Obtaining Disability Benefits: Can I Work After I Have Filed a Disability Claim (Part II)?

People call or e-mail me weekly to ask whether they can attempt to return to work after they have filed a disabi1ity claim. In my last article, I discussed the fact that the Social Security Administration (SSA) has created what is know as a “trial work period” to allow disability claimants the opportunity to “try” to return to work without 1t ruining their claim for benefits.

Similar to the concept of a “trial work period,” SSA has created what is known as an “Unsuccessful Work Attempt (UWA).”

SSA’s intent in creating the UWA is to give you the ability to try to return to work even if you have already filed your disability claim. Quite literally, the UWA is a period during which you may test your ability to work and still be considered disabled by SSA. The reason for the UWA is clear; SSA would rather give you an incentive to return to work rather than pay you disability and Medicare benefits.

1. What is an unsuccessful work attempt?

SSA considers an UWA to be work you perform for a short duration (up to 6 months) that you had to stop due to a physical and/or psychological impairment.

The UWA is important because earnings you have during that time will not be considered in determining whether you were actually gainfully employed and thus, not disabled.

It is important to note that you can have a series of UWAs even after you have filed your claim for disability benefits. Thus. you can try to return to work after you have filed a claim for disability benefits (but be careful, read the “Tips” section at the end of this article for real world advice).

2. Who is eligible for an Unsuccessful Work Attempt?

Anyone who is eligible to receive either disability insurance benefits (SSDI) or supplemental security income (SSI) is e1igible to have an UWA. Note that this is different than the Trial Work Period which only applies to those eligible for SSDI.

3. What Qualifies as an Unsuccessful Work Attempt?</B

To qualify as an UWA, the attempt must be preceded by one of the following events:

* A substantial amount of time has elapsed since your last period of work; SSA defines this as being out of work for at least 30 consecutive days before beginning an UWA.

* Before the UWA, you were forced to change to another type of work or another employer due to your disabling impairment.

* Your prior work before you began the UWA was reduced such that your income was less than $700 per month.

4. How long can an UWA last?

Once you have met the conditions set forth in #3, the rules regarding how SSA characterizes the UWA varies depending on how long the UWA lasts. Please note that a single UWA cannot last for more than six months. However, you can have severa1 different UWA attempts that in total last for more than six months, as long each one is for less than six months.

5. If your UWA lasts for less than three months.

If the work lasted for less than three months, to qualify as an UWA, it must end in one of the following ways:

1. The attempt ends due to problems resulting from a physical/psychological impairment, or

2. The attempt ends due to the removal of special conditions related to the impairment that are essential to the performance of your work (i.e. your were receiving help from other workers or special equipment in order to do your job).

6. If your UWA lasts/or more than Three, but less than six months.

For a work attempt that lasts for more than three but less than six months to qualify as an UWA, it must end the same way one does that lasts for less than three months. However, SSA requires in addition) one of the following must also be present:

1. You have had frequent absences due to the impairment; or

2. Your work has been unsatisfactory due to the impairment; or

3. Your work must have been done during a period of temporary remission of the impairment; or

4. Your work must have been done under special conditions as set forth under section #4 (see above).

Tips: Will it hurt your case if you try to return to work and ultimately have an unsuccessful work attempt?

Although SSA allows you to have an UWA, should you return to work after you have stopped working? Conventional wisdom says that if you do return to work and are unable to sustain it due to your disability; this should make your claim stronger. Unfortunately, this sometimes is not the case; SSA and Administrative Law Judges (ALJ) may punish those who do attempt to return to work.

The advice I usually give clients is to work as long as you possibly can before you finally file a disability claim. Why? Because the process can take a considerable period of time and is often accompanied by some degree of financial hardship. It is also important to have the issue settled in your mind that for the foreseeable future you are unable to work full time on a sustained basis.

With that said, should you try to return to work after (and during the time) you have filed a disability claim? Unfortunately, there is no easy answer. On one hand, if you do try to return to work it should bolster your credibility when you tell SSA and/or an ALJ that you cannot work. Why? Because you have already tried to return to work and did not succeed.

However, in my experience, returning to work while you have a disability claim pending can create serious problems! I have seen too many ALJs use that as a reason to deny rather than approve a claim. Why? Because even if you only worked 10 hours per week (and killed yourself doing it!), a cynical ALJ may assume you could have worked more hours than you did, possibly including full time work. The ALJ then reasons that because you did have an UWA, you had the ability to sustain full time work! Therefore, the ALJ concludes that you are not disabled.

I think the best advice is to seriously evaluate whether you can sustain work full time work (40 hours per week) while your disability claim is pending. If you think you can, then give it your best shot. If you don’t succeed…hope like heck you get an ALJ who wants to reward your determination to return to work rather than penalize and ultimately deny your claim.

Scott E. Davis is a social security and long-term disability insurance attorney in Phoenix, Arizona. Mr. Davis is the founding partner of the law firm of Harris ~ Davis, PLC. Although Mr. Davis and Mr. Harris have experience representing clients with a broad spectrum of physical and/or psychological disorders, the majority of their disability practice is devoted to representing individuals with FM and/or CFIDS. They do represent clients throughout the United States. In most cases a fee is charged only if their client obtains benefits. Mr. Davis and Mr. Harris invite your questions and inquiries regarding representation via email harris.davis@azbar.org or telephone (602)482-4300.

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