I was recently asked the following question:

I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.

How do I still work and file for SS Disability without loosing any income?

I have previously discussed working while applying for disability benefits. However, this question presents some new issues. Generally, I consider transferring from work to Social Security disability with no loss of income as an unrealistic goal. Here is why:

• The processing time on an initial claim is about 4-6 months (in Colorado).
• The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
• Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work  (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
• There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.

If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.

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

This is a particularly tough question. I previously wrote about how earning more than the Substantial Gainful Activity amount may cause your benefits to be stopped in Social Security Disability Insurance cases. 

In SSI cases, I just learned that you can earn more than the SGA amount and still keep your SSI benefits.

WARNING: I do not pretend to be a understand SSI benefits calculations. I strongly encourage anyone reading this to check this information with Social Security. Also, any Social Security technicians are more than welcome correct any errors I may make here.

To figure out how much you can earn, I need to introduce the 20-65-1/2 rule. This rule helps us determine the “countable earned income.”

If you are working, and receiving both Social Security Disability Insurance (SSDI, DIB) as well as Supplemental Security Income (SSI).

1. Subtract $20 from SSDI amount.
2. Subtract $65 from he amount you earn (before taxes or any deductions) then divide by 2.
3. Add the two amounts together

In other words: (SSDI – $20) + (gross income – $65) / 2 = countable earned income.

Let’s do an example

If you are getting $100 from SSDI and earn $150,

($100 – $20) + (($150 – $65) / 2)

$80 + ($85 / 2)

$80 + $43 (we rounded up)

$123

Now, you take the SSI benefit amount and subtract the number we just got. 

If you were getting $637 in SSI, you subtract the $123, which equals $551. This is the amount you will still get in SSI benefits. 

If you are receiving SSI and also working, you would use this formula

((gross income – (65 + $20)) / 2  

Note: the $20 is the unearned income disregard previously subtracted from the SSDI amount 

(gross income - $85) /2

Using the amount from the previous example:

($150 – $85) / 2 

($65) / 2 

$33

Social Security will subtract the $33 from the current SSI benefit amount. So, even though you earn $150, Social Security will only reduce your SSI benefits by $33.

Based on this formula, in 2009, you can earn just around $1,400 and still qualify for SSI benefits. But, please, if you find yourself in the situation really having to know how much you can make and still keep your Social Security SSI benefits, speak to Social Security. 

Note: if you were reveiving both SSDI and SSI, the $1,400 in income will probably make you lose your SSDI. So, keep in mind the exceptions I discussed in my earlier article.  Many of them apply in SSI cases as well. 

My thanks to Peter Komlos-Hrobsky, Supervising Attorney of the Health/Elder Unit of Colorado Legal Aid in Denver for bringing this to my attention.

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.

How do unemployment insurance benefits affect a claim for Social Security disability benefits?

Receiving unemployment benefits can be a problem if you have a claim for Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) because you are making two inconsistent statements:

• To get unemployment benefits, you are claiming that you are able to work, but you cannot find a job.
• But, to get Social Security disability benefits, you are claiming that you cannot perform any type of work at a substantial gainful activity level (generally full time work).

So, you are saying that you are ABLE and UNABLE to work at the same time.

In my experience, Judges do not like this and you are less likely to be found disabled under these circumstances.

I even recommend that my clients amend the Alleged Onset Date to some time after the unemployment benefits end. I do this by writing a short letter to the Judge noting that I wish to amend the alleged onset date to date “x.” Then, at the hearing, I mention the change to the alleged onset date again.

However, strictly speaking, Social Security does permit you to receive disability benefits and unemployment insurance.

The November 15, 2006 Memorandum from Chief Judge Frank Cristaudo states:

… the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether a claimant is disabled.

….

Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence.

A second memo was issued on August 9, 2010 on how Social Security should treat applications for individuals receiving unemployment benefits.

This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).

In considering claims of individuals who have applied for unemployment benefits, Administrative Law Judges (ALJs) should be mindful of the principles discussed in Social Security Ruling 00-1c, which incorporates Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under the ADA. The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits.

In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the benefits. For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALl should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.

Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment.

So, applying for, or receiving, unemployment benefits does not prevent you from getting Social Security, BUT it is a factor Social Security considers in deciding your case.

I have seen Judges react badly when an individual is claiming unemployment benefits and Social Security disability at the same time. Personally, I caution against it. However, if unemployment benefits are the only way you have to make ends meet, it is not (necessarily) the end of your Social Security case.

My thanks to Maine Social Security attorney Gordon Gates for bringing the first memorandum to my attention.

Updated 02/14/11.

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.

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.

I was recently asked the following:

I had my hearing today. The judge had a vocational rep come in to testify. He said I had two job options.

… I live in a small town that probably does not offer the two jobs the vocational expert said I could do.

Can the judge deny me for being able to do jobs that don’t exist in my town?

First, keep in mind that the Vocational Expert testifies about two things:

1. Job Titles. These are the kinds of jobs you can still perform despite your limitations. Examples of jobs the vocational expert may cite are:  call out operator, surveillance systems monitor, information clerk, cashier, stocker, etc.
2. Incidence of jobs. This is the number of jobs for each job title.

Second, Social Security considers jobs on a national and regional level. The region is the state a person lives in. 

If there are a significant number of jobs which you can still do at a substantial gainful activity level in the regional economy, then you can be denied.  

How many jobs make up a “significant number of jobs?”

That is hard to say. There is a rule of thumb that 1,000 jobs (not job titles) within a region is a significant number of jobs and enough to deny you. However, there is no bright line rule about how many jobs are a “significant number.”

If the Vocational Expert says that you can still work as an “Information Clerk” and there are 30,000 Information Clerk positions nationally, and 1,200 in the region (state), you may be denied.  Note: these numbers are made up for this example.

But, what if there aren’t any “Information Clerk” jobs in my town?

Unfortunately, Social Security does not consider the availability of jobs in your town, so long as they exist in your “region.” Not only that, Social Security also does not consider:

• The number of job openings for any of the cited jobs.
• Whether a person can actually get hired for any of the cited jobs. 

It is quite possible to be denied because you are theoretically capable to do a job that does not exist in your home town. Or, there are no job openings. Or, there are job openings, but you cannot get hired for that job.  

Social Security is a difficult system. You just have to keep trying and it really helps to have a skilled lawyer assisting you.

Your doctor’s opinion of your disability is critical evidence in your Social Security disability case. If your doctor does not believe in you, you and your lawyer are facing an uphill battle.

Chances are, Social Security either sent you to one of their doctors for a consultative examination, or had your medical records reviewed by a Social Security doctor. If Social Security denied your claim, their doctors probably did not think you were disabled.

So, here is the problem: if the Social Security doctor says you are not disabled and your doctor does not believe in your disability, you may not have the evidence you need to prove your case.

What can I do if my doctor does not support me?

Unless you can get your doctor to change his or her mind, you may need to get a new doctor as soon as possible. You may not be able to undo the damage done by your current doctor, but you can at least provide fresh evidence that supports your disability from the new doctor.

I do not advocate shopping for a more favorable medical opinion. However, if you and your lawyer think that your doctor is biased against you, or against anyone applying for disability benefits, don’t let them ruin your claim!

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.