Last month, I published a blog post entitled “How Does Disability Termination Work and am I at Risk of Losing My Benefits?” That post prompted a number of questions about post-approval activities. Are you at risk of a continuing disability review and efforts by SSA to terminate your disability benefits if you work part time after approval? What about situations where you earn passive income? How about volunteer work?
These very legitimate questions come from approved disability claimants who don’t want to sit at home doing nothing but who are rightfully concerned that their activities could jeopardize their benefits.
Here is how I would address these concerns:
The starting point for understanding when and how post-approval activities could put your disability benefits at risk is SSA’s definition of disability. In case you don’t remember, Social Security defines “disability” in terms of how your medical or mental health issues impact your capacity for simple, entry-level type of work. More specifically you were found disabled because you have a medically determinable condition that prevents you from engaging in substantial gainful activity and that has lasted or is expected to last twelve consecutive months.
What is Substantial Gainful Activity?
The key concept in SSA’s definition of disability is “substantial gainful activity” or SGA. In most disability cases, we tend to look at SGA as simple, entry-level, sit-down type of work. I like to tell my clients to imagine the easiest “warm body” job they can think of – that is SGA.
In disability hearings, vocational witnesses use a resource called the Dictionary of Occupational Titles to identify unskilled, sedentary jobs that involve one or two step instructions and don’t call for a “production” pace of work. Examples of simple, unskilled jobs that actually exist include such things as “surveillance system monitor,” “addresser/mail sorter” or “bench hand.” These are jobs (usually minimum wage) and are performed in a seated position, require no training or education to perform.
If a judge finds that you cannot perform SGA on a full time or close to full time basis, you will be found disabled. Further, if you can perform gainful activity but only for 10 hours per week, your activity would not be considered “substantial” and thus you would likely be found disabled.
The SGA Question Applies to Continuing Disability Reviews
After you are approved, the same analysis applies – do your medical or mental health problems continue to leave you unable to perform SGA.
One way that SSA determines whether your work is “substantial” is by looking at your earnings. In 2020, for example, gross monthly earnings of $1,260 creates a presumption that your work was substantial. In 2021, the monthly gross earnings requirement is $1,310. Every year the SGA figure changes – you can view the chart here.
But SGA is not just about earnings. Volunteer work or attending school can also be SGA, assuming that your time and effort is equivalent to what your efforts would be in a job.
How Does SSA View Part Time Work?
So, what happens if, after being approved, you find a part time job and you earn $1,000 per month. In theory, your earnings are less than SGA so you shouldn’t have any problems, right?
Not necessarily. SSA might look at your ongoing earnings of $1,000 per month and ask if your sub-SGA earnings are the result of your limited capacity to work, or is your employer only offering ten or fifteen hours per week. Or perhaps you are declining the opportunity to work more hours in order to keep your total earnings below the SGA threshold.
What Factors Does SSA Consider When Evaluating Your Capacity for SGA?
My sense is that SSA looks at a variety of factors post approval to determine whether you have regained SGA capacity.
SSA does not make public the factors that are built into its computer programs, but my guess is that ongoing earnings slightly below SGA limits would trigger SSA to request medical records to look for medical improvement.
Further, if your tax records show substantial passive income (i.e., stock dividends or real estate income), SSA may ask how much involvement you have in managing or monitoring your investments. Are you truly hands off or do you spend time – which assumes focus, concentration, planning, etc. – to oversee your investments.
SSA staff will also look at your medical records to see if there are any references to work-like activity. Are you performing volunteer work (which may require regular attendance, training and production)? Are you taking in person or online classes (which would likely require a minimum level of concentration and focus as well as attendance)?
Congress is Pushing SSA to Conduct More Continuing Disability Reviews
Congress has not made any secret of its desire to encourage SSA to more aggressively evaluate disability claimants for possible improvement. While Congress’ has not allocated funds for SSA to replace retiring personnel (despite increases in disability claims) they have allocated substantial funding for beefing up the continuing disability review program.
This does not mean that every approved claimant will be reviewed – I still think that claimants older than age fifty and claimants with more permanent medical issues will be left alone – but I tell every approved claimant that Social Security most definitely does not assume that all disability determinations are permanent.
Just as I advise my clients to approach the process as a reluctant claimant who would much rather be working but despite his or her best efforts cannot do so at this time, I advise those same clients after approval to make every effort possible return to the workforce on their terms and on their time frame.
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