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Disabled workers in SC roll the dice when drawing judges to decide their benefits

Sick and injured workers face a brutal game of chance when they apply for federal disability benefits: their odds hinge as much on the judge they are assigned as on the facts of their case.

American workers give 6 percent of their paychecks to the Social Security Administration just in case they lose their jobs to injury or illness. But, in the end, it’s a government judge, not a doctor, who will decide whether a condition is serious enough to warrant benefits.

Allowed wide discretion with little oversight, judges come to wildly different decisions.

It's a consequential game of roulette, and it can take years for the wheel to stop spinning. Draw one judge and you’re all but guaranteed access to life-saving benefits. Draw another and you may have little chance at all.

Thousands of Americans every year will face a judge who operates in extremes, a Post and Courier analysis shows. Nationwide, some judges approve just 9 percent of the cases that come before them; others, as much as 96 percent.

This raises the risk that thousands of dollars a year are sent to people who don’t deserve benefits, while others who do deserve them are languishing in a backlog of rejections.

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Denise Kanyer reads over her rejection letter from the Social Security Administration at her apartment in Myrtle Beach. A judge denied Kanyer's application for benefits in August. Grace Beahm Alford/Staff

Draw one particular Charleston-area judge and the odds of winning benefits will be worse than almost anywhere else. That judge, Tammy Georgian, was the second-toughest in the country in the 2019 fiscal year, approving only 12 percent of her cases.

The Social Security Administration’s force of roughly 1,600 judges decides whether people are too disabled to work. Applicants want a monthly check and Medicaid or Medicare. But along with medical records, the arguments of an attorney and the pleadings of the individual, the judge’s worldview will play a pivotal role.

Though she is statistically extreme, there are dozens of judges who, like Georgian, rarely allow money to flow out of the government’s coffers. The agency has few policies in place to check its judges' decisions and rarely removes them from office. 

Often advised against working while they await an outcome, applicants are enduring poverty and progressive illness. For many, the hearing day is one of last hopes and desperation.

Leigh Roff, a 50-year-old Murrells Inlet resident, found out how much chance could have a bearing on her disability case.

After two years of waiting for a hearing with a judge, Roff finally got one in September 2018. Once inside an empty courtroom in Myrtle Beach, Judge Jim Scott appeared on a television screen.

From the bench in North Charleston, Scott said he was approving her case. Roff turned to her attorney.

“Is it over?”

Not quite. On Oct. 25, Scott died of lung cancer. He never had the chance to sign off on some of his final decisions, so Georgian, the office’s chief judge, had his cases reassigned.

Roff was going to the mailbox every day, waiting for the information about her new benefits to arrive. Weeks passed. She finally did get a letter, but it didn’t contain the benefits she had been counting on.

It said she would have to appear again, in front of a different judge.

This time, she was denied.

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Rick Roff comforts his wife Leigh Roff, who deals with chronic pain in her back and leg, in December in Murrells Inlet. Grace Beahm Alford/Staff

Who is Social Security for?

Two categories of people generally earn a check from Social Security. In South Carolina, 76 percent of beneficiaries are retired people, while 14 percent are disabled.

Disability benefits are funneled to Americans two ways: The Disability Insurance program, which pays an average benefit of $1,234, and Supplemental Security Income, which covers low-income workers and pays $551 per month on average.

To get those benefits, the federal government requires you to show that you haven’t been able to work for the past year, or that you will die from whatever illness you have. 

John Brooks, for instance, applied for disability benefits in September 2014, according to court documents. A U.S. Army infantry veteran who served in Afghanistan, he had been an aircraft assembler, a corrections officer and a truck driver, among various odd jobs. He asked for benefits for degenerative disc disease, anxiety, and arthritis in his knees and shoulder.

A South Carolina state employee reviewed the application. At this stage, he was denied — just like 65 percent of applicants in South Carolina. Most people don’t have a lawyer at this stage. He asked for a reconsideration. It takes, on average, 103 days to hear back.

