With delays in the hearing process reaching 2 years, I frequently get questions from potential clients about the implications of returning to work. Here is a typical question:
i’m 57 yrs old & have filed for ssd due to herniated discs & arthritis of the knee. what happens to my case if i return to work before i get a hearing? i don’t know how long i’ll be able to work , but i got to try.
Jonathan Ginsberg’s response: If you have read this blog and educated yourself about Social Security, you know that the main issue in any Social Security case turns on whether you can perform some type of work reliably 8 hours a day, 5 days a week with normal breaks. If you are working, by definition, you are not disabled.
Attempting to work while your case is pending may or may not be a problem. If you try to work and last only a few days or even a few weeks, the judge will see that as an “unsuccessful work attempt” that demonstrates your sincere desire to work and your inability to do so.
Once you stay at a job for more than 3 months, however, it starts to look like you have the capacity to perform “substantial activity.”
Remember that Social Security’s definition of disability looks to whether you have missed or are likely to miss 12 consecutive months because of your impairment. I have represented several clients who missed 12 months, and then returned to work and we argued for a “closed period” of disability. If you are out of work for less than 12 months, you are not likely to be approved so you and/or your lawyer should pay attention to the timing of events in your case.
I generally advise my clients that they will earn more money and they will be more fulfilled if they are able to work and I encourage them to do so. However you need to be realistic about your capabilities – you do not want to go back to work just long enough to damage your Social Security case but not long enough to support yourself over the long run.
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.
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