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Trial work is a program that applies to people already entitled to Title II disability benefits. Sometimes Title II recipients will attempt to return to work to see how it goes. Social Security encourages this, and allows a 9-month period for a person to still receive disability benefits while testing their ability to work. However, this trial work needs to be managed properly to avoid unwanted consequences.

Some disability recipients try working part-time, and may earn less than the SGA amount. They may assume their disability benefits will not be affected by this part-time work. But the trial work amount is quite a bit less than SGA, and this can cause problems for people who earn more than the trial work amount, and do not keep track of their months of trial work.

After 9 months of trial work, Social Security can terminate your benefits if you reach the level of SGA. The 9 months of trial are not necessarily consecutive, so a few months here and there of part-time employment can consume the trial work period. The SSA looks at a rolling five-year period for trial work, so that 9th month of trial work can sneak up on you.

Here is how to handle trial work when you are receiving diability benefits:

  1. be aware of the the trial work issue.
  2. keep track of your earnings, particularly if you are only working part-time. Keep your paystubs.
  3. let your local Social Security office know that you are working, and give them copies of your paystubs.

The goal is for both you and Social Security to know when you have reached the 9th month of trial work, so there are no surprises. You want to avoid an overpayment, where Social Security realizes after the fact that they have continued to pay benefits after 9 months of trial work, and seeks to get the overpayment back.

The 9th month of trial work is important for another reason. It tolls the beginning of the 36-month reentitlement period.

I have started writing short, one-page letters to the disability examiners at the initial or reconsideration level, setting forth my theory of the case. The letter briefly describes the claimants limitations, and then makes the vocational analysis based upon the claimant’s work history. For many years I have written detailed briefs for judges at the hearing level. Since I have started writing short briefs for disability examiners, I have won many more cases at the DDS level.

There has been a tremendous amount of turnover at the DDS state agencies that make determinations on Social Security disability claims. A whole new group of examiners came in at the beginning of the COVID era, and many of those have already left and been replaced by new disability examiners. As a result, a great number of examiners do not have extensive experience. A letter analyzing the claim can be a big help.

The letter is particularly helpful regarding the vocational evidence, which goes to the heart of what the disability examiner does when making a determination. At Reconsideration, I often find myself pointing out the errors in the vocational analysis that was done at the initial level.

Call and write your disability examiner. I am winning more claims at Reconsideration, and also at the Initial level of review, due to this increased communication.

Social Security assesses your ability to perform your past relevant work at step 4 of the sequential evaluation process.

Social Security will evaluate your ability to do the physical and mental activities that were required to perform your past work. The SSA will not consider whether or not you could actually get a job doing this work.

Additionally, when evaluating your ability to perform your past relevant work, the SSA does not consider:

  • whether you would be hired,
  • whether a job opening exists,
  • whether you would be required to relocate,
  • whether you want to do this work,
  • whether you still have a certificate or license to do the past work.

The last item on the list is one I hear about from clients who are pilots, truck drivers, or commercial bus drivers – people who are required to have an examination from a physician to maintain a license. The fact that you could not pass the physical to get licensed is not considered by Social Security.

Rather, the SSA will simply evaluate whether or not your could perform the necessary work activities of that past job. It may be that the medical condition that would keep you from getting licensed would also prevent you from performing the job. But not always.

A Social Security disability claimant should emphasize the functional limitations that would preclude past relevant work, and skip the argument about not being able to be licensed, and therefore unable to work.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend, like the upcoming Juneteenth National Independence Day coming up on June 19th this year.

Juneteenth has only been recognized as a federal holiday since 2021. So it may sneak up on some practitioners. If you have a hearing during the week of June 19th, you must take the holiday into account when calculating filing deadlines.

New evidence includes updated medical evidence and the Representative’s brief. Everything must be filed 5 business days ahead to be timely for the hearing. While filing earlier is always best, it is important to be aware of the deadline.

Reconsideration is the next step in the Social Security disability adjudication process for those who are initially denied after applying for disability. As the waterfall chart shows, obtaining disability benefits at Reconsideration is the exception, rather than the rule.

I have written before about winning at Reconsideration. That earlier post discusses additional medical evidence at the Reconsideration stage. Since then, I have increased my focus on the vocational aspects of the claims at Reconsideration in my practice.

The first step after an initial denial is to ask for a copy of the Disability Determination Explanation from the local Social Security office. That explanation will tell you in granular detail how the claim was evaluated by Social Security, and why the claim was denied.

Take a look at the vocational part of the determination. If you have an applicant over the age of 50 who was denied because they could perform a past relevant job as generally performed in the national economy, that is a big red flag.

Don’t be afraid to submit a new Work History Report. Claimants often file Work History Reports at the initial level (before they are represented) that are incomplete or contain errors. Give Social Security complete and accurate information in an updated report.

