Should you Attempt to Work While Pursuing a Social Security Disability Claim?

One of the frequent questions our office receives from claimants we represent in their Social Security disability and Supplemental Security Income claims.  First and foremost, the answer every lawyer or claims representative should be providing to their claimant is a resounding yes.  One should always attempt to work if they have that option: whether you’re in the initial stages of filing a Social Security claim or about to appear before an Administrative Law Judge (ALJ).  Unfortunately, I see that some representatives are not as clear when answering that question and I believe it provides both confusion and, down the road, what could be huge disappointment to their client if they are not provided with a complete sense as to how a return to work can prove to be a win-win proposition.

It’s important to understand that in order to prove a claim for Social Security disability benefits, a claimant needs to show that they are likely to remain totally disabled from all forms of gainful employment for a year or longer.  In 2016, gainful employment is defined as the ability to earn $1130.00 per month on a regular and continuing basis.   For purposes of establishing a year or longer, it is important to know that a period of disability is started by going out of work for longer than a 30 day period.  Following such an absence from work, an attempt at returning to work would show the Social Security Administration that you are doing everything possible to return to work rather than sitting back waiting to collect a check.  If you were to return to work successfully, inside of a year, then there is no need for a check (nor entitlement to a check) in the first place.  If you return to wrok making less than gainful wages, SSA will look to see whether the reduced wages reflect perhaps underemployment: they may, for example, determine that someone making $800-900.00 per month might be capable of working simply a few more hours per week such that they could be earning gainful wages.  Remember, the standard is not whether one is actually earning gainful wages, but whether one is “capable” of earning gainful wages.  Occasionally, we do get calls from individuals who want to know how much they can make and still collect Social Security disability benefits.    The answer is that one should always be working as much as they possibly can, as one should not be attempting to tailor their circumstances so as to collect a disability check: one should only want the check if in fact it’s appropriate to their particular circumstances.

It is important to know that if you do go out of work within 6 months of returning to work as a result of your disabling conditions, there are rules called the unsuccessful work attempt (UWA) rules which would allow for such a return to work to take place without it interrupting your period of disability for purposes of establishing a year or longer.  Indeed, we have had a number of clients who have attempted to return to work numerous times during the course of their claim, and have been ultimately granted disability benefits as these returns to work were considered UWA’s.

Once you’ve reached the year period of time, however, the rules then change.  Once you’re considered beyond the year period of time for purposes of being “disabled from gainful employment,” the Social Security regulations would allow for a period of Social Security disability benefits to be awarded even if you were to, subsequent to that year, return successfully to work before a decision has been rendered.  At that point, SSA would look to see whether your condition remains severe and disabling.    Assuming, you are no longer deemed to suffer from a medical condition that remains severe,  SSA can provide for a favorable decision that would be for a closed period of time.  Likewise, if SSA finds that the condition still remains disabling but you’re attempting to return to work and the “verdict is out” as to whether you’ll be successful in your return to work, they will consider your claim an ongoing one and will allow you to undertake what is called a trial work period (TWP) (which allows one to undertake 9 months of work, which is presently considered to be any month in which you earn gross wages of $780.00 per month or more) over a rolling 5 year period.

Needless to say, there are some very helpful rules that make it always advisable to attempt a return to work.  In some circumstances, it may cause you to receive additional money during TWP or UWA periods that are in addition to the Social Security disability benefits obtained.  In order to get a sense as to how these rules may work for you in your particular circumstances, contact the Law Offices of Russell J. Goldsmith for a free consultation at 1-800-773-8622.