Response to the National Review’s Attack on Binder & Binder

Today, the National Review published a partisan attack on the organization Binder & Binder, and collaterally on the Social Security Disability system of benefits, in an article titled Binder on Binder & Binder.

Notice that I called Binder & Binder an organization and not a law firm. This is by choice as it is not really a law firm. It is an organization of disability advocates, all of whom are not attorneys.  That is why they call themselves “National Social Security Disability Advocates” and not “A National Social Security Disability Law Firm” or “National Social Security Disability Attorneys”.

In any event, I just want to be clear that I am not writing to defend Binder & Binder.  My goal is instead to correct many factual inaccuracies from Ms. Melchior’s article.

The very first sentence of the article is ridiculous. “The Social Security Administration pays an awful lot of money to people who aren’t — and never claim to be — disabled.” At first glance the author wants you to believe that she is talking about claimants that are not really disabled, but she is really talking about the claimants’ representatives. How clever.

The next sentence is equally absurd and inaccurate: “When a person applying for disability secures a legal representative, then is successfully awarded benefits, the lawyer or advocate who helped him gets a generous cut of the money, paid directly from the SSA’s disability fund.” What a painful sentence to read. How do I dispute thee? Let me count the ways. First, a legal representative can receive no more than 25% of the claimant’s past due benefits.  If the claim is won very early in the application process, then the fee can be very, very small.  I have had initial claims approved where the 25% attorney’s fee is less than $100.00. I have had claims where the fee is a couple hundred dollars. I have handled many claims that were won so early in the process that there were no past due benefits and thus no fee (25% of $0.00 is $0.00)!  Earning no fee for hours of work on a claim does not make a firm profitable, but that is the agreement we made when we took the case.  Second, the fees are capped at $6,000.00.  Thus, an attorney is not getting wealthy on any one claim (compared say to no cap on a fee in a mass tort action).

Third (yes, this one deserves its own paragraph), the fees are not paid directly from the SSA’s disability fund. They are paid out of the benefits that are due and owing to the disabled claimant for all the time during the claimant’s application and appeal period where the claimant should have been receiving benefits all along.  Thus, the claimant is paying the fee out of his or her own resources.  Ms. Melchior’s article would be more accurate if the fees were paid from the Disability Trust Fund in addition to payment of all the past benefits directly to the claimant, but that is simply not the case.

Ms. Melchior’s article argues that representatives are the root cause for increasing disability rolls. However, there is zero empirical evidence to support this theory. In an article titled Trends in the Social Security and Supplemental Security Income Disability Programs, Social Security itself references various factors for the increase in disability beneficiaries: “Many things have changed that alter the direct relationship between the size of the population and the size of the disability rolls: the change in the age distribution due to the baby boomers, the health of the population, improvements in medical treatments, economic circumstances, and changes in disability policy, to name a few.” Nowhere does it say that disability attorneys or representatives are the reason for more claims.

She continues, “And during the recession, disability became a good option for many with a plausible ailment who couldn’t find regular work.” The problem with her tone in general and this sentence in particular is that she assumes a claimant can receive disability if any little thing is wrong with them.  This could not be farther from the truth.  The Social Security rules and regulations define disability as the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. This is a far step removed from “plausible ailment”.

Next, Ms Melchior states, “Meanwhile, a Senate report last fall found that one-fourth of Social Security’s disability benefits were improperly awarded.”  No. It didn’t.  She is talking about the “Coburn Report” titled “Social Security Disability Programs: Improving the Quality of Benefit Award Decisions“.  The Report focused on a small sample size of 300 disability claims from only three counties in the entire country.  Let’s put that in perspective. In 2010, there were 2,838,485 determinations at all levels of adjudicative review.  Thus, the sample size is only 0.010569018% of all outcomes from a recent year.  The report itself states that this is statistically insignificant and cannot and should not be extrapolated into a nationwide rebuke of all claims: “While the resulting findings cannot be statistically extrapolated into a nationwide analysis of SSA disability cases,the same types of issues affected decisions across all three counties, suggesting they may be a factor elsewhere in the nation.” (page 3 of the Report).

Moreover, the report did not find that one-fourth of the 300 claims evaluated were improperly awarded. Instead, the report states, “The investigation’s review of 300 disability case files found that more than a quarter of agency decisions failed to properly address insufficient, contradictory, or incomplete evidence.” What’s the difference between what the Report is saying and what Ms. Melchior says it is saying? The Report is not saying these claims were improperly awarded; it is saying that the agency purportedly failed to properly address the evidence on record in the claim.  With a “proper assessment” of the evidence, these disputed claims could still have been awarded benefits. The decisions could have been made indisputable approvals with more time and more care devoted to the decision writing. In other words, this 25% in dispute could be reduced to zero if each claim were properly analyzed and written (given unlimited time to evaluate them).

Ms. Melchior takes umbrage with Judges who high grant rates in claims. I recently posted on Judges at the other end of the spectrum. Those who have very low grant rates. In fact, 26 judges on the list have grant rates of less than 20%.  There will always be judges at both ends of the approval spectrum.

In short, it appears Ms. Melchior’s dispute is with how the agency handles claims. If so, she should try to effectuate change in how the laws are written and not on attorneys representing the claimants.

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