DISABILITY DIGEST: Volume IV Issue #2

Inside this Issue


By Dick Summer, Communications Director

Everything we do at Binder and Binder® focuses on you. And we learn a lot about you from our Advertising Survey. For example, according to the latest Advertising Survey, here are your top ten favorite TV networks: 1- Fox, 2- CBS, 3- History, 4- USA, 5- ABC, 6- TNT, 7- NBC, 8- Discovery, 9- Fox News, 10- CNN.

That's pretty much the way the Neilson people see it too…with one glaring exception. In the Neilson Ratings, Fox News has almost three times as large an audience as CNN.

But your Advertising Survey responses has them just about neck and neck for the #9 spot. That's why when it's time to buy commercials, we treat them about evenly...because we really do listen to you.

"We listen to you and we get results," is one of our favorite advertising statements. It's a simple idea, but it works. Who could possibly know as much about your disability problems as you do ? That's why our people are trained to listen carefully to what you say, and even how you say it. Sometimes just the sound of your voice on the phone says as much, or more than your actual words. And obviously the more we know about your case, the better job we can do of representing you, and therefore the better chance we have of winning your case. And most of the time, we do win.

There's a section of the Advertising Survey that just asks for your comments. Many of you give our Information and Intake staffs high marks for their courtesy and encouragement. There are exceptions of course...nobody is perfect. But we honestly try to do things, "Better and nicer," and by and large, you seem very pleased with the way you are treated on the phone.

So I'd like to take a moment to congratulate our phone folks on a hard job well done. It's not easy finding the exactly right answers for some of your difficult questions. And our people are well aware that you really need the exactly right answers, because life gets rough when you're disabled. It's not unusual for some of our phone folks to take some very deep breaths between calls... and I have seen more than an occasional tear as they're listening carefully to some of your problems. Our people are professionals. They get paid to pay close attention to what you say, and how you say it. It's their job to help you, and encourage you as much as they can. But they're also human beings who can't help but share some of your hurt, when they listen to how difficult life can be for you. And when you win, there are lots of quiet smiles, and an occasional "hi five." Because they really do care.

They're good people, doing a good job of really listening to you. And their work plays a huge part in our success at getting the results that make such a difference in your life. We are very proud of all our phone folks. They really care about you.

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By Charles E. Binder

Charles E. Binder Managing Partner

(This is a short excerpt from Charles Binder's soon-to-be published book.)

More questions and answers from Charles' soon-to-be published book:

Why do I have to go to a Social Security doctor?

Social Security believes that their consultatives are better able to make a judgment than your own doctor. A cynic-or someone who has done this for a while-might believe that the purpose is for the government to convince you that they've given you a fair shake and to justify their intent to turn you down. But government doctors vary in ability and integrity. Some states hire unbiased, board-certified physicians to evaluate you. Other states use so-called "volume" providers who usually consist of general practitioners who couldn't get a job anyplace else. Their examinations are perfunctory at best, the waiting rooms are poor, and the qualifications of the doctor extremely limited. I have waited in many such consultative rooms. The general impression is that of an out of control emergency room waiting area with unattended children running around rampant, some people looking stoned, and many people waiting for hours to be seen.

A consultative physician should never count as much as your own treating doctor, but in some cases, consultatives find things that your doctors don't find. It all depends on who is doing the exam and how much time they have. The government is not required to send you to a doctor, but will invariably do so if your treating doctors do not quickly cooperate with them, and sometimes even when your treating doctors cooperate completely with them, they will still send you to a doctor to confirm-or dispute—the finding. Since they are going to be placing you on disability for some lengthy period of time, it is not unreasonable for the government to send you to a doctor. But it is unreasonable to send you to a quack because he's cheap.

Are my grandchildren or grandparents eligible for benefits?

There are some circumstances where these dependents can receive benefits.

Do I have to be a citizen to get SSD?

Disabled American citizens are always eligible for SSD if they meet the earnings requirements and can't work. It doesn't matter where they live, even if they don't live in the United States. Hence, someone who worked in the United States and is an American citizen can receive his SSD checks anywhere in the world (except in a few scary countries). In fact, you can file for SSD overseas. However, SSA will not have a hearing overseas. Non-citizens can apply for SSD if they are here legally. This area of the law has become one of the most contentious since the Republicans in the last few years have been making very many anti-immigration statutes affecting SS claimants. It seems every time I am asked this question, the answer has changed.

