Disability Digest Summer 2014

Inside This Issue



Managing Partner Charles Binder

A Word From Charles E. Binder

We always insist that our clients tell the absolute truth in the process of applying for their Social Security Disability benefits. But we can't insist that they do the same thing when they're using Social Media. We obviously have no control over that. Sometimes people exaggerate on Facebook and the like, or they imply that they can still do some things they can't since becoming disabled. And that can be a huge problem.

One of the big demands by the Social Security ALJ union- yes, there is a union of ALJs, though a majority of the ALJs do not belong-is that they be allowed to send "friend" requests on Facebook to the claimants who are scheduled to appear before them. The reasoning is simple: it would allow them to check up on claimants, to see if, through their own posts on Facebook, they are able to do more than they testify that they can do. Advocates live in dread that a claimant will post pictures of themselves drinking in a bar when have just testified they don't drink, or pictures hauling in a 30 pound fish when they said they can hardly lift a small package. And ALJs want access to this information so they can turn people down.

There is an ongoing scandal in NYC involving police officers on pensions who applied for and received Social Security Disability benefits. The photos accompanying the news story showed one former police officer water skiing at a resort during the time frame he alleged he was disabled. Now, disabled people can water ski-I've seen people who are horrifically injured live an active life, by sheer will power, and it is truly astonishing. But those people are rare. Most people suffering from terrible arthritis are not engaged in such activities.

The Social Security Administration does not want their ALJs to be investigators. As a lawyer, I understand this. You can't be a judge and a prosecutor. Their job is to decide cases based on what evidence is produced, not to investigate certain claimants. Who wants an ALJ to decide which claimants he doesn't like, and use that claimant's Facebook account to produce evidence that is seemingly inconsistent with disability? Someone who creates a case that a person is exaggerating his symptoms should not be the same person adjudicating that case.

More important, in my opinion, is that this suggests that the latest crop of ALJs, who are less qualified than the previous groups of ALJs who were required to be trial lawyers first, see their job differently. The rules for new ALJs favor lawyers who worked for the government as staff attorneys, and who largely have never represented a client and rarely appeared in court. Award rates are way down with many of the newer ALJs. Having worked for the government, too many seem to think they still represent the SSA instead of being an impartial adjudicator. They think the claimants, in general, are not disabled and they are looking for ways to prove it. Going on social media and logging-in as a "friend" is part of that thinking.

But what of the claimant who is unable to work, who sits at home and spends a good deal of time on social media? Even testifying that they spend their day on social media sites will cause some ALJs to assume the person can work-asking things like, what is the difference between doing that and being a receptionist? There are lots of differences of course. One is reliability-employers expect employees to be on time, to show up day after day regardless of their pains.

You can't switch hours to accommodate your pain or your pain medication in a real job. You deal with work pressure, supervision, supervisors, and the public in a real job. And you have to do the work at a competitive rate of speed. Keeping your Facebook account requires none of these.

What do I advise clients? A lot is at stake. It's foolish to post on Facebook, letting people know of your activities while your case is pending. ALJs are forbidden to look at your Facebook page...but that doesn't mean they are not doing it. If you are showing pictures of being happy while your doctor says you are depressed, it's possible that you are creating doubt in an ALJ that is already looking to deny you ( he would not be looking at your Facebook page when it is forbidden if he were not looking for a reason to justify his denial). So wise up. Your case demands your attention. Don't make my job a lot harder; don't increase your chances of losing by letting people see your Facebook page.


What’s New in Our World

by Rachel Farganis

I see a lot of different claims; some more solid from the start than others. That’s not to say some are more deserving than others, but—at the end of the day—a disability claim has to be proven to meet the regulations set forth by the Social Security Administration. Some individuals will have an easier time gathering that proof and meeting the regulations than others who may be just as qualified.

Home run, slam dunk, 100% solid disability claims simply aren’t the norm. Although the Social Security Administration has an extensive list of impairments for which they grant quickly (these are called Compassionate Allowances), most disabled individuals suffer from impairments that don’t lend themselves to quick decisions. It’s simply not enough to allege a disability—as I said before, a disability has to be proven. Medical records are one of the keys to proving a claim.

The story of one former client, Dori, sticks out in my head. Dori’s case was simple compared to many I’ve seen; her impairments were so severe that her claim obviously should have been granted (in my opinion). But, at the same time, her impairments weren’t severe enough (in the Social Security Administration’s opinion). She had been denied at every step of the process, despite the fact that her treating doctor’s had provided solid support in favor of her claim, and her medical records evidenced her declining health.

