Starting at age 50, and then again at age 55 and 60, Social Security lowers the requirements for proving disability. The rationale is that the older you are, the harder it is to work in a job that you have never done before.

• After age 50, Social Security can approve you for disability benefits even though you are able to do some type of work.
• The older you are, the more physically demanding the work can be and still allow you qualify for disability benefits.

However, this is not a free pass and do not leave this article before you read the “gotchas” at the bottom.

Medical-Vocational Guidelines

The reduced requirements for proving Social Security disability cases are contained in the “Medical-Vocational Guidelines” also known as the “Grid Rules.” It is important to understand where the Grid Rules fit in with Social Security’s disability evaluation process.

Take a moment to review the 5 step sequential evaluation process. These are the 5 steps that Social Security uses to decide disability cases for adults.

1. Are you working (at an SGA level)?
2. Is your impairment severe?
3. Do your impairments “meet or equal” one of Social Security’s Listing of Impairments?
4. Can you do past work -  any of the jobs you performed (at a SGA level)  over the last 15 years.
5. Can you do other work – any other type of work that exists in substantial numbers in the national economy?

Note: I am simplifying and abbreviating each step — check out the link above for a more thorough review.

Here is how Social Security goes through these steps:

• To qualify for disability, you have to show that you are not working at SGA (step 1) and that your conditions are severe (step 2).
• Step 3 – meeting a listing, is the first step at which an individual can be approved. However, only a small number of cases are approved here.
• If you not approved at step 3, you have to get over both steps 4 and 5. You have to show that you cannot perform any work done 15 years prior to the onset date AND that you cannot perform any other type of work (that exists in substantial numbers in the national economy).

The Grid Rules apply at step five of the sequential evaluation process. That means that before the Grids come into play, you have to already shown that, (Step 1) you are not working an SGA job, (Step 2) your condition is severe, (Step 3), you did not meet or equal a listing, and (Step 4) you cannot perform the duties of any job done at a SGA level 15 years before the disability began.

Step 4 can be tricky. Step asks if you can still physically and/or mentally perform the duties of any job which:

1. You performed in the 15 years before your alleged onset date; and
2. You performed long enough to learn how to do the job; and
3. The job was performed at a substantial gainful activity level .

In short, if you can still perform the duties of a past job, you do not get to use the Grid Rules and you may be denied.

However, if you cannot do any past relevant work, here is how the Grid Rules may help you:

Ages 50 to 54

You can be approved for Social Security disability benefits even if you are still able to perform sedentary work so long as your past work was not skilled or semi-skilled, or if you do not have transferable skills to to other work.

If you are illiterate, or unable to communicate in English, and have no past relevant work or only unskilled work, you can be approved even if you are able to perform light work.

Ages 55 to 59

If you are between 55 and 59 years old, you can be approved for Social Security disability benefits even if you are able to perform light work.

However, if you have a 11th grade or lower education and no past relevant work, you can be disabled even if you are able to perform medium work.

Ages 60 to 64

Here is where the rules get tricky. If you are between 60 years old and 64 years old, you can be approved for Social Security disability benefits even though you can perform:

• Light work,
  • If you have a high school degree or higher level of education.
  • Or, if you have an 11th grade education, your past work was skilled semi-skilled but the skills are not transferable.
  • Or, you have a 7th to 11th grade education and your past work was unskilled.
• Medium work,
  • If you have an 11th grade education or lower and no prior work experience.
  • Or, if you have a sixth-grade education and your past work was unskilled.

Yes, things get complicated in the 60 to 64 age bracket.

Here are the GOTCHAS!

As mentioned above: you have to show that you are not able to perform your past work. If you are still capable of performing the duties of any of the past jobs you have done (at a SGA level) in the 15 years before your disability began, then the Grid Rules do not apply. These exceptions only apply if you can first prove that you cannot perform any past relevant work (PRW).

The other gotcha is that you cannot actually be working at a SGA level. These rules deal with having a “residual functional capacity” (what you are still able to do) that still allows some kind of work. In other words, you can still have an “ability to work,” but you cannot actually be working at a substantial gainful activity level (unless one of these exceptions apply).

Examples:

Here are some examples:

Over the last 15 years, you performed construction or labor jobs (medium to heavy occupations). Due to a back injury, you can no longer lift over 10 pounds and you can not stand for more than 2 hours out of an 8 hour day. This puts you in the sedentary exertional category.

This means you can still work but only at a sit-down job. In reality, you would probably need a job that has a sit/stand option, but that is not relevant for this discussion.

• If you are between 18 and 49 years old, there is a good chance you will be denied because you are still able to do sedentary work.
• However, if you are 50 years old, you will probably be approved because of the Grid Rules.

Lets shake things up. If in the last 15 years you worked for 6 months as a telemarketer (a sedentary job), you will probably be denied even at age 50 because you can still do a past job. This would be a step 4 denial.

Finally, if you are working at a SGA level at any exertional level, you are not disabled because you are able to work. A step 1 denial.

The Grid Rules are technical, but they can really be a short-cut in a Social Security disability case.

However, if you do not qualify under one of these rules, it is not the end of your case. The Grid Rules only consider a very small group of limitations (lifting/carrying, sitting, standing and walking). They do not consider bending, kneeling, using fingers and hands, working around others, or any other limitations. If you do not meet a grid rule (and most of my clients do not), all of your other limitations still need to be considered and may let you win your case.

A version of this article was first published on Bob Kraft’s site.

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.

September 10, 2011 saw the second SSR issued for 2011 (effective September 12, 2011). You can also view and download the entire ruling as a PDF here.

