In 2012, earnings of $1,010 per month (before taxes) suggests the work is SGA. However there are exceptions to this. One of these is for sheltered work as defined in 20 CRF404.1574(a)(3).

If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid. The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid. Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.

The idea behind sheltered work is that an individual may not be earning all of what they are being paid. The value of the individual’s work may be half (or a different percentage) of the amount actually paid. The amount paid over the value of the work is a subsidy. Social Security only counts the value of the work and not the subsidy in determining if the work is SGA.

For may injured soldiers, before discharge from their branch of service, they may be placed into a Warrior Transition Unit (WTU) or similar program. While the soldier’s salary stays the same, the duties are greatly reduced.

Do the earnings while in a WTU count as SGA?

According to Social Security Ruling SSR 84-24 , they probably will not count as SGA:

A person in the military service who is being treated for a severe impairment usually continues to receive full pay. Therefore, for SGA purposes, it is not appropriate to evaluate his or her work activity based on the amount of pay received. Instead, it is necessary to use nonmonetary SGA criteria in assessing the work activity of a service person receiving treatment at a military hospital and working in a designated therapy program or on limited duty. That is, we compare the activity with similar work in the civilian work force and determine its reasonable worth.

Severely impaired service persons may, for example, be placed on limited duty status and put to work in a hospital, office, mailroom, laboratory, or the like. The controlling factor in these cases is an objective evaluation of the work activity itself, and not the service person’s duty status, or whether or not a formal therapy program is involved. The fact that a therapy program or limited duty status is involved necessarily suggests that special conditions may exist.

This requires that we consider the real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting.

In short, SSA has to consider the real value of the work performed while in a light duty situation. This does not automatically mean that the work performed is not SGA. However, it many cases, especially when a soldier’s main duty is showing up on post and performing very minimal duties, it is quite likely that the work performed as part of a WTU will not be considered SGA, even though the earnings are over the SGA threshold. However, it is important to document the following:

1. When a soldier enters a WTU program,
2. The duties performed in the WTU, and
3. The date of separation from the military.

Can Social Security benefits be garnished by a creditor?

Social Security says “NO”.

If a creditor other than the federal government tries to garnish your Social Security benefits, inform them that such an action violates Section 207 of the Social Security Act (42 U.S.C. 407).

Section 207 bars garnishment of your benefits. It can also be used as a defense if your benefits are incorrectly garnished. Our responsibility for protecting benefits against garnishment, assignments and other legal processes usually ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 of Act as long as they are identifiable as Social Security benefits.

However, as noted above, while Social Security benefits cannot be garnished by a creditor, there are times when they can be garnished by the federal government.

When can that happen? Social Security provides the following instances when Social Security benefits can be garnished:

• To enforce child support or alimony obligations under Section 459 of the Social Security Act;
• Internal Revenue Service (IRS) can levy against benefits to collect unpaid Federal taxes according to Section 6334(c) of the Internal Revenue Code;
  • IRS can collect taxes due by levying up to 15 percent of a monthly benefit until the debt is paid;
  • IRS allows beneficiaries to have a portion of their check withheld to satisfy a current year Federal income tax liability according to Section 3402 (P) of the Internal Revenue Code;
• Other Federal agencies can collect money from benefits to pay a non-tax debt owed to that agency according to the Debt Collection Act of 1996 (Public Law 104-134); and
• Under the Mandatory Victim Restitution Act, certain civil penalties provide the right to garnish benefits under 18 USC 3613.

Social Security frequently has single decision makers (SDMs) complete forms describing what an individual can and cannot do in the workplace. These are very important case since the ultimate issue in a Social Security disability is whether an individual can still perform some type of work.

§404.906 describes the SDM process:

(2) In the single decisionmaker model, the decisionmaker will make the disability determination and may also determine whether the other conditions for entitlement to benefits based on disability are met. The decisionmaker will make the disability determination after any appropriate consultation with a medical or psychological consultant. The medical or psychological consultant will not be required to sign the disability determination forms we use to have the State agency certify the determination of disability to us (see §404.1615). However, before an initial determination is made that a claimant is not disabled in any case where there is evidence which indicates the existence of a mental impairment, the decisionmaker will make every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment pursuant to our existing procedures (see §404.1617). In some instances the decisionmaker may be the disability claim manager described in paragraph (b)(1) of this section. When the decisionmaker is a State agency employee, a team of individuals that includes a Federal employee will determine whether the other conditions for entitlement to benefits are met.

The problem with a SDM deciding an individual’s limitations is that SDMs are not doctors, nor nurses, nor any type of medical professional. The SDM is often the Social Security case manager working in the Disability Determination Services (DDS) office.

The SDM often works with a medical expert to evaluate the extent of a claimant’s impairments and the resulting limitations. However, it is the SDM, not the medical professional, who often completes the limitations forms and decides whether an individual is disabled.

In cases with physical disabilities, the medical consultant does not need to sign the disability determination forms (typically a Physical RFC Form SSA-4374-BK). In cases with psychological impairments, the regulations a bit stricter requiring the SDM, “every reasonable effort to ensure that a qualified psychiatrist or psychologist has completed the medical portion of the case review and any applicable residual functional capacity assessment.” So, even in mental impairment cases, it is not an iron clad requirement that the medical consultant sign off on the claimant’s limitations.