But, it still wasn’t enough. And she was frustrated…dare I say angry?

Okay, I’ll say it. She was angry.

The process was taking too long. She couldn’t work due to her impairments. Because she couldn’t work, she didn’t have any income. And because she didn’t have any income, she couldn’t afford further medical treatment. It’s a vicious and heartbreaking cycle that many of our clients face; it’s an unspeakably cruel place to be in. Dori desperately needed funds to survive.

I did everything I could to help Dori win her claim… and when we had done all we could do and there was nothing left to do but wait, I listened. I listened to the heartbreaking stories she told of her lifelong battles with her health. I listened as she described the decline in her vision, and what it was like the morning she woke up, unable to see. I listened, often through my own tear-filled eyes, as she recounted her financial struggles and her own sadness over the fact that they could not afford to celebrate Thanksgiving or Christmas.

Even though Dori’s case wasn’t a home run in Social Security’s eyes, I knew it was strong. I told her this on many occasions. We requested that a decision be made on-the-record, based solely on her medical evidence. After I wrote the request on Dori’s behalf, I called her to explain the process. In fact, I called her often after that—even though calling clients isn’t something I normally do (I work behind the scenes, so to speak).

Our request was denied, but luckily her hearing date was scheduled quickly. Start to finish, Dori’s case took over two years. She had everything needed to present a solid case, and yet it still took over two years of waiting for the Social Security Administration to act. She had the proof she needed for her case to be successful, but she still had to wait through years of denials and appeals before her claim was finally approved.

I had the privilege of meeting Dori and her husband Jay after her hearing. They were two of the most genuinely kind and welcoming people I’ve ever met. Hearing their stories first hand, start to finish, was hard; there’s little to no pleasantries when it comes to disability claims. If you haven’t had a chance to visit our website recently, I urge you to do so; Dori and Jay’s video testimonial is there, and it’s truly touching to watch. Their story is proof of the difficulties of winning Social Security Disability claims…but, it’s also proof that even the tough ones can be won. I’m so grateful we were able to help Dori and Jay receive the benefits they deserved, so they could get back on their feet.


The Decline in Social Security Disability Award Rates

The Social Security Disability Insurance program has come under fire in recent years. There’s been prime-time news stories, articles, and blogs—each one criticizing the program in one way or another. The theories are often different, and often disjointed—and often, lacking in a factual backing.

A lot of attention has been paid to the increasing number in Social Security Disability applicants. The theories of fraud and misuse have run rampant, giving Social Security Disability, and those receiving benefits, a bad name. Little thought was given to the actual causes behind the rise in disability applicants: advances in medicine mean that we live longer, baby-boomers are coming of age, and women populate the workforce in ways they didn’t before.

The result of this bad press has not gone unnoticed. Each time the program is scrutinized, a brighter spotlight shines on those in charge. In other words, it would appear as if the Social Security Administration tightened their reins and started to pay closer attention to the goings-on of their decision makers—after all, the word on the street was that Administrative Law Judges were far too giving with the number of cases they granted. Seemingly, the scrutiny that followed the multiple alleged scandals didn’t go unnoticed.

According to recent statistics released by the Social Security Administration, there was nearly a 10% decline in the number of Social Security Disability benefit claims that were awarded in 2013 as compared to 2012. The decline increased even more strikingly in fourth quarter of 2013, as claims were denied at nearly an 11% decline when compared to the year prior.

The Social Security Administration doesn’t offer their own explanation for the decline in award rates. But, it would be safe to assume that recent changes within the Administration are result of the alleged scandals, poorly researched news stories, and growing pressure from Congress to fix a supposedly faulty system.


Same Impairment, Different Outcome

It’s hard to imagine that anyone would want to be disabled. It’s even harder to imagine that someone, for instance, who was disabled, would chose disability over a different, more favorable outcome…an outcome that didn’t involve constant worry over finances and medical treatment…or worry over losing a job.

Let’s imagine that two individuals share a common physical impairment—degenerative disc disease. Aside from their physical impairment, they don’t have much else in common. Person A didn’t come from a good background; didn’t attend college, and works in a manual labor job stocking shelves at a supermarket. Person B came from a superb background, attended college, and even went on to higher education afterwards, and then secured a job running a successful company.

The more work-time Person A misses as a result of impairment, the more likely Person A is to be out of a job. After all, it’s not as if Person A can simply "work from home" when a disability makes it impossible to come in to work. The odds that Person B would suffer a similar fate as a result of the same impairment is slim; it’s likely that Person B's education and position in a successful company makes frequent breaks possible. Person B doesn’t Lift heavy boxes, so missing a few days of work will be less of a problem for Person B.