In Brooks’ case, he got another no — just like 91 percent of people who ask for a reconsideration. So he asked to see an administrative law judge, a position held by former lawyers who are appointed by the Social Security Administration.

There was a long wait ahead, though. In fact, he waited 16 months before he saw one of those judges, a wait that ended up being a little less than average, given the immense backlog these courts face.

These administrative law judges, who are all lawyers appointed to the posts by Social Security, have the biggest backlog in the system on their plate. 

The judges aren't typically deciding the cases of people born with a disability, like autism or Down syndrome. They make decisions about people whose disabilities sit in a legal gray area.

At this stage, about three-quarters of applicants have hired a lawyer. Brooks hoped to draw a lenient judge. No dice: he drew Georgian, who approved a fifth of her cases that year.

Georgian and other judges are tasked with deciding if applicants like Brooks are able to hold down some type of job even if they can no longer perform the work they once did. That means at least being able to sit for six hours, stand for up to two hours and lift 10 pounds.

It’s a question a federal judge decided in 1984 “reasonable minds” can differ on.

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Leigh Roff looks over the paperwork collected for her Social Security disability claim. Roff was approved by one judge, but her case was reassigned after he died. Grace Beahm Alford/Staff

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An assortment of pain medicine is what allows Leigh Roff to handle her back and leg pain in order to do a few tasks around her house on Thursday, December 5, 2019, in Murrells Inlet. Grace Beahm Alford/Staff

Georgian found Brooks couldn’t perform his old jobs anymore. She thought he could do some other job, however, and so he was denied. This is the top reason people are rejected.

Brooks chose to argue that Georgian’s decision wasn’t reasonable. He went to Social Security’s Appeals Council first, which rejected him yet again.

Finally, Brooks and his lawyer, who is only paid if his client wins, filed a case in federal court, 19 months after he first applied for disability. Very few people will go this far. Many lawyers won’t take the case any further. The applicant has to show the judge’s decision was “in clear disregard of the overwhelming weight of the evidence.”

Brooks finally scored a victory another year later. A federal judge in Greenville sided with him, saying Georgian made mistakes in her decision. But as is most often the case, the judge kicked it back down to Georgian for a new decision, and another wait began for Brooks. 

Conflicts in a North Charleston office

In North Charleston, applicants’ chances of getting benefits have gotten worse and worse.

But just like every other office in the country, even if the average is low, your chances depend greatly on the judge you are assigned.

If you saw Judge Jim Scott in 2018, you had an 87 percent chance of winning. Dozens of cases like Roff’s were reassigned to different judges after his death, said Deb Julian, a hearing office employee who retired late last year.

In an interview with The Post and Courier two months before his death, Scott said he believed some judges viewed it as their responsibility to save the agency money. But judges, he said, aren’t supposed to be advocates for the Social Security Administration.

Even with his relatively high approval rate, Scott said it was challenging at times to watch people try to defraud the system.

"You have to guard yourself of personal prejudices and years of hearing people lie to you," he said. “Everybody's back pain is at a 10, not a six. They can't make toast, and yet you read their medical records where they just finished yard work last week at their mother's house. It's very hard not to get jaundiced in a way because if you do your job and review the files, you're going to find things that are sometimes inconsistent."

Scott preferred to give people the benefit of the doubt, when possible. But all those pages of medical records could also be used to draw a different conclusion.

Georgian, the chief judge in North Charleston, got a chiding from a federal district judge in 2017 when Brooks appealed her ruling. Georgian denied Brooks despite Veterans Affairs’ decision that he was 100 percent disabled because of his service in Afghanistan.

She disagreed with several VA doctors’ opinions of Brooks’ ailments, including his post-traumatic stress disorder diagnosis, in part, because Brooks had “'never witnessed the killing or death of another’ and he never ‘shot at anyone’ ” during his deployment.

District Judge Jacquelyn Austin wrote in a public opinion that Georgian’s conclusions were “not only disturbing” but also “an inappropriate attempt to make medical conclusions.”

Georgian declined to be interviewed for this article.

