Applying for Social Security Disability is a long journey. Initial decisions can take months. Add to that the administrative appeals process, and some applicants can be looking at a year or even more to get a final decision.
That’s a long time to be without income — especially when you’ve also got medical expenses related to your disability — so it’s not too surprising that many of our clients ask us whether they can work while they wait for their applications to be processed.
Even those who have been approved for benefits sometimes tell us they still need to find a part-time job or other source of income to make ends meet.
Working while applying for disability or collecting benefits can be a problematic area, so it’s absolutely essential that you understand the rules and limits.
Substantial Gainful Activity
To be eligible for SSDI, you must prove that you are disabled. The Social Security Administration uses a five-step sequential process to determine whether an applicant is disabled.
In Step 1, SSA evaluates whether you are engaged in substantial gainful activity, or SGA.
We usually focus on the dollar amount that puts applicants over the SGA limit. For individuals who are not blind, the SGA threshold for 2023 is $1,470 per month. If you’re earning more than that, you are generally considered to be engaged in SGA. Your application for benefits will be denied.
However, SGA is more than a dollar amount. According to SSA, “the term ‘substantial gainful activity’ (SGA) is used to describe a level of work activity and earnings.” Let’s break that down.
SSA defines substantial work as that which involves doing significant physical or mental activity or a combination of both.
Gainful work activity may be:
- Work that is performed for pay or profit.
- Work that is generally performed for pay or profit.
- Work intended for profit, whether or not profit is realized.
So how does that change things? Here’s an example:
Sarah applied for SSDI because of Crohn’s disease and chronic anemia. Before the onset of her disability, Sarah worked full time in the finance department of a health-care facility. When she applied for disability, the facility allowed her to work part-time processing expense forms. She worked 15 hours a week and was paid $12.50 an hour, which amounted to about $750 per month, safely under the 2023 threshold.
Sarah also took over bookkeeping and payroll for her husband’s restaurant, without pay, working an average of 15 hours per week. Even though she wasn’t paid for that work, the SSA ruled that it was work someone would ordinarily be paid to do. SSA decided that her part-time work at the health-care facility coupled with the value of the work she did for her husband was enough to demonstrate SGA.
This concept could also apply to volunteer work. Let’s pretend Sarah was volunteering at her church 15 hours per week — answering phones and putting together the bulletin, perhaps — instead of doing the restaurant’s bookkeeping. SSA could easily make the same decision.
As you can see, before you take on work, it’s important to understand that SGA considers activity level in addition to dollar amount.
There are other activities that can also influence SSA’s disability determination. While these won’t be considered SGA per se, an ALJ could still use them as evidence regarding your disability status. For example:
- Household chores — laundry, yardwork, cooking, etc.
- Going to school
- Participation in social activities
Work Activity Report — Form SSA-821
If you work after your onset date and while your claim is pending, Social Security will send you a Work Activity Report (Form SSA-821).
Parts 1-4 of the form ask for several pieces of information related to any reported income you’ve received since your date of onset, including:
- Employer name and contact information for each job
- Supervisor name
- Your job title and type of work
- Dates you worked for that employer
- Your rate of pay and average number of hours worked
You’ll also be required to submit copies of your pay stubs or wage reports from your employer.
If you received any other income from an employer that was not for work hours — for example, sick pay, disability pay, or workers compensation — you’ll be required to report that, as well.
In Parts 5-7, the Work Activity Report asks questions about special conditions, changes, or costs you have incurred related to working. Specifically, SSA is looking for:
- Any special conditions you have worked under or accommodations that have been made for you to work. Examples include working irregular or fewer hours than others, being allowed more breaks than others, or receiving special equipment related to your condition.
- Any changes made to your job status since your date of onset, including stopping working, reducing hours, changing to easier or less strenuous work, or making less money.
- Unreimbursed costs for equipment or services related to your condition. Examples include service animals, medications or medical devices, car modifications, and more.
If you’re working with us on your claim, we will help you gather all the information needed and submit it along with the completed form on your behalf.
Special Work Circumstances
Parts 5, 6 and 7 of the Work Activity Report are critically important to the Work Activity Report. These are the sections that allow us to explain any accommodations or other circumstances surrounding your employment. These come into play when you have earned more than the SGA cap allows.
If your employer has made significant accommodations so you can work, you may be doing sheltered work. For example, you could be working flexible hours that allow you to be off when you’re not feeling well enough to work. Or your employer might set a lower production quota for you so you can work a short shift and take extra breaks as you need to.
These work opportunities often involve friends or family members. Your brother owns a commercial cleaning company, for example, and pays you to work a few hours a week to check supply levels and order anything that needs to be replenished. He might roll that into someone else’s responsibilities, otherwise, but you want to work a little, and this is something you can do when you are up to it.
If you make more than the SGA dollar amount threshold and are working in this kind of “special environment” that wouldn’t exist for anyone else, it’s possible that SSA will still find you disabled.
Unsuccessful Work Attempt
Sometimes disability claimants will try to return to work or find another job while they’re waiting for their case to go through the process, only to find that it won’t work out. This could be considered an Unsuccessful Work Attempt (UWA) by SSA if:
- You had to end your effort to work — or at least reduce it to less than the SGA threshold — in less than six months.
- You had to stop or reduce work because of your impairment or because some special condition you worked under (flexible schedule, lower productivity) was removed.
If your period of unemployment is ruled an unsuccessful work attempt, your earnings during that period will not be considered, even if they are above the SGA threshold.
Note that SSDI beneficiaries — those already receiving disability payments — may also have worked classified as an unsuccessful work attempt if they meet the eligibility criteria.
SSA understands that most people who receive disability payments would rather be working. That’s what the trial work period (TWP) is all about.
During a trial work period, you can test your ability to go back to work for up to 9 months. You will consider receiving your full benefits, regardless of your earnings. The 9 months do not have to be consecutive and can occur over a rolling 60-month (5-year) timeframe. Any month within the five years in which you make more $1,050 (in 2023) is counted toward your TWP.
Note: The cap for income during TWP is less than SGA. If you are self-employed and work more than 80 hours a month, that counts toward your TWP, even if you don’t earn more than the income limit.
Extended Period of Eligibility
If you reach the end of TWP, you will be considered in an extended period of eligibility. That is, SSA isn’t cutting you off completely just yet.
The EPE lasts for 36 consecutive months. SSA will monitor your earnings and pay your benefits during months you don’t make more than SGA. There is a grace period of three months at the start of the EPE during which you will continue to receive benefits regardless of your earnings. Beyond that, your income must drop below SGA to receive SSDI.
At the end of EPE, Social Security will consider whether or not you are engaged in SGA. If you are, your benefits will end. If you have to stop working again within five years because of a related impairment, you may be eligible for expedited reinstatement of your benefits.
If you have worked while waiting for benefits, consult an attorney.
At Joyce & Bary Law, we understand that someone with a disability may be able to work under special circumstances or for a short period of time and still meet the criteria for being disabled. Contact us today to schedule a free consultation, so we can talk about your situation and determine whether we can help.