There are probably a lot of people who can and would take Person A’s job if they could. And it’s likely that companies know this. Person A’s occupation is one that is easily staffed—and there is often someone looking for an entry level job at any given time. Person B, on the other hand, has a job that requires a more specialized background…a role that is not easily filled by just anyone. So, when Person B needs to take it easy on the job, it’s likely that accommodations will be made.

It’s true: a disability isn’t just about a physical or mental impairment. It’s about the totality of that impairment, and its impact on an individual's ability to work. That's a very simple example of how two people who suffer from the same impairment can have very different outcomes.

An individual’s level of education and age can also play a role in a Social Security Disability determination. It’s not as simple as saying "I have degenerative disc disease," or "I suffer from depression and anxiety." The truth is, a lot of people suffer from these things and are able to maintain employment. But, even though the impairments may be the same on paper, the people suffering from them and the impact on those people's lives are not the same. That's why the outcome is often not the same.


We Get Letters & Emails…

Thank you so much for the tee shirts and helping me get my disability. I have talked to a lot of people about your company. How good all of you were to me. Made me feel very special. I am in the process of trying to get my widow’s benefits. Thank you again. All of you!
-E.T. (card)

Dear Mr. Binder,

My name is D., and I have been a client of Binder & Binder for the past 2 years. I am disabled from 3 back surgeries and suffered nerve damage.

Last Friday, I had my hearing and was represented by your advocate David G., from your office. David’s professionalism, honestly, and skills are to be commended in this letter. The judge granted a favorable motion on the spot and granted me my disability. After the hearing, myself, my girlfriend, and David returned to a conference room and discussed potential amounts. After explaining to David that I had $18.00 to my name, he did something beyond the requirements of his duties.

He went to the judge and explained my circumstances and got the judge to agree to expedite this with urgency. This week, the judge signed off on all needed paperwork and David contacted me this afternoon to inform me!

He has compassion not seen much these days in the profession he is in. I will be honest, I’ve had many frustrating moments during this process and out of everybody I have had to deal with, he by far was the breath of fresh air I needed at the final phase of this endeavor.

You are very lucky to have him in your organization and because of him and him alone, I will tell anybody who will listen to use Binder & Binder if they want to get what they deserve. Again, thank you to David, Binder & Binder, and all other persons involved in the success of my case. It has been a rough couple of years and the peace of mind I now have is because of the excellent people you hire.

Sincerely,
D.S. –(Letter)

Binder and Binder you guys are awesome. You won my case today I am in shock I’m so happy, I get 2 live life again happier thank you sooo much.
J.L. (Facebook)

THANK YOU BINDER AND BINDER.
E.D. (Facebook)

Dear Binder and Binder,

Please allow me and my wife to thank you for winning our cases on three counts: For me, you won a highly difficult case to prove even though my personal doctors felt my case was worthy. It was not one of any of the three ailments that won my case. It was Binder and Binder who showed it was the combined effects that made it impossible to maintain fruitful and steady employment. The wait is long and me and my wife lost a nice apartment and were forced to live with friends that were good enough and kind enough to take us in.

In my wife’s case, she was faced with poor hearing and vision issues, which during the case resulted in blindness in her right eye and limited vision in the left of 20/150 with 20/200 being legally blind. These issues were complicated with Diabetes; again highlighting the combined issues, Binder and Binder was victorious. Although the process is designed to be daunting for anyone, with large emotional and physical trials, in the end, Binder and Binder is a proven name you can trust and the diligent staff is incredible and compassionate.

Binder and Binder made it possible for me and my wife to own a residence paid in full after the process ended. Once again THANK YOU BINDER AND BINDER AND STAFF for helping us make it thru when we both felt distressed.

Sincerely,
J.C. and D.C.

Dear Mr. Davila and Staff,

How do you thank people who saved your life? You know what I think of you, so please give my great regards to the able Mr. F. He steadied me and modulated my passion, and passion always wins the day.

Ever thine,
R.F.

Dear Mr. Davila,

I initially contacted Binder & Binder in July of 2013, I was assigned to Yajaira C. I received my award letter from the SSA in March of 2014.

I just wanted you to know what an asset Yajaira is to your organization. I was unable to travel to your offices, so we did everything over the phone. Yajaira was always very thorough, and when I had questions or didn’t understand something, she was able to explain things. If she wasn’t available to speak to, she always got back to me very quickly.

Thank you for facilitating my receipt of my disability, and please give Yajaira my personal thanks for all her work on my behalf.