I don’t want to go too far off on a tangent. The main point is that during the initial evaluation of disability claims under the SDM system, technicians and not doctors are deciding individual’s abilities and limitations. If you are still saying, “so what,” keep in mind that if the situation were reversed, a claimant’s representative providing the same form filled out by someone with no medical credentials in support of the claimant’s disability, would be laughable. It would neither be an “acceptable medical source,” nor an “other acceptable source.” See SSR 06-03p.

Ok. This simply means the situation is not equal. Social Security has to trust someone to decide an individual’s limitation and the issue of disability at the initial determination level. And, instead of a medical consultant, it can be a Social Security case manager with no medical credentials.

Question: Are these SMD determinations of abilities and limitations still valid as opinions at the hearing level?

Answer: NO!

Maine and New Hampshire Social Security disability attorney Gordon Gates has great posts (post 1, post 2) about the how much weight a SDMs Residual Functional Capacity can be given at the hearing level:

A single decisionmaker RFC must be given no evidentiary weight by the judge at the hearing level.

At the hearing level, a single decisionmaker RFC should be placed with the jurisdictional documents in the “A” exhibits in the disability claim file, rather than with the medical evidence in the “F” exhibits.

For “prototype” states without Reconsideration, that single decisionmaker RFC is probably the only physical RFC in the file. So to have it off limits is quite beneficial for the claimant.

The basis for this are two memoranda from the Chief Administrative Law Judge’s office at Social Security. On May 19, 2010, then Chief Administrative Law Judge Frank Cristuado issued a Memorandum stating the following:

SDMs often complete the Physical RFC Form, SSA-4374-BK, which is commonly completed by State agency medical consultants. Some ALJs and AAs treat the SDM RFC assessments as non-medical opinions and weigh them accordingly. However, this approach is inconsistent with agency policy clarified by POMS instruction DI 24510.050C, which states SDM form are not opinion evidence at the appeal levels. Thus, agency policy requires ALJs and AAs to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level. Emphasis added.

Not only was Chief Judge Christuado stating that SDM residual functional capacity statements were not medical opinions, he indicated that they were not opinion evidence at all. Therefore, NO EVIDENTIARY WEIGHT was to be given to SDM RFC forms!

Then on September 14, 2010, Acting Chief Administrative Law Judge John Costello issued a revised memo which strengthening this position:

Agency policy is that findings made by SDMs are not opinion evidence that Administrative Law Judge, (ALJ) or Attorney Adjudicator, (AA) should consider and address in their decisions. See, for example POMS DI 24510.050C, which states that SDM-completed forms are not opinion evidence at the appeal levels. SDM finding, are not “medical opinion” evidence since they do not come from medical source. However, agency policy is, that they are also not the opinions of non-medical sources, as described in SSR 06-3p.

Therefore, ALJs and Aas must not consider SDM RFC assessment forms and other findings as opinion evidence and must not evaluate them in their decisions.

…

When a case that contains a copy of an SDM’s SSA-4734-BK is appealed to the hearing level, the form will be located in the “F” section (Medical Records). At case workup SDMs form should be moved to the “A” section (Payment Documents/Decision,); any forms signed by MCs or PCs should be left in the “F” section.

If you worked your way to the end of this post, you may be wondering what does this mean for you?

If you have a RFC form in the file signed by a SDM (and there will be “SDM” after the signer’s name), the SDM’s findings as to the residual functional capacity (RFC) — what the individual can and cannot do — cannot be used as evidence at the hearing level. One way to bring this to the judge’s attention is to request that the SDM RFC form be moved to A section of the file, and provide a copy of the September 14, 2010 memo along with the request.

Many thanks to New York disability attorney Jeff Delott and Maine and New Hampshire Social Security disability attorney Gordon Gates.

Disabled children under age 18 can receive Social Security disability benefits under the Supplemental Security Income (SSI) program, or “Child’s SSI.” In order to qualify for children’s disability benefits, Social Security requires that the child:

1. Is not working at a job that Social Security considers to be substantial work; and
2. Has a physical or mental condition (or a combination of conditions) that results in “marked and severe functional limitations.”  This means that the condition(s) very seriously limits his or her activities; and
3. The condition(s) has lasted, or is expected to last, at least 1 year or is expected to result in death.

Note: some conditions result in presumptive disability decision. If your child has one of these condition, he or she may be able to be instantly approved.

However, the majority of children’s disability cases focuses on the second part, the requirement of that a condition produces “marked and severe functional limitation.” There are several ways of doing this:

1. Just as in adult cases, a child may meet one of the Listing of Impairments. A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling. The children’s listings are available here.
2. An impairment may also “medically equal” a listing level impairment. Medically equaling an impairment means that the child’s impairment is not provided in the listings, however, the conditions produces the same or very similar symptoms and limitation as a listed impairment. Note: while you can certainly consider medically equaling a listing, as a practical tip, it is often better to consider meeting or “functionally equaling” a listing.
3. An impairment may also “functionally equal” a listing level impairment. This is another way of saying that the child’s condition is as bad as a listing level impairment. However, there are very specific rules for functional equivalence which are best discussed in their own article.

