Maine Social Security Disability Lawyer

If You Are Working, You Are Not Disabled

I frequently talk, or trade emails, with people who are thinking about applying for Social Security disability but are still working (and earning more than the SGA amount of $1,000 per month).

Sometimes people are surprised that they cannot still work and apply for disability benefits. Sometimes they want to discuss the likelihood of success for a disability claim, should they stop working and apply for benefits.

Often people want to know if their particular medical condition can provide a basis for disability. My answer is always yes, so long as the symptoms are severe enough to prevent them from working, and there is good medical support for the severity of the symptoms. It is not the diagnosis, but rather the severity of the symptoms that determine the success of a disability claim.

I invariably also say that stopping work should be a last resort. There are good reasons for this.

First, the path to Social Security disability benefits can be a winding one. It can take longer than hoped. These days in Maine, if a hearing is necessary, the better part of twenty months can pass (and if you take 60 days to appeal your initial and reconsideration denials, it can be two years). It is quicker in New Hampshire, but is still likely to be a 16-month process if a hearing is required.

Second, even if the disability application is granted right away, there is still a 5 full-calendar-month waiting period for benefits. As a result, it can often be almost 6 months before your are eligible for benefits, and the first check comes the following month. So that's almost 7 months from your last day of work. You have to be prepared financially for that gap in income.

If you have any choice about it at all, please think carefully before stopping work. However, when work becomes too much, you should apply for the disability benefits for which you have paid a premium through your FICA taxes over the years.

You can gain further insight into the Social Security disability claim process by downloading the free ebook below.

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Ten steps to prepare for your Social Security disability hearing

 

The Work Activity Report - Form SSA-821-BK

Sometimes there is work after a claimant's alleged onset date. The Work Activity Report - Employee addresses that issue.

Being disabled means you are not working. So it is entirely appropriate for Social Security to request the details for any work activity after the alleged onset date. After all, step 1 of Social Security's sequential evaluation is a consideration of your work activity. See 20 CFR 404.1520. One judge at the Boston ODAR requires every claimant to complete a Work Activity Report before a hearing.

If the work after onset was below SGA, or was an unsuccessful work attempt (see 20 CFR 404.1574(c) and Social Security Ruling 05-02), then it will not derail a disability claim at step 1. 

When completing the Work Activity Report, be sure to have the correct dates of the beginning and end of your work. Be specific about your rate of pay and the hours worked. Be sure to say if the work ended due to your medical condition, or if the work ended because special conditions at work related to your medical condition that allowed you to work were removed.

SGA for 2010

The substantial gainful activity (SGA) amount for 2010 is $1,000 per month. You can see the SGA amounts since 1975 here.

The SGA determination is step 1 of Social Security's 5-step sequential evaluation. For Social Security disability or SSI, you must have (or expect to have) a 12-month period during which you do not have earnings at the SGA level.

If you are an employee earning more than $1,000 per month, you are probably not eligible for Social Security disability benefits. See 20 C.F.R. 404.1574. I say probably not, because other factors are considered, including IRWEs and UWAs. 

If you are self-employed, the test for SGA is a more complicated. See 20 C.F.R. 404.1575.

SGA Amount for 2010 will be $1,000

The SSA published its annual fact sheet last week. The SSA's official acknowledgement that there would be no COLA next year got most of the attention. However, there will be a new SGA amount for 2010. The new SGA amount will be $1,000 per month.

Finally, a number that is easy to divide!

Substantial Gainful Activity (SGA) is considered at step 1 of Social Security's sequential evaluation.

Question regarding Social Security SGA

 

A reader of this site had this question: should i still appeal my ssdi denial if i did not meet the sga requirement?

The answer is: probably not, but maybe yes. Let's take a look at each part of the answer.

Probably not: If you are working above the level of substantial gainful activity (SGA), you are not entitled to Social Security disability benefits. This determination is step 1 of Social Security's 5-step sequential evaluation process. So if you are an employee earning more than the SGA amount, you are not disabled under Social Security's rules. Do not appeal the denial of SSDI benefits.

Maybe yes: You may want to get more information. Social Security SGA can be complicated, and there are exceptions to the SGA rules. An unsuccessful work attempt is not SGA. Impairment related work expenses must also be considered. And if you are self-employed, there are three different tests for SGA. See 20 C.F.R. 404.1575.