Kind regards,
KPW (Letter)

I decided 4 years ago this month that this was the firm for me! They have fought for me for that long so far! They won't take no for an answer! I think today’s hearing went pretty good. I really like my attorney! He understands and listens. Hopefully get good news in a few weeks! Thank you all so much!
KL (Facebook)

I just want to thank everyone at Binder and Binder for helping me with my disability. Everyone was so kind and helpful. You kept me informed of my case. They listened when I wanted to talk. Your firm was just so awesome. I have told everyone I know if they ever have a problem with disability to call you. Thank You again and may God bless each and every one of you.
CH (Facebook)

I signed with Binder & Binder® in December and now I am getting my SSI and SSD only a few months later. Thanks.
WH (Facebook)

Dear Mr. Davila,

I want to thank you for all the help I have received thus far regarding my case.

Mr. Davila, I wanted to bring to your attention caseworker Ms. Antoinette P. Ms. P has been a wonderful and sincere, hard working and reliable caseworker.

Mr. Davila, almost every time I call Binder & Binder, Ms. P is available to assist me immediately. And when she is not, Ms. P promptly returns my calls. Mr. Davila, I am 60 years old and as a result I have a life time of experience dealing with institutions and most indifferent.

Mr. Davila, my dealings with Ms. P have been wonderful. She is a role model for other companies to use when instructing their employee’s how to deal with clients.

Mr. Davila, I could write more. But I always believe the best message is one that is concise and to the point. My final wish is that the letter goes into Ms. P’s folder. And when the time comes for employee evaluations or promotions, this letter is given when evaluating Ms. P’s value to Binder & Binder.

God Bless,
RM (Letter)

Thanks so much Binder and Binder. Everything you said was true, you completely took the stress away from me.
T.J. (Facebook)

If anyone out there needs help getting there SSD and/or SSI I would highly recommend Binder & Binder® America’s most successful advocates.
W.H. (Facebook).


Binder and Binder® Power Person

David Gerson, Arizona Advocate

David Gerson, Disability AdvocateDavid Gerson’s name keeps popping up time and time again, in the best way possible: former clients that he has represented at Social Security Disability hearings are writing to sing his praises. He was an obvious choice for this round of Binder & Binder® Power Person.

David hails from Virginia, but currently serves as one of the advocates in our office. Prior to his entry in to the field of law, David spent 15 years in New York City, working in the theater industry. He had always intended on returning to the theater world after he finished law school; he saw law school as a way to develop skills that would be useful in the field, ultimately making him more marketable. But, something clicked while he was in school and working in the area of public interest—he found it professionally gratifying in way that was unlike any work he had ever done before. Somewhere along that journey, David realized his abilities should be focused on an area where he could help those who did not have a voice and were underserved. Lucky for us, that realization lead David to Binder & Binder®.

As new homeowners, David and his husband Marc spend their free time working on their home. And, when they’re not busy there, they like to spend their free time exploring the city of traveling. Just last fall, David made a trip to China, and hopes to make it to South America or Africa in the near future. When he’s not busy with his personal life itself, David can be found representing our clients at their disability hearings throughout the state also occasionally in Pittsburg and surrounding areas.

In the four years that David has been with Binder & Binder®, he can honestly report that no day is the same. Although most days, David is representing clients at hearings, he also finds himself back in the office, meeting with clients face to face. David recounts one of the things he loves most about his job: that every client has a story…and every story is different. He knows that the majority of the clients he represents have never been in court, and the ones who have, haven’t had the opportunity to tell a judge about their lives, their impairments, how they are affected by them, and simply how they feel—something that David is confident is very important. "Part of my role is to help my clients tell their story, and I take that very seriously," David said.

David’s job, though rewarding, certainly comes with its difficult moments—seeing our clients suffering. "It’s very hard to see that day in and day out and it certainly takes a toll. But, I think it’s important, as much as we are able, to understand that our clients are suffering and that their pain is real because it is our role to help alleviate some of that pain or, rather, to help our clients achieve a peace of mind so that they can focus on taking care of themselves," David said.

Putting in the hard work and seeing a client get the help they need? Well, that’s where David receives the most satisfaction. He explained the process simply, and accurately when he said "The process of applying for and receiving disability benefits can be extremely long and emotionally draining. To see a client through to the end of that journey and get them a resolution that’s in their favor, means everything in the world to me."

We’re so grateful to have David on our team, guiding our clients through this journey, and helping them obtain the benefits they deserve—and it’s obvious that our clients are happy he’s on their team too!


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