Because Social Security is so backlogged with its disability claim evaluation process, many truly disabled claimants try to return to work even for a short period of time because they need to survive.
In some cases, returning to work can damage your case because a Social Security judge may conclude that you really do have the capacity to perform competitive work. However, in other situations, your unsuccessful attempts to work can help your case by demonstrating that you truly want to work but you just cannot do so.
In this blog post, I want to break down how SSA looks at part time work, unsuccessful work attempts and successful work efforts.
First, you need to understand the term “substantial gainful activity” or SGA. Social Security uses this term a good bit and you need to understand what it means.
One way that Social Security defines SGA arises from a look at your gross earnings in a calendar month. In 2018, your work would be considered SGA level work if your gross (before tax) earnings in a calendar month are $1,180 or more. In 2019, that figures rises to $1,220. Social Security publishes an earnings table that shows SGA figures for every year dating back to 1975.
SSA will assume that you are working at SGA level if your gross earnings for a calendar month equal or exceed the figure on the SGA table.
- You can rebut this presumption by showing that the actual work activity you performed was not equivalent to full time work. For example, if you are a business consultant who worked one day in a calendar month and was paid $2,000 for that one day, you could argue that the time and energy spent on the job, your unusual skills and the value of work activity performed was not equal to SGA.
- Social Security can also find that even though you were not paid at SGA level, you had the capacity to perform at that SGA level but by your choice or due to lack of hours available, you did not earn more than the SGA figure.
Part Time Work and Applying for Benefits
If you apply for benefits and thereafter take a part time job, your claim will be impacted. My experience has been that on-going part time work will hurt your case because many judges assume that if you have the capacity to work a certain number of hours for months at a time, you probably have the capacity to work additional hours (and exceed SGA) with a little more effort.
- If, for example, you are working part time as an order picker and earning $900 per month gross, the Social Security judge may very well assume that you do have the capacity to add 2 or 3 extra hours per week to get to the $1,180 figure.
I like to tell my clients that Social Security sees “disability” in black and white terms – either you are disabled or you are not – and part time work muddies the water to your detriment.
Unsuccessful Work Attempts After Applying for Disability Benefits
Unlike part time work, an unsuccessful work attempt can help your case. My experience has been that disability judges look favorably upon claimants who try to return to work but simply cannot do so because of their medical issues.
One of the things you want to avoid when pursuing disability is an “attitude of entitlement” whereby the judge senses that you have given up and view yourself as disabled. Your chances of winning go up if the judge sees you as a fighter, and not resigned at all to collecting disability benefits for years to come.
If you think about it, an unsuccessful work attempt is extremely relevant evidence. Social Security defines disability in terms of how your medical issues prevent you from working so a failed work attempt serves as real life proof that you cannot sustain on-going employment.
What, then is an unsuccessful work attempt (UWA)?
The most common definition of a UWA is work at SGA levels that lasts less than 6 months, and that you stopped working because of your medical condition.
In some ways, however, this definition creates more questions than it answers.
- What if you work at SGA level for 2 months, then slightly less than SGA level for 3 months, then SGA level for 4 months, then no work for one month, then SGA level for 4 months?
- What if you worked at SGA level for 3 months then were “laid off” due to lack of work but you believe that the real reason was your poor performance?
- What if you work at SGA level for 3 months, then stop for 2 months, then return to work for 4 months, then stop for 2 months, then return to work for 4 months, with this pattern repeating itself for 2+ years?
There are no hard and fast answers to these questions as judges will analyze your work activity on a case by case basis. I want you to see how a relatively simple concept can become complicated very quickly.
Ultimately, my experience has been that judges will look at you and your work attempts as part of a big picture – are you honestly and legitimately trying to return to work, or is there a suspicion that you are gaming the system. And the judge has to make this call after meeting you for 45 minutes at your hearing. Some judges are more inclined to give you the benefit of the doubt, while others assume the worst.
What Should You Do About Trying to Work After Applying for Benefits?
Social Security disability judges recognize that you may have multiple motivations for trying to return to work. Obviously you have financial incentives to try to work. You could have family pressure, a desire for social interaction, or simply a distaste for the ideas of being labeled as “disabled.” What you want to avoid is showing a work history that does not accurately reflect your actual capacity for work.
Your lawyer can help you navigate these confusing waters and I encourage you to consult with your lawyer if you want to try to work after filing for disability benefits.