in New Mexico.
“I’m not sure why they are doing it, but from an attorney’s perspective, we say, ‘Thank goodness.’ At least we can get our clients a hearing,” Bray said.
Johnson wants to know exactly why the agency is doing it.
“While SSA has attempted to address the hearings backlog through its Compassionate and Responsive Service (CARES) plan, my office received allegations from an SSA employee that cases are being transferred between hearing offices prior to a routine audit in an effort to conceal the actual APT,” Johnson wrote the comptroller.
“Given the more than 1 million Americans who are waiting for SSA to process their cases, I request your assistance in determining the efficiency of ODAR’s case processing systems and hearing workload management,” Johnson’s letter states. “Although GAO has offered Congress a helpful analysis of the hearing backlogs plaguing SSA in the past, it appears that little is known about how SSA moves around its hearing workload, and the effect of such workload-balancing initiatives on processing times and pending caseloads.”
The Senate committee wants to know:
1. What criteria does the Social Security Administration use to determine which cases to transfer and where to transfer them?
2. To what extent does the Social Security Administration transfer cases between offices, and what have been the effects on processing times and the number of pending cases nationwide, regionally, and by office?
3. How effective are the Social Security Administration’s procedures for managing and overseeing disability claims to ensure they are being processed according to program rules?
In June, the committee launched an inquiry into the Social Security Administration’s myriad whistleblower allegations of misconduct and retaliation. At the Madison ODAR facility, employees allege widespread corruption, intimidation and sexual harassment. In one case, and administrative law judge is accused of writing inappropriate comments about claimants, and deciding cases based on their appearance. That judge has since retired, as multiple federal investigations continue into the Madison office and others.
Klym, meanwhile, is awaiting an arbitration hearing next month on what he asserts was a wrongful dismissal, motivated by management animus and retaliation.
The whistleblower said he is hopeful an independent review will provide a big-picture view of the problems inside the troubled federal agency.
“I hope that the independent audit will have a clear and concise view that provides the Senate with the information it needs to go forward to a hearing,” Klym said.
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