10,000 people died waiting for a disability decision in the past year. Will he be next?
WEBSTER COUNTY, Miss. – On the 597th day, the day he hoped everything would change, Joe Stewart woke early. He took 15 pills in a single swallow. He shaved his head. And then he got down to the business of the day, which was the business of every day, and that was waiting. He looked outside, and saw his mother there in a green sedan, engine running. So many months he had waited for this moment, and now it was here. Time for his Social Security disability hearing. Time to go.
Stewart, 55, set out on crutches, tottering out of his mobile home and down a metal ramp he’d laid when stairs became too much. “I’m sweating my ass off,” he said, getting into his mother’s car, his long-sleeved dress shirt hanging open. He tilted the passenger seat all the way down, placed a pillow at the small of his back and, groaning and wincing, settled in as best he could.
“Did they say long-sleeved?” asked his mother, Jean Bingham, 73.
“It was the only decent shirt I had!” he said.
He knew only what he’d been told by his lawyer, who wanted to see him again before the hearing, and that was not to wear a T-shirt and to bring along a list of medications he uses to treat the pains that are all he has to show for a lifetime spent installing vinyl siding throughout Webster County. Neurontin for nerve pain. Baclofen for muscle spasms. Trazodone for depression. Hydroxyzine and Buspirone for anxiety, a condition that seemed to worsen each day his wait stretched into the next.
Stewart had first applied for federal disability benefits on May 21, 2015. The application was denied, and so was his appeal. When he appealed the second rejection, he went to the back of one of the federal government’s biggest backlogs, where 1.1 million disability claimants wait for one of some 1,600 Social Security administrative law judges to decide whether they deserve a monthly payment and Medicare or Medicaid. “A death sentence” is how Stewart, who has no health insurance, has come to think of another denial.
For other applicants, the wait itself may be enough to accomplish that. In the past two years, 18,701 people have died while waiting for a judge’s decision, increasing 15 percent from 8,699 deaths in fiscal 2016 to 10,002 deaths in fiscal 2017, according to preliminary federal data obtained by The Washington Post. The rising death toll coincides with a surge in the length of time people must wait for a disposition, which swelled from a national average of 353 days in 2012 to a record high of 596 this past summer.
The simplest explanation is that there isn’t enough money. The Social Security Administration’s budget has been roughly stagnant since 2010, while the number of people receiving retirement and disability benefits has risen by more than 7 million, despite a slight decline in the disability rolls beginning in 2015 as some beneficiaries reached retirement age.
The more complicated explanation, however, also includes fewer supporting staff members helping judges. A recession that increased the number of applications and appeals. A new regulation that requires additional medical evidence, lengthening the files judges have to read. And heightened scrutiny in the aftermath of a 2011 scandal in Huntington, W.Va., where one judge, who approved nearly everyone who came before him, was later convicted of taking $600,000 in bribes. Since then, according to a September report by the Social Security Administration Office of the Inspector General, the average judge has gone from deciding 12 cases every week to fewer than 10, a relatively small slowdown that, spread across hundreds of weeks and hundreds of judges, has contributed to the crushing backlog.
(Above, Left, see AALJ President, ALJ Marilyn Zahm and ALJ Randy Frye, Past President.)
“I know that people will die waiting,” said Judge Marilyn Zahm, president of the Association of Administrative Law Judges (AALJ). “This is the reflection of our priorities as an American people. We have decided it’s better for people to die than to adequately fund this program. . . . Will this get worse? Will the number of people who die double?”
While lengthy everywhere, the wait times have stretched longer still in some places, such as in Miami, where people wait an average of 759 days, and Long Island, where the wait is 720 days, and northern Mississippi, where the average is 612 days, and where Stewart couldn’t stop shaking in his car seat.
“My shirt is undone, I ain’t going to be able to put it in my pants. My pants are too tight,” he said, rummaging through a red bag filled with his medications, realizing he had forgotten to bring something to eat.
“You didn’t eat no breakfast?” his mother asked.
“I ain’t have the time!” he said.
He hadn’t felt pressure like this in years – not since he last worked in April 2015, and his world was reduced to food stamps, credit cards and the confines of a single-wide trailer, parked along a country road that few cars go down. He had thought about this day ever since. What would the judge ask him? Would he believe him? Or would he think he was lying, too lazy to work? Would he finally get an answer, or would the wait continue?