INCOME AND ASSET LIMITS APPLY:

Additionally, just like the adult SSI program, income and asset limits apply. One wrinkle in children’s SSI case is that Social Security looks at household income and assets (instead of just those of the child). Social Security has pages discussing how it decides whether parents’ and child’s income and resources are within allowed limits.

The household financial limits sometimes make children financially ineligible for children’s SSI benefits even though they might meet the medical requirements for disability.

If denied on financial grounds, parents sometimes wait to re-apply for Social Security benefits for their children until the child is 18. At 18, only the child’s income and resources are counted. However, the child is then evaluated under the adult standard for Social Security disability.

Another option parents are often not aware of when re-applying at age 18, is also apply for Social Security Disabled Adult Child (DAC) benefits.

• DAC provides benefits under the parent’s contribution to Social Security (which may allow for higher monthly benefits).
• As a Title II benefit program, DAC does not count non-compensation sources of income. Gifts, support, inheritance, settlements would not affect DAC eligibility.
• DAC benefits provide Medicare health insurance instead of Medicaid coverage provided with SSI.

Disabled Adult Child benefits have additional requirements. For example: one parent needs to have worked long enough paying into Social Security to qualify.

What does it mean if the Administrative Law Judge or Vocational Expert mentions “non-competitive work” during a Social Security disability hearing?

“Non-competitive” refers to types of work:

• Competitive work is, well, just regular work; with no set-asides, no accommodations beyond the norm.
• Work that is performed under special circumstances or that is set aside for disabled individuals (for example: work through Goodwill Industries) is typically viewed as “non-competitive.”

SSR 05-02 (a Social Security Ruling) provides guidance about what constitutes “work under special condition.”

Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or
b. Were allowed to work irregular hours or take frequent rest periods; or
c. Were provided special equipment or were assigned work especially suited to your impairment; or
d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

Remember that these are examples only and other accommodations may also qualify as work performed under special conditions.

Social Security only considers competitive work in deciding disability cases. If an individual is not able to perform “competitive work” or is “limited to non-competitive employment” or if there is “no competitive work available” that is usually a good sign for a disability case

Keep in mind that a Social Security Administrative Law Judge (the hearing judge) often asks the vocational expert several hypothetical questions with different sets of limitations. There could be “no competitive work” under one set of limitations, and still be work possible under another set of limitations. What I am saying that while hearing “non-competitive work” come up in a hearing is usually a good sign, it does not automatically mean the case will be approved.

CC photo credit: Philippe Put

Check your denial

The best tip I can offer if your case is denied is to check the paperwork. While there are several common deadlines, if you do not definitely know how long Social Security gives you to appeal, you may be using the wrong deadline.

The paperwork you are looking for is typically a denial. However, it may also be called a “decision,” “notice of disapproved claim,” “notice of proposed action,” or something else. The thing to keep in mind is that whenever Social Security decides something on your case, they will also tell you the following:

1. The appeal options. What you can do if you disagree with the action or decision.
2. The appeal process. What forms you need to fill out, where to get them, where to turn them in, or the website to go to appeal.
3. How long you have to file the appeal.

If you have lost your Social Security denial?

If you no longer have your Social Security paperwork, give your local Social Security office a call. You can also call the toll-free Social Security number at 1-800-772-1213.

Social Security should always be able to tell you the most recent decision (or action on your case) and any applicable deadlines.

Lets get down to brass tacks. Here are the most common Social Security deadlines:

65 days to appeal a Social Security denial

In most Social Security cases, you have 65 days to appeal a denial or decision. Again, there is no guarantee of 65 days; this is just the most common time limit.

Hold on, isn’t it 60 days?

Yes and no. Social Security typically gives you 60 days to file an appeal. However the 60 days normally do not start until 5 days after the date on the decision. Those 5 days are the mailing time Social Security assumes it will take to get the denial to you.

So, effectively, you have 65 days from the date on the decision to appeal.

In theory, if it took longer than 5 days to get the decision to you, you might have an extra couple of days beyond that. However, if you file the appeal more than 65 days after the date on the denial, Social Security will assume that it is a late appeal and you will have to explain the late filing. Can you prove it took longer than 5 days to get the denial?

Note: if the denial is sitting for several days in a mailbox or PO Box because you have not picked it up, this will not normally extend the deadline.

Deadline to what?

I mailed the appeal on the 65th day. I even got confirmation from the post office. I’m good, right?

Probably not. Appeals are not taxes. Getting a postmark by the last day does not stop the deadline clock.

You have to get the appeal into Social Security’s hands on or before the deadline. If you are close to the deadline, that may mean overnighting the appeal, or walking it in.

What if the deadline falls on a weekend or holiday?

If the deadline falls on a weekend or national holiday, then the deadline is moved to the next business day.

However, don’t bet your case on it! I have seen too many cases where the appeal was properly filed on the next business day after a weekend deadline and in every single instance, Social Security treated it as a late appeal. This was able to be resolved with a letter explaining the circumstances. However, it put an extra hurdle in the way of proving the disability case.

If at all possible, get the appeal in early!

Wrap-up

I want to remind you again, deadlines can change and the best source for finding the deadline in your case is to check your Social Security paperwork or contact Social Security directly.

Check out this article for more tips on dealing with Social Security deadlines.

If you are like most people, you probably have never had to think about what you would do if you became disabled. What would you do if you suddenly could not work? How would you pay your rent or mortgage? How would you afford to see your doctor?

