Can You Work While Applying for Disability? | The Disability Benefits Podcast #29

In this episode, we go over whether or not you can work while applying for, and receiving, social security disability benefits.

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Disclaimer: We are a non-attorney firm. Our company specializes in representation for Social Security disability claims and is not a law office. The information provided in this video is for general informational purposes only and does not constitute legal advice. For legal guidance specific to your situation, please consult a licensed attorney.

Transcript

SPEAKER_01 0:00

So yeah, well let's talk about SGA first and then we'll talk about some early retirement stuff. So SGA substantial gainful activity. It's the amount of money that if you are able to make this much, then Social Security will say that, well, this much or more. Social Security will say you're not disabled then because you are able to be gainfully employed.

SPEAKER_00 0:20

You're gainfully employed, right? Yeah.

SPEAKER_01 0:22

So technically there is a way for people to be working one day a week, two days a week. I make 200 bucks a month or 500 bucks a month, and still technically qualify for SSDI for disability benefits.

SPEAKER_00 0:34

Right, right. Well, you know, first of all, SGA, and we've talked about it before on the podcast, but SGA stands for substantial, gainful activity. And, you know, a judge early, early on when I would start my practice 20 years ago or so, the judge basically said, you know, it's gotta be the S, it's gotta be the G, and it's gotta be the A. It's gotta be substantial, it's gotta be gainful, and it's gotta be activity. Activity could be anything. You know, I mow my uncle's lawn, you know, and he doesn't pay me. Well, that's activity, but it's not gainful because you're not getting any money. Okay. I owe I mow my uncle's lawn, it's activity. He gives me 50 bucks every time that I do it, that's gainful. And then is it substantial? It's 50 bucks. How often do you mow his lawn? Twice a month. You're making a hundred bucks a month? No, it's not substantial. So it's gotta be all it's gotta be substantial, it's gotta be gainful, you gotta make money at it, it's gotta be activity. You're actually involved in it. And this also comes up, and this is kind of a little bit aside, but I want to say this. A lot of people who have a 401k or have built-up sick leave or or um annual leave, uh, vacation time, anything like that. And they stopped working in July and they that their activity has stopped in July. And their employer pays them, maybe goes all the way through August. And so what's happening is you you see this earnings history that you know, whoa you you told Social Security you stopped working in July, but we're seeing substantial earnings in uh wages in uh in August. You know, what's going on there? That they they paid me for that. Okay, it was substantial, it's over the limit, it's gainful. Is it activity? No, it's not activity. No, I didn't I wasn't working. I stopped working in July. They owed me money, they owed me money for my leave, stuff like that. And judges are really cool about that. Uh the lower levels, not so much, but the judges are really cool about okay, that makes sense to me. And they wouldn't hold that against you. So I know that's kind of an aside, but it it is part of the the disability program, and it is a topic that comes up quite frequently in hearings.

SPEAKER_01 2:46

Yeah, and I I'm very careful on how I phrase it when I'm telling a uh a client about this, because a lot of times they say they're working, I ask them how much they're working, how much they're making, and then I have to explain to them how SGA works. And like I want to say um if you're able to make a livable wage, then you would not qualify. But you can't really say that because SGA is not, I think I mean it changes every year, so so Google it, but it's like $16.90 a month or something. Yeah. It's not really a livable wage, so you can't say that, you know.