Stewart took an anxiety pill and looked at the car’s speedometer.
“Never going to get me there in time,” he told his mother as she steered through the remote county of hills and pine where nearly 1 in 5 working-age adults receive either Supplemental Security Income, for the disabled poor, or Social Security Disability Insurance, for disabled workers.
He fidgeted with the air conditioning vents, opening them up.
“I’m going from chills to hot spells,” he said. “I’ve got hot spells now.”
He leaned back.
“I’m getting cool.”
Then: “I’m sweating.”
Then: “I’m getting worse now.”
For most of his life, Stewart had believed things could only get better. He had been raised with the conviction that a man was only as good as what he could accomplish with his hands, and so he had always felt good, because he could do so much with his. After high school, he started out building furniture. Then he worked as a carpenter. But vinyl siding was what he loved completely. Cutting the metal. Measuring it out. Hauling it in his truck and completing a job worth being proud of, worth attaching his name to, and that was a promise he made to every customer after opening his company, Premium Siding, 10 years ago.
At the time, the county was in the midst of a steady and precipitous decline, accelerated by a recession that never seemed to end, and Premium Siding’s profits were barely enough for Stewart to survive on, let alone pay for health insurance. So already carrying two decades of work injuries – falling off ladders, getting shocked by hot wires – he would sometimes go to a community clinic that charged $35 per visit. Or more likely, he’d use a heating pad and try to think about anything but pain, until one day in the summer of 2013, when pain became nearly the only thing he could ever think about.
He can’t remember what he tried to pick up. He remembers only that he had been out at a work site, lifting and cutting 50-pound coils of metal. He remembers reaching for something that had barely weighed anything. He remembers the sharp, immediate pain, the sudden realization that his back might never be the same, and that, for everything he would ultimately lose, he had never even touched whatever it was he had reached for. The doctor would later say he had a compressed vertebra and a pinched nerve in his lower spine. But in that moment, it felt more stabbed than pinched – “vicious, terrible stabbing” – and he went home, to his bed, which was where he was, four years later, on another day of waiting, when an alarm went off.
Nine in the morning. Time for his medication. He turned on the lights – three bare bulbs – and saw again what his life had become, in this trailer he allowed no one to enter, not even his mother. He stumbled past the leather furniture that hadn’t been sat on since he hurt his back, and the NASCAR toy cars he carefully collected years ago, covered in a thick film of dust along one wall, and the kitchen countertop obscured by months of trash.
“Let’s just get it over with,” he said, looking at his bottles of medicine.
The pills made him drowsy, and he went to the only place he could still sit. The Ab Lounge, an exercise chair he had bought to strengthen his lower back but now used because it could recline just so, was where he conducted his affairs. There were empty peanut jars nearby, a stack of debts and a remote control, which he picked up. A science-fiction show came on, and he tried not to think about the bankruptcy papers he would soon need to file. Or the yard out back he could no longer tend to and had to poison. Or the utter sameness of his life, every day so much like the one before, that his memory felt increasingly blurred. Or that just about the only time his phone rang anymore, as it did at this moment, was when a bill collector called.
“Yeah? Okay,” he said into the phone, realizing it was only his mother, who was planning to use her Social Security check to buy him more medicine later that day. “That will work.”
He hung up and shook his head, unable to handle the shame of it anymore. He had promised himself that if he was denied again, he’d no longer accept his mother’s help. He’d let his pills run out, and his trailer go dark, and start drinking again. So much in his life depended on others now, from the television his brother had helped pay for, to the groceries delivered by his mother, who also took him wherever he needed to go, including on this morning to see his lawyer before his Social Security disability hearing.
“I just need silence,” he said, in the car, hoping that would calm him.
“I’m not used to all of this, Joe!” she said, giving him a weary look.
“I need – I need silence.”
The car went quiet, and Stewart waited for the anxiety medicine to take hold. For his hands to stop quivering. For the car to carry him past all of the payday loan shops and empty storefronts of Webster County to an office belonging to a lawyer who he believed could help him.
“Hugh Gibson Law, this is Samantha, can I help you?” the receptionist was saying to another caller.