Social Security provides help if you ever find yourself in this situation.

Generally, Social Security disability benefits provide two things:

1. Monthly cash benefits – to help you pay for your expenses.
2. Health insurance (Medicare or Medicaid) – to help you pay for your medical expenses.

Social Security has two similar disability programs: Social Security Disability Insurance (SSDI) and Supplemental Security Income (SSI). Even though only SSDI has the word, “disability” in its title, both programs provide benefits if you become disabled.

• Both SSDI and SSI provide monthly cash benefits. SSI benefits are limited to the Federal Benefit Rate ($674 per month for 2010), while SSDI can be higher and is based on the amount of your contribution to Social Security through payroll taxes. If you are curious about how much you might be entitled to if you became disabled, Social Security provides online calculators to help you estimate your benefits.
• Both SSDI and SSI provide health insurance. SSDI recipients are eligible to receive Medicare while SSI recipients can receive Medicaid.

Keep in mind that there are differences between SSI and SSDI, and we have not touched on SSI’s financial eligibility requirements, or how Social Security evaluates cases. However, if your are considering applying for benefits this is a very quick overview of what you can get from Social Security if you are disabled.

Here is the answer in a directly from Social Security:

No. At one time, SSA did pay benefits to eligible college students, but the law changed in 1981. Benefits stop when a child reaches age 18 unless he or she:

• Is disabled; or
• Attends a secondary (grade 12 or below) or elementary school full-time.

In general, benefits end when:

• The student graduates [high school]; or
• The student turns age 19 and two months, whichever is first.

Normally, benefits stop when a child reaches age 18 unless he or she is disabled. However, if the child is still a full-time student at a secondary (or elementary) school at age 18, benefits generally can continue until he or she graduates or until two months after he or she reaches age 19, whichever is first.

Here are the applicable regulations:

20 CFR 404.350 “Who is entitled to child’s benefits” states

(a) General. You are entitled to child’s benefits on the earnings record of an insured person who is entitled to old-age or disability benefits or who has died if

(1) You are the insured person’s child, based upon a relationship described in §§404.355 through 404.359;
(2) You are dependent on the insured, as defined in §§404.360 through 404.365;
(3) You apply;
(4) You are unmarried; and
(5) You are under age 18; you are 18 years old or older and have a disability that began before you became 22 years old; or you are 18 years or older and qualify for benefits as a full-time student as described in §404.367.

Subsection 5 concerns continuing benefits for those 18 or over, who are still full-time students. This section requires an individual to be either:

1. Under 18; or
2. A Disabled Adult Child (DAC); or
3. 18 or older and a full-time student under §404.367.

However, §404.367 only deals with primary and secondary school students. Part “e” specifically requires that “You are in grade 12 or below.

Keep in mind we are talking about auxiliary benefits for children due to the death or disability of a parent. How going to school affects a disabled child’s entitlement to disability benefits is discussed here.

Updated 04/07/11.

What happens in cases of grandparents, step-parents, or parents who adopt children? Are their children entitled to Social Security child’s benefits?

Social Security has a number of regulations used to decide if a child in these circumstances qualify for auxiliary benefits.

• 20 CFR 404.335 deals with a natural child.
• 20 CFR 404.336 deals with a legally adopted child.
• 20 CFR 404.337 deals with step children.
• 20 CFR 404.338 deals with grandchildren or step-grandchildren.
• 20 CFR 404.339 deals with equitable adopted children.

Even if none of these regulations apply (for example: in cases of a guardianship), you may still want to talk to someone at Social Security to see if the children might qualify under this or another Social Security program.

When a disabled individual receives Social Security disability insurance benefits (also known as DIB, SSDI or Title 2 benefits), their spouse and/or minor children may also be eligible to receive Social Security benefits. These benefits paid to the spouse or minor child are called “auxiliary benefits.”

Wait a minute, I’m on SSI, but my kids didn’t get any Social Security benefits.

Whether a spouse or children receive Social Security benefits depends on which Social Security benefits the spouse or parent is receiving. There are two kinds of Social Security disability benefits: Social Security disability insurance (SSDI) and Supplemental Security Income (SSI).

Note: Even though only “Social Security Disability Insurance” uses the word “disability,” both programs provide Social Security benefits for disabled individuals. However, only Social Security Disability Insurance (SSDI) has auxiliary benefits.

This means you have to be receiving SSDI for your spouse or children to receive auxiliary benefits. If you are on SSI, you are the only person who can receive benefits because there are no auxiliary benefits for SSI.

When can children and spouses receive auxiliary benefits?

As noted above, the disabled individual has be receiving SSDI benefits (not SSI).

1. Spouses have to be either:

a) 62 or older, or

b) have a child in their care who is either

i) under the age of 16, or

ii) disabled.

2. Children have to either:

a) minor child (under age 18), or

b) adult disabled before the age of 22, or

c) high school student under age 19.

You can check out the applicable regulation here: 20 CFR 404.330

Updated 05/01/11.

Did you know that Social Security has a special disability benefit rule just for individuals who did not complete high school and who have done hard physical work for most of their lives?

Maine and New Hampshire Social Security Attorney Gordon Gates lets you in on this little know exception:

There is an offbeat little provision in the Social Security regulations that grants benefits for a worker who fits a particular vocational profile. This is the “worn out worker” rule.

