Whether or not to work while your claim is pending with Social Security is a very tough question to ask.
Any work you engage in after your alleged onset date of disability will be considered by Social Security and the administrative law judge when determining whether you are disabled. The first step of the sequential evaluation is to determine whether or not you are engaging in substantial gainful activity (“SGA”).
Social Security Guidelines specifically state, “If you are able to engage in substantial gainful activity, we will find that you are not disabled.” 20 C.F.R. §404.1571. Substantial gainful activity is work activity that is both substantial and gainful. Social Security defines substantial to mean any “work activity that involves doing significant physical or mental activities.” 20 C.F.R. § 404.1572(a). It is important to note that work may be “substantial” even if you “do less, get paid less, or have less responsibility than when you worked before.” 20 C.F.R. §404.1572(a). On the other hand, work is gainful when it is done for pay or profit even if you are not paid for the work so long as it is the “kind of work usually done for pay or profit.” 20 C.F.R. §404.1572(b). Generally, in evaluating whether work you have performed is substantial gainful activity, the primary consideration will be the earnings received from the work activity. 20 C.F.R. §404.1574(a)(1).
In order to be considered substantial gainful activity, earnings received must exceed a certain amount. If they exceed the substantial gainful activity amount for that year, Social Security cannot find you disabled.
Only in a very rare instance will earnings over substantial gainful activity thresholds be disregarded and the earnings evaluated on the merits. In fact, the rare exception to the SGA limits is essentially non-existent, so it is best to think of the SGA limit as an absolute bar to benefits. Put another way: If your monthly gross earnings exceed SGA for the year in question, YOU ARE NOT DISABLED pursuant to Social Security Guidelines. There is no judge that can or will make an exception for you for any reason. A lot of clients believe that because they were forced to return to work because of financial reasons or other obligations that the judge will make an exception in their case.
Beware: there are no exceptions. Social Security has made a bright line rule to cut off eligibility for benefits at a certain income level. If you can work over that level, even by $1.00, then Social Security assumes that you are able to work at such a level that there is no possible way that you could be considered disabled under their rules. It is irrelevant that you cannot pay all of your bills or survive on the amount that you are making. This information will not be considered by the judge if you are over SGA limits. The SGA limits are as follows:
Therefore, if your earnings for the year in question exceed the amount in the chart above, you will either have to withdraw your claim, amend your onset date, or proceed for a closed period of disability depending on the facts of your case. However, you will not be able to just ignore these guidelines and proceed on the merits of your claim.
However, even if your earnings do not exceed the SGA limits in the table above, that is not the end of the analysis. Social Security takes into consideration any earnings after your alleged onset date of disability. “[T]he fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.” 20 C.F.R. §404.1574(a)(1). This means that Social Security will consider all earnings, not just those above SGA limits when determining whether or not you can engage in substantial gainful activity.
Very minimal earnings are not likely to weigh heavily in an analysis of whether you can engage in SGA. However, and this comes up quite a bit, if you are working and your gross earnings are just below SGA limits, Social Security can and often will assume that you would be able to engage in substantial gainful activity because the level of work that you are doing is very close to SGA. This is the case wherein it appears that the claimant is purposely keeping their gross earnings below SGA so as to remain eligible for benefits. However, judges will often ask claimants, “Why, if you can work 30 hours a week, can you not work 32 hours a week?” This is the case when claimants are earning within $100-$200 of SGA limits for the year in question.
Therefore, even if you are earning below SGA limits, any work that you are performing will be considered in determining whether you can engage in substantial gainful activity. If you have any questions regarding how your work after your alleged onset date of disability will be viewed at your hearing or by Social Security, you should discuss it with your Nevada Social Security disability attorney or representative prior to the hearing and supply your attorney with all of your paystubs and tax returns to show proof of income.