Work and Social Security Disability Claims
By Pitt Dickey

This column will review how the Social Security Administration (SSA) evaluates a person’s work background and experience in making a determination as to whether the person qualifies for Disability Insurance Benefits. In making a decision about a disability claim the SSA uses a concept called “substantial gainful activity”. A person who is performing substantial gainful activity beyond a certain number of months is not going to be eligible for disability benefits no matter how ill they are. This concept effects disability claims of people, who despite their serious illnesses, continue to work when most other people would have already given up hope of continuing to earn an income. When a person applies for disability benefits the SSA requires the applicant to state a date when the disability made the claimant unable to work. This date is called the “alleged onset date”.

If the claimant has worked at all after their alleged onset date the SSA will carefully examine what the person did at that job and the amount of income earned after their alleged onset date. It is not unusual for a person to keep on working after becoming severely ill to maintain an income, keep health insurance and keep paying the daily bills. Sometimes it is difficult to tell the exact onset date a disability claim meets the SSA standards.

Substantial gainful activity under the SSA regulations is work that is both substantial and gainful. Substantial gainful activity is defined as “work activity that involves doing significant physical or mental activities.” It can be part time or full time work. It can include doing work that pays substantially less than what the person’s pre-illness job paid him. Gainful work activity is the type of work normally done for pay or profit. If the person is self employed but is not earning a profit, it is still considered gainful work activity. The issue is not whether a self employed person is making a profit or an employee is working without getting paid by another. The issue is whether the type of work he is doing is normally done for pay. Attending college or classes, or taking therapy are not considered substantial work activity.

The SSA considers how well a person is able to perform his work duties. If he can do them well, this will cause the SSA to determine that he is performing substantial gainful activities. If he is not able to perform ordinary or simple activities without more supervision than is required by most people doing work that is similar, this is a factor that can cause the SSA to determine the person is not performing substantial gainful activity. Make work jobs that provide little or no use to an employer is not considered substantial gainful activity.

The SSA has a category called “work done under special conditions” such as working in a sheltered workshop. Such work can be determined by the SSA not to be substantial gainful employment that would prevent the payment of disability benefits. The SSA also considers work to be done under special conditions if the employer makes different arrangements to keep the employee on the job such as:

1. The employee has to have special assistance from other employees to do his job;
2. The employee is allowed to work irregular work hours or take rest breaks not granted to other employees
3. The employee was provided with special equipment or given work particularly suited for his employment
4. The employee has special arrangements which allow him to work like having someone get him ready to work and transporting him back and forth from work
5. The employee can produce at a lower level than other employees would be allowed
6. The employee is given a job despite his health problems because of a family relationship or prior work with the employer or because the employer is concerned about his welfare and gives him a make work type job.

The SSA applies an income test initially to see if the person is performing substantial gainful activity. If the employee earns more than $700 per month between July 1999 and December 2000 he is considered to be performing substantial gainful employment. After 1 January 2001, if the claimant earns an monthly average more than his prior year earnings he is considered to performing substantial gainful employment. There is also a complex formula involving the national average wage index which is too complicated for the scope of this column.

Unsuccessful Work Attempts

The SSA recognizes that people who have suffered health problems will frequently attempt to go back to work for a period but will be unable to remain employed due to their health problems. Such a return to work is called an “unsuccessful work attempt.” If a person goes back to work and works for less than six months and then has to quit work or reduce his hours of work to a level below substantial gainful employment the SSA will not treat that period of work as disqualifying the person for disability insurance benefits. The system is set up to encourage people to go back to work. The SSA uses the concept of “unsuccessful work attempt” to let people try to go back to work if they can.

To have an unsuccessful work attempt there must be a break in the person’s employment history due to an illness or injury and then a return to the work force. The person must be out of work for at least 30 days before returning to work to qualify the return for work as an unsuccessful work attempt.

If after the 30 days out of work, the person then works 3 months or less, the SSA will consider this 3 month or less period to be an unsuccessful work attempt provided the person stops working again due to health problems - not a lay off from a job. If the person works between 3 and 6 months, the SSA will consider it to be an unsuccessful work attempt if the person stops working again due to health problems and:

1. The person was frequently absent from work due to his impairment, or
2. His work was unsatisfactory because of your impairment, or
3. He worked during a temporary period of remission of his impairment, or
4. He was working under special conditions that allowed him to work and those conditions ended.

If the person works more than 6 months, such work will not be considered an unsuccessful work attempt and will disqualify him for disability benefits during that period.

An Example of an Unsuccessful Work Attempt

Frank Porterfield worked in a factory for 15 years doing heavy production work. On 1 June 2000 he was lifting a box and herniated two disks in his lower back. He went to a doctor the next day and was taken out of work. He was treated conservatively by medication and physical therapy for twelve months while he was out of work. He returned to work on 1 June 2001 with a limitation to light duty. His plant had only a limited number of jobs that didn’t require lifting. Frank worked light duty for 2 months and a reduced salary but in excess of $700 per month.

His doctor released him to return to his regular job after the 2 month period. In August 2001 he returned to his old job. He worked for a total of 3 more months before his disks ruptured in October 2001. He underwent fusion surgery on his back in October 2001. After this surgery the doctors advised him not to return to his old job. He had chronic back pain and is taking oxycotin and is limited to sitting, standing and lying down for brief periods due to pain. He had worked a total of 5 months after returning to work on 1 June 2001. He did not return to any type of job after his disks surgery in October. He now applies for SSA disability benefits.

The question is what is his onset date? He actually stopped working on 1 June 2000 but then returned to work for 5 months a year later between June 2001 and October 2001. In Frank’s case his correct onset date would be 1 June 2000 despite having been back to work for 5 months in the summer of 2001. If approved for Disability Benefits his onset date could go back to June 2000.

If Frank had worked for than 6 months after his return to work his Disability Benefits onset would be 1 October 2001. This means he would have lost his eligibility for back benefits from June 2000 to October 2001 for a total of 17 months of disability benefits. If his benefits would have been $1000 per month it means that he would have lost $17,000 in benefits if he had worked 7 months instead of six months.

Social Security Disability Claims are a highly technical area in which an attorney could be of real benefits to a client.

Pitt Dickey has practiced law in Fayetteville since 1978. He has handled SSA disability claims for over twenty years. He practices with the firm of Smith Dickey Dempster & Carpenter, P.A. at 555 Executive Place, Fayetteville, N.C. He can be reached at 485-8020 or at pitt@smithdickey.com.