Finally, communicate your theory of the case to the new disability examiner. I have found it effective to write a short (usually one page) letter to the disability examiner explaining why the claim should be allowed. I usually follow up with a call to the disability examiner to briefly discuss the evidence, and make sure the examiner is aware of our theory of the case.

Follow the steps above (and continue to develop the medical evidence) and you will win more cases at Reconsideration. For the claims that you do not win at Reconsideration, the claim will be in a much stronger position at the hearing level, due to your efforts during Reconsideration.

When you are awarded Social Security disability benefits, you do not receive benefits beginning on your onset date (which is the date you became disabled, and were not working).  Rather, there is a 5-month “waiting period” before benefits accrue.

As a practical matter, however, it is often a 6-month waiting period. This is because the waiting period is 5 full months of disability. So if you have partial month of disability, that month simply doesn’t count. I have had clients with an onset date on the 2nd day of the month, and that whole first month of disability did not count. So the effective waiting period can be as long as six months before benefits begin.

The best possible onset date in this respect is the first or last day of the month.

New evidence for Social Security claims must be submitted 5 business days ahead of the hearing. See 20 CFR 404.935(a) and HALLEX I-2-5-13. With a typical weekend, that’s 7 days ahead of the hearing. Holidays, which are of course not business days, must be accounted for as well. So beware the 3-day holiday weekend, like Memorial Day coming up.

New evidence includes updated medical evidence, a statement from a spouse, and the Representative’s brief. All must be filed 5 business days ahead to be timely for the hearing. While filing earlier is best, it is important to be aware of the deadline.

My first post on this blog was 15 years ago today! It is hard to believe that 15 years have gone by. Both personally and professionally, much has changed since I began.

Personally, I was newly married when I started the blog. We had just bought a house. We now have a 13 year old daughter, who is amazing. Our careers have matured. We are just in a different place than we were back in 2008.

Professionally, I did not expect a blog to be so useful as a lawyer. Of course, it is an effective platform to market a law practice specializing in Social Security disability. But writing blog posts requires me to evaluate the issues in this area of law in a very precise way.

The blog also serves as a repository for the legal research I have undertaken over the years. If I haven’t dealt with a specific issue for a while, there is often a previous blog post on that topic that has the exact language that I need, along with citations to the applicable regulations. It is an amazing resource for me, and hopefully for readers as well.

At the recent NOSSCR Conference, I attended an excellent presentation by Ohio disability attorney Scott F. Smith on winning cases for Social Security disability. One of the topics covered was a pre-hearing brief for the administrative law judge. Mr. Smith listed several goals accomplished by writing a brief:

Drafting a brief is an endeavor that I believe is essential to setting up a winning case. It helps accomplish several goals:
1. it allows you to go through the evidence in a goal oriented manner so you know what’s in the file;
2. it allows you to organize the evidence in a clear and concise manner to emphasize the strengths and deal with the weaknesses of your case;
3. it allows you a roadmap to have with you in a hearing so that you do not lose your way of what is important;
4. it provides the judge evidence that you have actually reviewed your file before the hearing;
5. it also sets up your arguments and points the judge in the direction for which you want them to ultimately go;
6. it provides a record so that if unsuccessful at the hearing, you can show the Appeals Council exactly what the arguments were and what the judge missed.

Reasons 1 through 3 are particularly important. A hearing brief is essential. Not yet convinced? Here are ten reasons to write a hearing brief.

The hearing brief is subject to the five-day rule, so get it in early. The earlier the better, so it is in the file as the judge first reviews the claim.

At the close of a hearing, sometimes post-hearing argument is needed. Social Security’s rules allow for oral and/or written post-hearing argument, upon request. See HALLEX section I-2-6-76.

I prefer to submit a post-hearing brief, rather than make a statement at the close of the hearing. I think a brief has far more impact.

Post hearing argument is necessary when an important issue has been left unresolved. Sometimes it is the testimony of the vocational witness at the hearing. Response to this evidence is specifically permitted under Social Security Ruling 96-9p, footnote 8. Similarly, the hearing testimony of a medical expert may require a post-hearing response.

Sometimes the judge raises a quirky issue at the hearing. This happened to me recently when the judge wanted to reconcile the claimant’s many absences from work (we submitted attendence records from the last employer) and the lack of cancellations of scheduled medical appointments. He asked the claimant “If you were missing all this work due to your symptoms, why did you only cancel one medical appointment, of many?” The claimant gave a good answer, but I thought the issue deserved a further response. I let the judge know at the hearing that I would file a post hearing brief.

We do so much to prepare for hearings. But follow up after the hearing is sometimes necessary, and can strengthen your case.