If the SSA did not consider these factors correctly, then you should appeal your denial of Social Security disability benefits.

An attorney specializing in Social Security disability law can help you.

Must I give up my job to be eligible for Disability?

This reader question regarding Social Security disability arrived by email today:

I am in the process of gathering info so I can decide if I should apply for disability.  It appears that the first criteria to meet is to not be working.  I am working and it is very, very difficult.  Will I need to give up my job before beginning this process in order to be eligible?

My answer:

Pretty much, yes. If you are working and earning more than $980 per month, then you are not disabled under Social Security's rules. There are a few exceptions to this, but in general if you are working and earning more than the level of substantial gainful activity ($980/month in 2009), then you are not disabled. Period. 

That determination is step 1 of Social Security's sequential evaluation process. If you are earning more than SGA-level wages, then the SSA will not even reach the issue of your impairments at step 2.
 
You didn't say what kind of work you do, or if you get a salary or hourly wages. However, if full-time work becomes too difficult for you, and you drop down to part-time work and earn less than $980/month, then you would be eligible to apply for SSDI benefits.

Impairment Related Work Expenses

If you have monthly earnings above the level of substantial gainful activity, it is problematic for your disability or SSI benefits.

For 2008, the SGA amount is $940. Earnings over that monthly amount can present real challeges to receiving benefits. Depending upon the circumstances, you can be denied benefits (or the benefits you receive can be terminated) if your earnings are too high.

However, if your earnings are not way over SGA, there are ways to reduce the earnings counted by Social Security when determining whether or not you are working at the SGA level. These are called Impairment Related Work Expenses (IRWE).

Impairment Related Work Expenses are unreimbursed expenses that are 1) related to your impairment and 2) help you to work. Many different expenses qualify, but the most prevalent expenses are medical and medication costs. So if you are paying for medical visits, medication or for insurance copays, these are likely to be expenses that can reduce the earnings counted for SGA income. There are many more qualifying expenses. For more information, read Social Security Ruling 84-26.

Unsuccessful Work Attempt - real life example

A real life example of an unsuccessful work attempt may help to illustrate why this topic is so important. This example is one of my cases that is currently pending in Maine at the Reconsideration level.

This claim has an alleged onset date of 10/20/2006. However, from 5/18/2007 - 9/18/2007 this claimant returned to work part-time, and earned good money (well above the level of SGA) for 4 months. But the work became too much for him, and he had to stop. He subsequently filed a claim for Social Security disability benefits, which is now pending.

So there it is: 4 months of work above the level of SGA, smack in the middle of the disability period. As a result, there is not a 12 month disability period, as required. If there were not an exception for an unsuccessful work attempt, the claim would either have to be denied at Step 1 of the sequential evaluation process, or a new onset date of 9/19/2007 (after the 4 months of work) would be used.

However, with the UWA, the 4 months of work is excused. The disability period will run from the original onset date of 10/20/2007. This results in an additional 9 months of retroactive benefits. At a PIA of $1,340, that's another $12,060 in benefits due the claimant.

The Unsuccessful Work Attempt

If you have worked at the SGA level at any time since the alleged onset date of your Social Security disability claim, it can be problematic for your claim. You must have a 12 month period of disability (or a condition which is expected to result in death) to qualify for Social Security disability. That means means 12 months or longer with no work at the SGA level.

However, if your work after onset lasted for six months or less and ended due to your impairments, then it may qualify as an unsuccessful work attempt, and not be held against you. A work effort under three months is easier to explain away. The criteria for an unsuccessful work attempt (UWA) are found in 20 C.F.R. 404.1574(c) and Social Security Ruling 05-02.

Substantial Gainful Activity

Being disabled means you can't work. Step 1 of Social Security's 5-step sequential evaluation process is a determination of whether or not you are working. To make that determination, Social Security looks at whether you are engaged in substantial gainful activity (SGA). If you are an employee and a making more than this amount each month, Social Security concludes that you are engaged in SGA. As a result, you are not disabled under Social Security's rules.

This is a very important topic. As a claimant, if you have been working at the SGA level since the onset of your disability, you can lose you disability case before the judge ever considers the severity of your medical impairments.

As a Social Security disability lawyer, knowing the details of the requirements of SGA, including the unsuccessful work attempt, can solve problems in your cases with work after onset.