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Expanded Definition Of Disability Created Million Dollar Opportunity For Lawyers


It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

All this week, we're reporting on a remarkable increase in the size of the country's disability programs. Fourteen million Americans now receive a monthly disability check from the government. The number has roughly doubled every 15 years. As we've reported, there are many, complicated reasons for the increase. There's also one, very simple one: Congress. In 1984, Congress changed the definition of disability. Lawmakers broadened it, and made it more vague.

Chana Joffe-Walt, with our Planet Money Team, has the story of what happened next.

CHANA JOFFE-WALT, BYLINE: There is no medical diagnosis called disability. It's a term that is in need of constant definition. Before 1984, the government's definition of disability included people with heart disease, cancer; basically, lots of severe illnesses that often killed you pretty quickly and were pretty easy to test for. After 1984, the new, changed definition included things like depression and back pain - things that can be severe, but things that are often very hard to test for. And so in this new, confusing, gray world, one group of Americans stepped in to help offer some clarity.


JOFFE-WALT: Lawyers.


JOFFE-WALT: Disability lawyers offer to help Americans fix their problems, on billboards, taxis and television. They offer their help in a variety of ways. There are musical lawyers. ..


JOFFE-WALT: Lawyers who know how to listen...


JOFFE-WALT: And then there are the YouTube lawyers - one disability lawyer, one webcam. The way Congress expanded the definition of disability allowed much more latitude for judgment. So lawyers like Troy Rosasco go on YouTube, and try to help people understand what is possible under these new parameters.


TROY ROSASCO: I want to talk to you today about how disabled you have to be in order to get Social Security disability benefits. Well, the bottom line is, you don't have to be an invalid. You don't have to be home, you know, wracked in pain to get Social Security disability benefits. Let me give you an example. I handled a case - gentleman was a butcher. As a result of working as a butcher, he developed trigger finger in his index finger. That was his sole disability, OK? And they granted him Social Security disability.

JOFFE-WALT: The Social Security Administration denies a lot of people, at least the first time around. Only about a third of those who apply for disability are awarded benefits. The rest are denied. So more and more people see these ads and appeal the decisions. Not everybody appeals - a little more than half. And those who do have much better chances, almost two-thirds of the time. Usually with the help of representation, they win. There is one firm that proudly takes credit for transforming the way Americans win disability benefits.


JOFFE-WALT: America's most successful disability advocates are Binder and Binder.


JOFFE-WALT: The guy making that promise is a cowboy-hatted Charles Binder, pointing straight into the camera; a man who has completely changed the game for disability lawyers.

: It's funny, when we started - I don't think, when we started, anybody else was advertising Social Security. So we - to some extent, I take credit for that. I've created some of the problems for the government because so many people appeal. In the old days, they had many fewer people. The government doesn't advertise this program. We advertise this program. And now, obviously, there are lots and lots of competitors who advertise it, too.

JOFFE-WALT: There exists today what I'm going to call a disability industrial complex, and Charles Binder had a big hand in creating it. When he started in 1979, Binder and Binder represented less than 50 clients. Last year, 30,000 - 30,000 - people who were denied disability appealed, with the help of Charles Binder - in one year. The firm made $68.7 million in fees.

So you've got 30,000 people denied disability, who are appealing to a judge; taking their case to the courts. And on the one side, the judge has a passionate, persuasive lawyer making the case that his client is physically or emotionally incapable of working. And on the other side, who's on the other side? Nobody. Nobody - really. David Autor, an economist at MIT, told me with disability cases, there's no person in the room making the government's case.

DAVID AUTOR: You might imagine a courtroom where on the one side, there's the - you know, the claimant and their lawyer, saying, my client - you know, needs these benefits. On the other side, there's the government attorney, saying ah, no, well - you know, we need to protect the public interest, and your client is not sufficiently deserving, and here's why I think that, and so on. But actually, it doesn't work like that because the government is not represented. There is no government lawyer on the other side of the room.

JOFFE-WALT: The Social Security Administration says disability hearings were never meant to be adversarial. In these courtrooms, the judges are actually employees of Social Security. So they have a dual role - to represent the government, and to make a fair and objective determination. But when you talk to these representatives of the government, who also happen to fair and objective judges, they will tell you this dual role can be very difficult.

One judge, Judge Randy Frye in North Carolina, who hears disability cases, told me he'll often find himself glancing to where he imagines there should be another chair, like in any normal courtroom.

RANDY FRYE: And there are always moments where you are concerned that maybe you missed something.

JOFFE-WALT: And you wish you could turn to that chair?

FRYE: Absolutely. You would turn to the chair and say, Counsel, I'm having trouble with this issue. Why does the government think this case should not be reversed?

JOFFE-WALT: If someone is awarded disability benefits, that person will receive an average of 250- to $350,000 from the government in benefits and health care, over a lifetime. If you sued a company for that amount of money, even a tiny company, they would bring a lawyer with them to court. Not so with the government's disability program. There is the disability industrial complex on the one side. And on the other side? An empty chair.

Chana Joffe-Walt, NPR News.


CORNISH: And our disability series continues tomorrow, with the story of a company, a very successful company, with one purpose: to help states move people off of welfare, and onto disability.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.

Chana Joffe-Walt