Social security disability attorney Gretchen Esselstein of the Ohio law firm Gallon, Takacs, Boissoneault & Schaffer Co., L.P.A., has written a very good post on common social security disability myths. I recommend her post, found at http://www.askgallonlaw.com/social-security/2012/01/debunking-common-social-security-disability-myths/. I will be adding to and embellishing her good work with a series of 5 posts over the next few weeks with my own list of common myths I have come to understand in my 20 years of social security disability practice in Dallas Texas. Here’s the first:
“Social Security told me that I can make up to $1,010 a month and it will not hurt my disability case”
Social security disability applicants who are struggling to pay their bills often ask the social security administration if “they can work part-time”. Social security routinely responds by indicating that social security disability claimants “can work” if they make less than the Substantial Gainful Activity (SGA) amount, which in 2012 is $1,010 a month. Many social security disability applicants find great comfort in this “assurance” and seek to purse both a claim for social security disability and work on a part-time basis. But in fact, in my experience, working part-time can and probably will hurt your social security disability case. So am I saying that Social Security is routinely lying to people? Not exactly. It is more in the realm of a factually true but misleading statement, and is an example of why social security disability applicants need an experienced, local social security disability attorney.
To understand this “half-truth” we must consider how social security determines whether an applicant is disabled. The social security administration follows a “5-step sequential evaluation process”. The first question is whether a claimant is “working”. Working is defined as performing “Substantial Gainful Activity”. Social security defines SGA as earning less than $1,010 a month. If a claimant is not working, then under the 5-step sequential evaluation process, the claim is not denied at the first step, and the analysis must move on to step 2.
When the social security administration says that it is “OK” to work under the SGA amount all it is really saying is that your claim will not be tossed out in the first round. It says nothing about the negative implications this part-time work can have on the case analysis in the crucial fourth and fifth steps of the sequential evaluation process. So what are those negative implications?
Most cases that come before an Administrative Law Judge are decided at step 4, or step 5 of the sequential evaluation process. Step 4 asks the question: “can the claimant return to his or her past relevant work?”. If the ALJ finds a claimant cannot return to past relevant work she must move on to step 5, and ask: “Is there other work in the national ecomony that the claimant can do”. Step 4 and Step 5 focus on the critical question: “Can you Work”?
If a claimant is performing part-time work, the “Can-You-Work” question now centers on the part-time work. The ALJ is now thinking: “If she is doing part-time, why can’t she do full-time?”. More importantly the ALJ may be thinking “Is she purposely keeping her work under the SGA amount” (i.e., is the claimant “gaming the system”). The ALJ is apt to now focus her questions on how the claimant determined he could only work X hours a week. This is just not the place where I as an experienced social security disability want my client to be.