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What are the Responsibilities of a Representative Payee

Sometimes Social Security judges award benefits but require that benefit payments go to a “representative payee.”   The judge may do this if the claimant is a child, is legally incompetant,  suffers from mental health or medical problems that would make it difficult for the claimant to manage money or in cases where the claimant requests a payee.

Representative payees assume a great deal of responsibility.  They are responsible for handing the claimant’s money and for filing periodic reports with the Social Security Administration.   I have seen at least one case in which the rep payee was sued by Social Security because of an overpayment – the claimant went back to work and lost eligibility for benefits but Social Security did not find out for several years.

It has also been my observation that claimants often become angry with their representative payees when the payee refuses to allocate money for an item or service that the claimant deems necessary but the payee does not.   If you are thinking about serving as a representative payee I advise you to research and carefully consider the obligations of this position.

I recently received a question from a prospective payee named Celeste that touches on some of the issues faced by rep payees:

My friend just recently won her disability case, but the judge said she had to have a payee, which is me. I have a few questions that I would like for you to answer for me if you don’t mind. Continue reading →

Does LTD Carrier Have a Claim on Auxillary Benefits Paid to Your Kids

I regularly receive questions from unhappy Social Security claimants who are facing the prospect of having to send their lump sum Social Security disability checks to their LTD carriers.   Many LTD policies, especially group policies, include provisions that offset LTD payments by any amount received by Social Security.  In other words, if the LTD benefit is $1,800 per month and Social Security awards $1,500 per month, the LTD carrier’s obligation becomes only $300 per month once SSDI is awarded.

Since the lump sum payment arises from months in which the claimant was also receiving long term disability, the LTD carrier contractually requires the claimant to turn over his Social Security lump sum payment to the LTD insurance company.

Not surprisingly, folks subject to this type of arrangement are not very happy about it.  Why should the LTD carrier swoop in an grab that $25,000 or $30,000 check?

As I noted in a 2007 blog post about LTD offsets to Social Security claims, the LTD carriers justify this money grab by contending that the price of the group LTD policy reflects an expectation of a Social Security offset.  In other words, the cost of group LTD insurance would, in theory, be higher if there was no offset.

Whether you believe this or not, I think it is safe to say that group LTD policy handbooks do not feature this offset obligation.  Often the first time that SSDI claimants learn that their struggle and stress of pursuing Social Security result in zero dollars is after their SSDI hearings.

Now, apparently, there is a new twist.   Continue reading →

Hearing Testimony Tip: Know How Much You Can Lift and How Far You Can Walk

In my law office, I always try to schedule a pre-hearing meeting with my client one to two weeks prior to my client’s hearing.  I use this meeting to discuss the “big picture” issues and to practice asking and answering questions that my client is likely to face.

One line of questioning that always comes up relates to my client’s capacity to perform various physical activities, such as lifting, sitting, standing and walking.  Physical activities like these are known as “exertional” activities by the Social Security Administration and one’s exertional capacity is almost always a factor in questions asked of the vocational witness.

For Social Security purposes, your exertional capacity is defined as follows:

Sedentary: Requires the ability to sit up to six hours in an eight hour work day, lift light objects such as files and paperwork frequently during the day, and objects weighing up to 10 pounds occasionally during the day.

Light: Requires the ability to stand up to six hours in an eight hour work day, lift up to 10 pounds frequently and up to 20 pounds occasionally.

Medium: Requires the ability to stand up to six hours in an eight hour work day, lift up to 25 pounds frequently and 50 pounds occasionally.

Heavy: Same standing as light and medium, lifting heavier than medium.

As you can see, each of these definitions includes some very specific numbers.  When you prepare to testify, you will need to be prepared to discuss your capacities. Continue reading →

Can Your Facebook Profile Hurt Your Social Security Disability Case

I recently ran across a very timely post on Jim Reed’s New York Injury Law blog entitled “When Facebook Isn’t a Friend to Your Personal Injury Case.”   Jim correctly points out that the default privacy setting on Facebook is essentially “no privacy” meaning that anyone in your geographic area can view your profile, your photos and comments made by and about you.