SPEAKER_00 3:21

Well, then again, it's you know, in in New York State and Connecticut, and you know, all of California, Oregon, Washington, um, absolutely not. In Hattiesburg, Mississippi, maybe. Yeah. Maybe. I mean, the different parts of the countries, the you know, the cost of living is wildly different. Not just different, wildly different. Um, so maybe. But yeah, one of our policies is that I don't like giving out the amount. Um somebody calls me up and says, well, I'm you know, I'm working a few hours and da-da-da-da. You know, how much can I make? Well, you look it up. Because one, you're right, it changes every January. Cost of living and the SGA amount um uh goes up. And um but I also don't want to give them, we'll take your case if you're under the amount by $20. No. If if you're working and you're working, let's say, let's say you're making $15 an hour, which is almost twice the minimum wage. $15 an hour, you're working 10 hours a week. Okay. Well, you're never over the limit in that amount. You know, you know, you're making $150 a week. So you're making $600 a month. It's not even close to the limit. And the question that we will ask you, and it's usually going to be you at intake asking that question, yeah, is why aren't you working more? And what would happen if you did? Okay, you were you're you know, you're working 10 hours a week, uh, you're making 15 bucks, which is okay. Um, but why you know why don't you why don't you work 20 hours? You know, oh, you know, there's no way that I can do that. I'm having a hard enough time with with either a bodily problem or I'm having enough time, you know, concentrating and staying on task. My boss, boss is already yelling at me that I forget things, or whatever. And it that that's the whole picture, and that's what we'd want to know, you know, whether it's a case that I would take. However, if you come to us and you say, Well, I'm making, you know, 15 bucks an hour, I'm working 20 hours a week, um, and I know I can do that because I've been online and I see that that's still a little bit under um SGA, you know, that's a big red flag to us. It's like, could you pass the truth test if I or somebody from Social Security said, what about 30 hours a week? A couple hours a day. From 20 to 30 is a couple more hours a day. Um, you better have a really good explanation for why you couldn't do that, because we're probably gonna, okay, this person that looks like they're trying to get, you know, get in under the limit instead of working as much as they can, but they just can't do it. Big difference. A disabled person, you know, if they offered me, you know, 15 hours instead of my 10 hours, I'd try it. In fact, Mr. Groves, I tried it three weeks ago and I had to miss the next three days because I was in such pain. Okay, that's what a disabled person would say. Yeah, exactly. Whereas, yeah, I'm working 20 hours a week, and you know, have you tried to work 30? No, no. Oh, you know, I I'm not gonna do that. Well, what if your boss said, hey, you know, if if you don't come in and work 30 hours, I gotta let you go, because I need 30 hours a week. You know, what would happen? Well, you know, that that put me over the limit. Yeah. So that's why you're not working. Yeah, a disabled person wouldn't say that. You know, okay, you know. So anyway, that's I think I've gotten off again.

SPEAKER_01 6:53

But that's Yeah, I mean that's that's um for me that it's a really quick red flag because once I hear a client say something like, Well, I'm allowed to make this much, right? Or I'm well, I'm allowed to work part-time, it's like, yeah. What do you what do you mean you're allowed to work part-time? Yeah, it's like if you were if you can work more than that, you're not disabled. Yeah. I mean, it's you can really just break it down to if you're working part-time under SGA, and the only reason you're under SGA is because there's no way you could be above SGA. There's no way that you could work more. You've tried to work more.

SPEAKER_00 7:29

Yeah.

SPEAKER_01 7:29

Like you said, you know, um bodily, maybe you work and then the next day you're just you can barely get out of bed because your back hurts so much. Where I talk to a lot of uh mental health clients to where if they were working full-time, they would just, you know, they would have a panic attack or something like that. Yeah. That's a valid reason. And it's also it helps us when we see that, yeah, they're working part-time, they're working under SGA, and they've been working part-time under SGA that same schedule for a couple years. Right. And they've tried to work full-time and they just can't do it.

SPEAKER_00 7:58

And that is indicative of disability. I have a hearing coming up next month at the judge's office, and I love it when the judge's office, you know, they they're proving to me, they tell me that they're reviewing the file way in advance of the hearing. And I'm it's kind of dubious to me, you know, especially talking to some of them who, you know, did you read my brief? What brief? Well, but anyway, this judge, she actually, you know, she asked her um uh one of the uh senior attorneys to call my office. You know, Mr. So-and-so's conditions I believe are disabling. However, he's got some earnings um in such and such quarter, and they're not they're not above SGA. They're they're way below. But she's got to deal with the earnings because that's her job. And uh called him up and he said the exact same thing. You know, basically, yeah, I work two days a week, and it's rare for me to work back-to-back days because if I work on Monday and then I work again on Tuesday, I'm down for the rest of the week. So usually I work on Monday, and then I kind of take a day to try to, you know, get all the kinks out, and then Wednesday I'll do it, but then I'm done until the weekend. And so yeah, I'm working two days a week. Have you tried to work, you know, more? Yeah, yeah. I, you know, I did this job, you know, and that's the one that's showing up. Um, and I did it for a week, you know, solid, five days in a row, and it literally sent me to the hospital. And I said, Oh, that I I remember seeing that hospital record. Yeah, they had to give you morphine, you were in such pain. Yeah, that that's the one. That's indicative of disability. And the SGA, but it wasn't SGA, but the earnings that they had didn't disqualify them. Um, I get to tell the judge, you know, good catch, and this is what this was. And we're pretty sure, even though the hearing's schedule, we're pretty sure that she's just gonna allow the case. It's OTR, which means on the record, she's not gonna bother making him come in or appear by phone to testify because she she sees that the medical records do show that he's disabled. Yeah.

