UNSUCCESSFUL WORK ATTEMPT
Unsuccessful work attempts may not interfere with collecting disability benefits. Unsuccessful work can only occur AFTER the date you think you became disabled. If your work lasted 6 months or less because your disabling condition forced you to stop working, OR the disabling condition forced you to reduce the amount of work so that the gross earnings from such work fall below the substantial gainful activity earnings described below, it may not be counted.
You should have a significant break in the continuity of work before SSA will consider that you began a work attempt that later proved unsuccessful. You must have stopped working or reduced your work and earnings below the substantial gainful activity earnings amounts (see amounts below) because of your disabling condition or because of the removal of special conditions that allowed you to perform your work. Your prior work will be found to be “discontinued” for a significant period if you were out of work at least 30 consecutive days OR you were forced to change to another type of work or another employer.
If you worked 6 months or less, it could be considered unsuccessful if it ends, or is reduced below substantial gainful activity earnings, within 6 months because of your disabling impairment, or because of the removal of special conditions that took into account your impairment and permitted you to work. 20 C.F.R. § 404.1574(c)
SUBSTANTIAL GAINFUL ACTIVITY IS LEGALLY PRESUMED TO EXIST OR NOT EXIST IN THE FOLLOWING CASES:
Substantial work simply means doing significant work activities. Gainful work means work for pay or profit. If your work is both substantial and gainful, you may not be eligible for disability benefits.
1) There is a legal presumption that you did substantial, gainful work when the gross earnings (not net) are MORE THAN the
following each month:
- $1260 in 2020
- $1310 in 2021
- $1350 in 2022
- $1470 in 2023
- If you are blind the figure is $2460 in 2023
In addition to the above, if you are self-employed, the agency looks at the VALUE of your work to the business rather than the money you earn. For example, if your hours, skills, energy output, efficiency, duties and responsibilities are similar to non-disabled workers in the community in a similar business,
this may be found to be substantial gainful work. If you work by yourself, your services WILL be found significant. If there are other workers in the business, you will be found to provide significant services if you contribute more than half the total time required to manage the business OR you perform management services for more than 45 hours a month.
Substantial income means gross income minus normal business expenses. From net income, the value of unpaid help is deducted. Impairment related work expenses are also de ducted (e.g., cost of medication, some transportation costs to and from work). What remains is the amount considered by SSA.
2) There is a legal presumption that you did not do substantial gainful work if you earned the same or less than the figures in
IF YOU WORK IN A FAMILY BUSINESS AND YOUR FAMILY CREATES AJOB FOR YOU, SOLELY TO PROVIDE INCOME TO YOU, AND THE FAMILY DOES NOT EXPECT YOU TO PRODUCE AT THE LEVEL OF OTHER WORKERS, THE WORK WILL NOT BE SUBSTANTIAL AND GAINFUL. THIS RULE ALSO APPLIES IF YOUR WORK IS DONE IN A SHELTERED ENVIRONMENT, OR THERE ARE SIGNIFICANT ACCOMMODATIONS MADE FOR YOU DUE TO YOUR DISABILITY.
IF YOU ARE PROVIDED A SUBSIDY IN ORDER TO WORK, some of the money earned will not be considered wages. A subsidy simply means that if you require more supervision than other workers with the same job title, or you are given simpler tasks to complete than others with the same job title or pay, or you have a job coach or counselor you meet with, this can be a subsidy. Social Security can record a deduction based on the total value of this subsidy.
TRIAL WORK PERIOD
You may still be disabled when you test your ability to work. You can work 9 months within a rolling 60-month period and these months do not have to be consecutive months, and these months may not be looked at to determine if you are disabled. Only after you finish working these 9 months will Social Security look at these months to see if you were still disabled or successful at your work.
You cannot have a Trial Work Period until you become ENTITLED to disability insurance benefits. You cannot have a Trial Work Period if you do work that is at the substantial gainful activity level during the 5 month waiting period for benefits.
You cannot have a Trial Work Period if you do work that is substantial gainful activity within 12 months of the begin ning date of your disability onset date and BEFORE the date of any notice of determination or decision finding that you are disabled. You cannot have a Trial Work Period for any month prior to the month of your application for disability benefits.
The word “SERVICES” has a legal definition. SERVICES is generally defined as activity, even if not substantial gainful activity, which is done in employment for pay or profit (but not done for therapy or training. A month counts toward a trial work period if your earnings for the month as an EMPLOYEE equal or exceed $1050 in 2023. If you are self-employed, earnings of at least $1050 or work of 80 hours a month or more count toward a trial work period in 2023. These figures may increase each year based on national average wage index records. For example, in 2022 the figure was $970 and in 2023 it is $1050.
The Trial Work period ENDS in the month in which NEW EVIDENCE (not evidence related to any work you did) shows that you are NOT DISABLED, even though you have not worked a full 9 months. Therefore, Social Security can find that the Trial Work Period ended at ANYTIME in the trial work period if the new medical evidence shows that you are no longer disabled. If not based on medical evidence, the Trial Work Period ends after 9 months. Again, these 9 months do not have to be consecutive. When benefits end at the end of the Trial Work period, you will usually receive another three months of benefits before the cash benefits stop.
THE REENTITLEMENT PERIOD
After the 9 month trial work you can continue to test your ability to work if you have a disabling impairment. If your work is substantial gainful work, Social Security can stop your benefits.
However, if you later become unable to work again due to a disability, your benefits can be reinstated and you will not have to file a new application, and you will not need a new decision, if the following occur.
Re-entitlement begins with the first month after completion of the 9 month trial work period and it ends with the earlier of: the month before the first month you are not disabled, or the last day of the 36th month after the end of the trial work period.
Supplemental Security Income (SSI)
If you receive SSI disability benefits, generally less than half of your earned income will be deducted from your SSI benefit check as follows. However, there are exceptions that are called exclusions that reduce your gross wages and certain exclusionary amounts do not get counted.
These are as follows: $65.00 may be deducted from gross earnings each month; $20.00 may be deducted each month from gross earnings if not used as a deduction on unearned income; what remains is the income that counts. 50% of the remaining earnings after considering the above exclusions, will not be considered at all. Therefore, slightly more than 50% of your gross earnings will not be counted by SSA. (There are additional rules that apply if there are other people in your household and if you have impairment related expenses.)
Please realize that if you are successful in returning to work, you are still eligible for a closed period of time within which you MAY receive benefits before making a successful return to work.
There is no trial work period on an SSI case.
It is our recommendation at Avard Law Offices, P.A. that if you desire to work, you should take advantage of all opportunities to test out your capacity to work. However, you must also understand that after we have worked a considerable period of time on your case, if you decide to drop your case without telling your attorneys, and you do not pursue a closed period, under the law, your attorney is entitled to petition for the equitable value of our legal services, and once approved, the attorney may bill you for the time spent on your case.
PLEASE KEEP YOUR ATTORNEY INFORMED OF ANY AND ALL WORK ACTIVITY YOU PURSUE.