The rule has 3 requirements for claimants:

1) a marginal education,

2) 35 years or more of only arduous unskilled physical labor,

3) the claimant is unable to do this kind of work because of a severe impairment(s).

Click through to Gordon’s article for details on what consistutes a “marginal” education and more information on how Social Security applies the “Worn Out Worker Rule” to see if it can help you in your case!

via Social Security Disability Lawyer | Maine Social Security Attorney | New Hampshire ALJ Hearings: The Worn Out Worker Rule.

Social Security classifies work into different exertional levels. You might have heard that somebody was denied  because he was still able to do “light work.”

Does  light work in the Social Security case mean the same thing as light work an a workers’ compensation case?

Or, light work that an employer might give you?

Is anything less than the regular job duties, light work?

Actually,  light work is a description of one of the four exertional levels of work (how physically demanding a job is).

Social Security has very specific definitions for all exertional work levels. Let’s take a look at them:

Sedentary work

Lifting and carrying is limited to 10 pounds or less, standing and walking is limited to under two hours out of an eight hour day. The majority of the time is spent sitting. However, a job can allow you to alternate between sitting and standing, and still be considered a sedentary job.

This is your basic “sitdown job.” Sedentary jobs include receptionist, dispatcher, assembler, packer, sorter,  and the all-time Social Security favorite: surveillance systems monitor.

Here is how the Social Security Ruling describes sedentary work.

The regulations define sedentary work as involving lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although sitting is involved, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. By its very nature, work performed primarily in a seated position entails no significant stooping. Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.

“Occasionally” means occurring from very little up to one-third of the time. Since being on one’s feet is required “occasionally” at the sedentary level of exertion, periods of standing or walking should generally total no more than about 2 hours of an 8-hour workday, and sitting should generally total approximately 6 hours of an 8-hour workday. Work processes in specific jobs will dictate how often and how long a person will need to be on his or her feet to obtain or return small articles.

Light work

In light work, the standing and sitting maximums are flipped: sitting is limited to 2 hours out of an eight-hour day, and standing is limited to 6 hours out of an eight-hour day.  Lifting increases from 10 pounds to 20 pounds occasionally, and 10 pounds frequently.

Light jobs include cashier, stocker, security, and many jobs that are not too physical, but require a person to stay standing or walking for most of the day.

Here is the definition of “light work” from the ruling:

The regulations define light work as lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted in a particular light job may be very little, a job is in this category when it requires a good deal of walking or standing — the primary difference between sedentary and most light jobs. A job is also in this category when it involves sitting most of the time but with some pushing and pulling of arm-hand or leg-foot controls, which require greater exertion than in sedentary work; e.g., mattress sewing machine operator, motor-grader operator, and road-roller operator (skilled and semiskilled jobs in these particular instances). Relatively few unskilled light jobs are performed in a seated position.

“Frequent” means occurring from one-third to two-thirds of the time. Since frequent lifting or carrying requires being on one’s feet up to two-thirds of a workday, the full range of light work requires standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday. Sitting may occur intermittently during the remaining time. The lifting requirement for the majority of light jobs can be accomplished with occasional, rather than frequent, stooping. Many unskilled light jobs are performed primarily in one location, with the ability to stand being more critical than the ability to walk. They require use of arms and hands to grasp and to hold and turn objects, and they generally do not require use of the fingers for fine activities to the extent required in much sedentary work.

Medium work

Now we are getting into the more physically demanding jobs including many skilled trades jobs such as plumbing, electrical and some construction work.

Medium work requires almost constant standing or walking, or kneeling, squatting, bending, climbing along with lifting 50 pounds occasionally and up to 25 pounds frequently.

Here is the definition of “medium work” from the ruling:

The regulations define medium work as lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently during the remaining time. Use of the arms and hands is necessary to grasp, hold, and turn objects, as opposed to the finer activities in much sedentary work, which require precision use of the fingers as well as use of the hands and arms.

The considerable lifting required for the full range of medium work usually requires frequent bending-stooping. (Stooping is a type of bending in which a person bends his or her body downward and forward by bending the spine at the waist.) Flexibility of the knees as well as the torso is important for this activity. (Crouching is bending both the legs and spine in order to bend the body downward and forward.) However, there are relatively few occupations in the national economy which require exertion in terms of weights that must be lifted at time (or involve equivalent exertion in pushing and pulling), but are performed primarily in a sitting position, e.g., taxi driver, bus driver, and tank-truck driver (semi-skilled jobs). In most medium jobs, being on one’s feet for most of the workday is critical. Being able to do frequent lifting or carrying of objects weighing up to 25 pounds is often more critical than being able to lift up to 50 pounds at a time.

Heavy & very heavy work

Heavy and very heavy work is any work above the median exertional category. It involves jobs lifting up to, or more than, 100 pounds. The heaviest and most difficult construction work, often including construction cleanup, may be characterized as heavy or very heavy work.

For more information about  how Social Security defines the different exertional levels see SSR 83-10. Keep in mind that this is just the exertional levels of a job. Social Security also considers the non-exertional requirements of a job such as personal interaction, but exertional requirements are where the job analysis starts.