Is there any way to qualify for SSD if I've never worked?

In a word, no. You can qualify for benefits on other people's earnings records, such as if you are a disabled adult child, or a widow/widower, or a dependent child. However, generally, a worker has to work in order to be eligible for SSD. People who haven't worked very long are usually eligible for SSI only.

I've worked mostly overseas, and worked only a brief time in Social Security. Can I get benefits from Social Security?

In rare cases, the United States will have a reciprocal agreement with some other countries, mostly in Western Europe, where we will honor their earnings and they will honor ours. Hence there are some countries, where if you worked half your time there and half your time here, and you can get credit for Social Security.

If I die before my case is resolved, can my family pursue the case?

Yes, they can, if it's an SSD case. SSI cases, unfortunately, usually die with you, but not always. For SSD, however, your family can become a substitute party and receive the amount of benefits you were owed from onset to death.

I've heard about the government being untrustworthy in investigating claimants. Does this really happen?

Yes! The government does have a special fraud unit because sometimes people work under one Social Security number and allege disability under another. Sometimes people are getting disability and work under the different number for years before they are caught. There is also a special fraud unit now, which is designed to discourage you from applying for disability. While the Social Security Act is private and no one is supposed to know, in one of the forms, they ask whether or not they can speak to your neighbors about you. As part of an experimental program designed to intimidate claimants, investigators, often police officers, go to your neighbors to ask them whether they've seen you walking too much or lifting objects or inquiring about you. In many instances, it's enough to intimidate a person from applying for disability. All too often these investigators think a claimant must be a complete vegetable. Remember, the basic definition of disability is the inability to work on a sustained basis; the definition is not whether you are a complete vegetable or unable to get out of your house to go to church or shopping. However, fraud occurs with people on disability who work off the books. This is a federal crime and people are prosecuted.

I have heard about the Americans with Disabilities Act. How does this impact upon Social Security?

Generally, the Social Security Administration's processing of cases is not affected by the Americans with Disability Act (ADA). ADA requires employers to make "reasonable" accommodations for the disabled. It is not necessarily inconsistent for someone to be both disabled and yet able to work if the employer would make an individual accommodation. The Social Security disability program is a program designed to cover thousands of people in a fair and uniform way, compared to one employee requesting a special individualized accommodation. However, it's a difficult task to sell an Administrative Law Judge that you are disabled when you testify that you would still be working if only your employer had given you a special chair.

I was getting disability when I was convicted of a misdemeanor. They cut off my benefits. Was this right?

No. You must be incarcerated in a state penitentiary for you to lose your benefits. If you're incarcerated for a misdemeanor, you keep your benefits. If you are incarcerated under a felony, you are entitled to have your benefits reinstated when you get out. Remember, it makes a difference whether your benefits were cut off because you were incarcerated as a felon or whether you were cut off because your disability ceased. There is always a date-last-insured problem, which you have to meet. If you were still found disabled but were cut off merely because you were incarcerated, your disability didn't cease, so when you come out, you should be able to reinstate it.

By way of two examples, a judge friend of mine told me about a person who was incarcerated for drunk driving. He had been disabled because of his back and was still clearly disabled. He lost his benefits while in state prison, but was still disabled when he got out and was reinstated. On the other hand, another judge friend of mine felt terrible because she believed a cop who had very severe back problems. He was later indicted for running a drug organization. It turned out he was working all along running a drug ring. His application was obviously fraudulent all along. She wanted the government to prosecute him for the fraudulent Social Security application.

Next month, Charles will answer more frequently asked questions about Social Security Disability. If you'd like to be notified when Charles' book is published, please call 1-800-662-4633, or E-mail: Info@BinderandBinder.com.

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By Harry J. Binder

Harry J. Binder Senior Partner

As I mentioned before, most tax preparers are knowledgeable and professional. However there are specific and subtle aspects of the Social Security law of which very few are aware. If Binder and Binder® won your benefits for you, please make your tax preparer aware of the following:

LUMP SUM ELECTION

When we win your case for you, due to the inherent delays in any governmental process, and the roadblocks placed by the government to impede, defeat, and delay your eventual entitlement to benefits, our clients generally receive benefits for more than one year. Many times you receive monies for three or more years of retroactive benefits. Because most individual taxpayers are what we call "cash basis" taxpayers, that is, they report income in the year they receive a check or payment, the receipt of these retroactive benefits is reportable in the year received. Because the tax laws advise that you do not have to "show" as taxable income a great part (if not all) of your Social Security benefits based on the amount of your Adjustable Gross Income, the receipt of "retroactive benefits" acts to defeat the intent of Congress, which was to exempt Social Security benefits from taxation. To overcome this unfair result, the Internal Revenue Code allows you to avoid this inequity through either Lump Sum Election, or amending your prior years. Since amending your prior years will probably cost you extra money to pay your preparer to do this, and may result in statutory interest on any resultant tax, the Lump Sum Election is usually the correct thing to do.