SSR 11-2p deals with Documenting and Evaluating Disability in Young Adults. Much of the ruling is a summary of how Social Security should evaluate cases for claimants with ages between 18 and 25. However, there are several interesting items:

First, the ruling makes it clear that evidence generated during childhood (before the 18th birthday) can be relevant in an adult claim. The ruling describes how evidence such as IEPs, and performance in on-the-job training programs, and community based instruction can be helpful in evaluating disability:

A. Evidence Regarding Functioning From Educational Programs

As we discussed in section I.C above, we may have evidence about a young adult’s functioning from school programs, including IEPs. This evidence may indicate how well a young adult can use his or her physical or mental abilities to perform work activities. The following examples of school-reported difficulties might indicate difficulty with work activities:

• Difficulty in understanding, remembering, and carrying out simple instructions and work procedures during a school-sponsored work experience;
• Difficulty communicating spontaneously and appropriately in the classroom;
• Difficulty with maintaining attention for extended periods in a classroom;
• Difficulty relating to authority figures and responding appropriately to correction or criticism during school or a work-study experience;
• Difficulty using motor skills to move from one classroom to another.

B. Community Experiences, Including Job Placements

1. A young adult may receive services in a community setting(s) through a school or a community agency, such as a mental health center or vocational rehabilitation agency. These services may include:

• Community-based instruction (CBI), or instruction in a natural, age appropriate setting (for example, trips to the grocery store to develop math, sequencing, travel, and social skills).
• On-the-job training (OJT), or placement in various work sites in the community for vocational training and experience, frequently in an ‘’enclave’’ (small group) of students with a job coach (for example, placement in an enclave in a motel to learn housekeeping tasks such as bed-making and vacuuming).
• Work experience, or supervised part-time or full-time employment to assist a young adult in acquiring job skills and good work attitudes and habits.

2. A young adult may participate in several—or even many—OJT or work experience placements that are unpaid, paid at SGA levels, or paid at less than SGA levels. Some young adults have multiple placements as part of a transition plan that expose them to a variety of work settings. Other young adults have multiple placements because of unsatisfactory performance.

Regardless of whether the work was SGA, information about how well a young adult performed in these placements can help us assess how the young adult functions. For example, a young adult who was unable to sustain OJT placements may have limitations in the ability to understand and remember instructions or to persist at work-related tasks. In contrast, a young adult who performed OJT placements successfully may have a good ability to respond appropriately to supervision. In addition, information about the degree to which a young adult needs special supports in order to work (such as in supported or transitional employment programs) may also help us assess the young adult’s functioning. Emphasis added.

C. Psychosocial Supports and Highly Structured or Supportive Settings

As for all adults, psychosocial supports and highly structured or supportive settings may reduce the demands on a young adult and help him or her function. However, the young adult’s ability to function in settings that are less demanding, more structured, or more supportive than those in which people typically work does not necessarily show how the young adult will be able to function in a work setting. We will consider the kind and extent of support or assistance and the characteristics of any structured setting in which the young adult spends his or her time when we evaluate the effects of his or her impairment(s) on functioning.

D. Extra Help and Accommodations

Working requires a person to be able to do the tasks of a job independently, appropriately, effectively, and on a sustained basis. In this regard, the analysis for adult disability determination purposes is similar to our ‘’extra help’’ rules for children. If an adult with an impairment(s) needs or would need greater supervision or assistance, or some other type of accommodation, because of the impairment(s) than an employee who does not have an impairment, the adult has a work-related limitation.

We consider how independently a young adult is able to function, including whether the young adult needs help from other people or special equipment, devices, or medications to perform day-to-day activities. If a young adult can function only if he or she receives more help than would generally be provided to people without medical impairments, we consider how well the young adult would function without the extra help. The more extra help or support of any kind that a young adult receives because of his or her impairment(s), the less independent he or she is in functioning, and the more severe we will find the limitation to be.

1. Accommodations

a. Accommodations are practices and procedures that allow a person to complete the same activity or task as other people. Accommodations can include a change in setting, timing, or scheduling, or an assistive or adaptive device.

b. Some young adults with impairments need accommodations in their educational program in order to participate in the general curriculum or in a transitional program. The fact that a young adult receives or has received accommodations as a part of his or her IEP or Section 504 plan, may be an indication that he or she has a work related limitation. For example, evidence showing that a student requires an audiotape recording of oral directions for replay at school because he cannot remember more than a one-step instruction might indicate that the student will have the same inability to remember more than a one-step instruction without special assistance in a work setting.

c. Some accommodations may indicate an impairment(s) that meets or medically equals a listing. For example, the need for an augmentative or alternative communication or AAC device (for example, an electronic picture board or an electrolarynx) might indicate a speech impairment that meets listing 2.09 or an impairment that meets one of the neurological listings in section 11.00 of the listings.

d. When we determine whether a person can perform his or her past relevant work, we do not consider potential accommodations unless his or her employer actually made the accommodation. This means that we cannot find that a young adult can do past relevant work with accommodations unless the young adult actually performed that work with those same accommodations and is still able to do so now.

e. When we determine whether a person can do other work that exists in significant numbers in the national economy, we do not consider whether he or she could do so with accommodations, even if an employer would be required to provide reasonable accommodations under the Americans with Disabilities Act of 1990.

