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 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 CFE 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 CFE 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.

Updated 06/05/09.

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 2009, if you are making at least $980 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 monthlty 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. In 2007, any month in which earnings exceed $640 is considered a month of services for an individual’s trial work period. In 2008, this monthly amount increases to $670.

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:

• 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.