What are Representative Payees?

A relatively common scenario encountered by claimants is the situation where the claim has been awarded, but the claimant has been informed that he will not receive the funds directly. Instead, the funds will be distributed to a third-party “representative payee.” A representative payee is a person, agency, organization or institution that the Social Security Administration selects to manage a claimant’s funds when the claimant is determined to be incapable of doing so.


The first question the claimant will ask is, “why am I not receiving my funds directly?” The short answer is that they fall within one of the three categories of claimants the Social Security Administration has determined must have a representative payee. The first two categories are pretty straightforward and include most children under the age of 18 and legally incompetent adults.


The third and most common category though is anyone that Social Security determines to be incapable of managing or directing the management of his or her funds. Since a finding of disability is obviously a prerequisite to obtaining benefits under Social Security’s Disability and Supplemental Security Income programs, it stands to reason that a representative payee could be found necessary in all cases. Fortunately, the rules are not quite so liberal and the necessary finding that must be made before a payee is established is not an arbitrary process. There are strict standards in place requiring the Social Security Administration to evaluate medical or other types of evidence concerning the claimant’s ability to manage his benefits.


The next question becomes, “who may serve as a representative payee.” The answer is almost anyone. For example, a representative payee may be someone concerned about the claimant’s welfare (e.g. parent, spouse, guardian, friend), and an institution/entity, such as a nursing hone, nonprofit agency, or administrators at a homeless shelter. One of the few limitations is that the payee cannot be a convicted felon.


The payee does not have unlimited discretion in spending the funds. The payee must ascertain the needs of the claimant and use the benefits in his best interests. Funds must first be used for basic needs such as food, clothing and housing. The payee must also account for how the money is used each year.


Finally, either the claimant or the payee may request that the relationship be changed or terminated at any time. Upon receipt of the request, the Social Security Administration will investigate the situation and determine whether the request is appropriate.

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Social Security Disability and Obesity

SSR 02-1p, effective September 12, 2002, provides guidance on SSA policy concerning the evaluation of obesity in Social Security disability claims. This ruling came about as a response to the deletion of listing 9.09 for Obesity, which had once been a part of the Listing of Impairments in 20 CFR, subpart P, appendix 1.

Listing 9.09 first required that a claimant filing a Social Security disability claim exceed a certain weight based on his or her height. Once this requirement was met, the claimant would have had to exhibit one of the five following impairments:

• History of pain and limitation of motion in any weight-bearing joint or spine…
• Hypertension with diastolic blood pressure persistently in excess of 100 mm
• History of congestive heart failure manifested by past evidence of vascular congestion…
• Chronic venous insufficiency with superficial varicosities in a lower extremity with pain on weight-bearing and persistent edema
• Respiratory disease with total forced vital capacity equal to or less than the value specified…

As of October 25, 1999 when the deletion became effective, a person filing for disability benefits could no longer claim obesity as stated above. However, pursuant to SSR 02-1p, obesity must still be considered in the evaluation process. Listing 9.09 was deleted because Social Security felt the listing’s criteria “were not appropriate indicators of listing-level severity.” In other words, the criteria set forth in listing 9.09 “did not represent a degree of functional limitation that would prevent an individual [applying for disability benefits] from engaging in any gainful activity.”

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Not Giving Up On Your Claim Proves Rewarding For Applicants

Jason Cook


A recent CBS News Investigation report revealed that of the nearly one and a half million people who were denied at the initial application level for Social Security Disability Benefits in 2006, two-thirds – or approximately one million applicants – decided not to appeal the denial. But the decision not to pursue an appeal is often a mistake, considering that most claims are not approved before a hearing is conducted.

Statistics show that only 30% of claims at the initial application level are approved. If an appeal is made, the next step is a request for reconsideration. Unfortunately, the numbers are actually worse with only 15% of the claims being awarded.

However, persistence pays off at the next level known as the hearing stage. It is here that the claimant will be able to sit before the individual deciding their claim for the first time, an Administrative Law Judge. For those claimants who decide to go forward and request a hearing, at least half will be approved for social security benefits. That number goes up even more for claimants who have a representative at the hearing.
Often claimants will decide not to appeal their case, but then at a later time, to file a new application for benefits. This is not the proper course of action for several reasons. First, those individuals have to start the whole process all over again. This, of course, means that there is a 70% chance the claim will be denied at the initial level and an 85% chance the claim will be denied on reconsideration.