What does this have to do with your Social Security disability case?

First, remember that the main issue in most Social Security cases is whether you have the capacity to perform simple, entry level, low-stress, sit-down type of work.  Now, take a look at your Facebook profile.   Does it contain photos of you dancing at a wedding, or on the beach?  Are there comments from friends chatting about that family get-together or class reunion?

Some of my disability clients “friend” me and I always find it interesting to look at their profiles.   I am looking at one such profile right now and it reads as follows: Continue reading →

I Have to Wait How Long for my Hearing Decision?

Back in August, 2007, I wrote a blog post entitled “How Long Do I Have to Wait for my Hearing Decision.”   Back then I reported that in most cases, a claimant would have to wait two to three months for a hearing decision.

Fast forward to 2009.  That two to three month period is now four to six months.  Here’s why:  about 18 months ago, the Social Security Administration convinced Congress to allocate more money to hire new administrative law judges, and SSA immediately hired around 100 new judges.  At the same time, Social Security put into process its conversion from paper files to electronic files and they created the infrastructure to provide for video hearings.

In Atlanta, where I practice, SSA created a video hearing ODAR office in Marietta, Georgia with three hearing rooms available to handle video hearings.

The good news – Social Security is now equipped to offer claimants administrative hearings.  The bad news:  the hearing offices often do not have enough support staff to process all of the decisions being issued by new judges and judges appearing by video. Continue reading →

Should I File for Social Security if I Also Have a Pending Workers’ Comp and LTD Claim

Social Security disability cases often interface with workers’ compensation and short term or long term disability cases.  I recently received a question from a lady named Helena, who asks the following:

I have been working in the medical field for over 13 years and more.  I am on short term disability. Can I apply for ssi due to my job may have caused my problem from lifting patients, pushing, pulling heavy patients to machines and other duties.  This job was very stressful and I am taking anti depressants and I am  seeing a psychiatrist.

Here are my thoughts: Helena certainly has the right to file for Social Security disability.  However, I would advise her to speak to her workers’  compensation lawyer prior to doing so.   Workers’ compensation claims can involve a significant amount of money when they settle and filing for disability can impact the value of your workers’ compensation claim.

The value of a workers’ compensation claim often turns on the uncertainty that exists in terms of the claimant’s prognosis for returning to work as well as uncertainty about the claimant’s future medical treatment.  When you file a Social Security claim you are basically saying that you cannot work, and you will be bringing Medicare into the discussion in terms of future medical care.  Medicare’s involvement also may affect your settlement because Medicare may demand that part of your settlement be set-aside to cover future medical care.

Long term and short term disability claims may also be impacted by a Social Security claim.

Bottom line – I would try to involve your lawyer as a point person to advise you about the various benefits to which you may be entitled and to help you decide about the timing or wisdom of pursuing these benefits.

What Factors Does Social Security Consider in a Diabetes Disability Case

Many Social Security disability claimants have been diagnosed with diabetes.  What does it take to win?  Here is a question I received from a reader of this blog:

Jane, my girlfriend of 25 years (54 yrs old) has been diagnosed with Type I Diabetes for 35 years. She has had a number of problems over the years (uncontrollable diarrhea, Retinopathy, Neuropathy) all of which were more or less under control until recently. She has suffered a massive hemorrhage in one of her eyes and is completely blind in one eye. The eye may be able to be helped by surgery but one thing is for certain it will never be as good as it was 3 weeks ago.  Jane has been employed as a land surveyor (self employed last 10 yrs) for 30 years and it is very difficult to carry on with the physical impairments brought on by diabetes.  Given her age I would very much like to get her on a government sponsored disability program so as to supplement my earnings while waiting for SS retirement to kick in at age 62. Do you think I have any chance of this? Given your experience which of the numerous symptoms of diabetes are the easiest to document for a SSDI claim?