What happens to your Social Security case if your condition improves and you can go back to work? If your disability meets the “durational requirement,” you may still qualify for a closed period of disability and still be entitled to Social Security disability benefits.

Most claims for Social Security disability benefits ask for an “open” period of disability: you are disabled now and for the foreseeable future.

A closed period of disability has a definite beginning and ending date for your disability, and has to last at least 12 months. In a closed period of disability case, the date your became unable to work (or your alleged onset date) “opens” the period of disability, and the date you became able to work “closes” the period of disability.

For example:

• The doctors finally got the right dosage of anti-seizure medication and you have been seizure free for 6 months. You had your driver’s license reinstated and can go back to work.
• You have healed from your back surgery and can return to full time, but lighter duty, work.
• With therapy and counseling, your anxiety disorder is controlled and you have gotten your degree and are looking for work.

If you qualify for a closed period of disability, you may still be able to get benefits during the closed period. So, if your condition has improved and you have gone back to work, don’t just drop your case, or you may be giving up on benefits you are entitled to!

However, don’t forget the five month waiting period. I have had a number of clients who have gone back to work after a 12 month disability, but due to the 5 month waiting period, they only receive 7 months of benefits. It is just a wrinkle of the Social Security system to keep in mind.

To qualify for Social Security disability benefits you have to show that your disability prevents you from being able to work. In Social Security’s words, you have to show that you are unable to engage in a substantial gainful activity (SGA). SGA translates into a maximum dollar amount you are allowed to earn and still be potentially eligible for Social Security benefits.

For 2011, the most you can earn is $1,000 per month (before taxes or deductions).  If you earn more than this, Social Security may say that you are engaging in a substantial gainful activity and, therefore, not eligible for disability benefits.

The SGA issue is so important that it is the very first step of the 5 step sequential evaluation process – the way Social Security evaluates adult disability claims!

What do I do if I earn more than the substantial gainful activity amount? Does than mean I can’t get Social Security disability benefits?!?

Not necessarily. There are exceptions that may allow you to still qualify for Social Security disability benefits even if you are earning more than the SGA amount.

Some of these exceptions include:

1. Impairment Related Work Expenses (IRWE).
2. Subsidized Earnings and/or Sheltered Employment.
3. Unsuccessful Work Attempts (UWA).
4. Trial Work Period (TWP). Note: TWP are a way to test your ability to work if you are already on Social Security while still preserving eligibility for Social Security benefits.

If Social Security has said that you earn too much, it is not the end of your case!

UPDATED 01/05/11: Updating amounts for 2011.

To qualify for Social Security disability benefits you have to show that your disabilities prevent you from being able to work. In general, you have to show that you are unable to perform a substantial gainful activity (SGA).

However, there are exceptions to this general rule, including Subsidized Wages or Sheltered Work environments.

Social Security can only consider the money you earn in deciding if your work is a substantial gainful activity. Anything over the “reasonable value” of your work, may be a subsidy. Social Security cannot consider a subsidy, basically a “gift,” as earnings in determining if the work is a substantial gainful activity.

A subsidy is any compensation over the fair value of your work.  This often happens if you work for a family member or if you work through an agency like Goodwill.

If you are paid for a 40 hour week but you only work 25 hours, you have a 15 hour subsidy.  Another possibility is if the value of your work is $8.00 an hour, but you are paid $10.00 an hour (a $2.00 an hour subsidy).

If you subtract the subsidy, and your gross income is below the SGA amount, you might still be able to keep your Social Security benefits.

For example, if you are working for a an agency which receives state or federal funding to provide assistance, training or employment for individuals with disabilities, you may be working at a sheltered work environment and your wages may be subsidized.

I have also had many cases where an individual is given a job by a friend or family member and told to, “Watch the phones and take messages.” This may be both a sheltered work environment with subsidized earnings.

Another common example is in the military when a soldier becomes disabled. I have done a number of cases where the soldier was still receiving full pay in the military but whose duties were greatly reduced or eliminated due to disability. Sometimes, the soldier is part of the Warrior Transition Unit (WTU). Social Security will frequently consider this a sheltered work environment and allow the disability case to continue even though the earnings would otherwise be SGA.

Here are the regulations on this topic  (20 CFR 404.1574):

(2) We consider only the amounts you earn. When we decide whether your earnings show that you have done substantial gainful activity, we do not consider any income that is not directly related to your productivity.

• When your earnings exceed the reasonable value of the work you perform, we consider only that part of your pay which you actually earn.
• If your earnings are being subsidized, we do not consider the amount of the subsidy when we determine if your earnings show that you have done substantial gainful activity.
• We consider your work to be subsidized if the true value of your work, when compared with the same or similar work done by unimpaired persons, is less than the actual amount of earnings paid to you for your work.
• For example, when a person with a serious impairment does simple tasks under close and continuous supervision, our determination of whether that person has done substantial gainful activity will not be based only on the amount of the wages paid.
• We will first determine whether the person received a subsidy; that is, we will determine whether the person was being paid more than the reasonable value of the actual services performed.
• We will then subtract the value of the subsidy from the person’s gross earnings to determine the earnings we will use to determine if he or she has done substantial gainful activity.

(3) If you are working in a sheltered or special environment. If you are working in a sheltered workshop, you may or may not be earning the amounts you are being paid.