The second problem with filing a new application is that the claimant’s opportunity to be heard by a Judge – where there is a real chance of winning the case- is only further delayed. Considering that it often takes 2 years or more from the time a request for a hearing is filed to when the hearing is scheduled, the time spent completing and awaiting a ruling on the subsequent application (and the request for reconsideration) add months to the seemingly endless wait time.

The third problem with filing a new application instead of appealing the previous denial is the possibility that the claimant may have inadvertently forfeited benefits that he or she would have been previously entitled to. A denial at any stage of the process that is not appealed is considered a final judgment as of the date of the denial. The practical effect of this is that a claimant who wins their case on a subsequent application cannot, with limited exceptions, receive retroactive benefits prior to the date of the previous denial.

A hypothetical example may help clarify this. John Worker became disabled on May 1, 2002. On May 1, 2003, he filed his initial application for social security disability benefits but was denied. He then filed a request for reconsideration. However, this request too was denied in a letter dated May 1, 2004. John considered requesting a hearing but was fed up with the Social Security system. After a year, John reconsidered his decision but the time had passed to appeal the previous decision. Thus John filed another initial application, this one dated May 1, 2005. This time John pursued his case all the way to the hearing stage. The Judge ruled in his favor and also found that John was entitled to retroactive benefits. However, the back pay could only go back to May 1, 2004 because of the previous denial. Thus by not pursuing the original claim, John lost out on benefits from May 1, 2002 until May 1, 2004, which could equal thousands in lost benefits.

Social Security is undoubtedly a lengthy and frustrating process, especially when seemingly strong cases are denied at the initial stages. But it pays to be patient. By appealing all the way to the hearing stage, the claimant may actually be approved quicker and receive more benefits!

Proving a Lumbar Spine Disability

What it Takes to Prove a Lumbar Spine Disability Case

Degenerative disc disease is one of the most likely causes of low back pain, effecting approximately 65 million Americans a year. However, it is also one of the most misunderstood conditions and often people are left unsure on what the diagnosis actually means. Much of the confusion centers around the idea that because it’s called “degenerative,” the condition will progress and get worse over time. But actually, while disc degeneration is likely to progress over time, the resulting lower back pain usually gets better over time. Disc degeneration is a natural part of aging so everyone will have changes in their discs; however, not all people will develop symptoms because degenerative disc disease is quite variable in its severity. Therefore, when assessing an alleged back condition, Social Security looks for certain markers that indicate an individual’s condition is truly disabling. This article will explore these markers and provide tips on how to strengthen a disability case which involves degenerative disc disease of the lumbar spine.

What Social Security is Looking For?

MRI’s are a great way to prove the severity of a disc disease. Most doctors will order this imaging test when a patient consistently complains of low back pain. The MRI offers a more detailed image of the spine than an x-ray, and can tell the doctor how much degeneration exists and whether the disease is affecting a nerve or the spinal cord. A procedure that offers an even more detailed image of the spine is called a discography. A patient’s disc is injected with a special contrast dye which outlines the damaged areas on x-rays taken following the injection. This procedure is often suggested for patients who are considering lumbar surgery.

After a patient undergoes an MRI imaging exam, a one to two page report is generated. On the bottom of this report, a doctor who has analyzed the MRI lists the diagnoses in the “impressions” section. Words like “mild, moderate, or severe” are used to describe the severity of the disease. Social Security often looks for moderate to severe degeneration described on the imaging study. Additionally, Social Security looks for nerve root or spinal cord implication. When a disc is displaced or degenerating to a significant degree, it may “abut, efface, irritate or compress” a nerve root or cord. When a nerve is involved, there is significant pain not only in the lower back, but radiating pain down one or both legs. Lastly, Social Security looks for how the disc disease affects an individual’s ability to ambulate. Specifically, the Administration checks to see if the disease results in “ineffective ambulation,” which is defined by an inability to walk without the use of 2 canes, crutches or a walker.

