Deadly Delay: Whistleblower alleges misconduct, incompetence in Social Security office

M.D. Kittle
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Posted: May 04, 2016 6:01 AM
Deadly Delay: Whistleblower alleges misconduct, incompetence in Social Security office

A WATCHDOG.ORG EXCLUSIVE

MILWAUKEE – A federal employee who brought to light claims of incompetence, misconduct and long case delays at the Milwaukee Office of Disability Adjudication and Review says management is retaliating against him for blowing the whistle.

Ronald Klym, a long-time senior legal assistant for the administrative law judges that ultimately hold the power of granting or denying Social Security disability benefits, tells Wisconsin Watchdog things got rough for him in recent years – after he alerted senior officials and, later, lawmakers about a litany of management problems at ODAR.

“Absolutely. I am being punished because I am a whistleblower,” said Klym, who alleged harassment, additional work assignments and unreasonable deadlines.

Waiting game

According to emails obtained by Wisconsin Watchdog, the agency has recently racked up the same kind of processing delays spelled out in an internal audit 13 years ago.

The Social Security Administration’s backlog for disability benefits is no secret. It tops 1 million, according to a report last year by the agency’s watchdog.

Photo by Social Security

1,000 DAYS: Internal documents show processing times of more than 1,000 days for appeals hearings in Social Security Administration disability cases.

As of October, the national average time to process disability claims was up to 450 days, according to Inspector General Patrick O’Carroll Jr. He described the number of pending cases as the largest in Social Security’s history.

Milwaukee’s backlog is even longer, according to internal documents.

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.

For the period ended March 25, the average wait from hearing request through disposition of the case was 601 days, according to internal documents. That’s nearly 20 months. It’s up to 618 days now, according to a Social Security Administration official.

But records show 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.

On July 11, 2011, 305 of the oldest 600 cases were in Green Bay; 203 of them were in Marquette, Mich., and 62 of the cases came from Sault Ste. Marie, Mich.

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,” said Jessica Bray, partner at Upper Michigan Law in Escanaba, Mich. 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.”

In 2011, the inventory for the Milwaukee region’s disability claims appeal office was at approximately 2,200 cases; today it’s running at about 12,000, Klym said.

Doug Nguyen, communications director for the Social Security Administration Chicago region, a six-state region that includes Milwaukee, said the agency acknowledges that Milwaukee ODAR has a “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,” he said.

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. “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.”

He said as much to a superior, in an email to Nicholas J. Schwalbach, a general attorney at the Milwaukee office.

“Due to the delays their equality of opportunity to appeal an Agency decision, in the manner legislated, and to be implemented by SSA, was hampered. The shared delay of claimants from one part of the country identifies either a failure in the system, or a case of grossly arrogant malfeasance,” Klym wrote in the Oct. 15, 2015 email. “As the instance of the delays are not ubiquitous in the SSA management of caseloads, the obvious conclusion is that the willful actions of certain employees have violated the procedure of Title 2/16 accessibility, and hence their civil rights.”

‘Major problems’

Milwaukee’s disability claims office has been down this road before.

In 2003, an internal audit found “major problems” with the way Social Security disability claims were processed, according to the Milwaukee Journal Sentinel. That audit was kept from the public.

“The (internal) audit (obtained by the newspaper) found more than 1,400 backlog cases at the local office and other telling signs of disarray,” the piece, published on June 17, 2003, stated.

“Attorneys who have represented people before the agency said delays at the Milwaukee office of hearings and appeals were so severe that some people with serious medical problems waited two years or longer for a decision and sometimes die before they were scheduled for one,” according to the story.

The more things change, the more they stay the same, according to David Dreis, an attorney who operates the Disability Benefits Law Center in Milwaukee with his daughter, Leah A. Drexler-Dreis.

Dreis, who told the Journal Sentinel in 2003 that he represented eight people who died in a six-week period while waiting for their disability payments to be approved, told Wisconsin Watchdog that he’s seeing average wait times of about 20 months for appeals hearings.