SPEAKER_01 9:58

You know, in this entire um process, the two most common things that, well, in my opinion, you might agree or disagree, but the two most common things that I hear all the time is, or the complaints rather, is if I'm disabled, why do I have to go through this whole process? Why do I have to prove I'm disabled? And then the second thing is the earnings bit, which is, well, what am I supposed to do? It takes, you know, right now six to eight months for an initial decision. If I'm denied another six to eight months, how am I going to survive? I gotta I gotta do something here. Right. Those are the main two things I hear, and there's really not a good answer.

SPEAKER_00 10:35

Right. It's you know, that that's been a problem, you know, well before. You know, I I I started with disability when, you know, the internet was in its infancy. And I started my practice when still a lot of people weren't using the internet. But now that they are, and you see ads all the time on all of the social platforms, you know, have you been told that you can't work and draw a disability? Well, that's not true. You can.

SPEAKER_01 11:02

It's just so misleading.

SPEAKER_00 11:03

Yes, and so we have to fight that. Yeah, that that ad was actually true, but what the ad's trying to get you to do, which is of course click and or call that firm, um if if you go down that road and you're work that road and you're working when you get to us. No, I can't help you. And it's it's like in a hearing, and this happens quite a bit. Um, and it is the worst possible thing that you can say. And you've probably already said it to me in our prep, and I warn you, if you say that in front of a judge, you better have a good explanation. And the words that we hear are, well, those earnings are because I had to do something.

SPEAKER_01 11:50

Yep.

SPEAKER_00 11:51

I had to do something. And so the judge's question is almost always gonna be All right, let's say that I deny your case. Do you have to do something? Are you gonna go back to work? And that's a really, really scary question for a disability claimant in a hearing because what are you gonna say? You just told him that you had to do something, and that's why these over-SGA earnings have showed up in your file. You know, I I I I worked for five months because, you know, I had to pay my car car insurance, or you know, I had to feed my kids. These are, and these are all super absolutely everybody on planet Earth, except really, really rich folks, they deal with these things. They have to, they have to work because they have to pay their bills, they have to pay their rent, they have to pay their mortgage, they have to pay a car note, they have to buy food, you know, you know, feed and clothe their children. These are all things, and they're absolutely valid. But as harsh as it is for us to say on this end, disability benefits are for those who can't do that. I had to do something, but I couldn't. Oh, okay. Well that that's what a disabled person would say. Yeah. You know, well, what what happened? Well, you know, I had to borrow money from the you know, from my mom, or the church had to give us money, you know, to buy groceries that month. That sucks. But that's what a disabled person would say. You know? Not that, well, I went to work because I had to do something. Well, disabled people, they're just like that. They have to do something, but they can't. Yeah. Or or they try and they fail, which is of course indicative of disability. So just you know, as again, as harsh as it is, if you are one of those persons who just tough it out, you know, toughen it out. Well, welcome to, you know, tens of millions of other people who are toughing it out. You're not disabled under Social Security's law. You know, disability is for people who they try, but they can't tough it out. They just can't make it. They've their their physical conditions and or their mental health just will not allow them to make uh make it through an eight-hour workday, much less an a 40-hour work week. Um and again, that's hard to say to people. Like you said, you know, it's like, you know, this this program is not for somebody who I had to do something and therefore, you know, I went to work. Okay. Wait a minute, but you're applying for disability. Yeah. You know, I want to get my benefits. Could you do something now? Well, if I pushed myself, you know, I'd be in I'd be in pain. A lot of people are in pain and they're working. Well, I push myself and you know, I get home and I'm so mentally fried that you know, I just, you know, pass out on the couch at five o'clock in the afternoon every day. A lot of people, millions, I would say, people that are like that. They they grind it through a work day, they get home and they just collapse on a couch, and they get up the next morning and they do it again. Hard, grueling, grinding, but you're not disabled under the law. And disability is for people who could not do that. They they would try, but they would fail.

SPEAKER_01 15:21

Yeah, and it's like I've said before, what I tell clients, there's a lot of different disability programs, but with social security disability, it's not a program for if you're in pain while working, it's not a program to make accommodations while you're working. It is if you were unable to work substantial, um, you know, work full-time or over that over that amount. If you're unable to do that due to your health, that's when you qualify.

SPEAKER_00 15:45

That's right.

SPEAKER_01 15:46

And so, yeah, that's it's funny how um how consistent that phrase is. The I had to do something.

SPEAKER_00 15:52

I had to do something. Yeah.