Though not all the markers need to be present to win a Social Security case, having these markers makes the case strong because the medical evidence points to a severely disabling condition. An individual with an MRI showing severe degeneration of disc L4-5, with nerve root compression and a prescribed walker will probably meet one of Social Security’s Listings, resulting in an automatic win. However, an individual with a mild degeneration at L4-5, no nerve root or spinal cord implication, and no assistive devices for ambulation will have a more difficult time proving their disability.

What Various Types of Medical Treatment Says About Your Case


Other than tests, Social Security looks for medical treatment. Much in the way of treatment can be offered to individuals suffering from low back pain. Medications are the most common form of treatment, but they can range from over the counter pain relievers to serious narcotic pain management medications such as vicodin, morphine and valium. The stronger medications suggest more severe, unmanageable pain conditions and they are likely to cause debilitating side effects.

Other forms of treatment are physical therapy, pain injections, TENS units and pain patches. These conservative treatments are often exhausted before more invasive procedures are considered. Social Security looks to see if conservative medical management has been tried and inevitably failed to provide relief from the pain. If an individual has found total relief from pain after using medications and undergoing physical therapy, their condition is no longer disabling. However, if despite medications, physical therapy trials and pain injections, an individual’s pain persists, then the case appears much stronger.

A doctor’s recommendation for surgery on the spine reflects a serious condition. Although an individual’s choice to follow through with surgery or not does not effect a disability determination, the fact that it’s even recommended shows that the condition is very serious.

Multiple failed surgeries or other invasive procedures such as surgically inserted pain stimulators, tend to show that the condition is very severe and has probably totally disabled the individual.

What You Can Do to Strengthen Your Case

Though the presence or absence of the markers mentioned above are beyond an individual’s control, there are certain things that claimant’s can personally do to strengthen their case. Social Security looks for consistent pain complaints in order to assess the validity of a disability claim. An individual who never complains about back pain to their doctor, but then alleges it is preventing him/her from working will not be found very credible. Therefore, if your condition causes severe pain, be sure to see your doctor regularly and check that progress notes are being taken which reflect your pain complaints. Also, doctors can perform certain tests on their patients other than medical imaging which can help determine how severe a low back condition is.

For example, a straight leg-raising test can be performed on a patient to determine whether there is disc herniation. Additionally, testing can be performed on range of motion to check how much a patient can bend and move. Muscle strength tests will show whether the disease is causing weakness. Atrophy can be tested to check if the back condition is causing muscle wasting and foot drop. Gait tests can tell how the disease affects a patient’s ability to walk and stand. Make sure you explore these testing procedures with your doctor so that a supportive medical record will be available for Social Security to review.

Budget Cuts in California Adversely Affecting the Disabled

Budget cuts and layoffs have seriously affected many citizens in California over the past year. Even our state’s disabled individuals are now feeling the pressure of this turbulent economic time. On February 20th, California Governor Schwarzenegger signed a spending plan that included proposed cuts to programs that assist the disabled such as IHSS (In Home Support Services) and SSI (Supplemental Social Security). These already limited programs will see further cut backs if California doesn’t receive $11 billion in federal funds to bridge the state’s budget gap.

IHSS is a program that helps individuals over 65 years of age, or disabled and blind individuals. The program provides various services such as housecleaning, meal preparation, laundry, grocery shopping, personal care services (such as bowel and bladder care, bathing, grooming and paramedical services), accompaniment to medical appointments, and protective supervision for the mentally impaired.


SSI is a federal income supplement program funded by general tax revenues which is designed to help aged, blind, and disabled people who have little or no income. It provides individuals who meet the strict qualification requirements with cash to meet basic needs for food, clothing and shelter.

A spokesperson for the San Francisco regional office of the Social Security Administration, Lowell Kepke, stated, "The real question is whether or not California will cut SSI." Although the State Controller's Office is delaying payments for many human services programs beginning this month, according to Mr. Kepke, "SSI/SSP payments will be unchanged for March and April. As far as all future dates, California will have to make a request for a change." It remains to be seen whether the state will request a cut to these payments in May.

