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Attempting to Work With a Pending Disability HearingApplicants for Social Security disability benefits currently face an average 17-month wait from the date of their initial application until their hearing with an administrative law judge. Over the course of this agonizing wait, many claimants will feel financial pressure to return to work in some capacity. Current regulations permit claimants to explore different ways to work despite their impairments. Claimants can currently earn less than $1,040 per month and still technically qualify for disability. Claimants could alternatively earn more than this monthly amount without losing their eligibility as long as their work qualifies as an "unsuccessful work attempt," which is work that lasts no more than six months and ends because of the claimant's impairments.
2013-06-11 12:00:00 AM
Applicants for Social Security disability benefits currently face an average 17-month wait from the date of their initial application until their hearing with an administrative law judge. Over the course of this agonizing wait, many claimants will feel financial pressure to return to work in some capacity. Current regulations permit claimants to explore different ways to work despite their impairments. Claimants can currently earn less than $1,040 per month and still technically qualify for disability. Claimants could alternatively earn more than this monthly amount without losing their eligibility as long as their work qualifies as an "unsuccessful work attempt," which is work that lasts no more than six months and ends because of the claimant's impairments.
This rule encourages claimants to find work that they can perform and gives them time to gauge whether they can actually sustain it. The policy behind this rule wisely incentivizes claimants to find ways to not end up on disability, which benefits both the claimants and the overall solvency of the Social Security trust fund.
While there are obviously few employers lining up to offer positions that accommodate applicants who are uncertain if they can even perform the work, surprisingly few claimants avail themselves of the opportunity provided by the rule on unsuccessful work attempts. This is most likely because of ignorance of this little-known rule, or fear that any amount of work performed will be interpreted by the judge as evidence contradicting the claimant's disability. On the contrary, attempting to return to work can actually improve a claimant's chances of being granted disability benefits but only under the right circumstances.
Reality in a Hypothetical Discussion
Disability judges are routinely called on to offer their best estimates on each claimant's limitations if they were hypothetically employed. These limitations can include postural limitations on the time and position in which claimants can sit, mental limitations on their ability to work with the public or on detailed tasks or physical limitations on the distance they can walk or the weight they can lift. Formulating these estimates is a frustrating responsibility for judges, who are forced to characterize each impairment's severity based on generally nondescript treatment records and diagnostic testing and then further extrapolate the impact on claimants' "residual functional capacity." The only other evidence available to judges as a frame of reference on the extent of claimants' limitations are the opinions of treating physicians and the claimants themselves. Even claimants and doctors alike are often reluctant or unable to offer crude guesses on claimants' exact ability to perform functions they have not performed regularly since suffering their impairments.
A bona fide work attempt, however, actually lends direct empirical evidence to these difficult questions. A claimant coming off of a failed work attempt can testify to the exact work functions he or she was unable to perform, as well as offer details and examples that are crucial to establishing the credibility of a disability claim. In many disability claims involving unsuccessful work attempts, the proof is thus in the proverbial pudding.
Smoking-gun evidence or self-inflicted wound?
While work attempts are thus greatly illustrative of a claimant's impairments, they are not necessarily helpful on the ultimate question of disability. Social Security Ruling 96-7p specifically authorizes disability judges to consider "efforts to work" in assessing the credibility of each claimant's account of his or her impairments. Notably missing in this authorization, however, is clarification on whether these efforts to work actually enhance or damage said credibility. Personal experience and glimpses of how appellate courts view work attempts suggest that the answer depends entirely on the facts of each case and the perspective of the factfinder.
References in medical records to a claimant applying for work or attending job interviews are often interpreted (and misinterpreted) as definitive admissions that the claimant can perform this work. The following appellate cases all involve situations where disability judges acknowledged that the unsuccessful work attempt rule salvaged each claimant's prerequisite technical eligibility for benefits but nonetheless found the work itself constituted substantive evidence diminishing the extent of each claimant's impairments: Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007); Labbs v Astrue, Case No. 10-C-1050 (E.D.Wis., 2011); Blair v. Astrue, Civil Action No. 5:10cv00112 (W.D. Va., 2012). The reviewing court in Blair confirmed that this line of reasoning is supported by substantial evidence.
Other courts have disagreed. The court in Labbs remanded the case to its administrative law judge, with directions to "be ever mindful of the fact that the work attempt proved unsuccessful and avoid effectively punishing a claimant for taking the admirable step of attempting to work despite his claim for disability benefits." The U.S. Court of Appeals for the Ninth Circuit in Lingenfelter went so far as to suggest that "evidence that a claimant tried to work and failed actually supported his allegations of disabling pain." From personal experience, many disability judges respond positively to work attempts, most likely for these same reasons.
The key to anticipating the impact of a work attempt is understanding both the nature of the work and the particular standard that will be applied in determining disability. The latter varies greatly from case to case, depending mainly on each claimant's age, work experience, skills and impairments. Claimants under the age of 50 almost always need to establish an inability to perform jobs that require very little in terms of skills, stress and/or physical exertion. For these younger claimants, a failed work attempt as a construction worker, window washer or EMT says virtually nothing about their inability to perform work at such a low legal standard and instead implies the opposite. On the other hand, an unskilled worker over the age of 55 will need to establish little more than an inability to perform his or her past work. A bona fide failed attempt to return to this same past work should be virtually conclusive evidence of that very inability.
Close communication between the attorney and a claimant considering a work attempt is therefore extremely important. The attorney needs to be aware of the work's start date, hours, wages and other details to confirm that the work can qualify as a valid attempt under the regulations without disqualifying the claimant from benefits altogether. The claimant needs to be aware of what he or she needs to prove to qualify for disability and how an attempt to perform certain types of work will reflect on that.
Ultimately, even if the claimant is considering work that may reflect negatively on his or her claim for benefits, the responsible action for an advocate may nonetheless be to advise his or her client to attempt to work if there is any chance he or she can sustain it. Active workers will almost certainly earn more than they would receive in disability benefits. There is also little doubt that a work routine is an important aspect of emotional and psychological well-being. While sometimes there are strategic advantages to an unsuccessful work attempt, the rule is founded on sound public policy that encourages people with impairments to safely test their limits and potentially re-enter the workforce.
Daniel J. Smith is an associate at the workers' compensation and Social Security disability firm of Pond Lehocky Stern Giordano. He practices exclusively in the area of Social Security disability and can be reached at firstname.lastname@example.org.