The Binder And Binder Lawsuit

Binder and Binder, which probably represents more Social Security claimants than any other entity, has sued Social Security seeking an order that would require Social Security to allow its employees to appear at hearings before Administrative Law Judges (ALJs) solely by video. It is unclear to me whether Binder and Binder seeks this only where a video hearing has already been scheduled or whether the firm seeks to appear by video even in cases where no video hearing has been scheduled because the claimant and ALJ will be in the same room. I will post my views later on the legal merits of this lawsuit but I will talk now about what I think is behind this suit.

I have no inside information about Binder and Binder's motivations. However, I have been practicing Social Security law for 31 years so I have some idea of the economics of their type of practice. I think this helps me understand what is going on.

Binder and Binder is representing Social Security claimants nationally. There are very few other entities trying to do this. Certainly, Binder and Binder is audacious. Just about everyone else is trying to get clients only in local areas.

I think there are major disadvantages to trying to operate nationally but Binder and Binder has one thing going for them with a national practice. If you are going to have much of a Social Security practice, you just about have to advertise. Television advertising is the most efficient way to do this, assuming you want a lot of cases. Television advertising is more efficient when it is done nationally rather than locally.

Normally, attorneys and others who represent Social Security claimants meet with their clients at least once or twice well in advance of any hearing. Binder and Binder is big but nowhere near big enough to have offices all over the country. Sending employees out to meet with clients in advance of hearings would be impossibly expensive for Binder and Binder so they dispensed with that a long time ago. This has the effect of reducing client satisfaction but you are not looking for repeat Social Security business anyway. This has to cut down on referrals from satisfied clients, however. Binder and Binder does not have to worry too much about clients firing them. Binder and Binder is notoriously aggressive when clients try to fire them. They always refuse to waive their fee meaning that anyone replacing them must file a fee petition, which is a pain in the neck. Binder and Binder always files a fee petition in these cases. It is amazing just how many hours of work that Binder and Binder shows on these fee petitions. This makes it hard for anyone replacing them to get a decent fee. Most people who represent claimants dislike messing with former Binder and Binder clients.

I am of the strong opinion that eliminating face to face contact before the hearing reduces the effectiveness of representation. There are some things that cannot be done well over the telephone. As an example, gauging the severity of mental illness and persuading a mentally ill individual to get under psychiatric care are much less difficult to do in person. However, I must admit that there are plenty of attorneys who are not trying to operate nationally who meet with their Social Security clients for the first time on the day of the hearing. I think this is wrong on many levels. Even if viewed only in financial terms, this is the wrong decision because it cuts down on referrals from satisfied clients and because it reduces the chances of success.

Whatever disadvantages come from not meeting with clients prior to the day of the hearing pale in comparison to the expense which Binder and Binder must bear when their employees travel, often a considerable distance, to attend ALJ hearings. Many, perhaps most, of Binder and Binder's hearings require them to send someone by air. In most cases, this will take at least a day. Even if Binder and Binder is able to send an employee by car to a hearing, the employee may be traveling hundreds of miles round trip. On the whole, I am pretty sure that this alone completely overwhelms any advantage they have from advertising nationally.

There are reports that Binder and Binder runs a very lean operation. Another way of putting it is that they pay low wages, give few benefits and afford their employees poor working conditions. You can read about it here, here here, here and here. I hesitate to link to such anonymous reports but from conversations I have had with former Binder and Binder employees, I think these anonymous reports are true. This has to make it difficult to give good quality service and has to reduce the firm's chances of success in winning cases.

If Binder and Binder could dispense with the need to have their personnel travel to hearings, they would be better positioned to overcome the disadvantages that flow from operating nationally. They would be better situated to compete in an environment in which the average fee per case is reduced because backlogs have been reduced.

I'm Glad Republicans Oppose Class Warfare

Word has been leaking out that Republican members of the President's deficit reduction commission want to cut Social Security benefits, probably by increasing full retirement age. Word is now leaking out that at the same time Republicans are pressing for the Commission to recommend corporate and capital gains tax cuts. Their plan is to cut Social Security benefit payments so we can reduce taxes on corporations and wealthy individuals.

By the way, the National Organization for Women found an interesting way of protesting former Senator Alan Simpson's remarks about how "We've reached a point now where it's like a milk cow with 310 million tits!"

Social Security Versus Afganistan War

From Robert Naiman writing in the Huffington Post:

In an editorial today, the Washington Post takes President Obama to task for being concerned about the cost of the war in Afghanistan and the fact that it conflicts with domestic priorities. ...

[Quoting the Post] "Mr. Obama repeatedly cites the cost of the war and the need to shift resources to domestic priorities -- though spending on Afghanistan is well below 1 percent of U.S. gross domestic product." ...

Considering the Washington Post's view of proposals to reduce the projected long term deficit in the combined budget by cutting Social Security benefits by raising the normal retirement age to 70, it's seems apparent that the Washington Post's view is the latter: spend freely on the war, pinch pennies from America's working families.

I asked economist Dean Baker how much raising the normal retirement age would be likely to save. He said it would be about 0.7% of GDP. Thus, according to the across-the-board "less than 1% of GDP" standard, this would be too small to bother with.

