Considerations by your NH Social Security Lawyer in Picking an Alleged Onset Date

When filing your claim for Social Security disability benefits, it is important to establish appropriately your “alleged onset date.”  Evaluation of The Social Security Administration will use your alleged onset date (AOD) in determining how far back your retroactive benefit payments can be paid.  Benefits are only payable as far back as 1 year prior to the date of your filing, assuming you have met a full, 5 month waiting period.

The Social Security Program Operations Manual System (POMS) provide that “[i]n title II disability claims and title XVI adult disability claims, the AOD is always the date the claimant alleges he or she became unable to work because of his or her medical condition, whether or not that date appears to be appropriate.”  See DI 25501.210   The standard for showing eligibility to Social Security disability insurance benefits is whether one remains totally disabled from all forms of substantial gainful activity (SGA) for what is expected to be a year or long (with substantial being defined as involving significant physical or mental activities, and with gainful activity being defined as work ordinarily performed for profit).  The Social Security regulations provide that work performed at a level of $1130.00 or more in 2016 is ordinarily considered to be at a level of SGA.  While at times it’s appropriate to use as AOD the date that one last undertook SGA level earnings, there are a number of exceptions to this rule.

20 C.F.R. §404.1574 provides that “your earnings may show that you have done substantial gainful activity.”  It is important to understand that in some circumstances individuals go out of work as a result of a disabling condition and then may attempt a return to work which work, even if undertaken gainfully, would not cause a change in the alleged onset date assuming the individual when back out of work within a short period of time as a result of their medical impairment(s).  Such a circumstance is called an Unsuccessful Work Attempt (UWA).  An initial period of disability can be established by being out of work for a period of longer than 30 days.  See 20 CFR § 404.1574(c).   The Social Security regulations specifically provide that before an Unsuccessful Work Attempt can be considered, there “must be a significant break in the continuity of your work before we will consider that you began a work attempt that later proved to be unsuccessful.”   They further provide that they will “consider your prior work to be ‘discontinued’ for a significant period if you were out of work at least 30 consecutive days.”

An unsuccessful work attempt will then be determined if one does indeed return to work for a period of 3 months or less as long as your work ended or was reduced to a level of employment below SGA as a result of your impairment(s) or as a result of a removal of special conditions related to your medical impairment(s) that was/were essential to your continuation of employment.  If the return to work is for longer than 3 months but less than 6 months, then you must show not only that the employment ended or involved wages reduced to a level below SGA level as a result of the impairment or removal of  special conditions related to your medical impairment(s), but also 1 of the following: a) you had frequent absences from work due to your medical impairment(s), b) your work was unsatisfactory as a result of your impairment, c) your work had been performed during a period of temporary remission of your condition or d) your work was performed under a set of special conditions.  It is important to understand that if work is performed for longer than 6 months at an SGA level, then the return to work cannot be regarded as an UWA and the initial period of disability cannot be used to establish the onset date.

Once the onset date has been established, it is important to note that the benefits are payable after a full 5 month waiting period has been met.  Likewise, it’s important to note that benefits are not payable more than 1 year prior to one’s protective filing date for benefits.

Thus, if one has been in and out of work for a lengthy period of time and a question remains as to whether one’s work has risen to the level of Substantial Gainful Activity (SGA) or as to whether attempts to return to work might constitute Unsuccessful Work, evaluation by an experienced NH Social Security lawyer is essential to ensuring that the appropriate alleged onset date is used for your claim.

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