Here are my thoughts: under Social Security’s definitions, Jane is “closely approaching advanced age” and has a skilled work background, and quite possibly transferrable skills.   Her educational background is not mentioned but I will assume that she has a college education.  As such, it is unlikely that any of the medical-vocational guidelines (the grid rules) will apply.

I would therefore analyze her case as Continue reading →

Strategies for Winning Multiple Sclerosis Disability Claims

Over the past couple of months, I have taken a number of MS cases to hearings before different judges. So far, we are looking at favorable decisions in all of them. However, the evidence considered by the various judges has been anything but consistent.

I summarized the various case strategies that I use in multiple sclerosis cases on my Georgia Social Security Disability web site so I will not repeat that detailed summary here.  A couple of points that do jump out at me:

  • because MS is a disease that progresses through a series of flare-ups and remissions, it is not uncommon for my client to experience periods of functioning that could allow for minimally physically demanding work. I get past this issue by eliciting testimony from my client that stress from attempting to work (including preparing for work, traveling to work and performing work) can cause a remission period to shrink, and that my client’s functioning during a remission period is enhanced by staying in a comfortable, familiar home environment
  • ideally, an MS case file should contain doctor or ER visits in intervals of 3 months or less. However, if you cannot afford treatment or otherwise do not go to your doctor that often, a personal diary detailing symptoms can serve as viable evidence
  • judges recognize that MS is a degenerative condition that does not improve over time. There are a number of neuromuscular diseases related to MS that may comprise your diagnosis. It is important to have your doctor reference that your associated disease falls within the MS family

I also found that in each of the cases I tried, my clients came across as exceedingly credible – people that had long, consistent work histories and who clearly would prefer to land back in the work force. In many ways, your credibility as a claimant serves as the foundation for your case and the combination of believable testimony, a definitive diagnosis with known, serious symptoms and a solid work history makes for a disability case that will likely succeed.

Social Security Disability and Child Support

NOTICE: I received so many comments and questions about the issues of child support and Social Security disability that I set up a separate blog about this topic – www.childsupportandsocialsecuritydisability.com.  Please visit this new blog to post comments and ask questions.

–Jonathan

Can you SSDI benefits be seized to pay past due child support?  Yes, according to Social Security Ruling 79-4, the Social Security Administration can withhold a percentage of a claimant’s benefits in an amount equal to what SSA could withhold to pay delinquent income tax debt.

No interest or penalties may be withheld, and before the first withholding may commence, SSA must give the claimant 60 days notice.

There is a question in my mind as to whether SSI benefits may be seized to pay delinquent child support.  The web site esocialsecurityappeal.com states that a “custodial parent has no right to any of the proceeds from SSI.”    Tim Moore, the editor of DisabilitySecrets.com also states that SSI recipients will not have their monthly disability benefits and past due benefits seize.  According to Mr. Moore, the rationale to protect SSI from levy relates to the nature of SSI as a welfare benefit:  “since SSI is essentially a public welfare benefit and does not derive  not from a claimant’s earnings record, SSI benefits cannot be taken for other purposes, just as food stamps and AFDC funds, likewise, cannot be seized.” Continue reading →

Will a Work Attempt Cause Me to Lose My Benefits

Many disability claimants are not ready to give up on the idea of working.   Social Security recognizes this and offers a number of programs designed to help disabled claimants transition back into the work force.

I recently received a letter from a such a claimant.  He describes himself as a 53 year old male was was approved for SSDI as of June, 2006.  The basis of his claim is major depression.  He states that in June, 2007 he decided to try to return to work as a commissioned insurance agent.   From June of 2007 through April, 2009, he has earned $10,000 in commissions, but these commissions have not yet been distributed to him.   He states that the work effort has been very difficult and at this point he has decided to discontinue his active work as an insurance agent.

The issue facing him has to do with the $10,000.   He is concerned that if Social Security sees a $10,000 distribution, it might trigger a termination.  What should he do? Continue reading →

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