In short, to elect the Lump Sum Election, your tax preparer has to mark on the corresponding line of the first page of the form 1040 the letters "LSE." The tax preparer then simply has to determine, on a year- by -year basis, the amount of Social Security benefits, which would have been taxable in the year to which you were entitled to the benefits. He/she then adds all the taxable amounts, and shows that amount on the 1040 filed for the present year. The Social Security Administration, on the form SSA-1099 (or form RRB-1099 for our Railroad Retirement Board clients) lists the amount of the income paid for each particular year, so determining the taxable amount of the benefits on a year by year basis is not a big deal.

If you want to do this yourself, it is really not hard to do. The IRS has printed a booklet entitled Publication 915 with a full explanation of the process, a "how to" section, together with worksheets to do the math.

Children and Auxiliary Benefits

The law is very specific. You only pay taxes on benefits to which you are entitled. If your children or other dependents receive benefits because of your Social Security or Railroad claim, those benefits go on their return. Almost without exception, children need not even report the income or file the return.

Correct tax reporting, and minimizing the amount of taxes due, usually requires an education and background in that field.

Finally, there are free services available to help you in preparing your tax returns. Be warned that these services use IRS trained volunteers. The Volunteer Income Tax Assistance (VITA) program is available to help low income tax payers. The Tax Counseling for the Elderly (TCE) program is available to help those 60 and older. (I no longer consider "60" to be elderly!) To find the nearest VITA or TCE site, please call (800) 829-1040.

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Advocate Nik Agharkar

Nik Agharkar

"I've got my thumb stuck in the dike," says our Binder and Binder® Power Person, Nik Agharkar. He is referring of course, to the famous story of the kid who saved his city by sticking a thumb in a hole in the dike that was holding back the ocean. "We're working in a system that desperately needs an overhaul," he says...and you can hear the anger in his voice when he says it.

Here's a typical quote: "I remember a client who had to come to a hearing in a wheel chair and was using an oxygen tank. She had to wait two years for a hearing, and barely survived the wait. The hearing took three minutes before the judge awarded her benefits. Why did there have to be a hearing for someone like that in the first place?" He is keenly aware of how difficult it is for someone who has worked all of his or her life, to admit, "I can't work anymore." Nik puts it this way: "So much of a person's self worth comes from working...the camaraderie and sense of 'being in it together' that you have is so important…and it's all missing when you can't go to work."

When he's not fighting the government bureaucracy for our clients, Nik roots for the New York Rangers, and the New York Yankees. "I played hockey for 14 years. That's about the best fun you can have in upstate New York," he says. He grew up in Syracuse, N.Y. and Princeton, N.J. but he lives in Greenwich Village now, because he says, "It's so alive." In his free time, he enjoys exploring everything New York City has to offer. You can often find him in Central Park with a book by one of his favorite writers like Dickens or Cormac McCarthy. He enjoys classic films like "Casablanca," "Citizen Kane, and "Almost anything by Hitchcock." Musically, "It's the blues and Classic Rock...artists like Clapton" are right up his alley.

Nik "takes the job personally." "When things get bad, everything turns personal." is how he puts it. And that's one of the reasons he's so popular with our clients. He often mentions Michael Jordan's perspective..."I can stand failing, I can't stand not trying." But he's not some kind of working drudge. He has an easy laugh, and a friendly smile. When asked how he can stay so positive, and keep his sense of humor doing such a difficult job, he quotes Lincoln: "I laugh because I must not cry."

What does his future hold ? His answer is, "I'd like to look back on my life knowing that I made a difference in people's lives. I want to affect real change." For now, lots of our clients whose lives are in danger of being drowned in an ocean of bureaucratic problem are a little safer, because Nik has his thumb firmly stuck in the dike.

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