Social Security disability claims review is generally a first-in, first-out proposition, but there are mitigating circumstances. Dire cases, petitioners who are gravely ill, homeless, or suicidal, are often moved up in the queue, but there are few exceptions to the rule.

“If you are looking at close to three years from the application of benefits and a hearing that some have to wait before they get approved, that can be a great hardship for people who have significant health problems or who are depending on others to help them get by,” Dreis said.

Bray, whose Michigan firm represents 100 to 150 Social Security disability clients each year, said two recently died waiting for benefits. She called it a catch-22. Applicants must show medical need in order to be approved for the benefits.

AP file photo

‘CATCH-22’: The long delays in the Social Security disability review system create a dilemma, legal experts say. Applicants must show their medical needs for disability, but some lose health care while waiting for resolution of their disability claim appeal.

“It can take so long to process and appeal their claims that they no longer have medical insurance, so they can’t get the medical care they need to prove their case at the hearing,” the attorney said.

Dreis doesn’t claim there is anything nefarious about the lengthy process, but its impact on people living on the margins cannot be denied.

“I certainly would say there’s a significant delay at several points in the system,” Dreis said. “It is a very long time. What’s causing it are a lot of variables. There’s a lot more people in the system, Social Security has budget issues, and who knows what else?”

Shell game’

Klym has seen the system from the inside, and he asserts it’s more than just budget cuts and an influx of would-be beneficiaries choking the system. He said the big problem is incompetence and malfeasance from within.

He calls it a shell game.

Klym said 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.”

Klym said there are several people in the region who are aware of the practice.

Bray certainly is.

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.

Klym said he sent his concerns to the office of U.S. Sen. Ron Johnson, R-Oshkosh. Asked about the matter, Deputy Chief Administrative Law Judge John Allen informed Johnson’s office that the Milwaukee numbers, at the time, were on par with national averages, Klym said.

“His answer didn’t address the fact that there was a 388-day average in Milwaukee but that other localities were being delayed almost three times the average,” Klym said.

Cost of whistleblowing

Klym said he has paid the price for blowing the whistle.

Emails show the legal assistant was expected to carry a greater workload than his colleagues. He was assigned additional work and given what he described as unreasonable case deadlines in the wake of his complaints to management.

“(I)t appears Mr. Pelot is in his actions and directives, retaliating against an employee who contacted a member of the United States Senate,” Klym wrote to in a letter to Deborah Giesen, regional attorney at the Social Security Administration in Chicago. Klym referred to Trevor Pelot, supervisor of the Milwaukee ODAR office.

“As I am the employee who made allegations with regards to over 500 civil rights violations, under Trevor Pelot’s direction of dockets in Milwaukee, retaliatory action is quite conceivable,” Klym wrote.

Reached at the Milwaukee office Monday, Pelot referred Wisconsin Watchdog’s questions to SSA public affairs officials.

Pelot, the supervisor of the ODAR office’s dockets, whose name is on the backlog reports and the case transfers, has been promoted to office director. He began his new post on Monday, according to Klym.

Klym said he believes the promotion was a reward for artificially improving the Milwaukee office’s disposition rates.

Photo by PlanetXnews.com

‘RETALIATION’: Whistleblower Ron Klym said he is being retaliated against by supervisors for exposing incompetence and misconduct inside the Milwaukee Office of Disability Adjudication and Review.

“Mr. Pelot was promoted after all of these issues, after they were made aware of the complete report,” Klym said. “Upper management has received this report three times since Sept. 2, (2015).”

Meanwhile, Klym has been suspended for conduct issues, including 10 days last September for destruction of agency property. He was accused of breaking his workstation keyboard. Klym said the flimsy equipment fell onto the floor and broke apart.

He said within 18 hours of his email to the SSA attorney about the case backlogs, two inspector general officers “were investigating me over a broken computer.”

Klym was at home in his pool when the agents came calling.

“They took me out of my pool and asked me questions for an hour and a half, and they requested to search my apartment,” he said.