2. Effects of Treatment, Including Medications

Treatment, including medications, can have a positive effect on a person’s ability to function in a work setting. For example, a young adult who takes an antidepressant medication may be able to interact appropriately with supervisors and co-workers. Treatment, however, may not resolve all of the functional limitations that result from an impairment(s). Medications or other treatment may cause side effects that affect the mental or physical ability to work. For example, an anti-epileptic medication may cause drowsiness that affects the ability to concentrate; daily chest percussion therapy for cystic fibrosis may cause fatigue because of the physical effort involved in the therapy. The frequency of a young adult’s treatment may preclude him or her from maintaining a full-time work schedule; that is, 8 hours a day, 5 days a week on a sustained basis.

E. Work-Related Stress

1. Working involves many factors and demands that can be stressful. For example, some people may experience stress related to the demands of getting to work regularly, having work performance supervised, or remaining in the workplace for a full day, 5 days a week on a sustained basis. Moreover, one person’s reaction to stress associated with the demands of work may be different from another’s, even among people with the same impairments.

2. Sources familiar with the young adult may provide insight about the effect of stress on his or her physical or mental functioning and what, if any, psychosocial supports or structure he or she would need when experiencing work-related stress. We consider impairment-related limitations created by a person’s response to the demands of work when we assess RFC.

The ruling also discusses how Social Security should determine if the work performed by a younger individual is Substantial Gainful Activity (SGA). The ruling provides the general rule that reporting earnings are presumed to have been fully “earned” by the younger individual without a subsidy. However, this presumption can be rebutted.

IV. Determining Disability

A. Determining Whether a Young Adult’s Work Activity is SGA

When we determine a young adult’s earnings for SGA purposes, we count only those earnings that are attributable to his or her own productivity. We assume that a young adult’s reported earnings are attributable to his or her own productivity unless there is evidence indicating that those earnings are greater than would be attributable to his or her productivity.

The ruling goes on to discuss instances where earnings my have been subsidized — which might mean that the work was not a Substantial Gainful Activity.

1. Work Activity

Many young adults with disabilities have worked. The work experience may have been (or may be, if the person is still working) subsidized, in a sheltered setting, or performed under special conditions. As for any adult, we exclude subsidized earnings. In addition:

• Some young adults whose impairments arose during military service continue on active duty and receive full pay while they are in treatment for their impairments. They may also receive payments while working in a designated therapy program or on limited duty. Active duty status or receipt of pay (for example, sick pay) by a member of the military does not indicate by itself that the service person has demonstrated the ability to do SGA. We will consider the actual work activity, not the amount of pay the service person receives or the duty status of the service person, when we determine whether the work is SGA.
• Young adults may have impairment-related work expenses; that is, expenses for an item or service that directly enables a person to work and that the person necessarily incurs because of an impairment(s). We deduct impairment-related work expenses from a person’s wages or self-employment income before we determine whether the wages or self-employment income constitute SGA.

2. Volunteer Service Young adults with disabilities may participate in government-sponsored programs for volunteer activity, such as AmeriCorps VISTA. We do not count as earnings payments a person receives from some of these programs.

3. Unsuccessful Work Attempts Some people have brief periods of work with earnings at the SGA level. We will consider the possibility that a brief period of work was an unsuccessful work attempt when we are determining whether the work was SGA. If a period of work is an unsuccessful work attempt, we will not consider that work to be SGA when we determine if the young adult is under a disability. However, as we noted in section III.A, covered wages or self-employment income from an unsuccessful work attempt may provide work credits that establish disability insured status under title II.

The ruling also deals with younger individuals at Step 5 of the sequential evaluation process: ability to adjust to “other work.” Generally, younger individuals have the most difficulty proving disability:

2. When a young adult has only exertional (strength) limitations and has an RFC and vocational factors that match the criteria of a rule in the Medical-Vocational Guidelines in appendix 2 of subpart P of the Regulations No. 4 (grid rules), the grid rules always direct a decision of ‘’not disabled’’ for young adults.

Fortunately, it is a rare case that only results in exertional limitations. And the rule acknowledges that non-exertional limitations (from limitations on the use of the hands and arms, to bending and stopped, and even an inability to work a 40 hour week) can erode the job base and allow an individual to be found disabled.

For cases with non-exertional limitations due to mental impairments (including psychological, developmental, and cognitive), the ruling is instructive in that it indicates the criteria Social Security should most focus on:

c. If a young adult has a substantial loss of one or more of the basic mental demands of competitive, remunerative, unskilled work, the occupational base will be significantly eroded, despite vocational factors that we would ordinarily consider favorable (for example, young age, college education, and skilled work experience). The basic mental demands of competitive, remunerative, unskilled work include the abilities to:

• Understand, remember, and carry out instructions;
• Make simple work-related judgments typically required for unskilled work;
• Respond appropriately to supervision, coworkers, and work situations; and
• Deal with changes in a routine work setting.

Of course, this is not a complete list of possible limitations. However, it is interesting to see what Social Security recommends that its adjudicators focus on.

The ruling also reminds Social Security that since younger individuals are more likely to be coming fresh from school (high school or college), they are more likely to be able to step into skilled jobs.

d. Adjudicators must remember that young adults are more likely to have recent educational experience that provides for direct entry into skilled work; some will also have vocational experiences (see section C. above) that provide them with skills they can use in skilled or semiskilled work.

One adjustment consideration with skilled work is how much has the the industry changed since the skills were acquired. The more the tools and techniques have changed, the greater the adjustment required. For example: the skills acquired in a business assistant program 20 years ago are dated and would likely result is some adjustment to work in today’s office. However, a recent graduate would have minimal adjustment. The greater the adjustment, the less likely the individual is actually able to perform the duties required.

The ruling reminds Social Security not to rule out skilled work as the basis of a possible denial (even without no prior job experience) due to recent training, internships and/or job placement.