SPEAKER_01 15:53

Because we get it. I mean, we we know what they're saying. Um, and it doesn't, it probably makes you mad when they that's the first time you've heard them say that and you've had their case for two years. But it doesn't make me mad when it's the first time I've spoken to someone and they're like, Yeah, I'm I'm gonna have you know, maybe they haven't even gone back to work yet, right? They're out of work for two months, and I ask them if they think they're gonna be able to return, and they say, Well, yeah, I'm gonna have to do something. It's like, well, it's tricky.

SPEAKER_00 16:18

And how many calls do you get? I know I see them when they come through on on the websites email, you know, I'm I'm getting to my wits' end here. I know I'm gonna have to quit soon. It's like I don't really even want to talk to you if you're still working, you know. It's like you're gonna have to quit soon. Yeah, so you're plan planning on quitting, you know. You know, if you're if you're planning on quitting because of your health, um, you know, call us when you actually do quit and make sure that when you do quit that there's some documentation that you had to quit due to your health. Yeah. Um, not just that, you know, oh I had enough, you know. A lot of people have had enough. And a lot of people have had enough and stopped working, and they're just getting by by getting by. But that's not necessarily disability either. You know, disability is if they tried, that they just absolutely had to go back to work, they're gonna get kicked out, they weren't gonna have any kind of groceries, there was no social safety net for them, no food stamps, no anything. Um, you know, could they go back to work? No, they do they would fail at it. That's a disabled person. Yeah. That is that and that's sad, but that is um the the way it is. And I'll give you this the the clinical definition having an impairment or a combination of impairments for twelve consecutive months that keep you from doing any type of work on a substantial basis or having a condition that is expected to result in death. That's Social Security's definition. It's been their definition since they started the disability program. And you know, if you're if if if you're able to skirt that definition, not you're not disabled.

SPEAKER_01 18:02

Yep. Yeah, and that's we're using the definitions and we're we're telling the facts. And um people that say I have to do something or how am I supposed to live on that, or I can't believe it takes this long. We are in agreement with all of those things. Yeah, absolutely. But we're we can't like we're not we're not gonna start a a suit like a um lawsuit against Social Security for them to change the system.

SPEAKER_00 18:26

Right. I mean that and that's exactly what we're doing. That's a completely different thing. That's the system that we that we live in, that's the system that we operate in. And it's the same thing. We've talked about this a million times. You know, I don't why should I have to fill out forms? You know, okay. Because that's the system that you're in. That's that's the requirement. You know, why do I have to prove my case? You know, why can't they just read my medical records? Because that's the system. That's you know people who were much more powerful than you and I came up with this system decades ago and said, you have to prove your case, it has to show this, you can't make this amount of money, you have you know, all of this criteria. It's a program, and it is a program with rules. And if you don't follow those rules or you don't meet those rules, you don't qualify for the benefits. It's and the thing is that I know it makes people angry, but they really wouldn't be the same kind of angry if they were playing Monopoly with a family member and they just started, you know, taking people's money. Well, I'm changing the rules. I mean, well, you know, you gotta play by the rules. Why do I I I want to take your money, so I'm you know, give me that. You wouldn't do that in any other aspect of your life. You realize that there are rules, there are parameters that you have to stay within. There are rules that you have to follow. And then you get in Social Security. Well, I know that's the rule, but you know, I you know, I'm not gonna fill out their form. Okay, good luck. Okay. You know, I'm not gonna go to that exam they've scheduled for me and that they're paying for me, and that they'll pay me to travel to. Okay. You know, let me know how that works out for you. Yeah. You know, there's a reason that 70 plus percent of cases at the initial and reconsideration level are denied. There's a reason for that. It's not just Social Security is mean. Social Security is mean, by the way, but that's not the reason that so many people are denied. Um and it's growing, it's the strangest thing. You know, there there are tons of denials that are not even medical denials. You know, well, we we we sent Mr. Smith his work questionnaire, and he's 58 years old, so we need to know. It's it's it's part of the rules, it's part of the law. We have to know whether he can go back to his past work, or if he can only do work in the other work in the national economy, and it that's the di it literally is the difference between an allowance and a denial. But Mr. Smith decided not to send in his work history report. We called him, he hasn't called us back, and we've given him plenty of time, and we're denying the case. Yeah. And then Mr. Smith calls us, you know, why'd they deny me? Yeah. Did you send in that form that you're supposed to send in? That's your job. No, it's not my job. Right. You know, it's your form that you have to complete. I can help you, I can advise you on it, but you never even called us about it. So you didn't really play by the rules, you didn't stay within the parameters of the program, and then you're angry about it because you you got denied. Or up front, you're angry about it because you don't qualify. Well, there's nothing that my firm can do. There's nothing nothing that any firm can do. If you have a problem with it, and a lot of us do, you know, call your congressman. Yeah, let me allow me to call the president and tell them to allow you. Yeah, I mean it's you know, it's it's a law that's been In place longer than I've been alive, and I've been alive for a while. So, yeah, it's you know, there's not a whole lot that we can do. We can agree with you, but you know, I will never go outside the parameters of the program, and I will never bend the rules because that's one, it's not ethical, and two, I I value my practice, and the people who work for me count on me. Um so I'm I'm not gonna sabotage my practice because um I just don't think the rules are fair. Yeah.

