October 20, 2014

What Happens to my Case if I Return to Work While Waiting for my Hearing?

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.

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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.

Comments

  1. And if you are broke and have to work to avoid living in the street while your case drags on and on, what are you supposed to do–rob banks? Just because a person works, doesn’t mean they aren’t in pain, exhausted, and sick while they’re working. Why would anyone apply for ssd if they felt great and could keep up the deamnds of a FT job?

  2. I had this question also and agree with you. It takes soo long that people end up in desperate measures. I have two forms of MD (muscualr dystrophy) I got denied. I am waiting my court appeal and so far its been one year since I applied and 9 months since they recieved my appeal. I have been on welfare but they are taking me off of it in two months because I live with a roomate that makes too much money. They take my child support and in turn give me an extra $100. My total isn’t even enough for me to pay rent to live for my child and I and had to move in with this roomate to avoid being homeless. I am 24 and have worked since I was 15 but had to stop last year because my adult on-set disorder kicked up. I will be homeless and unable to provide for my child if I don’t try and work one or two days since that is all I know I can handle. But what is one to do???? I found a job with an old friend at his personal business and he is aware of all my issues and just needs me to do office work for 4 hours twice a week. What are my chances it will ruin my case? I am going to have him write a statement to give to my ssd/ssi rep. to give to the judge if I get one that is very non-understanding. Any advice would be great.

  3. I have been out of work since September 2008, due to Fibromyalgia, I was getting short term disability but due to a doctor that does not believe that Fibromyalgia is a real disorder, refused to fill out my disability forms for my car, house, and job. I was forced to ask for a note to return to work.

    I drove a tractor trailer for a living and was in NO shape to ever go back to driving, but pretty much knew because of the slow auto industry and being in Michigan that chances were that they would not bring me back to work. I was correct in that assumption. I was told there were No trucks available and that they were not going to bring me back. So instead of arguing with my doctor about the forms I was able to now able to apply for Unemployment so I would at least have some sort of income.

    I am worried that getting unemployment compensation may hurt my case, but I have a family and have NO choice I have to pay my bills.

    With Fibromyalgia though, I am fine some days and function normally. Then there are days I have a hard time getting out of bed. One of my biggest complaints is what is known as IBS which to put it in my own words..is a pain in the BUTT.

    If I do go back to work, I have to eat at least 2 hours before I go to work, and cannot eat until my shift is over or I will spend at least 2 hours of an 8 hour day in the bathroom.

  4. nemo p. cognovi says:

    buckle -up each and all of – you working and disabled stiffs—–
    the “NATION OF SHEEP” –THOSE IN washington are surely
    fleecing each of you that receive ssdi ans ssi THEY TAX YOU AND THEN CHALLENGE YOU TO RECEIVE ANY BENEFIT

    EXCUSE ME—I MEANT “NATION OF THEIVES”
    OUR CONGRESSMEN DO NOT PAY SOCIAL SECURITY TAX NOR DO THEY WISH TO RECEIVE SOCIAL SECURITY -THEY BECOME RICH
    WITH THE LOBBYIST FAITHFUL GIFTS=–WAKE-UP AMERICA

  5. francisco spagna says:

    i have been waiting for my ssi,however i need money and dont freaking want to wait because i will go insane more than i am?i need to work a few hours a week

  6. well, i hope i am not screwed. i applied for disability feb of 2007. my hearing is on june 11th. i have had 6 jobs during the last 2 years. i didn’t want to give up or admit i had a problem. the jobs ranged anywhere from 2 weeks, to 8 month being fired from all but 1. the odd one i ran out of as i was having a severe panic attack. i am concerned about the 8 month job. for the first couple months i thought it was ok, but then my depression and being bi-polar issues took control. my short term memory is very bad and i kept going to different employees asking the same question as i was embarrassed that i could not remember. after a couple months of this, they all talked and i was fired for creating a hostile work environment. my question is do any of you think this 8 month unsuccessful work attempt is going to screw me? i was indeed fired for my mental issues but i am worried about the length of time at one place. please give me advice! also, after being fired from the last job of 2 months, i was able to get unemployment benefits. i read on this site that this could screw me big time. i had to do something to get some money as i have run out and so have my friends that were helping me. i need some advice. thank you!

  7. Craig,
    Since you posted in May 2009, I was wondering if you had a reply RE your unemployment compensation vs. social securiy disability case?

  8. Jonathan Ginsberg says:

    I recently tried a case in which there was an 8 month “trial work period.” The judge reasoned that an “unsuccessful work attempt” comprised the first 3 months of this period and that the remaining 5 months of the work attempt could be characterized as a “trial work period.” The judge approved this case.

  9. jonathan,

    my case was tried on the 11th and there was a similar finding. The judge stated that he would consider the 8 month job a “trial work period” as they can last up to 9 months. so if this is the case, does that mean i will not get any back pay for any part of that 8 month period, or being it was an unsuccessful trial work period, that i will get back pay from that time frame? I made 21k in 2008 between the job in question and then another for just a couple of weeks. he had asked my lawyer if the payment processing center would be confused in regards to what he had decided. i assume then from those comments everything is going to go in my favor. :) please let me know what you think.

  10. syl

    just you and jonathan had responded to my post. :)

  11. Tonya Ridener says:

    Hello. I am 23 years old and I filed for my disability on April 19th, 2009. I should’ve gotten it when I was much younger because I was diagnosed bi-polar when I was 13 years old and have struggled my entire life. I lived with my father and he forced me to get a job at 16. I have had 27 jobs in the past 6 years and it’s very hard for me. I just recieved my first denial letter a few days ago and I’ve heard it may take longer than 9 months. My last job I was there for 8 months but only because my father threatened to kick me out and I had nowhere else to go. I stayed out of fear and it upset my boss that I was always walking away due to mood swings and crying. This is not a game and I didn’t do it because I didn’t want to work. I did it because I seriously need help and I can’t hold a job without getting extremely stressed and overwhelmed. All other jobs have lasted 2 days to 3 months. But it’s so difficult for me. I am feeling so bad that my mother is struggling to support me off of her disablity check every month and I was wondering if anyone had any advice?

  12. Tonya keep trying, to get ssd is not that easy. If it were that easy it wound’t have blog like this. It all boils down to prove your inability to hold a job. You can’t quit now keep trying, better yet get your self a good disability lawyer it worth every penny of it. But don’t give up,
    ED

  13. jeff kennell says:

    @I’m 56 educated and not held a job for 6 years. I was told I was bipolar at 25 since then it has been a roller derby. Applied for Social Security disability 3 years ago and have retained an attorney. I’m very much in need of a job both for the money and something to do. The job market is very tight and I’m afraid to work and give up on the Social Security Disability. I was recently granted Medicaid as a result of the bipolar stuff, also I have COPD. I’ve called the attorney’s office and asked for them to file a request for a hearing and they say that’s where its at and to be patient we know it frustrating.Tonya Ridener:

  14. Vicki Smith says:

    Hi, I have my Disability hearing in November 2014. I have had no income for18 months. I live with my mom and she has been supporting me. I am at the lowest point in my life. I have been offered a part time job sitting with sick and older senior citizens. Is it okay to make alittle money? While waiting for my hearing?
    Thank you, Vicki Smith

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