Also valuable is the discussion of evaluating inconsistencies in the evidence. One example is the possibility of a “good day” during a consultative examination:

5. An apparent inconsistency is not always a true inconsistency. For example, the record for a young adult with attention-deficit/hyperactivity disorder may include good, longitudinal evidence of hyperactivity at home, in the classroom, and on work experience placements in the classroom, but show a lack of hyperactivity during a consultative examination (CE). The observations during the CE may represent a ‘’good’’ day, rather than the overall level of functioning or the effect of an unusual setting. In this case, there would be only a normal variation in functioning at the time of the CE.

Thanks to David Traver for bringing the ruling to my attention.

We increased the Substantial Gainful Activity SGA amount for individuals with disabilities, other than blindness, from $980 to $1000 for 2010.

The SGA amount for individuals who are blind is $1,640 for 2010. The amount is unchanged from 2009.

We increased the monthly earnings amount that we use to determine if a month counts for the Trial Work Period TWP from$700 to $720 for 2010.

For 2010, the Supplemental Security Income SSI Federal Benefit Rates FBR is $674 for an eligible individual and $1,011 for an eligible couple. The amounts are unchanged from 2009.

For 2010, the income amounts that will have no effect on eligibility or benefits for SSI beneficiaries who are students is unchanged from 2009.

For 2010, the monthly amount is $1,640 and the yearly maximum is $6,600.

For 2010, the monthly Medicare Part A Hospital Insurance Base Premium is $461, and the 45 percent Reduced Premiums is $254. The Part B Supplementary Medical Insurance monthly Base Premium is $110.50.

via Social Security – The Red Book – What’s New In 2010?.

What’s the next thing to review in the Social Security exhibit file after the medical records? Check these critical dates: Alleged Onset Date (AOD) & Date Last Insured (DLI)!

The E section usually contains for two documents that provide this information:

• “Disability Report – Field Office”
• “Disability Report – Appeal”

These reports also tells you whether Social Security thinks there should be a later (or earlier) alleged onset date and Social Security also discussed whether work after the alleged onset day was an unsuccessful work activity or not a substantial gainful activity.

I have been in a number of hearings where being able to point out that Social Security previously noted a claimant’s past work as an unsuccessful work attempt made all the difference.

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.

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.

I have written about how Social Security defines disability, work, and a substantial gainful activity.

But, how does Social Security really evaluate a case?

Social Security reviews cases using the five-step sequential evaluation process to decide is a person is disabled.  Here are the 5 questions that make up the sequential evaluation process:

1. Does your impairment keep you from being able to perform a substantial gainful activity (SGA), generally full-time, competitive, work?
2. Is your impairment severe?  AND, is your impairment expected to remain severe for at least 12 months?
3. Does your impairment “meet or equal” one of Social Security’s “Listing of Impairments?” A listing of medical conditions, acceptable medical evidence, and the severity necessary for an impairment to be considered disabling.  There are separate listings for adults and for children.
4. Does your impairment prevents you from being able to perform any job you performed over the last 15 years which was also a substantial gainful activity?
5. Does your impairment prevent you from being able to perform any other type of work which exists in substantial numbers of the national economy?

Let’s take these one at a time:

Step 1: Engaging in a Substantial Gainful Activity (SGA)

A.k.a.: Are you working?

Even you have a clearly disabling condition, if you are able to work at a substantial gainful activity level (SGA), you are not disabled.

Example, you may be limited to crutches or a wheelchair, but you force yourself to work a full time, competitive, job.  Under Social Security regulations, you are not considered disabled.

Because you are able to work, you do not qualify for Social Security disability benefits.

There are exceptions to this:

• If you are working full time, but your medical expense, which let you work, are so high that your pre-tax income is still below SGA threshold, then your Impairment Related Work Expenses (IRWEs) make your work not SGA.  So, you case should not be denied at step 1.
• If you are working at an SGA level, but the work is not competitive: you either got a job through a friend or family member and you not held to the same standards as another worker in the same position, or if you are being paid a “subsidy” — the value of your work is $600 a week, but you are being paid $800 a week.

Step 2: Severity

For an impairment to be severe, it has to cause more than a minimal effect on your ability to perform daily activities?

Example: many people have asthma.  However, asthma is not always disabling. Asthma is often well controlled with medications. When it is not well controlled, it may be a severe impairment.

As a Colorado lawyer, I do not see Social Security deny a lot of cases because they do not believe a impairment is severe.  However, every once in a while, this comes up.  Having a “severe” condition is a pretty low standard and it is usually fairly easy to show that a condition has more than a minimal effect on daily activities.

The second part of this is more difficult.  The condition has to be expected to remain severe for 12 months or longer.

If you are denied because Social Security does not think your condition will be disabling for 12 months, it is called a “durational denial.”

I often see a durational denial, where there has been a traumatic accident (such as a car accident) or in cases of disability during the recovery period following serious surgery (such as a back fusion).

Social Security accepts that there will be a healing period where you may not be able to work.  But, unless you can convince Social Security that your condition will remain disabling for 12 months, you may be denied.

Step 3: Listing Level Impairment

This is the “short-cut” step.  If you have a condition which is contained in the Social Security Listing of Impairments AND the medical findings match what is required for your listing, you may be found disabled without Social Security considering the last two steps.  This is “meeting a listing.”

You can also be found disabled at this step if your condition “equals a listing.” Equaling a listing means that while your condition may not be mentioned in the Listing of Impairments, it is just a severe AND has the same findings as a listed impairment.

