The following are thoughts by the author and not intended to be
taken as representation of the law. It is comment, and comment
only. There is no attempt in posting this blog to establish an
attorney client relationship with any reader.
A big reason why you have private attorneys working in the area of
social security disability is the same reason many claimants find it
necessary to work pending a hearing; that reason being delay! The law
allows attorney's fees to be paid out of past due benefits awarded to
the claimant. There is an ability to earn a good fee, if the past
due benefits are large, i.e. if the delay from requesting a hearing
to the actual hearing date is lengthy. After a denial on a request
for reconsideration, it can take 12 to 18 months to eventually appear
before an ALJ. Claimants who are desperate for income to maintain a
bare life style, sometimes feel forced to take a part time job. Most
admit working was very hard and painful but they feel they had no
choice, especially if they have a family depending on them.
The big problem with the delay is the financial
hardship. The claimant has to wait without money for a hearing, this
can be very, very difficult. Most hope to win benefits so that they
will have some small token of their life back.
What happens in the system to these people is the
subject of the blog.
Compare what an ALJ sees at every hearing, and
literature put out by social security. A judge sees people unable to
work with claims of disability. Some disabilities reach the level
the ALJ deems subject to benefits, many others do not. The majority
of claimants at this stage are suffering the impact of some
disability. The majority of claimants are unemployed, down on their
luck, and begging for financial assistance. Given this, in walks a
claimant claiming to be totally disabled and unable to work at any
job within his or her functional capacity, yet the claimant is
working a part time job.
There is nothing illegal in a claimant working a part
time job and claiming benefits. In some cases, where the claimant
has tried several and failed at each, (an unsuccessful work attempt
is work at a job that generally lasts less than 3 months) it might
even assist them in a win. In the normal case, part time work by the
claimant sets up a bad situation...let's say that the claimant is
working 20 or 30 hours a week, but all the prior claimants that week
before this ALJ were unable to work at all and benefits have been
denied to some of the non-working claimants. It is hard to believe
that claimant's ability to work part time does not affect the ALJ's
thought process.
On the other hand, if you look at the literature put
out by social security you will see that it tells you that you can
work while you apply for disability benefits (and while you receive
benefits), as long as your earnings do not exceed a certain amount
set by the SSA each year, called the SGA limit. SGA stands for
"substantial gainful activity." In 2013, the SGA limit is
$1,040 per month (or $1,740 for blind claimants).
Caveat! Remember that "past
relevant work" (PRW) -- that is, jobs the claimant has done in the past 15
years. If that work included part time employment and at the part time employment qualified as "substantially gainful" work, i.e. claimant was earning more $1,040.00 a month, and SSA decides you can do your
part-time PRW, you will be denied benefits.
Social Security disability is based upon a claimant's
inability to work any full time job within his/her functional
capacity (except as noted above). Social Security defines disability in terms of a
claimant's ability/inability to work. To win, you need to prove that
at the lightest job category that the claimant has the ability
(his/her functional capacity) to work, the impairment(s) makes
competitive employment impossible, i.e. even at a simple, unskilled
job, claimant could not perform the duties to the quality demanded by
an employer, i. e. show up to work consistently, be at your job site,
work for 8 hours a day, 5 days a week and continue to do that for the
term of employment. If you return to work before a hearing on your
disability claim, the judge may have trouble dealing with part time
work, and a finding of disability, i.e. “Isn't it possible with a
little more effort, full time work could be handled?”
Testimony from the claimant, who is working a part time
job, that “I am working at my capacity. I could not work longer
hours or more days, or at a more difficult job, and I don't know how
much longer I can do the little I am doing.”
Unfortunately, a judge may conclude that claimant's
testimony is not credible. Claimant admits working 3 to 4 hours a
day, maybe at a different job or with a little more effort, you could
work 7 to 8 hours a day. What if you have consistently shown up to
work your part time job, done a good job working at it for the past
year, three months or whatever time period? What if you worked a
part time job that required heavy lifting, medium lifting etc? There
is no other way to look at it, but that part time work damages a
claimant's chances of winning!
I explain this to my clients when the issue arises and let them
make the decision. I understand that to some it is necessary to
bring in some money to meet living expenses, and that it will take a
long time to get to a hearing.
They need to understand that if their case is not cut and dry (as
it would be if the client had had a liver transplant, say, which
automatically qualifies for benefits for 12 months), they may want to
think twice about working when you apply for benefits. It is a very
difficult issue for many clients who are faced with the difficulty of
attempting to win benefits.