The regional Social Security office in Atlanta did not respond to written questions sent a month ago for this article.

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Katrina Pinckney received her notice of approval for Supplemental Security Income in late 2018. She reviewed the letter at her home on Friday, Oct. 4, 2019, in Walterboro. Grace Beahm Alford/Staff

She has been one of the toughest two judges in the country three of the past five years, approving just 12 percent of her cases this year. The national average this year is 53 percent. Her presence has shaken the small community of lawyers, judges and employees whose world is Social Security.

Disagreements between Georgian and Scott culminated in Scott filing an Equal Employment Opportunity complaint in 2018. In the complaint, obtained by The Post and Courier, Scott alleged that Georgian slow-walked his request to work from home more often due to his lung cancer. 

He felt he was being retaliated against for raising concerns about how Georgian’s leadership resulted in plummeting office morale and resignations of senior staff. The Equal Employment Opportunity Commission hasn't yet made a final decision in Scott's case.

But conflicts in the office, a blank brown building off Faber Place Drive near the Charleston County jail, have also affected people applying for benefits.

Will Parker, a disability attorney in Murrells Inlet, said he has considered dropping disability law as a result. He has practiced for 13 years, and said the denial rates in North Charleston have become “fundamentally unfair” to his clients.

Some attorneys have quit practicing in the area for the same reason, he said. Others advise their clients to drop cases and re-file if they’re assigned to Georgian in the hope that the applicant’s luck is better the next time around.

Sicker and sicker

People like Roff, caught in the middle of the conflict, watch months pass by as their conditions worsen. In 2017, more than 10,000 people died waiting for a hearing. 

Roff enjoyed horseback riding and water skiing in her younger days. She had her share of injuries, but she can't pinpoint exactly where her back problems started. She first heard she needed surgery to repair a herniated disc in 2012.

She was working and had two children; it was a problem for later. A surgery would disrupt her work at a physical therapy office, a profession she had held since 2006.

Her job behind a desk grew harder. Layoffs piled responsibilities onto her shoulders. Her back problems worsened. She had a compressed nerve in her spine and severe arthritis. She fidgeted and said she made it through the day only with prescription pain pills.

In 2015, her boss handed her a pink slip. They thought her performance had slipped. Roff disagreed. Rather than sign the paper, she quit on the spot. She tried to work as a restaurant hostess but found she couldn’t stand through the shift, and was let go after about four months. 

“I’ve done everything anyone could do to get better,” she said. “I can’t even sit and watch my son play football.”

After losing the hostess job, she went online and applied for disability, seeing no other options. Rick, her husband, said she is comfortable maybe one afternoon a week.

The stress of waiting built. Roff had surgery to fuse her spine in 2017. The recovery was long, and, while it solved some issues, it seemed to create others. Relief came when Scott approved her case in late 2018.

But when he died, the office sent her case to a judge who approved about a quarter of his cases — well below average. When Judge Edward Morriss, another official in the North Charleston office, heard her case, he noted Roff had “retained full strength” in all her limbs, which Roff said is not true. Roff said he also referenced a surgery she never had.

“There is no way he paid attention to or read the medical record,” she said.

The records she submitted totaled roughly 400 pages.

Morriss cited Roff "caring for her 10-year-old son, making simple meals for him, performing household chores and shopping as well as gardening" as evidence she could still work. Roff said she can't always drive her son to school because of her discomfort.

Roff took her first job at 15 at a gas station in Virginia, and worked ever since, always paying taxes to fund the Social Security benefits she never wanted to need. Now, the monthly disability check would help with bills.

She has had 15 MRIs in the last two years, one son in college and another in middle school.

Still, she would rather be working.

The benefits would be much more money coming in than a Social Security check.

Her lawyer thinks she has a good shot at an appeal.

The whole process has been the most traumatizing thing she’s ever been through, she said, worse than childbirth, surgery and even the ailment itself.

"You can’t rely on the system to treat you fairly and give you a competent hearing," Roff said. "I feel like they’re playing a game with my life."

