Can I qualify for Social Security disability benefits if I am working?

Some of our Atlanta Georgia clients ask us if they can qualify for Social Security disability benefits even though they are currently working.

A Social Security applicant who is working can still be found “disabled” under certain circumstances. Whether a working claimant qualifies for benefits depends on several factors, including the type of work, the amount the claimant is earning, and the amounts, if any, of the claimant’s impairment-related work expenses and subsidies.

Type of work

If you are currently working, we will need to determine if that work makes it impossible for you to be found disabled.

If you are working and performing substantial gainful activity (SGA), no matter how impaired you are, you cannot be found disabled. Work, however, must be both “substantial” and “gainful.” Substantial work activity involves doing significant physical or mental activities. Under the Social Security regulations, work may not be substantial if you are unable “to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work” or if you are doing work “that involves minimal duties that make little or no demands” on you and that are of “little or no use” to the employer or to the operation of a self-employed business. Gainful work activity “is the kind of work usually done for pay or profit, whether or not a profit is realized.” Nevertheless, when a claimant is an employee of someone else, whether work is “gainful” is usually determined by looking only at the claimant’s earnings.

Sometimes, even when work is not considered substantial gainful activity, it may still prevent you from receiving Social Security benefits. For example, if you must prove your inability to do a wide range of sedentary work in order to be found disabled, but you are working part-time at a heavy job, that part-time work may be so inconsistent with a claim for disability benefits that you will likely be denied benefits. The issue you face is: How do you have the capacity to do a heavy job part-time but cannot do a sedentary job full-time? In the view of the Social Security Administration, the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.

Earning less than the “substantial gainful activity” level

If you are working for someone else, meaning you are not self-employed, proof that the work is at less than SGA level is usually a mathematical process. In most cases, the Social Security Administration simply compares your earnings from work (after applying appropriate deductions and averaging income) with the SGA earnings guidelines stated in the Social Security regulations.

Information and materials a Social Security disability lawyer will review

In evaluating your claim for Social Security disability benefits, we will need to establish exactly how much you are earning. To do this, we will ask you for copies of your check stubs. If check stubs are not available, we can ask your employer for a month-by-month breakdown of your earnings.

During our initial interview with you, we will inquire about your hourly wage and the number of hours you have worked per week. Then we will do an initial calculation of your earnings. (If you would like to calculate your earnings yourself, avoid the mistake that claimants sometimes make when they simply multiply weekly earnings by four to determine monthly earnings. There are 4.3 weeks in a month.)

If an occasional month exceeds the SGA level, don’t worry. Earnings are generally averaged over the time worked. The Social Security rulings and regulations include detailed guidelines for averaging earnings to determine if work is substantial gainful activity.

Subtract any “Impairment-Related Work Expenses” (IRWE)

If your earnings still appear to be above the SGA level, we will ask you about out-of-pocket payments for medical expenses to treat your disabling impairment. Items and services that an impaired person needs in order to work (such as certain attendant care services or transportation costs or work-related equipment) are called impairment-related work expenses (IRWE). When determining if your work constitutes substantial gainful activity, the cost of certain IRWE may be deducted from your monthly earnings even though such items and services are also necessary for normal daily activities. Routine drugs, however, are not deductible unless they are necessary to control the disabling condition so as to enable the individual to work. Deduction may be made only if the cost is actually paid by the individual. Thus, if the cost is paid by insurance, it is not deductible; and neither is the cost of the medical insurance. Insurance co-pays, however, are deductible.

Subtract any subsidy

Sometimes, even after deducting sick pay, vacation pay and IRWEs and averaging earnings, you may still be earning more than the SGA level. But your work situation may be unusual, so we will consider whether there is a “marked discrepancy between the amount of pay and the value of the services.” If there is, your work may include what the social security rules call a “subsidy.”

There are several circumstances indicating a subsidy. For example, consider the situation where a claimant is working for a relative. The claimant may be doing very little work but the claimant is being paid more than the claimant’s work is actually worth. This is not substantial work. This work involves a subsidy. One way we might prove a subsidy in such a case is to obtain from the claimant’s employer an estimate of the true value of the claimant’s work. If the true value of the claimant’s work is less than the SGA level, the claimant will be found not to be performing gainful activity.

Other situations in which work may not be “substantial” include work done under special conditions, such as:

• In a sheltered workshop where a claimant might receive special assistance from others;
• Where the claimant is allowed to work irregular hours or take frequent rest breaks;
• Where the claimant is provided special equipment or was assigned work especially suited to the claimant’s impairment;
• Where the claimant was able to work because someone helped the claimant prepare for or get to and from work;
• Where the claimant is allowed to work at a lower standard of productivity; or
• Where the claimant was given the opportunity to work because of a family relationship, past association with the employer or the employer’s concern with the claimant’s welfare.

Usually such insubstantial work done under special conditions is not an impediment to the claimant being found disabled. When we represent a client working under such special conditions, we will typically ask the employer to compare the client’s work with similar work in the regular work force and to establish the “reasonable worth of the work.” When your earnings exceed the reasonable value of the work you perform, the Social Security Administration considers only that part of your pay which you actually earn.

Advice for Atlanta Georgia Social Security disability claimants who are working

If you are working despite a disability, and you wonder whether you might still qualify for Social Security benefits, consider obtaining an expert evaluation by an Atlanta Social Security disability lawyer. Provide a brief description of your claim using the form to the right, and we will respond promptly.

Or you may contact us at:

Charles Martin and Joseph Jones
Atlanta Georgia Social Security disability attorneys

E-mail us
Phone: 404-373-3116
Fax: 404-373-4110

123 N. McDonough St.
Decatur, Georgia 30030