“What if I work while I am applying for disability?”

That is the second most commonly asked question I receive from clients. (“How long is this going to take?” is #1.) Understanding the significance of working while simultaneously claiming to be disabled is very important, for a number of reasons. First, the judge who decides your case is going to use a five-step sequential analysis at your hearing to determine whether you are disabled. That means there are five key questions which must be addressed. The first is whether you have worked since the date you claimed to be disabled, because the judge will want to determine whether you have engaged in “substantial gainful activity” (SGA). If you have, then you do not pass go, you do not collect $200, and the case is over. Currently, SGA is defined as earning a minimum of $1180 per month (or $1970 if you are blind).

So, what if you have applied for disability benefits but don’t have a way to provide for yourself during the long wait from application to hearing? Unless you have a spouse who can support you, a nest egg tucked away, some sort of insurance or veteran’s benefits coming in, or a rich uncle, probably you are going to have to find a way to provide for yourself, and more likely than not that means finding a source of income.

Many people continue working at their same jobs but cut back hours due to a slowed pace of work production. Less valuable employees may only be able to manage 20 hours a week, cutting their income substantially. It is common for clients to come into my office and tell me they are working but are under the SGA cut off, expecting me to assure them that they will now qualify for benefits. If only it were that simple.

As you might imagine, the judge is going to take a look at the whole picture. For example, they will ask how much your production has dropped off. Simply cutting back hours isn’t likely to convince the judge that you are unable to work full time. When I talk to clients about working after applying for disability, I always look for circumstances which will establish that the work is more of a subsidy than pay for valuable work, and that accommodations have been made to enable them to maintain the job.

The first thing I look at is the relationship between the employer and the applicant. If the employer is a family member, boyfriend, high school classmate, or a similar relationship of that type, it is possible that the job has been provided due to the close relationship, and that any shortcoming in the work is going to be overlooked due to the affection for the employee. The second thing I look at is whether the work scheduled has been relaxed, allowing for excessive absenteeism (“bad days”), frequent extended bathroom breaks, leaving early due to migraines, etc. Sometimes employees need special tools to help them work, or co-workers have to give rides to and from the job. All of these details are important to show the circumstances that allow a disabled worker to continue employment.

Working after the alleged onset date is, in my opinion, a double-edged sword. Working and earning some income shows that the worker can in fact go to the job and provide some valuable service to the employer, and do many of the things that fully capable employees do every day. Working for an extended period while the claim is pending seems to run counter-intuitive to the idea of being disabled. However, with proper development of evidence, this work effort can provide evidence that the applicant is the type of person who really wants to work, and is trying their best to keep their job, even while coping with physical or mental impairments. Their shortcomings at work could be attested to by sympathetic co-workers and supervisors in the form of letters to the judge or even testimony at the hearing. This type of evidence from disinterested witnesses may be very effective in convincing the judge to give a favorable ruling.

Ultimately, I believe that working during the application process is not the end of your case, so long as you can convincingly answer the question, “Why can you work part time but not full time?” Remember, the key is whether your ongoing employment is “competitive”, or whether your ability to work is the result of a sympathetic boss, accommodations, or helpful co-workers. As always, documentation is the key. If it’s in writing, it exists. If it’s not in writing, it doesn’t exist.