• The fact that the sheltered workshop or similar facility is operating at a loss or is receiving some charitable contributions or governmental aid does not establish that you are not earning all you are being paid.
• Since persons in military service being treated for severe impairments usually continue to receive full pay, we evaluate work activity in a therapy program or while on limited duty by comparing it with similar work in the civilian work force or on the basis of reasonable worth of the work, rather than on the actual amount of the earnings.

Even if you know the definition of a substantial gainful activity (SGA), could you apply it? Can you be sure that the last job you tried before you applied for Social Security disability benefits was SGA?

Charles Hall proposes that substantial gainful activity (SGA) has become just too complicated.

If one is engaging in SGA, one cannot be considered disabled, but SGA is a term of art. Work may not be SGA if low earnings, unsuccessful work attempts, made work, subsidized employment, impairment related work expenses, trial work periods, etc. are taken into consideration. 

…The biggest problem now is that SGA is just too complicated. Claimants have no idea how it works. Even many Social Security employees who should understand how SGA works, don’t.

Read Charles Hall’s original article is by Charles Hall on his Social Security News blog.

I have to give credit to Gordon Gates for bringing Charles Hall’s article to my attention in the first place. Gordon responds:

I also agree with the assessment that SGA is too complicated. There are some very important exceptions and adjustments to the $980 per month SGA amount, including the unsuccessful work attempt. A thorough knowledge of these complicated SGA rules is critical because SGA exceptions can make the difference between winning and losing a claim (the cliff).

Here is one of the exceptions taken from the introductory section of the Substantial Gainful Activity regulations (20 CFR 404.1571):

Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.

Basically, this says that even if you earn less than SGA, you still might have a problem with a disability claim.

To some extent, this makes sense. Let’s say you are able to do construction work, but your disabilities limit you to only part-time work, and you earn less than the SGA amount ($980 per month for 2009).

Non-SGA heavy work may suggest the ability to do SGA work at a lighter level. 

Being able to do part-time construction work might mean you could do full time lighter work, such as a cashier where your earnings would be more than the SGA amount (and potentially make you ineligible for Social Security disability benefits).  

What it all comes down to is that the SGA is complicated. And this is only one issue. See all the articles dealing with substantial gainful activity.

If you are wondering whether you will get Medicare or Medicaid with Social Security, it all depends on the type of Social Security you receive.

• Social Security disability insurance (SSDI) comes with Medicare.
• Social Security Supplemental Security Income (SSI) comes with Medicaid.

What’s the difference between Medicare and Medicaid?

The Colorado Bar Association has a great page discussing the differences. Here is a quick summary:

Medicare provides only partial coverage, and requires beneficiaries to pay premiums, deductibles, and co-payments.

Medicaid provides more complete coverage, without significant payments from the beneficiaries.

Click to read more about the differences.

If you win your claim for Social Security disability insurance (SSDI), you are also eligible to receive Medicare benefits. But, you don’t get Medicaid right away, with some exceptions, you have to be “in pay status” for 24 months before you become eligible for Medicaid.

That means you have to be receiving 24 months of Social Security disability insurance to get Medicare.

Another two years? I just waited two years to get my case approved.

Fortunately, Social Security considers your back benefits when they count the 24 months. So, if Social Security 24 months of back Social Security disability insurance, you are already “in pay status” for 24 months, and you can get Medicare now.

Aren’t there any exceptions to the 24 month Medicare waiting period?

Only two. If you have one of the following conditions, the waiting period does not apply and you can get Medicare immediately:

1. End stage renal disease.
2. Amyotrophic lateral sclerosis (ALS, or Lour Gehrig’s disease).

I previously wrote about the various exceptions which may allow you to keep your Social Security disability benefits even if you return to work. The most common of these is an Unsuccessful Work Attempt (UWA).

If you work for 6 months or less at a substantial gainful activity (SGA) level, your work may qualify as an Unsuccessful Work Attempt and not affect your application for benefits (or your current Social Security disability benefits if you have already won your case).

Another benefit of the Unsuccessful Work Attempt exception is that it applies for both Social Security Disability Insurance (20 CFR 404.1574) and Supplemental Security Income (SSI) (20 CFR 416.974) cases. This is a major difference between Unsuccessful Work Attempts and Trial Work Periods.

A common misconception about Unsuccessful Work Attempts:

Before we get into what you need to prove to qualify for an Unsuccessful Work Attempt, let’s talk about the biggest mistake people make about Unsuccessful Work Attempts.

Work lasting longer than 6 months cannot be an Unsuccessful Work Attempt. FALSE!

If the earnings drop to below the SGA level before the end of the 6 month period, the work can still be an Unsuccessful Work Attempt even if it lasts for more than 6 months.

The regulations dealing with Unsuccessful Work Attempts clearly state this (20 CFR 404.1574 & 20 CFR 416.974).

Ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after working for a period of 6 months or less, your impairment forced you to stop working or to reduce the amount of work you do so that your earnings from such work fall below the substantial gainful activity earnings level.

How to qualify for an Unsuccessful Work Attempt

Here is how to prove your work was an Unsuccessful Work Attempt and should not count against you even though it would otherwise count as a substantial gainful activity.