In my experience with individuals who have already been denied once, the chance of meeting or equaling a listing level impairment is small.  But, it is always worth considering.

Step 4: Ability to Perform Prior Work

If you are able to perform any of the past work you have done at a substantial gainful activity level, over the last 15 years before your disability began, Social Security can deny you.

Example: If you previously performed very physical work (construction work or nursing), but you also did worked as a manager for a few months, you may be denied based on your ability to still be able to perform the management job.  This may apply even though it is not your most recent work, the employer is no longer in business, or if you cannot get hired for that type of work any more.

Keep in mind that this is just a general overview.  Every case depends on its specific circumstances. Also, there are a number of issues around this step including whether you worked long enough to learn the job.

Step 5: Ability to Perform Other Work

Even if you are unable to perform any of your past jobs, you can still be denied if there are other jobs you can still perform which exist in substantial numbers in the national economy.

This is a very complicated area where many cases are won or lost.   The rules at this step change depending on your age group (18-49, 50-54, and 55-60).

• If you are under 50, the rule of thumb is that you have to prove that there is no work in the national economy that you can still perform.
• If you are over 50 years old, the rules get a bit easier, but you still have to eliminate most kinds of jobs to win your case.

This is just a quick rundown of the five-step sequential evaluation process. There are exceptions and corollaries to this but I just want to quickly state the steps that Social Security goes through in evaluating a disability claim.

Updated 01/04/12.

Can a person work and still receive Social Security disability benefits or Supplemental Security Income (SSI) benefits?

The answer is a qualified “yes.”

Social Security wants people to try to go back to work. But, the regulations surrounding keeping your benefits while you try to go back to work make it tricky.

Are you engaged in a Substantial Gainful Activity?

Generally speaking, the test of disability is whether you can perform a substantial gainful activity (SGA)? That is, are your monthly gross earnings (income before taxes and deduction) equal to, or greater than the Substantial Gainful Activity amounts set by Social Security.

In 2012, if you are making at least $1,010 per month, before taxes, your work is a substantial gainful activity. To see the current SGA amount, or SGA amount for other years, click here.

So, if I my gross income is the SGA amount, or more, I have a problem,

But, if my monthly gross income is less than SGA, Social Security will leave me alone.

That is generally correct and it is a good rule of thumb.

However, and this is a big however, this is not the end of the analysis. There are exceptions to allow your benefits to continue if you are earning more than SGA and exceptions that might stop your benefits even if you are earning less than SGA.

If you are receiving Supplemental Security Income, you can earn more than the SGA amount and still receive your SSI benefits. But, that is an article in itself.

If you earn more than the SGA amount:

There are a number of exceptions to allow your benefits to continue even if you earn more than the substantial gainful activity amount. Let’s take a look at them.

Unsuccessful Work Attempt (UWA)

Did the work last for less than 6 months? If yes, the work may qualify as an unsuccessful work attempt or UWA. This is the most common way to continue benefits if you return to work and earn more than the SGA amount.

Simply put, if you work at or above the SGA level for up to six months but have to stop because of your disability, as opposed to being laid off, or quitting, the work may be an unsuccessful work attempt.

There are a number of requirements for an unsuccessful work attempt, read about them here.

Impairment Related Work Expenses (IRWE)

If your work is performed at a SGA level, you may be able to reduce the income SSA considers through Impairment Related Work Expenses (IRWEs).  Any medically necessary expenses related to your impairment which are necessary to allow you to work may be deducted from your gross income as an IRWE.

For example: if you have a disabling seizure disorder.  However, due to a new medication, your seizure disorder is controlled enough to allow you to go back to work.  The medications, doctors visits, and blood tests to test the level of medication in you blood stream may all be IRWEs and might reduce your income.

Subsidy

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. Click for more information about subsidies.

Trial Work Period

If you are receiving Disability Insurance (not SSI), Social Security allows you a Trial Work Period: you can go back to work, and earn even more than the SGA amount, and still be considered disabled, for 9 months.

Click for more information about Trial Work Periods.

Even if you earn LESS THAN the SGA amount watch out!

Any work may create the impression that an individual is not really disabled.  That is the greatest risk of going back to work.

I have heard too many stories of Social Security stopping benefits and even claiming an overpayment, because they thought a person who had gone back to work was never disabled in the first place, or that their disability stopped months or years ago.

Performing a job at a non-SGA level, may suggest the ability to perform other work at a SGA level.

you could do a different job at a SGA amount.  Therefore, you are not disabled and your benefits should stop.

An extreme example of this is working a part time construction or labor job.

• You may be limited to only being able to do this work part-time.
• Your earnings may be less than the SGA amount.
• BUT, if you can do part-time construction, doesn’t that mean you may be able to do full time (SGA) work at an easier job, for example as an information clerk.

Lets get real here:  if there is a less demanding full time SGA job that you can perform, your disability benefits will be questioned sooner or later and you may be assessed an overpayment.

Are you structuring your work to be less than the SGA amount?

If you are keeping your hours below a certain amount, not for a medical reason, but just to earn less than the SGA amount, you are committing fraud.

Your benefits will probably be stopped, and you are looking at an overpayment and will probably have to repay Social Security. But things, can get much worse: Social Security may also refer your case to the Attorney Generals office for federal prosecution.

Do not game the system.  It is not worth it.

Social Security encourages you to try to go back to work to see if you can do it. A Trial Work Period (TWP) lets you work and still be considered disabled by Social Security.

A beneficiary receiving Social Security disability benefits may test his or her ability to work and still be considered disabled. We do not consider services performed during the trial work period as showing that the disability has ended until services have been performed in at least 9 months (not necessarily consecutive) in a rolling 60-month period.