For disabled individuals living in the state of California, the idea of more cut backs is frightening. Take for example the case of Michelle Sanchez, a woman living in Sonoma County who is diagnosed with a disabling neurological disorder. She uses a wheel chair for ambulation and also utilizes the assistance of a service dog. Michelle lives in a special facility for disabled adults. Her monthly living expenses are covered in part by SSI, and she relies on caregivers who assist with cooking, cleaning and Michelle’s personal hygiene, paid for by IHSS. Michelle says, “I certainly hope the cuts don’t pass.” For Michelle, and those disabled individuals like her who depend heavily on government assistance, any cuts to SSI and IHSS will affect their quality of life.

Another aspect of the system that will be adversely affected by budge cuts is advocacy. Organizations such as the Mendocino County Health and Human Services Agency (MCDSS) hire advocates that assist disabled individuals apply for benefits. Pam Partee, a Social Security Advocate, works with the Temporary Assistance for Needy Families (TANF) and CalWORKS. Both are programs that provide Welfare-to-Work services and temporary cash grants to those who qualify. “It’s trying to get people back on their feet,” says Pam. “Many have never felt plugged into life. They’ve gotten used to feeling marginalized.” Pam says there is a considerable backlog of severely disabled people who were not on Social Security or General Assistance. She says that she assesses their cases and helps them get the benefits they need.

If SSI/SSP cuts go through, more than 1.3 million Californians will be affected. Particularly in Mendocino, 4,170 recipients stand to lose a total of $4,260,000 in grant payments. A reduction in funding for IHSS may cause a large set back in policy goals that aim to increase independent living for disabled individuals.

“It breaks our heart when [our clients] depend on us and we fail them,” says Pam. “If we can help them along, we help the community.”

Social Security Disability: How to Prove your Anxiety Disorder Prevents you from Working

Social Security Disability: How to Prove Your Anxiety Disorder Prevents you From Working

By: John M. FitzGerald

As a practical matter, every applicant for disability benefits must either meet the listings or prove inability to work in any significant capacity.

The listings are just what they sound like. Inability equates to disability. So the issue is not whether anyone would hire you, or whether there are factories where you live, but whether a hypothetical person with your limitations can do any type of work that exists in significant numbers in the national economy.

As with exertional impairments, proving disability on the basis of a psychological disorder requires documentation of a severe medically determinable impairment, and an assessment of the degree to which said impairment limits ability to perform work related activity for a period of at least twelve months.

To prevent a person from working, any impairment must be "severe," and psychological impairments are no different.

As with all impairments, the first question is: are you working now? Because if you are working, the likelihood is you are not disabled. If you are not working, the question becomes whether your impairment is severe. If your impairment is not severe, you are not disabled.

To determine whether a mental impairment is severe, SSA looks at 4 criteria: (a) activities of daily living; (b) maintaining social functioning; (c) concentration, persistence and pace; and (d) episodes of decompensation.

With regard to the first three criteria, a person can either have no limitation, moderate limitation, a marked limitation, or an extreme limitation. Any two of the criteria must fall into the "marked" range for an impairment to be considered "severe." If the impairment is severe, the analysis proceeds to step 3, the listings. If it is not severe, the degree of limitation must still be considered in assessing a claimant's residual functional capacity (RFC).

The fourth criteria--episodes of decompensation--is a medical term describing an exacerbation of a claimant's symptoms to the point where further medical intervention is required. If, for example, medications fail to keep a mental condition reasonably well controlled to the point where a patient must be hospitalized or further medicated, then one can say that the patient has lost some measure of composure. Obviously, the more this occurs, the more it interferes with ability to work.

Step 3, the listings, is a claimant's earliest opportunity to win. There are 14 bodily systems represented in the listings, with mental impairments enumerated in section 12.

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Glossary of Social Security Disability Terms

Glossary of Social Security Disability Terms John M. FitzGerald AC – Appeals Council ADL – Activities of Daily Living ALJ – Administrative Law Judge AOD – Alleged Onset Date CDB – Childhood Disability Benefits CFR – Code of Federal Regulations COLA – Cost of Living Allowance DAA – Drug and Alcohol Abuse DDS – Disability Determination Service DIB – Disability Insurance Benefits DLI – Date Last Insured DOT – Dictionary of Occupational Titles DSM – Diagnostic & Statistical Manual of Mental Disorders HALLEX – Hearings, Appeals and Litigation Law ER- Earnings Record IA – Initial Application more terms HERE