Unsuccessful Work Attempts and SSA Disability

By Pitt Dickey

Life is not neat. It is full of grey areas. People get sick or injured and are out of work. If their health problems are bad enough, they can apply for Social Security Disability benefits. Social Security Disability applications can take many months to reach a favorable decision. The bills don’t stop while the applicant can wait years for his claim to be approved. In an effort to keep the wolf from the door while waiting for a favorable decision on a disability claim, some people will try to go back to work while their Social Security Disability claim is pending. This column will examine how the Social Security Administration (SSA) considers claims when the claimant has tried to go back to work while he is waiting for a disability decision.

The SSA issued a Ruling which clarifies how the SSA will determine whether a person’s return to work means that his disability claim must be denied. In a nutshell, to get SSA disability payments, a person must have a medical condition that can be expected to last at least one year which not only prevents him from being able to go back to his former employment but which also prevents him from being able to work full time at any sort of job that exists in significant numbers in the national economy.

The SSA uses a term called "substantial gainful activity" (SGA) to describe what non-government people call getting paid for working. . In 2004, if an employee earns more than $930 per month he is performing substantial gainful activity. The general rule is that if a person is performing SGA he is not eligible for the payment of disability benefits. However if a person who has applied for SSA disability benefits has attempted to return to work while his disability claim is pending, but had to stop working, then this attempted return to work is called an "unsuccessful work attempt" (UWA) and may not prevent him from being eligible for SSA disability benefits.

The SSA laws encourage people to try to return to work while their claim is pending without penalizing them by automatically denying their disability claim due to an unsuccessful work attempt. The theory seems to be that if a person can go back to work, he should be encouraged to do so. If after he returns to work, it turns out he no longer has the ability to work despite his effort, then if the work may be an unsuccessful work attempt and may not bar his disability claim.

The Social Security Administration uses two UWA periods to evaluate return to work attempts. The first period is for a return to work that lasts 3 months or less. The second period is for a return to work that lasts between 3 and 6 months. Working more than 6 months while a disability claim is pending cannot be a UWA and bars an award of disability payments.

To have a UWA there must be a "significant break in the continuity of your work" before the claimant can be considered to have started a work attempt that later on proved to be unsuccessful. For example, Frank has back surgery and stops working on 1 April 2003 when he undergoes a laminectomy. He files for disability benefits and waits for a hearing. On 1 June 2004 he goes back to his former sales job and works 3 months before having to quit again. This would be an unsuccessful work attempt and would not bar his disability claim. If he worked 6 months and one day and earned SGA ($930 or more per month) his claim would be barred.

The SSA will determine failed work is UWA for 3 months or less if Frank’s work ended due to his health problems or removal of special conditions related to his health that were provided him that allowed him to continue to work. If Frank returned to work for a period between 3 and 6 months then his work is UWA if it ended due to his health problems or removal of special conditions that allowed him to continue to work AND Frank had frequent absences from work due to his impairment; or his work was unsatisfactory due to his impairment; or his work was done during a period of temporary remission; or his work was done under special conditions.

Work under special conditions means a situation in which a worker would normally not be permitted which allow the impaired worker to continue his job. Examples of work under special conditions consist of situations in which Frank had one of the following:

a. He may have needed and received special assistance from other employees in performing his job; or

b. He was allowed to work irregular hours or take frequent rest periods; or

c. He was provided special equipment or assigned work suited for his impairment; or

d. He was able to work only in a framework of arranged circumstances that involved

another person helping him prepare for or get to or from work; or

e. He was given the opportunity to continue to work because of his family relationship,

past work with the firm or some other altruistic reason.

The concept of UWA essentially give a disabled worker a chance to try to return to work for a period of less than 6 months while his disability claim is pending without barring his claim.