To sum up, a Trial Work Period lets you work and still be considered disabled by Social Security.  Not only that, but Social Security does not count all the months you work, just the ones where you earn more than a threshold Trial Work Period amount:

• 2012  -  $720 per month.
• 2011  -  $720 per month.
• 2010  -  $720 per month.
• 2009  -  $700 per month.
• 2008  -  $690 per month.
• 2007  -  $630 per month.

However, a Trial Work Period only applies in Disability Insurance Benefit claims under Social Security.  Supplemental Security Income (SSI) claims do not get a Trial Work Period. In other words, if you are only getting SSI, you do not get the 9 months to see if you can work while still being considered disabled by Social Security.  If you are on SSI and return to work, a different set of rules apply.

Also, Trial Work Periods only apply after you have been found disabled. If you return to work while you are applying for benefits, you cannot use a Trial Work Period to excuse Substantial Gainful Activity level earnings. However, there are other exceptions which may apply.

How the Trial Work Period works:

1. If you earn less than the Trial Work Period amount, you can work and still be disabled.  Your earnings do not trigger a Trial Work Period.
2. You can work up to 9 months and earn the Trial Work Period amount, or more, without losing your disability status or your benefits.
3. The nine months do not have to be consecutive.  You might earn $1,000 in January, but only $400 in February and March, and then $1,100 in April.  January and April count as 2 of your 9 TWP months, but February and March do not.
4. If your gross income is more than the Trial Work Period amount for longer than 9 months (within a rolling 60 month – aka 5 year – period) Social Security will re-evaluate your case and may stop your disability status and stop your benefits.

But, what if I use up my 9 month Trial Work Period, my benefits stop, and then in the 10th month, something happens and I can’t work?

Am I back to square one?

Do I have to reapply for benefits?

Social Security has a safety net.  After the 9 month Trial Work Period, you may get a 36 month re-entitlement period, or “Extended Period of Eligibility” (EPE). During the Extended Period of Eligibility, Social Security may continue your benefits in any month that your gross earnings are not at the Substantial Gainful Activity (SGA) level.

03/28/11 Update:

How long do you have to complete the 9 month Trial Work Period?

If you worked 1 month a year, could it take you 9 years to complete a Trial Work Period?

Actually, there is a rolling 60 month (5 year) window in which Social Security looks for the 9 Trial Work Period months. According to Social Security, “The trial work period continues until you have completed nine trial work months within a 60-month period.”

That means you can actually have more than 9 Trial Work Period months in total, so long as you do not exceed 9 TWP months in a 60 month period.

For more information about Trial Work Periods, check out the Trial Work Period regulation: § 404.1592. The trial work period.

If your work is performed at a Substantial Gainful Activity (SGA) level you may be denied Social Security disability benefits.  However, you may be able to reduce the amount Social Security considers to bring your gross income below SGA levels.

One way to do this is through Impairment Related Work Expenses (IRWEs). Here is what Social Security describes IRWEs:

An IRWE means an expense for an item or service which is directly related to enabling an impaired individual to work and which is necessarily incurred by that individual because of a physical or mental impairment. Such an expense may involve payment for the purchase, installation, maintenance and repair of an impairment-related item or payment for an impairment-related service. Any medically necessary expenses related to your impairment which are necessary to allow you to work are deducted from your gross income.

If you are disabled, but some type of medical care or service allows you to be able to work, the cost of that care or services may be deducted from your gross income.

This might make you eligible to continue receiving Social Security benefits even though you are working, and your work is a substantial gainful activity (SGA).

One critical element of IRWEs is that you, the disabled individual, have to be paying for the medical care or service.  If insurance or another person is paying for the care, Social Security will not deduct it from your gross income as IRWE.

Here are some examples of IRWEs:

1. Routine drugs and routine medical services.
2. Some diagnostic procedures.
3. Attendant care services.
4. Medical devices.
5. Prosthesis.
6. Other equipment.
7. Guide dogs.

For many people, the most relevant potential IRWE will be “routine drugs and medical services.”  Here is what Social Security says about this:

The costs of routine drugs and routine medical services are not deductible unless the drugs or services are necessary to control the disabling condition so as to enable the individual to work. The amount of IRWE that may be deducted is subject to reasonable limits, and deductions for needed items and services will be made only if the cost is paid by the impaired individual.

In short, the reasonable cost of medications can be deducted from your gross income if the medications are necessary, they enable you to work, and you pay for the medications.

There are a lot of limits on IRWEs and this is only a brief overview.  For more information check out Social Security Ruling 84-26 and 20 CRF 404.1576.

The long wait for a Social Security hearing is a massive financial drain for most people.  With no money coming in, or just minimal state aid, a lot of people wonder how to pay for rent, utilities, and groceries.  

A number of my clients have asked me if they can try to get a job. 

Attorney Jonathan Ginsberg tackles this common question:

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. 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.”

There are also other problems you need to be aware of if you decide to try to work: 

When Social Security considers your ability to work, they generally consider only full time work. So, there should be no problem with doing part time work. Right? WRONG!

Even part time work can cause problems on a Social Security case.

If you can work part time in a “Light” type job, a shelf stocker at a supermarket for example, Social Security may take this to mean you are capable of full time work at an less physically demanding job, such as dispatcher, call-out operator, or information clerk. 

In other words, part-time work at one exertional level might suggest an ability to do full-time work at a lesser exertional level. 

Don’t structure a job to limit income.

