Unfortunately, many of my clients find the monthly check they receive from the United States Treasury is too small to live on. I am always receiving calls from former clients asking if they can return to work part time and still receive their Social Security Disability benefits? The answer is not simple. And, in classic lawyer fashion, it depends.
Substantial Gainful Activity
Social Security Disability benefits are only eligible for those that are not able to engage in substantial gainful activity (SGA). Thus if you return to work that is SGA, then the Social Security Administration (SSA) will most likely conclude that you are no longer entitled to benefits.
What work would be considered SGA? Whether a particular work activity is SGA is up to debate. However, SSA has provided guidelines on the amount of wages that it presumes to be SGA. In 2013, if you make more than $1,040 in a month, that is presumed to be SGA. This amount changes from year to year and can be found on the SSA website. (SGA Amounts).
Thus if you are making $800 per month, SSA presumes that you are not engaged in SGA. However, the analysis does not end there. As it turns out, earning $800 per month for a long enough period of time could ultimately terminate your benefits.
Trial Work Period
The SSA encourages disabled individuals to go back to work. One of their methods is the Trial Work Period (TWP). This is a period of time when you are allowed to go back to work and still receive your Social Security Disability benefits. The TWP lasts for 9 months. The TWP is designed to give the disabled individual the opportunity to try to work without the fear that their entitlement to benefits will be immediately terminated.
So when does the TWP begin? In 2013, it begins in any month that you earn more than $750. The amount that triggers the TWP changes every year and can be found on the SSA website. (TWP Amounts). The months also do not have to be consecutive. Thus if you make $800 in January of 2011 and $800 in May 2012, you are 2 months into your 9 month TWP.
What happens when the TWP is used up? After the 9th month, SSA will send you a letter that you are no longer considered disabled. However, for the next three years they will continue to pay you Social Security Disability Benefits for any month in which you make less than the SGA amount. This is called the Extended Period of Entitlement. Any work above SGA after the 3 years has expired will terminate your entitlement to benefits altogether. At this point you must re-apply for disability benefits. The only good news is that this process should theoretically be quicker as you can file for expedited reinstatement of your entitlement to disability benefits.
Recall the individual above who has returned to work part time making $800 a month, which is below SGA and theoretically “safe.” If that individual continues to make $800 per month for the next 9 months they would continue to receive their disability checks but would exhaust their TWP. If they then continued to make $800 a month for the next 36 months they would continue receiving their disability benefits because $800 is not SGA. Moreover, if they continued to make that amount even beyond the 36 months they would still continue to receive benefits. However, if they worked just one month above SGA after the 36 month period had expired, the checks would stop.
If all of the SGAs and TWPs sound confusing, it’s because they are! Trying to calculate the precise amount of money you can earn every month to continue your disability benefits is a daunting task.
I advise my clients that any work, at any income level, can be used as evidence that you are able to work. While your work may be at amounts that are below SGA and TWP, it is conceivable that the work activity itself could be used as a basis for determining that you are no longer disabled. SSA regulations indicate that even if your earnings are less than SGA:
“[i]f there is evidence, however, showing that an individual may be engaging in SGA, or appears to be in a position to defer compensation, or by special arrangement is able to suppress earnings, develop fully the facts concerning the comparability of the employee’s work to that of unimpaired individuals, and the worth of the employee’s work . . . .”
While the above may lead you to the conclusion that I encourage my clients not to attempt to return to work, nothing could be further from the truth. In my observations, working people are happier people. I always encourage my clients to return to work if they believe that they can.
Well the good news is that this blog post has been my most successful blog post ever. I receive comments, emails and telephone calls daily about this post. I truly appreciate the enormous interest. The bad news is that I do not physically have the time to respond to all the inquiries and also represent my current clients. Please understand that the information I provide in this post is really the extent of the advice I can offer on this subject. It is a very gray area with little authoritative guidance available.
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877