If you’re looking into applying for Social Security Disability, it can feel overwhelming and you may find yourself with a lot of questions. “What will the judge ask at my disability hearing?” is one that we hear often, and answered in a previous blog.
There’s one more very common question we hear, and we’d like to take the time to answer that question for you today.
The short answer is, yes you can.
In order to qualify for Social Security disability, you must have a medical condition or combination of medical conditions that prevent you from doing any and all types of work (including work you have done in the past and any other job in the national economy). The decision to apply for SS disability should only be made after you determine that, because of your physical or mental health, you are unable to work in any full time capacity. If you are working full time or are able to work full time, you will be deemed ineligible for benefits.
However, if you are working only on a part-time basis, you may still be eligible to apply for Social Security benefits. Be aware that there is a cap on how much income you can bring in from employment and remain eligible. If you earn more than what is commonly called the “substantial gainful activity” (or SGA) limit, generally your application will be denied without any consideration of your medical problems or limitations.
The Social Security Administration also considers the number of hours you are working and must determine whether the work you are performing is substantial, that is, performed on a regular and consistent basis without any special concessions from your employer. If you’re earning below the SGA limit but are working 32 or more hours per week, it will be more difficult to convince the Social Security Administration that your disability precludes full-time employment. This does not mean you cannot work part-time while applying for disability. You are able to work, at least part-time, but should always be aware of how your employment status may affect the review of your application later on.
If you are approved for benefits, the impact of your work varies depending on the type of benefit you are receiving. In the case of Social Security Disability Insurance benefits (or SSDI), the SGA limit continues to apply, but there is a “trial work period.” During this 9-month period of time, you can earn more than the SGA limit without it affecting your continued disability. If you continue earning above SGA after the nine month period, your benefits may terminate due to your return to work.
In the case of Supplemental Security Income (SSI), income of any kind, whether earned or unearned, will affect the amount of your benefit. The amount of the SSI payment will be reduced by $1 for every $2 of income and if you work at SGA levels beyond the trial work, you will no longer be considered disabled under the SSA rules.
There is some argument that the SGA limit is essentially arbitrary, and is therefore ‘unfair’. Someone working at a minimum-wage level in South Carolina, for instance, can work 32 hours a week and still have their monthly earnings come in well under the SGA limit, while someone employed at $12/hour would be capped at a much lower hourly limit for the week. The requirements of jobs at different income levels can vary wildly, and the Social Security Administration has actually taken that into account.
The Social Security Administration can choose to look at things that affect what is called the “worth” of an individual’s work, and that might influence whether or not a particular individual is therefore limited by the SGA amount. One example of this is that Social Security claims representatives are expected to look into whether an individual’s work activity is matched by their pay.
Many employers “subsidize” disabled employees’ work by paying them a full wage even if they’re not performing to the level that would normally be required to earn that amount, due to their disability.
If Social Security speaks to the employer and finds that the employee’s work is considered to be worth about half the pay they are actually receiving, but that this difference is a result of their disability, the SSA will be able to count the amount the work was “worth” as opposed to the number on the employee’s paycheck towards the SGA limit. Therefore, in certain cases, an individual may still qualify for disability benefits despite earning over the SGA amount.
As stated earlier, the decision to apply for disability is not a choice, but a last resort. If you are able to work, then that work should be pursued – if work activity on a regular and consistent basis is not possible, a disability benefits application should be filed. Any work activity or attempts should always be reported to SSA if you have a disability case pending or are awarded benefits. Failure to report your work activity is perjury and may be punishable by law.
The disability application process is lengthy – most cases are not decided for two to three years after the initial application and many cases are denied even through all levels of appeal. If part-time or occasional work can be found and if you are able to do that work, your case may or may not be impacted. While it is not prohibited to work while remaining under the $1,310 amount per month, the Social Security Administration will take your ability to continue working into account when reviewing your disability case. Claims representatives (and eventually the judge that oversees your hearing) may simply be less inclined to believe that your disability precludes full-time employment if they see you working 32 hours per week without any problems.
The decision to file for disability benefits or to attempt to work while pursuing a disability benefits claim can be difficult. The rules and regulations governing these cases are complex and can be confusing. If you are considering filing a claim for disability benefits, or have a claim pending, we would recommend scheduling a consultation with a legal representative with experience in Social Security disability in order to ensure your rights are protected during the application process.
At Bluestein Attorneys, we do have experience with Social Security Disability cases, Workers’ Compensation, Veterans Affairs Disability, and many other areas of legal practice. We’d be happy to sit down with you and go over your unique situation, in order to help you make the decision on what steps you may need to take next. Reach us by phone at (803) 779-7599 or contact us online to request your FREE consultation today.