If you earn more than the Substantial Gainful Activity Amount (SGA), in 2009: $980 per month before taxes and deductions, you are engaged in a Substantial Gainful Activity (SGA).  Under Social Security regulations, with some exceptions, this means you are not disabled.  

Some people think that if they just limit their hours to make sure they earn less than the SGA amounts, they will be ok.  

This could be Social Security FRAUD.  If you are able to work and earn SGA amounts, but you reduce your earnings to stay below SGA levels to stay eligible for Social Security, you are trying to defraud Social Security. You risk prosecution, so don’t do it.

Does the work disprove your disability?

Here is a quick example:

• You have social anxiety disorder.
• You have difficulty being around people. 
• You get a part time job as a customer service clerk.

Do you see a problem here?

The job is not a substantial gainful activity.  There is no issue of being able to do a less physically demanding job, or structuring earnings to keep income below SGA.

But, how is Social Security supposed to believe you are not able to work because of an inability to interact with the public, co-workers, and supervisors, when your entire job is interacting with people!

Even if you can explain this, you have just made your case much harder.

This are just a couple of the possible problems with working while trying to get Social Security benefits.

Like Jonathan, I do not want to discourage individuals from working.  I regularly work on cases where a client is doing some work while waiting for their Social Security hearing.  

But, there is no simple answer to the question of whether you should work while applying for Social Security disability benefits.  Each case requires a review of the job and the individual’s impairments to watch out for possible problems.  

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

Updated 03/23/09.

Social Security has two different benefit programs for individuals who are disabled.

• Disability Insurance Benefits (DIB, also known as SSDI, or Title 2 benefits); and
• Supplemental Security Income (SSI or Title 16 benefits).

Because of its name, it is a common misconception that must apply for “Disability Insurance” if you are disabled. Actually, both programs provide disability benefits.  

What is Disability Insurance Benefits (DIB)?

Generally, Disability Insurance Benefits are based on your payroll contribution to Social Security.  To qualify for DIB, you have to have earned enough Social Security credits, in the right time frame, by paying into Social Security through payroll taxes.  

There are several circumstances in which you may not have enough credits for Social Security Disability Insurance:

• If you have never worked.
• You worked so long ago that you are past your date last insured.  
• Instead of paying into Social Security, you paid into a state program (such as PERA). 

In each of these cases, you might not be eligible for Disability Insurance (DIB).
Please note that this is just an overview.  There are several circumstances in which you may still be eligible for Social Security Disability Insurance (DIB) even if you do not have not have enough credits under your own earnings, including:  

• Social Security Disability Insurance (DIB) based on a spouse’s, or former spouse’s, earnings.
• Widow/er’s benefits and Children’s benefits when a spouse/parent dies.
• DAC (Disabled Adult Child) benefits.

It is often a good idea to speak with Social Security if you think you may qualify for one of these other types of Social Security Disability Insurance Benefits (DIB).

What is Supplemental Security Income (SSI)?

Even if you are not eligible for DIB, you may still be able to apply for SSI.  

Supplemental Security Income is a Social Security program which provides disability benefits to the following groups:

• Children, 
• Adults who have never worked; and 
• Adults who do not have enough quarters of coverage, or are past their date last insured.

Between a Rock and Hard Place:

Is it possible to not be eligible for either Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI)?

Sadly, yes.

If you cannot prove your disability prior to your date last insured, and your spouse makes too much money (or you have another problematic source of income), it is possible that you may not qualify for either DIB or SSI.  This is the proverbial between a rock and a hard place.

Which Program Should I Apply For?

In my opinion, apply for both.  Do not rule out your eligibility for a particular Social Security program. When you apply, Social Security will determine which benefit program(s) you are eligible for and will help you file the application. However, if you want to know if you will qualify for either program, Social Security has a website where you can see what benefits you may be eligible for.

But, Wait!  There’s More.

Once again, this is just a quick overview of DIB and SSI.  There are differences between Social Security Disability Insurance (DIB) and Supplemental Security Income (SSI) which I will address in other articles.

A lot of people ask me how Social Security decided if they are disabled.

I can’t do the work I have done for 35 years.  Am I disabled?

I stopped working to take care of a family member, but now I am sick.  Am I disabled?

I got hurt at work, then they fired me.  I keep applying for jobs, but there just isn’t much work around here.  Am I disabled?

The doctor tells me I will probably need serious surgery later on.  Am I disabled?

I will need to be on medication for the rest of my life.  Am I disabled?

Social Security focuses on ability to work to test for disability.

Under the Social Security system, in order to be disabled you have to have a physical or psychological impairment that is expected to keep you from being able to engage in a “substantial gainful activity” (SGA) – typically some type of full time work, for 12 months or longer.  Or, simply put:  do you have a condition that keeps you from being able to work?

Social Security does not consider “hire-ability.”

An impairment which keeps you from being able to work is not the same as being unable to get hired for a job.

• You may be applying for jobs but you do not get any calls.
• There may be no jobs in your area.
• Or, you may have a felony charge which keeps you from getting work.

While these are all examples of an inability to get a job, none of these, by themselves, show that you are physically or psychologically unable to to work.

I can’t do the work I have done for 35 years.  Am I disabled?

I stopped working to take care of a family member, but now I am sick.  Am I disabled?

I got hurt at work, then they fired me.  I keep applying for jobs, but there just isn’t much work around here.  Am I disabled?

The doctor tells me I will probably need serious surgery later on.  Am I disabled?

I will need to be on medication for the rest of my life.  Am I disabled?

Being unable to do prior work is usually not enough to prove disability.