1. A “significant break” between prior work and the Unsuccessful Work Attempt.

According to SSR 05-02, a “significant break” means the following:

1. You were out of work for at least 30 consecutive days. Or
2. You were forced to change to another type of work or another employer.
3. However, on rare occasions a break lasting a few days less than 30 may satisfy this requirement if your subsequent work episode was brief and clearly not successful because of your impairment.

It is even possible to have a significant break without leaving your last job. Again, referring to SSR 05-02:

Such an interruption would occur when, because of your impairment or the removal of special conditions related to your impairment that are essential to your further performance of the work, the work was discontinued or reduced (or limited) to the non-SGA level.

How about that! You could even meet the “significant break” requirement if your earning drops below SGA levels due to a removal of special conditions.  Don’t worry, I will provide examples of “special conditions” in just a bit.

The next requirement changes depending on whether you worked for less than 3 months, or if you worked less than 6 months.

2. If you worked 3 months or less.

We will consider work of 3 months or less to be an unsuccessful work attempt if you stopped working, or you reduced your work and earnings below the substantial gainful activity earnings level, because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work.

This is the easiest way to have work qualify as an Unsuccessful Work Attempt.

If you work for 3 months or less at an SGA level, and had to stop either because of your disability or because the boss took away a special accommodation, it may qualify as an Unsuccessful Work Attempt, and not count against you.

3. If you worked between 3 and 6 months. 

We will consider work that lasted longer than 3 months to be an unsuccessful work attempt if it ended, or was reduced below substantial gainful activity earnings level, within 6 months because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work and

(i) You were frequently absent from work because of your impairment;

(ii) Your work was unsatisfactory because of your impairment;

(iii) You worked during a period of temporary remission of your impairment; or

(iv) You worked under special conditions that were essential to your performance and these conditions were removed.

If you worked longer than 3 months, but less than 6 months, Social Security has a few more requirements to prove that the work was an Unsuccessful Work Attempt.

You still have to show that you had to stop either because of your disability. Additionally, you also have to show that you either missed a lot of work, did not do a good job, were working while your condition was better, or you had special accommodations which let you do the job, until the accommodations were taken away.

4. If you worked more than 6 months. 

We will not consider work you performed at the substantial gainful activity earnings level for more than 6 months to be an unsuccessful work attempt regardless of why it ended or was reduced below the substantial gainful activity earnings level.

In short, if you work more than 6 months at a SGA level, it cannot be an Unsuccessful Work Attempt.

You can have more than one UWA:

Did you know that you can have more than one Unsuccessful Work Attempt?

As long as you meet the requirements of a “significant break” between Unsuccessful Work Attempts, many jobs can qualify as UWA.  This often comes up in bi-polar disorder cases where an individual has a tried to work in a lot of jobs, but has not lasted very long at any of them (often due to problems working with supervisors, co-workers, or the public).

If you can eliminate each job as an Unsuccessful Work Attempt, you may be able to push the onset date further back and potentially increase your back benefits.

When CAN’T you use an Unsuccessful Work Attempt:

This will not apply for most people, but it is good to keep in mind:

When the UWA is Applicable: The UWA policy explained in this SSR is to be used in initial disability cases. It is also to be used in continuing disability cases in determining whether, because of work activity, your disability continues or ceases. However, the UWA criteria do not apply in determining whether payments should be made to you for a particular month during the reentitlement period after disability has been ceased because you did SGA, or during the initial reinstatement period after you have been reinstated through the expedited reinstatement provision. SSR 05-02

Basically, you can use an Unsuccessful Work Attempt to excuse work which is a substantial gainful activity when you are trying to get benefits or during a Social Security review if you have already won your case. However, you cannot use a Unsuccessful Work Attempt during a the Extended Period of Eligibility following a Trial Work Period.

Work under special conditions:

SSR 05-02 provides guidance about what constitutes “work under special condition.”

Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or
b. Were allowed to work irregular hours or take frequent rest periods; or
c. Were provided special equipment or were assigned work especially suited to your impairment; or
d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

Remember that these are examples only and other accommodations may also qualify as work performed under special conditions.

Have you ever seen this in a Social Security denial?

While your condition may prevent you from working at the present, we do not feel that your condition will remain disabling for 12 months.

[Claim denied]

First, Social Security says that you are disabled. Then, they deny the claim. What is going on?

To qualify for Social Security disability benefits, you have to be disabled. However, that is only part of the analysis.  Social Security also requires that your disability be expected to last for at least 12 months.

This is called the durational requirement. If your disability is not expected to last for 12 months, or does not actually last for 12 months (or longer), Social Security will deny the claim.

I see often this in car accident or back injury cases. Social Security agrees that you are disabled right now. However, they deny the case because they do not think you will be disabled for 12 months.

What can I do about it?

As you already know, most Social Security cases takes over a year from beginning to end (with many taking more than two years). So, in many cases the durational requirement is met by the time the case goes to hearing because 12 months have passed since the start of the disability.

At that point, it is no longer a matter of predicting whether you will still be disabled for 12 months, but only question of whether you actually have been disabled for 12 months.

So I HAVE TO wait for 12 months to be found disabled?

Not necessarily. You can be found disabled if your condition is expected to last for 12 months or longer.  If you can get a prognosis, a medical statement, that your condition is disabling and that it is expected to last for at least 12 months, you can be found disabled without waiting out the 12 month durational period.

Also check out how the durational requirement fits in the 5 step process Social Security uses to review cases.