August 29, 2014

How to Explain Earnings After Your Disability Onset Date

If your earnings record shows salary earned after the date you say you became disabled, you can be sure that the judge in your Social Security disability hearing will ask for an explanation.

Example:  you say you became disabled on April 3, but your earnings record shows income in May, June and July.

In this video I explain  how I advise my clients to respond to questions about post-onset earnings in three common scenarios:

  • unsuccessful work attempts
  • accrued earnings or benefits that are paid after the last date you were physically present at work
  • part time work

No matter what the reason, always discuss with your lawyer work, work attempts or payments received after the date you claim that your disability began.

New Information Available About Social Security’s Work Incentive Programs

ticket to work programSocial Security disability programs are running out of money.   As such Social Security executives are looking for ways to reduce the outflow of dollars.

One effort has been to tighten up eligibility standards.   Claimant’s representatives throughout the country are reporting that ALJ approval rates are down.   When cases are approved, judges are including directives in their decisions for SSA to review approved the approved claimant for medical improvement in one year or three years.

SSA has increased and will continue to increase the number of continuing disability reviews for approved claimants.  For years, the CDR program was basically ignored by Social Security – as a result only a very tiny percentage of approved claimants were ever removed from the payment rolls and there was no inquiry into improved medical status.   This is changing and I am starting to receive calls from my old clients asking about these continuing reviews. [Read more...]

Will Filing for Unemployment Hurt Your Social Security Disability Case?

unemployment and social security disabilityIn my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability.  On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be  “unable to engage in substantial activity?”

Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore.  I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.

Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so.  Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.

Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims.  My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt. [Read more...]

Working After Being Awarded Disability – What is the “Ticket to Work?”

With disability claims taking 2 to 3 years to wind through the disability adjudication system, I often get the question from my clients “is it okay if I try to work” or “is it okay if I work part time?”   Generally my answer to this question involves an explanation that in my view, Social Security decision maker (judges and adjudicators) tend to see work in black and white terms.  If you try to work and fail within about 3 months (this is called an “unsuccessful work attempt”), your effort can be helpful evidence to show that you are motivated but unable to perform.   If your attempt lasts longer than 3 months or if you work a part time job ongoing, then your work efforts will generally hurt your disability claim.

Social Security disability ticket to work programWhat about work efforts after winning your disability case?  Generally you will earn more money and be more fulfilled as a person if you can work, as opposed to sitting at home collecting disability benefits.  Obviously, Social Security would prefer that you leave the rolls of disability claimants, and statistically, 90% of disability recipients would like to go back to work (although less than 1% actually do, perhaps because they do not know how).  So what are the rules?

I have set out the specifics about returning to work after being approved for disability on a special topic page on this site.  Click on the link to learn more about this.

You may not be aware, however, that Social Security has several programs available to you that help you try to return to work without penalizing you for trying.  Perhaps the most developed program in this regard is called the “Ticket to Work.”

My colleague, Chicago Social Security disability attorney Aaron Rifkind, has written a clear and informative article about the Ticket to Work program.  Aaron also publishes an excellent Social Security disability blog, which I read regularly.  As Aaron notes, the Ticket to Work program is: [Read more...]

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.

Will Graduate Student Work Stipend Cause Paraplegic to Lose SSDI Benefits?

My April 26, 2008 post about attending college and applying for Social Security disability generated a large number of emails and questions.  A reader sent me this question which is about the impact of a stipend and part time job on an SSDI recipient who has already been deemed disabled.

I recently was injured and now am a paraplegic.  Before my injury I was an airline pilot but can no longer fly because of my disability.  I am returning to school to learn a new profession.  My question is “Will accepting aid such as a position as a graduate assistant be considered gainful employment?”  Depending on which school I attend and which program I enter, I will receive a tuition waiver and a stipend of anywhere from $6000 to $20000 a year for working 10 to 20 hours a week.  It is a merit based program; the more competitive I am the more assistance I will receive for basically the exact same duties.  I definitely cannot afford to go to school if I lose my SSDI but would hate to attend a lesser school just to stay under Social Securities’ income limit.  Any information would be greatly appreciated.

Here are my thoughts:  as a paraplegic, you meet the disability listing at 11.04 or under any one of the muculoskeletal listings (Listing 1.00).  At this point, I would assume that medically, there is not a likelihood that you will regain function in your lower extremities, meaning that you will continue to meet the listing on an ongoing basis.

10 to 20 hours a week is not full time employment, although part time employment taken in combination with full or part time school is substantial gainful activity.  It is certainly possible that when your employer reports income to Social Security it will trigger Social Security to review your case.  If you were only working 10 to 20 hours a week, and not attending school, you could argue that your employment was not equal to substantial gainful activity.  If you are getting special accomodations at work because of your medical condition, It would be helpful to document those special considerations.

Taken in combination part time work and school looks like substantial gainful activity -  it would be difficult to argue otherwise.  So, I think that there is a risk that your earnings and college attendance could trigger a continuing disability review, however, I wonder how likely that you will face this.  Your eligibility for benefits is a function of your medical condition and your medical condition is not one that will improve.

The money issue is a separate issue.

You can have earnings and still collect SSDI.   If you earn less than $670 per month, no problem.  If you earn more than $670 in a given month, that month counts as a "trial work period."  You still get your regular benefit check, but you use up one of your 9 trial work period months.  You can also claim necessary expenses against your gross earnings, meaning that your gross can be more than $670.

After you use up your 9 months of trial work, then you move into the "extended period of disability" where SSA will look at your earnings on a month by month basis.

