Binder on Binder & Binder

by Jillian Kay Melchior
A disability lawyer profits off his radical political ideas.

The Social Security Administration pays an awful lot of money to people who aren’t — and never claim to be — disabled.

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. In the first six months of 2013, the SSA has already forked over $642.6 million to these claimant representatives, who have a significant financial interest in getting people on disability.

But these lavish payments to advocates come as Social Security’s disability program suffers from an indisputable money problem. The fund is projected to run a $75 billion cash-flow deficit this year. It could well go broke by 2016, according to an assessment by the program’s own trustees, as well as the Congressional Budget Office.

That there’s big money in getting people on disability is the natural result of both warped political ideology and warped financial incentives. That much becomes apparent after a reading of Charles E. Binder’s recent book, Social Security Disability & You, which would more appropriately be entitled Social Security Disability, You & My Very Fat Wallet.

Binder & Binder is essentially the kingpin of disability law. In 2010 alone, the firm raked in $88 million by representing disability claimants, and its TV and mass-transit ads are ubiquitous.

Charles Binder, the firm’s co-founder, has written a rotten little book, and its unintentional theme is “cause and effect.” Binder begins by explaining his insidious political ideology in the folksiest of language. And the rest continues as a how-to for getting benefits and living off the American taxpayer.

Tangentially, you’d think a firm rolling in bundles of disability cash would be able to afford proper book formatting. If you thought this, you’d be wrong. You read it and weep, both for the content and the typographical eyesores scattered throughout.

Binder can’t help but reveal his radical political stance. He’s weirdly nostalgic about the pre-industrial days of subsistence farming. “A worker’s production went directly to himself and his family,” Binder writes. “There was no outside force influencing his profits; he kept what he made.” But in the modern market economy — which, by the way, has lifted untold millions out of hand-to-mouth living — “workers were now at mercy of the large ‘market’; their security was no longer their own responsibility.”

If people can’t be held responsible for their own well-being, the role of government is to shelter them from any personal misfortune, however slight. As Binder recounts it, when Franklin D. Roosevelt signed the Social Security Act in 1935, he “cautioned at the time that this new Social Security program would not protect everyone against everything but it was an important step in that direction.” (Emphasis mine.)

If you accept that, the next logical step is that as many unfortunate people as possible should promptly get on the government rolls.

And, as it turns out, that’s precisely what’s happening. Binder is delighted that today one in seven Americans receive some sort of Social Security benefit. “All told, nearly $4.5 trillion (that’s $4,500,000,000,000!) has been paid out by the fund,” he notes. Retirees get most of that, of course.

But other reports show how disability claims have spiked. Eleven million Americans now collect federal disability, the Social Security Administration found this spring. The number has increased for nearly 200 months straight. And during the recession, disability became a good option for many with a plausible ailment who couldn’t find regular work. From 2007 to 2011, the number of disability beneficiaries increased a whopping 20 percent. Meanwhile, a Senate report last fall found that one-fourth of Social Security’s disability benefits were improperly awarded.

Binder explains how the government defines a real, awardable disability: You must have some impairment that prevents you from performing any job whatsoever in the American economy that could support you.

And then things get fuzzier. “It would be great,” Binder writes, “if Social Security would just grant benefits to everybody who told them a true story about their disability.” That story may well be premeditated: Binder notes that “so much can be done before the question of disability comes up, even when you are perfectly healthy.” He doesn’t elaborate much on that, but his book is full of what he terms “good, well-tested pieces of advice,” reminding the reader that “these are not tricks.”

Among this repertoire of suggestions: When it comes to determining whether you’re capable of sedentary office work, “remember, sitting in a lounge chair with your feet up is not ‘sitting.’ Sitting means sitting in a work setting on a regular work chair. We doubt you were allowed to work with your feet up.” As for prospective claimants who might be capable of participating in some limited way in the workforce: “The only sure-fire way to pass [Social Security’s guideline for whether or not you can work] is to be doing no kind of work at all — no part-time work, no under-the-table work, no volunteer work, nothing. That doesn’t mean you couldn’t get away with a little work . . . but you’d be taking your chances.”

Binder makes the perfunctory statements about disability fraud, noting that they “take money away from the people who truly need it, and that is more unfair than anything.” While he does caution applicants to always answer truthfully, he also coaches them to “answer only what the [administrative law judge] asks.” (His emphasis.) And given Binder & Binder’s documented history of withholding relevant medical evidence that might hurt a client’s claim, that stance becomes more ethically questionable by the moment.

Granted, Social Security has some checks in place to keep people who aren’t really disabled from getting on disability. (Whether they are effective is a subject for another article.) But Binder seems to resent the existence of any precautions that might prevent any of his clients from getting on disability.

He laments that Social Security would require applicants to see a doctor of the government’s choosing to double-check the veracity of medical claims: “We may be cynics but most [doctors who perform consultative examinations for Social Security] seem to remember who pays for the examination.” In other words, how dare Social Security demand a second opinion before giving out a disability award with an average lifetime value of around $300,000?

Binder is also critical of many administrative-law judges who rule on disability cases: “Some of the judges who run the hearings can be pretty difficult. . . . At times, judges will even seem like they are taking Social Security’s side,” by which he really means the taxpayers’ side. Of course, he never mentions the 23 American administrative-law judges who ruled favorably in 90 percent or more of the disability cases they heard last year, costing taxpayers more than $1.46 billion.

But Binder’s book, for all its philosophical and typographical sloppiness, is worth the read. Why disability is going bankrupt is a big question, and Binder has — and is — the answer.

— Jillian Kay Melchior is a Thomas L. Rhodes Fellow for the Franklin Center for Government and Public Integrity.