I’d like to talk to you about a topic that comes up quite a bit in my social security disability practice here in Atlanta, and the issue has to do with part-time work. As you know, Social Security Disability is dealing with a lot of very, very long delays in the management and handling of cases. It’s not uncommon for cases to be pending in the Social Security Administration for two or three years, sometimes even longer. Of course, when you’re waiting two or three years to get to a hearing, it can be very tempting to try to go back to work. After all, you have to make ends meet, right? Well, the problem is that sometimes work activity, even if it’s just part-time work, can result in your claim for benefits being denied. And then you are really in trouble.
As a practical matter, it’s important for you to realize that part-time work makes it much more difficult to win your social security disability case. The simplest explanation would be this: the judges, when they see part-time work, are likely to believe that if you are able to do part-time work, then perhaps you would be able to do full-time work if your job responsibilities could be slightly lessened. In simple terms, a SSA Judge might think that if you tried a little bit harder, you could probably work full-time. This is just the thought process here. Or, if you’re working a part-time job that requires a certain amount of physical activity, the natural thought of the Judge will be that if you took something a little bit less strenuous, you could probably do it full-time. Then the Judge will likely deny benefits.
I really think the part-time work muddies the waters, and I like to say that Social Security sees disability as a black and white thing: either you’re disabled or you’re not. Part-time work tends to blur that distinction and, again, judges sometimes are less inclined to give you the benefit of the doubt. It’s too bad that this is how it goes, since many people rely on that part-time work to make ends meet while they are waiting for their claim to be heard.
Now, I will tell you that unsuccessful work attempts - any work attempt that lasted three months or less – may actually benefit you in a social security hearing. Judges do see unsuccessful work attempts as good evidence that you’re not able to work full-time. So, I don’t think there’s a problem with trying to work, but I want to warn you that once you get beyond three or four months on any given job, then it starts to look like a regular type of job, and that’s when a judge might be inclined to deny your case.
Now, a couple of strategies to keep in mind about this: the definition of disability is that you are unable to engage in substantial gainful activity because of a medically determinable condition that has lasted 12 consecutive months or is likely to last 12 consecutive months or result in death. So, I’ve had some cases where somebody might go back to work, but I’ll tell them, if at all possible, wait until after 12 months have elapsed before going back to work. This is because if they go back to work, let’s say, in month 14, that means they were out for at least a year and we could win them benefits for that time period. However, if they went back to work after 8 months of not working, the SSA is sure to deny the case (since it is shown that their condition did not disable them for a year – as is required in order to win benefits). In cases where the claimant was out for more than a year and returned to work, however, we argue for what is known as a “closed period of disability” and get that lump sum for the chunk of time they were out. They wouldn’t get on-going benefits, but at least it would give them 12 or so months of benefits for when they were out of work.
So, I guess the big picture here is if you’re thinking about going back to work or trying to work and you’re represented, call your attorney and talk to him or her about it. The one thing that we don’t like as attorneys is finding out the day of the hearing that our client has attempted to work and has earnings of several thousand dollars during the last couple of years while the case was pending before Social Security. Judges have access to earnings records, so they can see if you’ve tried to work and they can see that you were able to work. So if they see $20,000 or $30,000 of income during that two or three years before the hearing, it’s going to have to be explained. And, as I said, it’s very difficult to explain away part-time work that generated $15,000. It’s not a lot of money, but it looks like regular work and it makes it much more difficult to win your disability case.
So, the big picture here is that there’s nothing wrong with trying to work but, if you do, you certainly risk getting your benefits. If you are thinking about going to work, it’s wise to consult with your attorney first to get a sense from him or her as to whether or not that’s going to make it difficult for you to pursue your claim for disability benefits.
Jonathan Ginsberg has been practicing Social Security Disability law in the Atlanta, Georgia area for over 20 years. His website can be found at http://www.atlantasocialsecuritydisabilityattorney.net