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Denise Kanyer shoves her basket of folded laundry down the hall with her foot as she finds different ways to do ordinary tasks because of her back pain. Grace Beahm Alford/Staff

Denise Kanyer, a 56-year-old Myrtle Beach resident, said degenerative disc and joint disease keep her from working. She said she has depression and anxiety, as well as post-traumatic stress disorder stemming from the deaths of her daughter and grandchildren in a 2006 car crash.

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She didn’t have a job, so without an income and medical bills piling up, Kanyer filed for bankruptcy in June 2017. She applied for disability just a few months later.

At the time, she owed $27,000 more than she had to her name, mostly to hospitals, medical offices and credit card companies. Kanyer said that during a hearing with Georgian, the judge didn’t ask any questions.

Georgian did reference Kanyer’s Facebook page. Later, she wrote in a decision that because Kanyer used Facebook and played video games, she could hold down a job.

“These activities require the ability to use a computer, understand news and stories read on Facebook, understand plotlines and remember characters and current events,” Georgian wrote.

In her first-floor apartment, Kanyer struggles to walk. The refrigerator isn’t stocked below hip-level. Neither are the kitchen cabinets, and she doesn’t use the dishwasher.

Georgian found she was partially disabled. But she denied Kanyer, in part, because she had an income: about $17,000 from a state program to take care of her ailing mother, a few thousand dollars more than what is allowed by the agency in order to qualify.

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Denise Kanyer went bankrupt from her medical bills after  back pain from degenerative bone disease and two collapsed discs left her unable to work. Grace Beahm Alford/Staff

Since her denial, Kanyer has been spending most of her time in bed. It seems she is biding her time, waiting for years to pass and Medicare to kick in.

Recently, she was diagnosed with early-stage rectal cancer, adding to her bitterness and anger over being denied. She re-applied for disability Dec. 3, meaning she had to start the process over from the beginning.

“I've been doing this for so many years,” she said. "It's getting old."

Outlier judges

Though Social Security has a set of guidelines its judges are directed to follow, an analysis by The Post and Courier shows outlier judges are consistent in their behavior. Georgian has never approved more than 20 percent of her cases in her five years on the bench. Some consistently approve close to 100 percent.

How judges voted over the last decade

In South Carolina, judges' approval ratings varied dramatically over the last decade.

Above, each vertical line reflects a single South Carolina judge’s average approval rate, from 0% to 100%, for disability claims in the last decade.

Explore the national data set below.

Because they deal in private health matters and aren't elected, administrative law judges operate behind closed doors and there is no way for the public to evaluate their decision-making process in cases. The Post and Courier requested information on Nov. 5 about how many cases each local judge saw reversed by a higher office; the agency has not yet provided documents in response to the request.

Barbara Powell, a judge who retired this year in Texas, approved as few as 21 percent and as many as 42 percent of her cases since 2010. She was often a statistical outlier.

Powell said she viewed her job, in part, as a steward for the Social Security Administration. She saw many orthopedic and psychological cases. She found mental health disabilities hard to approve because she could imagine job possibilities for those applicants.

She said denying cases takes more time and requires a meticulous hand. The judge has to show in their decision what evidence supports denying the case.

Judges who deny many cases set themselves up for ridicule, Powell said. If she did reject someone, she said it was because they truly didn’t meet the standards. And if the agency wanted more conformity in its judges’ decisions, she said, it could tighten the rules.

“It was never my thought to cheat anyone out of disability who was entitled to it,” she said.

Social Security has made strides in the past few years to give judges more feedback and training. Still, it could strengthen its oversight of judges and better enforce its own policies, the Urban Institute found in a report published this summer.

For instance, the Office of the Inspector General wrote in a 2017 report that Social Security launched a tool in 2014 to give judges feedback, but doesn't require its judges to use it.

Scott said it is rare for Social Security to remove a judge, and it most often happens in cases of misconduct. Social Security's commissioner in 2014 told Congress the process to fire a judge "lasts years and can consume over a million taxpayer dollars." 

