Many disability claimants are not ready to give up on the idea of working. Social Security recognizes this and offers a number of programs designed to help disabled claimants transition back into the work force.
I recently received a letter from a such a claimant. He describes himself as a 53 year old male was was approved for SSDI as of June, 2006. The basis of his claim is major depression. He states that in June, 2007 he decided to try to return to work as a commissioned insurance agent. From June of 2007 through April, 2009, he has earned $10,000 in commissions, but these commissions have not yet been distributed to him. He states that the work effort has been very difficult and at this point he has decided to discontinue his active work as an insurance agent.
The issue facing him has to do with the $10,000. He is concerned that if Social Security sees a $10,000 distribution, it might trigger a termination. What should he do?
Here are my thoughts: Social Security regulations provide for a trial work period of up to 9 months in a rolling five year period of time. For 2009, a month counts as a trial work month if you earn $700 or more, for 2008, the figure is $670. Thus, in my reader’s case, Social Security would look at every month from June of 2007 to the present and any month showing more than $640 (2007), $670 (2008) or $700 (2009) would count as a trial work month.
Arguably, therefore, if he received one paycheck in the amount of $10,000 for April, 2009, that check would only count as one trial work period month.
However, my reader would be safe to assume that someone at Social Security might look at this large salary distribution and ask questions. I think that the risk here would be that Social Security might try to argue that the commissions were earned over a number of months. If Social Security concluded that there were more than 9 months involved, that could affect my reader’s on-going eligibility.
I would therefore evaluate – month by month – what activities my reader engaged in during his trial work period and what funds associated with that work. Whether or not a particular month qualifies as a trial work month would seem to be a matter of evidence.
There may also be case law or Social Security rulings that address this type of issue – that would be a matter of research for a lawyer in my reader’s jurisdiction.
Even if the 9 months was used up, there is something called an extended period of disability which would allow for an immediate reinstatement if earnings stopped and there was medical support.
I would also note that trial work periods and cessation of benefits issues are not matters that are handled by all disability claimant’s lawyers. In my practice, for example, I have only appeared at two cessation cases – not because those issues are not out there, but because cessation clients rarely have the funds to pay for hourly representation. There are no past due benefits payable in a cessation case so most cessation case clients do not have the funds to retain counsel.
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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