I think you need to look at the eligibility issue and the money issue as separate problems.  SSA does not publish a set "formula" that might tell you what level or earnings and/or activity can trigger a review. 

Does Trial Work Period Start as of Onset Date or After Expiration of 5 Month Waiting Period?

I just got a fully favorable ruling from an ALJ, but the onset date has been amended.  Without going into a huge amount of confusing detail, I was supposed to get a partially favorable for a closed period, instead I now have a fully favorable with onset date starting Nov. 15, 2007.  To prevent losing my house, I had to start working some.  I am wondering if my trial period starts aftr the 5 month waiting period which would begin in April, or would the trial working period begin with the onset date?
–Jim

Jonathan Ginsberg responds: Jim, I believe that the trial work period starts as of your onset date.  The 5 month waiting period only has to do with payments.  I wrote about trial work periods on a fixed page on this blog – take a look by clicking on the link.

You should also speak with your lawyer about whether to appeal the decision.  If the judge stated on the record that he identified a closed period, and you start working, you may find yourself with a continuing disability review or an action to terminate benefits.

You only have 60 days to appeal a decision and you could lose your right to the closed period lump sum if you do not appeal.  Maybe it makes sense to appeal and maybe not.  I just think you need counsel about this issue and that you need to be proactive.

Can I Work After My ALJ Hearing But Before A Decision is Issued?

An attorney named John wrote me with the following question.  The email address he used was not valid so I decided to answer his question on my blog.  The question:

I have a client who would like to know if he can work while waiting for his SSDI benefits to be approved?

Here is my response:  John, I think that any work would be evaluated under the 9 month trial work period rules (see http://www.ssdanswers.com/how-much-can-i-earn-and-still-collect-ssdi/ ).   However, I think that working carries some risk.  The Judge can look at a current earnings record and if he/she sees work activity that could result in a second hearing or, even worse, lead a judge to deny.

SSA sees things in black and white.  I am therefore not a fan of work prior to the issuance of a decision.  I have  a case right now in which I won but the SSA investigation office found evidence of work and the decision has been reversed and the case remanded for another hearing.  I think that I will have an uphill battle in that case.

Does Accepting Unemployment Benefits Hurt My SSDI Case?

Should you accept unemployment benefits while your SSDI case is pending?  My experience has been that Social Security judges will have concerns if you accept unemployment compensation during your wait for your Social Security hearing.

Generally, when you apply for unemployment, you are asserting that you are ready, willing and able to work.  You may also be required to report to your local unemployment office with proof that you have looked for work and you may be required to attend vocational rehabilitation or other programs to help you resume employment.

While I think that unsuccessful work attempts can help your Social Security case by demonstrating your motivation and credibility, my sense is that if you accept money from a state unemployment agency, you demonstrate your belief that you have the capacity to work a full time job.  There are enough claimants out there that manage to find a job that they end up losing, that some judges may feel that a person collecting unemployment is looking for a specific type of job as opposed to any work.  Since Social Security disability looks to your capacity to perform any type of job, your receipt of unemployment compensation may muddy the waters.

That being said, I don’t hear judges asking about unemployment as much as I used to, now that the wait for a hearing can be two or three years.   Still, be aware that if you do apply for and receive unemployment compensation you may be asked to reconcile your claim that you cannot perform competitive work with your assertion that you are ready, willing and able to accept employment.

[tags] Social Security disability and unemployment compensation, unsuccessful work attempt [/tags]

Working After a Disability Award – Trial Work Periods and the Extended Period of Disability

A gentleman named Ken asks the following question about trial work for disability claimant:

I am a self taught guitar player, not professional by any means, I could not do this for a living. But I do get paid periodically to play with a partner at bars and restaurants and such. This is fleeting at best, and most of the time there is nothing going on.  Right now I’m making around $500 to $600 a month, but next month I could be making
nothing, and that usually will last for months.What is my situation with ssd (I am collecting ssd for stomach ailments and nerve problems) Do they average out what you might make in just 6 months, over the course of a full year?

Jonathan Ginsberg responds:   Ken, your question has to do with two provisions of Social Security law – the "trial work period" and the "extended period of disability."   Here’s how they work:

After you are found to be disabled, Social Security wants you to try to work.   During any 60 month (5 year) period after your disability starts, you can and should try to work.  If you earn less than $640 in a particular month, there is no problem.  If you earn more than $640 in any calendar month, that month counts as a "trial work period month."  You can have up to nine (9) trial work period months in any 60 month period.

Once you show nine trial work period months, your classification changes to something called the "extended period of disability."  During this period, you will receive your check for any month in which your earnings fall below $900 ($1,500 if your disability is based on blindness).   So, for example, if you earned $1,200 in June and $50 in July, they would count June as a month where you earned "SGA" (substantial gainful activity) but July would not count.

At the end of the 36 months your extended period of disability stops as do your disability payments.

If, however, during a five year (60 month) period from the start of your extended period of disability, your condition worsens and you cannot work, SSA will restart your benefits immediately without requiring you to file a new application.  However, if SSA later determines that you are not disabled, you will be expected to pay back the restarted benefits

My advice, therefore, is to keep very good records of your earnings.  I have been involved in cases where SSA miscalculated or showed too much earnings for a particular month in the extended period of disability.

Note also that the dollar figures for trial work periods and extended periods of disability may change from year to year.  To the best of my knowledge, the above figures are accurate for 2007.

You can read more about trial work periods or extended periods of disability in the official SSA publication 05-10095.

[tags] extended period of disability, trial work period, SGA work [/tags]