SPEAKER_01 22:29

Yeah. The last thing I'll say for kind of to wrap it up is we do talk all pretty negatively about the program because we're responding to how frustrated our clients are, you know, um, which is which makes sense justifiably. Um but with that being said, if you apply and you do fill out the forms and you are disabled, you know, we're we're really good at our job. Yeah. And if you go through the process, I mean we win a lot of cases. There are um you know, I think there are like total amount of people on Social Security, it's it's over 10 million people. Oh yeah. Oh yeah, there's there's people a lot of people get denied, but it's not like everyone gets denied. Right. Like there is a light at the end of the tunnel if you'll just put up with it and you'll work with us and allow us to win your case.

SPEAKER_00 23:14

Yeah, I mean, there there are the outlier cases. Um, and I I had one uh in January last month, a couple months ago. And um I had her since 2019. So I I've had her in October, it would be seven years. So I had her about six years, six and a half years. Um, wow, why did you have her so long? First hearing denied, appealed. Appeals counsel rubber stamped, took it to federal court, remanded, came back for another appeal or another hearing, had the hearing, same judge denied again, appealed to the appeals counsel, they rubber stamped again. This is garbage. Sent it to FDC, see if one of our attorney partners would take it. Yes, she did, got remanded again, comes back for the third hearing, can't go back to the same judge who's denied her twice, thank goodness. Um, win the case. Yeah, all that took six and a half years, but my client won the case. They've they've Social Security finally admitted, yeah, you know, we made a mistake when we denied you twice at the hearing level. So, you know, yeah. So things turned out okay. Um big chunk of back pay because it took so long. Um that is an outlier. That's you know, that doesn't, you know, usually doesn't matter. You don't have to expect for six six years of this. But you know, we are one of those bulldog firms that if I believe in your case, and I tell this to my clients up front, if I believe in your case and you cooperate with me, I will go as far as you'll let me go with your case. Yeah, wait a minute. You know, a lot of a lot of firms will not take a case to the appeals counsel, which blows me away. They thought the case was had merit in front of a judge, the judge dis uh denies them. I I'm dropping the case. What do you mean you're dropping the case? The judge could be wrong. The judge could misapply the rules. The judge may not have seen things that um that you and I are seeing. You're dropping the case. I don't do that. If I take a case to a hearing um unless the the medical evidence um is just poor, and sometimes it is, but it doesn't happen very often because we build our cases. But unless the medical evidence is poor, or my client uh self-sabotages. And if you go into a hearing and you tell the judge that you can stand for two hours and that you can walk for three hours and that you don't have any problems sitting and that you can concentrate without, you know, da-da-da. And I, you know, and I travel to Florida three times a week, or three times a month, or three times a year, or I do this, and I'm able to do this, and you testify that you're able to do ability, ability, ability, ability. And I'm like, I thought we were applying for disability, but you do that in a hearing. Um, I can't appeal that case by saying, Well, my client was lying in the hearing. So what she really meant and and so in those cases, you know, I'm still a bulldog, but I probably won't take your case as far as I can take it. But for the vast, vast, vast majority of cases, well north of 90%, if I believe your case had merit, to the extent that I would take it in front of a judge, puff out my chest, and make those arguments. If the judge denies you, north of 90% of the time, I'm going to take the case to the appeals counsel. And if they rubber stamp it, which they do a lot, um, I'm going to try to partner with an attorney to take the case to federal district court. Um, our success rate then is astronomical. I mean, it's like we probably get like 75% of the cases that we take to federal court remanded. So, I mean that's that that's being a bulldog. And if I believe you're disabled, then I'm gonna take it as far as I can.

SPEAKER_01 27:11

All right. We'll leave it there.

SPEAKER_00 27:13

Cool.

SPEAKER_01 27:14

If you have a question about your disability case, drop it in the comment section below and we will do our best to answer it in the next episode.