Can I work? Can I go back to work? What happens to my claim if I go back to work?
Yes! You can work but given that the primary allegation in your disability claim is that you cannot work due to symptoms and limitations from your impairments, returning to work can obviously create problems. This blog will be in two parts. This section is about work or substantial gainful activity (SGA) and the duration requirement. I will address SGA first. SGA is a regulatory term used to define a threshold for earning from work. It is also used by the Administration and disability attorneys as an acronym/synonym for what everybody else calls “work.”
Both Social Security Disability Insurance Benefits and Supplemental Security Income payments require that you have a period of disability in order to be found disabled. The SSA uses a 5 step sequential evaluation to determine the period of disability.
As noted above, the claim that you are making when you apply for disability benefits is that you cannot work due to your impairments. The first step of the sequential evaluation addresses whether there has been SGA or work since the alleged onset date or AOD. At Step 1, SSA needs to determine whether you have worked since your AOD (or the day you say you couldn’t work anymore because of your impairments). SGA is an amount set under the regulations. SGA also refers to an amount of income that you may earn from work before that work is presumed to be SGA. The SGA amount is used as the threshold for this presumption. If you earn less than the amount of gross earnings allowed in a month for that year, the presumption is that the earnings were not SGA and they do not count as work. If you earn more that amount, the presumption is that you worked. The amounts for SGA in past years are available on line. http://www.ssa.gov/oact/cola/sga.html For example, the amount for 2011 is 1,640 if you are blind and 1,000 if not. SSA recently announced that SGA amount will increase to $1010 gross per month for 2012.
The next step of the sequential evaluation raises the issue of duration. Step 2 is a two part step addressing whether your impairments are “severe”. The first part asks whether you have a medically determinable impairment or combination of impairments that has lasted or is expected to last at least 12 continuous months or result in death. This is referred to as the durational rule or the duration requirement. In general, when you meet with your attorney, they will ask the following questions: when did you last work? Why did you stop working? Have you worked at all since you became disabled? We ask these kinds of questions because we need to know if you meet the durational requirement or are likely to meet duration, because you cannot be found disabled if you do not meet the durational requirement at step 2.
Here is an example of type of injury that often results in a failure to meet the duration requirement. You are injured on May
1st and your leg is broken badly and you have to have one or two surgeries over the course of 4 to 6 months. At the end of the period of recovery, your leg is healed, your physical therapy ends in February of the following year, and your doctor releases you with no restrictions and you return to work. Without evidence of any other problems; i.e., mental or physical impairments limiting your ability to work, you cannot be found disabled because the limitations from your impairment did not prevent you from performing work at the level of SGA for last for 12 continuous months.
On the other hand, if your fractures do not heal properly and the whole process takes 12 months and 1 day (during which you did not work/earn at SGA levels), then you may be found disabled having met the durational requirement.
Next blog I will write about what can happen if you meet the durational requirement and then return to work later!
by Paul B. Burkhalter Managing Partner of Morgan & Weisbrod, Board Certified in Social Security Disability Law.