He was suspended again this year, this time for 14 days, for failing to make changes to cases after they had been sent on. But Klym said the standards his managers applied to him were not published in the office operational handbook until well after the alleged mistakes occurred. In short, Klym said he was again held to a standard not universally applied in the office.

And Klym said he has struggled to obtain fair representation from his union, the American Federation of Government Employees. He said his claims of a hostile work environment were handled by an AFGE headquarters-appointed union representative who, in the chain of command, works directly for Klym’s supervisor.

That union steward is now accused of harassment. Klym alleges the union representative made a racial slur about him and made sexually inappropriate comments about his friendship with a colleague.

Social Security Administration Harassment Prevention Officer Deborah Giesen sent Klym an email saying the agency had received his harassment complaint.

“Our agency takes complaints of harassment seriously and will not tolerate harassment of any kind,” she wrote in the late April email, one month after the complaint was filed. “Following a review of your allegations, I will notify you whether a more detailed investigation is necessary.”

Asked about the allegations, Nguyen said the agency cannot publicly speak to them because they are “internal personnel matters.”

Fixing the ‘crisis’

The spokesman said the Social Security Administration is working to reduce the wait times. SSA has developed what it called the CARES Plan – Compassionate and Responsive Service.

“We build our CARES plan around two independent components: people and quality – engaged, well-trained people providing quality service,” Nguyen said. The initiative includes “four broad categories of drivers that will propel our efforts to address the crisis at the hearings and appeals levels.”

“Our success is critical to the people who have been waiting for an answer from us,” he said.

The agency’s primary goal is to hire more administrative law judges, increasing the total number to as many as 1,900, an increase of about 400 from fiscal 2015, Nguyen added.

“In FY 2015, we hired 196 ALJs and plan to hire an additional 250 ALJs in FY 2016,” the spokesman said.

Identity breaches

Klym, who has been with the agency for 16 years, points to some of the high-profile cases of incompetence and malfeasance within the Milwaukee ODAR office.

In 2007, the confidential files of several Wisconsin residents applying for Social Security disability benefits were lost for months after a staff member took the cases home to work on them.

“In addition to private medical information, the files include Social Security numbers, addresses and phone numbers of family members, dates of birth and work history — all of which could be used by identity thieves,” the Milwaukee Journal Sentinel reported.

At the time, SSA allowed employees to take home confidential files under its Flexiplace program.

“The employee who took the files home was cleared of any wrongdoing but is no longer allowed to work at home, according to James Marshall, president of the American Federation of Government Employees, Council 215, which represents 5,000 hearings and appeals staff nationwide,” the newspaper reported.

Klym said the employee in question was no rank-and-file staff member. He alleges the internal record has been changed to reflect that the employee was in fact an administrative law judge who took home and lost the confidential files.

In another email, Klym reported to a supervisor that an employee who had passed away in 2012 and had not been present at the office since 2010 “came back to update (a) case 2 ½ years after her death.”

“Either she should be given an award for her posthumous efforts, or perhaps someone should inform her family that her identity is being compromised,” Klym wrote to a supervisor. The supervisor thanked him for catching errors.

Once a whistleblower …

Klym is no stranger to the whistleblower role.

In 1999, as a communications staff member in the Milwaukee IRS office, he was demoted multiple pay grades and transferred to another department a few weeks after he reached out to the U.S. Treasury Inspector General for Tax Administration. Klym had complained about alleged management misconduct.

The IRS and Klym subsequently attempted to negotiate a settlement of his complaint and to reinstate him to his former position, according to a story in the Milwaukee Business Journal.

Klym said that contrary to what the IRS told the publication, he was eventually put into a “dark corner,” prompting him to take a “low-grade job at ODAR.”

Klym said he has heard rumors around the ODAR office that his position could be terminated at any time. He doesn’t expect that to happen, however.

“They would have fired me already if they knew I didn’t have anything on them,” he said. “I’ve been a pain in their ass for years.”