On the other side of the counter, sitting on a thick-cushioned couch in the waiting area, was a thin man with gaunt features who grimaced whenever he shifted in his seat. Every now and again, someone at the office would ask him if he needed anything.
Water? Something to eat? Want to lie down?
The man tightened his grip on his cane.
“I want someone to shoot me,” he finally said.
“Hugh Gibson Law,” the receptionist said to another caller.
A few minutes later, Gibson, the most prolific Social Security disability lawyer in Webster County, a tall, garrulous 71-year-old who himself walks with a limp and a cane, came into the waiting room, glanced at the man on the couch and headed into the back of the office. Gibson had spent years witnessing the disintegration of people like him, marooned in a disability adjudication system that he still believed could be a force for good, despite everything. He started taking disability cases four decades ago, when claims in Webster County predominantly involved illnesses and car accidents. But then the factories that once powered the county’s economy closed, and more unemployed workers started applying, and the wait became longer and longer.
When potential clients now ask about applying for disability, Gibson tells them that it could be two years minimum before they get a judge’s decision, and that they can’t work while they wait if they want to be approved. They usually lose the car first, then the house. Next comes bankruptcy. Stresses accrue, marriages fracture, pains and illnesses mount, and some die right before their hearings, when the wait is worst, and when Gibson brings clients into his office to prepare one final time, clients like the thin man with the cane, Joey Sims, 36, now seated in front of him.
“Does he have a good case?” Gibson asked his assistant.
“He hasn’t been to the doctor but twice this year,” she said.
“A semi-idiot then,” Gibson sighed, knowing that the severity of a medical condition mattered only so much as what was documented, and not enough was documented here.
“If I had money to go see the doctors, then I wouldn’t need help,” Sims said, exasperated.
“Yeah, well, we have serious things to deal with to get you approved,” Gibson said, glowering, because it seemed that way with every case. If clients weren’t too young, then often there were drugs in their pasts. Or they’d return to the job after an injury and, even if they quit soon after, it would look to a judge like they could still work.
“I’ll do whatever you need me to do,” Sims pleaded, and Gibson began a routine he performs for all of his clients, the same one he did again the next day for an anguished woman in a back brace.
“You can’t just go in there and be an idiot,” he told her.
“They don’t pay liars,” he told her.
“See that shirt you got on? Don’t wear that,” he told her.
Gibson knew how terrible he must sound sometimes, hollering at clients, cutting them off, ordering them around, but he also knew what could happen if he didn’t. They could say something to a judge that would be innocuous in other circumstances – that they could drive, or mow grass – but could lead to a quick denial, which had been happening more often, as the disability approval rate among judges nationwide dropped from 73 percent in 2008 to 55 percent last year.
There were increasingly days when Gibson wondered whether it was time to scale back. After all, he was paid only if his clients won. Maybe the other lawyers were right, some cases just couldn’t be won. And that was how he was quietly beginning to feel about Stewart.
Outside Gibson’s office, Stewart held a stack of medical papers and, disoriented, tried to listen as his mother asked question after question.
“Are you taking those in there?” she asked of the documents.
“How long is this going to take?” she asked.
“Are you going to be okay?” she asked.
“Remind me to tie my shoes,” was all he managed to say, going inside the law office, shoelaces flopping this way and that. He took a seat in a back room, head full of doubts. If he couldn’t focus well enough to answer his mother’s questions, how was he going to answer the judge’s?
“Joe,” Gibson said, riffling through all 169 pages of his medical file. “Let’s go over what you do all day.”
Stewart didn’t say anything. His mouth was dry. He was still wearing sunglasses he’d forgotten to take off.
“What time do you get up?” Gibson asked after a moment.
“Around nine,” Stewart said.
“How many of [your medications] make you lightheaded?” came another question.
“Quite a few,” Stewart said. “About half.”
Another bad look came over Gibson’s face. He tapped his pen against the folder.
“Make no mistake, if you don’t do this well, you’re going to lose,” he said slowly. “You’ve got to speak up and tell him what is what and not be vague. ‘Sometimes.’ ‘A little while.’ ‘A little bit.’ ‘Not very much.’ ‘A whole lot.’ All those words. They don’t mean anything. They don’t mean anything. You might as well just open your mouth and close it. Because nothing comes out worse than those vague words. And I just want to grab people and slap them – wake up! You can’t just say ‘sometimes’ with a judge!”