During the Great Recession, amid a wave of new applicants to the system, Congress pushed the agency to crack down on judges they felt were approving too many cases, said Kathleen Romig, a policy analyst at the Center on Budget and Policy Priorities, a nonprofit in Washington, D.C.

Federal data shows 91 judges were approving more than 90 percent of their cases in 2010. Six did this year. The highest approver of the year is Ollie Garmon, in Atlanta, who green-lighted 96 percent of his cases.

One judge, David Daugherty, made national headlines for approving 100 percent of his cases. Later, he served prison time for taking kickbacks between 2004 and 2011 from an attorney to green light the lawyer’s clients.

But, in the meantime, judges who deny many people are only more common.

“SSA really cracked down on the high allowers, but they didn’t crack down on the high deniers,” Romig said. “There’s a clear signal they want you to deny cases.”

It is not the only portion of the process left up to chance.

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Katrina Pinckney, who has lupus, fought for six years to be awarded her Social Security benefits. Grace Beahm Alford/Staff

How disability looks

For Katrina Pinckney, winning benefits turned out to be about the lawyer she picked.

With her bright disposition, it was months before she discovered in 2010 the source of her pain was lupus of the kidneys. Doctors seemed unconvinced of her symptoms.

Pinckney, who is 44, finds it difficult to persuade anyone she is disabled, judges included. She is young, pretty and on good days seems healthy. Yet she couldn’t hold her children or take them to the beach. Pinckney felt like she was being punished for pulling herself together.

“What do sick look like?” she said. “I’m sick, but I don’t let it make me down.”

Pinckney’s doctor, who had treated her more than anyone else, wrote that she could not sit still for even 15 minutes, and his patient should be considered “totally disabled,” according to federal court records. But an administrative law judge gave “little weight” to that physician’s opinion, arguing his notes over two years of treatment were inconsistent.

Pinckney’s road to winning benefits took six years.

Pinckney happened upon one of the few lawyers in the region willing to take cases as far as they can go. Bea Whitten is one of five or six attorneys in the state who regularly represents clients denied by an administrative law judge.

Whitten even stuck with Pinckney when she was denied a second time.

Federal Judge Richard Gergel decided on June 22, 2017, that Pinckney deserved a different decision, writing her treatment notes were taken out of context. The proof the lower judge offered was “highly misleading and designed to support a preordained result,” Gergel wrote.

But that meant Pinckney had to wait again for another hearing, and again, she was denied.

Hoping to make a personal plea to Gergel, Pinckney called his office and asked to speak with him. But a secretary didn't patch her through.

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Katrina Pinckney and her mother make lunch on Friday, Oct. 4, 2019, at their home in Walterboro. Since contracting lupus, Pinckney has often not been able to leave the house. Grace Beahm Alford/Staff

So Pinckney wrote Gergel an email imploring the judge for benefits. She said she wasn’t making her lupus up, that her body hurt, and that while he sided with her in 2017, the decision had done her no good.

“Peace and love, always, Katrina,” she signed the email.

Gergel awarded her the benefits soon after, in late 2018.

“He must have gotten the message,” Pinckney said. “It felt like I hit a million dollars.” 

Pressure from the top

Social Security’s disability program has frequently had a target on its back for long wait times. Its goal is to reduce the wait-time for hearings to 270 days.

In North Charleston, the wait to see a judge peaked in the 2018 fiscal year at 684 days. It fell to 495 days this year. Part of the reason: Fewer people have been applying to get into the two programs, both in South Carolina and across the country. That trend usually coincides with a healthy economy.

Social Security does not pay the judges differently based on how many cases they approve or deny, though it does encourage judges to wrap up cases quickly.

Administrative law judges average about 400 decisions per year, far more than one per working day. Each case can have hundreds of pages of medical records attached.

They also carry the weight of potential fraud on their shoulders. A Louisiana man, for example, pleaded guilty in November to taking $457,460 in overpayments. He had neglected to tell Social Security about a pizza shop he owned and his job as a commercial truck driver.