But that is not the view of the Washington Post. In a front-page news analysis on September 24, the Washington Post took Congressional Republicans to task for not "offering solutions" to "tackling the ever-growing cost of entitlement programs" in their "Pledge to America."

Binder And Binder Boycotts Glenn Beck

In doing some research, I happened to come upon this item that appears to show that Binder and Binder is or was trying to boycott Glenn Beck's show on the Fox network.

Social Security Subcommittee Hearing Delayed

The House Social Security Subcommittee had a hearing scheduled for tomorrow on "Protecting and Preserving Social Security for Generations" but that hearing "has been delayed until further notice."

It Takes People To Provide Public Service

From Joe Davidson's Federal Diary column in the Washington Post:

During a period when federal employees have been targeted again and again, it's not surprising that House Republicans' "Pledge to America" would promise to freeze the federal workforce. ...

Promoting the plan on NBC's "Meet the Press," Rep. Mike Pence (R-Ind), chairman of the House Republican Conference, was clear: "We can reduce government employment back down to 2008 levels."

Federal workers are always an easy target, but it's worth examining whether a freeze would come at the expense of public service....

[R]eturning to employment levels in effect at the end of George W. Bush's presidency could mean service backlogs in many government programs. Take the Social Security Administration for example. It provides payments to retirees, people with disabilities and others. The number of the agency's pending cases and the time it takes to process them has been a serious problem.

Recently, there has been progress as a result of agency hiring. ...

Technology is great, but it takes people to provide public service.

Why Do Republicans Now Oppose This?

From the New York Times editorial page:

Thousands of elderly and disabled refugees who receive cash assistance from the Social Security Administration are in danger of losing that lifeline. Their eligibility for benefits expires on Friday. Congress has granted temporary extensions before. It needs to do so again.

The welfare overhaul adopted in 1996 set limits on the time that refugees can receive Supplemental Security Income. Noncitizens normally do not qualify for payments, but refugees, who fled torture and war and could not work because of old age and infirmity, were among those granted an exception on the condition that they become citizens within seven years. That deadline came too quickly for some who were unable to pass the citizenship test in time. Many were homebound and had trouble negotiating paperwork or affording the fees. Others were stuck in limbo because of administrative backlogs.

Protecting the safety net for these immigrants — who include victims of sex trafficking, Jews who were persecuted in Russia, Hmong tribesmen who fought for the United States in Vietnam, Kurdish victims of Saddam Hussein — has been a bipartisan effort. President George W. Bush urged Congress in 2008 to extend eligibility for two years.

And Some People Think It's Real Easy To Get On Social Security Disability

From Bill McClellan's column in the St. Louis Post-Dispatch:

Marcella Myer, who is 52, was a clumsy child. Not that she remembers it that way. She shook her head when I asked if she ever felt there was something wrong with her. But her mother remembers. "She used to fall in the middle of the floor," said Delorse Knehans. ...

She has lived with her mother her entire life. She never married. After graduating from Lutheran South High School, she worked at a gas station and then in nursing homes. Then she got a job in the warehouse at Famous-Barr, which, of course, became Macy's. She lost that job in 2008. She told me she just couldn't keep up anymore.

By that time, Lisa [her niece] had noticed [Marcella's] condition deteriorating. Her gait was becoming increasingly unsteady. Her speech was slurred. She has been diagnosed with cerebral palsy. ...

Lisa suggested she apply for Social Security disability. "You just can't work any more," she said.

Marcella applied for disability. She was turned down. She had a hearing on that denial in March of this year.

Attorney Jeffrey Swaney was at the Social Security office representing another client when Marcella's case was called.

"I was sitting in the waiting room when they called her. I knew it was an appeal, and I remember thinking, 'How could this woman have been denied?' You could see she was profoundly disabled," he said.

Later that afternoon, Swaney got a phone call from Lisa. She had seen his ad in the Yellow Pages about Social Security disability claims.

"She said her aunt had just had an appeal and had been denied and she started describing it, and I said, 'I was sitting right behind you.'"

So Swaney took the case. He said the problem was a lack of medical documentation.

Incidentally, by this time, Marcella had suffered a series of strokes. She had difficulty speaking. She had to use a cane to walk.

A hearing was scheduled for August.

By then, Marcella was in the nursing home. A doctor from the nursing home wrote that she would never be able to return to the second-story condominium. Lisa and Marcella felt confident that Marcella would finally be approved for disability.

The administrative law judge declared there was not enough information upon which to base a decision. He gave Swaney 30 days to gather more information.

Swaney told me he sent in the additional information this past week. He said he felt optimistic.

I visited Marcella on Friday. Because her speech is slurred, Lisa was there to help interpret for me. Marcella said she has gone through her entire savings since she last worked two years ago. After she exhausted her savings, she began living on a credit card. She is about maxed out, she said. ...

When I got back to the newspaper, I called Swaney. I said I was surprised the judge needed more medical records. Marcella clearly seemed disabled to me, I said.

"If she's faking it," he said, 'she should be an Academy Award-winning actress."