When applying for Social Security Disability, the Social Security Administration must determine the limitations that an individual experiences because of their medical impairments, and how those limitations impact their ability to work. The majority of individuals that apply for Disability Benefits are ultimately denied benefits. In 2008, nearly 2 1/2 million initial applications for Social Security Disability Benefits/SSI were filed. If you add up the individuals that were approved at all levels of the disability determination process in 2008, only about 1.3 million people were actually approved for benefits. This means that only about 35% of people that applied for benefits were ultimately approved.

Based on the difficulty of being approved for benefits, I always encourage my clients to return to work if that it is a possibility. However, it is important to know your limitations before you attempt to work. Although I recommend returning to work, I always remind my clients to discuss their limitations with their physicians before even applying for any work. If the physician strongly opposes any return to even simple unskilled jobs, I recommend that my clients develop a plan with their physicians to obtain treatment that will ultimately allow them to return to work.

The problem that occurs when individuals limit their income so that they can still potentially qualify for Social Security Disability Benefits/SSI, is that the individual adjudicating the claim normally realizes that the individual is doing this. In 2009, it is possible to earn as much as $980 per month and still possibly qualify for benefits. If an individual works on a part-time basis and comes close to the earnings limit on a continual basis, it raises the concern that individual is deliberately limiting income so that they can potentially still qualify for benefits. Since the majority of individuals that begin this process are ultimately going to be denied benefits, this is not a recommended course of action.

My suggestion to my clients is to find work that is consistent with the limitations described by their physician. I normally recommend beginning with part-time employment, unless they are positive that they have the ability to maintain full-time employment. Rather than limiting employment based on earnings allowed, I suggest that my clients limit their employment based on their abilities. If after completing an eight hour shift, the individual would be unable to work for the next 2 to 3 days, it is normally evidence that they are over-exerting themselves. I would recommend that this individual limit their employment to 4 to 6 hours per day and determine if they can perform this work five days a week. If my clients are able to make more than $980 per month, it is normally in their best interest. The amount that they are potentially eligible for from Social Security is not usually substantial enough to maintain a lifestyle that they had been used to, and they often are able to make more money by working. Instead of dwelling on the amount of income that they had earned in the past, the individual’s focus should be placed on making as much money as possible with the physical and mental limitations that they now face.

Often the only way to really know if you have the capability of performing simple work is by actually trying. When my clients fail at their attempts to work, I remind them to discuss this with their physician and to explain why they had difficulty. This can be helpful in adjusting their treatment, and for the physician to understand how limited an individual actually is. I also find that physicians are more willing to support claims for disability, if they know their patients have taken every possible step to return to work. If the attempt at employment lasted for less than six months, and employment ended as a result of the medical impairment, normally it will be considered an unsuccessful work attempt, even if the earnings exceeded the allowable amount. If the work lasts for six months or longer, and the individual earned $980 or more per month for the entire period, it is normally evidence that an individual can perform work at a substantial level.

When determining if a return to work is in your best interest, it is also important to remember that in order to qualify for Social Security Disability, your medical condition must prevent you from performing full-time (or substantial) work for at least 12 months. This means that if an individual is successful at returning to work and earning at the substantial activity level within 12 months of the date that their disability began, normally there will be no eligibility for Social Security disability benefits. If an individual’s return to work does not occur until after they have been out of work because of their medical impairments for 12 months or more, it is possible that they can qualify for a closed period of disability. In my experience, clients that return to work after 12 months or more of a medically related absence are approved at a rate of 75% or more. Normally the disability evaluator finds that individuals that are able to return to work after a period of disability are more credible.

My advice does vary based on the specifics of any individual’s case, and it is always important to consult with an attorney or the Social Security Administration before considering a return to work. As noted above, I also recommend working closely with your physicians to determine your limitations before attempting any return to work.

Below are links with more information on the Social Security Administration website.

• How much can I earn and still receive Disability Benefits?
• SSR 83-33: TITLES II AND XVI: DETERMINING WHETHER WORK IS SUBSTANTIAL GAINFUL ACTIVITY — EMPLOYEES
• SSR 05-02: Titles II and XVI: Determination of Substantial Gainful Activity if Substantial Work Activity is Discontinued or Reduced�Unsuccessful Work Attempt

This article was written by Steven Butler. Steven is a partner at Linarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims to residents of Delaware, Maryland, New Jersey and Pennsylvania. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.

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