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Denise Kanyer is wary of prescriptions and doesn't want to take opioid pills to manage her pain. Without health benefits, she relies on over-the-counter medicine and samples from her doctors. Kanyer has been trying to qualify for Social Security disability benefits for years but has been turned down. Grace Beahm Alford/Staff

An audit by the Inspector General earlier this year found $46.9 million in payments to people who were using multiple Social Security numbers.

Julian, who had worked at the North Charleston hearing office since 1994, said the agency seemed to want fewer cases approved over time. Julian, who retired late last year, said she watched “denial after denial.” The percent of people winning benefits in the North Charleston office fell from 61 percent in 2010 to 43 percent in 2019.

“Some people were clearly disabled and they denied their cases,” Julian said.

Meanwhile, Social Security has closed more than 100 offices since 2010. Julian said, a few years ago, the Columbia office fell behind on its caseload. Nearly 2,000 files were transferred to North Charleston. It took more than a year to unclog the backup. 

Social Security has also lost 212 employees in South Carolina since 2011, adding to the pressure on every employee, including judges, according to Social Security Works, which advocates for expanding the benefits program.

Nancy Altman, president of Social Security Works, said chronic underfunding of the agency has contributed to the long wait times people experience. Fewer resources mean applicants who need help are often shortchanged. Altman said there is little cause to hold back funding, given the trust funds have built up a $2.9 trillion surplus.

Social Security’s trust fund will be funded through 2035, meaning benefits won’t start to drop until then, according to the Social Security and Medicare trustees. Because it is funded through payroll taxes, Social Security programs don’t contribute to the national debt

Beneficiaries depend heavily on the program, Altman said. Research from Social Security shows about one-fifth of all disabled workers and their families are poor; without the disability program, nearly half would be.

“By definition, these are people who cannot support themselves through work,” she said. “There is essentially no money coming in.”

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Deborah Moore winces as Dr. Scott Lloyd finds the spot in her knee that is hurting her at the Medical University of South Carolina campus in North Charleston on Thursday, October 3, 2019. Grace Beahm Alford/Staff

Taking her chances

For many, poverty heightens the stakes of this disability lottery, as was the case for 61-year-old Deborah Moore.

The oldest of six children, Moore started working when she was 16 in West Virginia. After moving to South Carolina, she managed two Shell stations in the Ladson area.

A survivor of domestic violence, Moore enjoyed having her own domain to look after. She was proud to run the store right.

In the 1980s, an encounter with her abuser dislodged her stomach, causing life-long health problems. Later, she developed severe neuropathy and arthritis. She needs regular injections in her knees so she can walk, but still uses a cane.

Then, she had a massive heart attack on Independence Day in 2012 and had no insurance to help with the bills.

She applied for Supplemental Security Income a few months later. A judge denied her, and her lawyer dropped the case. Moore figured that was the end of the road.

Without benefits or an income, a local program called Access Health helped her find doctors willing to give her a break on the bills. Years passed.

Then she saw an ad for Bea Whitten’s firm on television, and hired her. Whitten won the case for Moore on appeal in late 2017. The victory did nothing to alleviate her pain, but the $771 monthly check meant she could finally start crawling out of debt.

After the apartment she pays $300 to share with two other people, $150 in utilities, $40 monthly in medicine, plus groceries and toiletries, there isn't much left over. She feels guilt over her monthly indulgence: a trip to the movies and a bag of popcorn.

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Deborah Moore visits Dr. Scott Lloyd at the Medical University of South Carolina in North Charleston on Thursday, October 3, 2019. A program administered through Roper St. Francis called Access Health helped Moore find and pay for Lloyd, a primary care doctor she highly values. Grace Beahm Alford/Staff

Angie Jackson contributed to this report.

Clarification: This article has been updated to reflect that people born with disabilities may be eligible for Social Security benefits. 

Reach Mary Katherine Wildeman at 843-937-5594. Follow her on Twitter @mkwildeman.

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