“Lord, mercy,” Gibson said, telling Stewart that he could not have drawn a stricter judge. James Prothro had the 31st lowest approval rating among Social Security administrative law judges, according to a Washington Post analysis of every judge’s disposition record between January 2010 and April 2017. During that period, Prothro decided 2,610 cases, approving 27 percent of them.
Later, Stewart would get angry. He would think about all of the people he had seen in Webster County receiving benefits whose disabilities he considered milder than his, and wonder how they had gotten them, and why everything had to be so difficult for him. But at that moment he just nodded slowly, wanting to absorb everything Gibson said – stand to show he couldn’t sit for long; never say, “I don’t know” – until Gibson rose from his seat.
“You have a slim shot,” he said. “People sitting around the house, watching TV all day, they’re not used to talking, and I understand that. But I have to get you to talk. Tell the judge the things the judge needs to know. Can you do that, Joe?”
And then Stewart was back in the car, and he was rummaging for his anxiety medicine, and he was saying, “I need to put it in my pocket so I can remember to take it,” and he was going into a courtroom, and the door behind him was closing, and it was locking, and he was trying to stay calm.
Five-hundred and ninety-seven days.
One-hundred and sixty-nine pages of medical evidence.
How to condense so many years of physical deterioration, so many days of waiting, into one hearing? How to convince someone of pain, when no one can see it? How to remember to say everything that needed saying – the pills taken, the number of pounds that can be lifted, the distance that can be walked, the falls, the different doctors and their names?
So Stewart did his best to follow Gibson’s directions. He carried his back pillow into the courtroom. He stood when he felt pain. He was specific. He said, “burning in the chest.” He said, “I went to see my chiropractor, but they wanted $60, so I haven’t been back.” He said, “My mother, she’s tired of driving me around; she has other things to do.”
And he tried to look at the judge, to express with his eyes what he couldn’t with words, but the judge wasn’t in the room at all. He was sitting in front of a camera in another courtroom 65 miles away in another Social Security Administration building in Tupelo, Mississippi part of a government policy to work down the backlog by holding some disability hearings by video-tele-conference. Stewart heard the disembodied voice of someone whom Gibson called a “vocational expert,” whose role it was to use, among other sources, the government’s list of possible jobs, the Dictionary of Occupational Titles, last updated in 1991, to discern whether there was any work someone like him could do anywhere in the United States, regardless of pay, distance from his house, or whether he would be hired.
And then an hour had passed, and the hearing was over, and Gibson was saying, “Thank you, your honor.” Stewart, feeling dazed and unsure whether that was really it, sat for a moment, until he saw everyone else was standing. He got up. He collected his crutches and walked outside with Gibson, who was going on and on about the judge.
“One lawyer – a good lawyer – they had 13 cases with him, and they didn’t win a one,” he said. “Not a one.”
“Whether or not he’s going to pay you, I do not know,” he said.
“So we’ll wait and see. . . . You might not get a decision until February.” And: “It may be six months.”
Gibson said something about errands he had to run, shook Stewart’s hand and got into his bright red truck. And Stewart, now caught in another backlog of people awaiting a disposition after the hearing – which has doubled in the last year, from 35,000 claimants to 70,000 – watched him drive off, then saw his mother. She was in her car, waving at him to move it, so he climbed in and reclined the seat until he was nearly supine.
“Can I ask you a question?” said his mother, who had sat outside the courtroom but overheard something about a videoconference. “Was he in there?”
“Who?” Stewart asked.
“No, he was on TV,” he said, and she looked confused.
“Well, I’m relieved it’s over,” she finally said.
“It ain’t over,” he responded, and there was nothing else to say, so on they went to Webster County, through the endless rows of tall pines, past the houses Stewart had once worked on, stopping at his trailer. “There’s another day,” his mother said and pulled away, and he was alone again. The trailer was dark inside. He took his afternoon medication. He sat in his Ab Lounge. The television came on. The pills started to do their work. The 597th day was over, and the only thing left to do was to wait for the 598th to begin.