What if you have condition that keeps you from doing the work you have done in the past?  Usually, that is not enough to prove disability.  There are some exceptions to this, but generally, if you can still do some other type of full time work (even minimum wage work), you are probably not disabled.

Needing medical care or even surgery in the future is typically not enough to prove disability.

What if your doctor has diagnosed you with a serious medical condition, or told you will need to be on medicine for the rest of your life, or told you that you will need major surgery later on?

In these circumstances, you have to look to the test for disability:  do you have a physical or psychological condition which keeps you from engaging in a substantial gainful activity (such as full time work) for 12 months or longer.

• Does the condition keep you from being able to work? If the answer is, “no,” then the condition might not be enough make you disabled.
• Does the medicine keep you from being able to work? You may respond that without the medication you would be disabled — the medication is the only thing that keeps you from being disabled.  unfortunately, this is the catch-22 of Social Security.  If you have a medical condition that is not disabling with treatment, you are probably not disabled, even though you require the health insurance that comes with Social Security to be able to afford the treatment.
• Does the probability of future surgery keep you from being able to work? You may say, “no, but I will not be able to work after the surgery.”  That may be the case, but you also have to ask whether your period of recovery will be expected to be 12 months or longer.  While Social Security accepts that many surgeries are disabling for a time, the disability from the surgery has to be expected to last for 12 months in order to qualify for Social Security.

There are exceptions which go beyond the scope of this article.  Social Security has Listings of Impairments which discuss various medical and psychological conditions and these Listings do not discuss an inability to work.  However, this is because it is assumed that the level of severity required for any of these listing would automatically preclude any type of substantial gainful activity.

If you think you are disabled, get more information.

This is just a quick review of Social Security’s definition of disability.  There are exceptions and circumstances where these general guidelines would not apply.  Additionally, there are other requirements you must meet to qualify for Social Security benefits.

If you think you may be disabled, speak to Social Security and call a lawyer for a consultation.

A number of people responded to my prior post about “substantial gainful activity” amounts. To briefly review: the general rule is that you cannot earn more than the substantial gainful activity amounts to be found disabled.

What do I do if I am earning more than the substantial gainful activity amount? Does than mean I cannot get Social Security disability benefits?!?

Not necessarily. Earnings above SGA amounts are an important factor. But, there are exceptions (including sheltered work, subsidies, unsuccessful work attempts, impairment related work expenses, and trial work periods)  that may allow you to still qualify for Social Security disability benefits even if you are earning more than the SGA amounts.

Check out our updated article for more information.  If you are earning more than the allowed SGA amounts, it is not the end for your case.

Social Security defines disability as the inability to engage in a “substantial gainful activity” (SGA).

A simplified way of putting this is to say that in order to be found disabled, you have to show that you are unable to work.  BUT, this can be misleading. Not all work qualifies as a substantial gainful activity.

So, how do you know if your work is a substantial gainful activity?

The easiest test is earnings.

In 2012, if your gross earnings, that is, before taxes or any other deductions, are $1,010 or more per month as an employee, that is probably a substantial gainful activity.  Keep in mind that the SGA amounts change from year to year.  The Social Security Substantial Gainful Activity page shows you the monthly earnings which qualify as a SGA for each year.

General rule: if your gross earnings are above the SGA amount, that work might prevent you from receiving disability benefits.

If you are earning less than the substantial gainful activity amount, you may still receive Social Security disability benefits, even though you are working.

I have worked with a number of individuals who are still working, but the work is not a substantial gainful activity.

So, if I earn less than the substantial gainful amount, I’m safe?

Not necessarily.  While having earnings less than SGA amounts is an important factor, there are instances, such as self-employment, or being able to control your earnings, when you may be earning less than the SGA amount, but still be considered performing a substantial gainful activity.

What if I earn more than the substantial gainful amount.  Does that mean I can’t get benefits?

You may have notice all the lawyer weasel words, “probably a substantial gainful activity,” “might prevent you from receiving disability benefits.” There are exceptions to the general rule that earnings above SGA make you ineligible for disability benefits.  Click the link if you are earning more than the substantial gainful activity amounts.

Under Social Security regulations, disability is the inability to engage in a “substantial gainful activity.” This means that to win a Social Security disability case, you have to show that your impairments prevent you from being able to work.

More specifically, you have to show that you are unable to perform the duties of any work you have performed over the past 15 years AND that you are unable to perform the duties of any other work that exists in substantial numbers in the national economy. Note: these are steps 4 and 5 of the sequential evaluation process.

The general rule is that if you can still perform the duties of a job, you are not disabled. Note: this is a very simplified definition and there are a number of significant exceptions including whether the job is a substantial gainful activity, the effects of your age, etc. Right now though, I want you to understand the main issue in Social Security disability cases.

What DOESN’T Social Security consider when looking at your ability to work?

1. Social Security does not consider whether the kinds of jobs you can perform are available in your area.
2. Social Security does not consider if employers are hiring.
3. Social Security does not consider if you can get hired.

Phew! That’s a tough standard!

Well, thank you Captain Obvious.

Ok. But, what does it mean to be disabled? Is it enough to have a medical impairment? Is the diagnosis, itself, enough?

In short, no. Under Social Security regulations, it is not enough to have a medical condition. Your impairment(s) have to be severe enough to prevent you from being able to engage in a “Substantial Gainful Activity (SGA).” In most cases, a Substantial Gainful Activity translates to full-time, competitive, employment.

The touchstone of a Social Security disability case is the question, “do your conditions keep you from being able to do some type of full-time work.”

Read these articles for more information about work and employment and how Social Security applies Substantial Gainful Activity in disability cases.