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Can you qualify for Social Security disability benefits if you are working?

Not long ago, I had someone come in to see me and ask this very question. She had already received two adverse rulings against her and several lawyers had declined to represent her because she was still working. She was now at the hearing level and she needed help. She was only working part-time as a customer service clerk and her monthly wages were under $1000. I accepted the case, knowing it would be a challenge. Here's why:

The Social Security Administration has established a five-step sequential evaluation process in reviewing a claim for Social Security disability benefits. At step one of this process a determination must be made whether the claimant is engaging in substantial gainful activity (20 CFR 404.1520(b) and 416.920(b)). Substantial gainful activity (referred to as SGA) is defined as work that is both substantial and gainful. SGA does not include any income you obtain from non-work sources, such as interest, investments, or gifts. If a claimant engages in SGA, they are not considered disabled, regardless of how severe their physical or mental impairments are and regardless of their age, education, or work experience. In other words, if the claimant is engaged in SGA the evaluation of the claim ends there and the claim is denied.

The fact that my client was earning less than $1000 per month was a key factor, because the Social Security Administration considers wages in excess of $1010 per month in 2012 to be SGA (for non-blind claimants). In 2010 and 2011, SGA was earning more than $1000 per month. In 2009, SGA was earning more than $980 per month. This was the threshold issue that we had to get past. In 2009, the client had attempted to return to full-time work after a back injury. However, she could not hold out working full-time. But she earned more than $980 per month during that first year, so we made the decision to amend our onset date to January 1, 2010. This meant giving up any claim for benefits during 2009. During 2010, the employer allowed the client to reduce their hours and begin working on a part-time basis (after receiving documentation from the treating physician this was medically necessary). The reduced hours dropped the client below the SGA level.

The client was under the care of a pain specialist who had offered opinion evidence that the client had significant pain which limited them to only part-time work, they would have periodic flare-ups which would prevent them from working consistently, their pain and side-effects of pain medication would significantly interfere with their ability to maintain attention, focus, and concentration.

The Administrative Law Judge issued a Fully Favorable decision after hearing the credible testimony of the client, reviewing the supporting medical evidence and evidence we supplied documenting attendance warnings from the employer, along with our brief outlining the law and our contentions.

Such cases are not easy to win, but they can be won where:

• The client has a solid work history prior to their disability;

• The client is a credible witness;

• The earnings are under the SGA level;

• The treating physician supports the fact the client cannot work full-time because of their medical condition;

• The employer has documented attendance issues related to the medical problems (even while working part-time).

It should also be noted that most Administrative Law Judges look very closely at any case where a claimant continues to work, even if it is only part-time. They want to make sure that the claimant is not artificially keeping their wages below the SGA threshold in order to draw benefits, when they are capable of earning more if they so choose.

This article is meant for general information only, and it is not to be construed as legal advice. If you would like more information about applying for Social Security disability programs or appealing a denial, please contact us at 678-563-1584 or [email protected] for an evaluation of your case by a Social Security lawyer.

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