There are a number of considerations the Social Security Administration (SSA) will undertake when determining whether an individual will be deemed initially entitled to a period of Social Security disability (SSDI) or Supplemental Security Income (SSI) benefits. Understanding how one’s continued work can affect a potential claim is some of the most important advice we, as Social Security lawyers in Maine, Massachusetts and New Hampshire, can provide our clients from the very beginning.
First and foremost, SSA will apply its sequential evaluation process and take an initial look at whether one is continuing to make substantial gainful activity (SGA) at the time of their application when determining whether an individual has remained or is likely to remain disabled from all forms of gainful employment for a year or longer.
Work is considered to be “substantial” if the individual is undertaking “work activity that involves doing significant physical or mental abilities” and gainful activity is considered to be work that is done for profit or pay. The Social Security regulations provide that work that is performed and earned at a certain level per month is ordinarily considered to be undertaken at a level deemed to be “substantial gainful activity”: for 2021, this amount is $1310.00 for a non-blind individual and $2190.00 for an individual that is blind. SSA looks at one’s earnings that are “net,” or after expenses if a self-employed individual, and net following reduction for impairment-related work expenses. It is important to recognize that earnings considered to be made at an SGA level at the time of one’s application will result in an automatic denial at step 1 of SSA’s sequential evaluation process.
Likewise, if the earnings do in fact fall below SGA level, SSA will continue their evaluation by determining whether the earnings reflect an ability to earn SGA. For example, the mere fact that someone is being provided 20 hours a week at $12.00 per hour at a gift store, making $1039.92 per month does not answer the question of whether the individual might be able to work more hours necessarily. Perhaps the store is only in need of someone 20 hours per week and this is the reason one isn’t working more, or, perhaps, the claimant has decided they only want to work 20 hours per week (or believe they can’t work more hours). SSA will still look to see if one is capable of working any job for which they are reasonably suited by age, education and experience (that job or any other job) making simply $1310.00 per month (in 2021) and not simply whether they are doing it.
As long as one establishes an initial period of being disabled from performing SGA level earnings (which needs to be for a period of 30 consecutive days), a return to work will not necessarily interfere with the need to show one has been, or will remain disabled for a year or longer. Assuming a return to work remains under SGA levels, and SSA determines one remains incapable of returning to SGA level earnings within a year, this manner of a return to work would not interfere with proving the 12 month duration period required. Likewise, assuming after a period of 30 days one attempts a return to work at SGA level earnings, this would not necessarily preclude entitlement to Social Security disability benefits assuming the attempt to return to work ends within a 6 month period. This would be considered an unsuccessful work attempt, and would not serve to disqualify a disability claimant.
Likewise, following the establishment of a period of disability and entitlement to benefits, working claimants are likewise entitled to what is called a trial work period (TWP) before consideration is given to a discontinuance of one’s benefits. These rules are meant to allow an individual to test returning to work without the fear of the immediate loss of benefits.
It considering an application or have one underway and you are struggling with working, your first call should be to an experienced Social Security lawyer who can discuss with the ins and out of the unsuccessful work attempt rules. Such advice is critical to a proper understanding as to whether and in what way your work will affect your individual claim.