Unemployment vs. Disability

                John's story shows how unemployment benefits can complicate your disability claim.  A learning impairment got him kicked out of school at sixteen when he was still in the sixth grade.  He spent the first few years of his work-life sweeping floors, carrying bags and boxes, and digging holes, and then he got lucky.  A friend of his dad's got him a factory job. 

                Raised to appreciate opportunity and mind grown-ups, John worked hard to learn how to clean and service the machines.  Then he diligently tended them for more than three decades.

                Arthritis in his knees, shoulders and back slowed him down as he approached his 50s.  He found ways to keep going, but he couldn't cope with the new machines with computerized brains of their own.

                When the crash of 2008 hit, the company closed John's factory.  Some of John's co-workers who knew computers got transfers, but John got laid off after thirty-three years. John got severance pay and unemployment benefits, enough to survive a few months but not enough for early retirement.

                John tried to find another job.  He went to the Labor Department every day, but everthing was either too physically demanding for a 53-year-old, or the jobs required skills he didn't have and that were beyond his potential.

                About six months before his unemployment benefits ran out, John figured he'd never find another job.  He applied for disability benefits, Social Security turned him down, and he got in touch with us.

                In his application, John claimed he became disabled when he got laid off in 2008, and then he continued to draw the last six months of his unemployment benefits.

                The problem with his case was that John's application raised a credibility issue.  When you apply for unemployment benefits, you tell the government that you're ready, willing and able to work, and that you're actively looking for a job.  When you apply for disability, you say you're not able to work at all.

                Both claims can't be true. As the economy slogs along after the crash of 2008 and as more and more people realize they're not able to compete in the new job market, ALJs (Social Security judges) are paying attention to the contradiction.  Social Security is under a lot of politicial pressure to prevent the disability income program from becoming a permanent unemployment scam.

                Nevertheless, we got John approved.  The federal district and appellate judges have said that a person may honestly want to work and try to find work, even though he or she isn't really able to work anymore.  If your unemployment claim is just wishful thinking, the courts won't let Social Security hold it against you.

Working with a Disability and Drawing Benefits

Can you work and still draw Social Security disability benefits? The short answer is “No.” Of course there are qualifications to that “No,” but those qualifications are narrow and they are ultimately intended to ask the simple question — Are you physically and mentally able to work hard enough to make a minimal living? The SGA amount (the amount of earnings that serves as the “rule of thumb” amount for the Social Security Administration) is $1010 per month for 2012. That’s the approximate equivalent of being able to work 30 hours a week at a minimum wage job, but keep in mind that if you can work 12 to 15 hours a week at a $20-per-hour job, you’re working at SGA. You will be disqualified for disability benefits at the first step of the five-step analysis.

Remember that the question at the first step of the five-step analysis is not about how much you MAY work and still draw disability benefits. The question is about how much you CAN, or are able to, work. The difference between Social Security retirement income and Social Security disability income may be part of the confusion. If you decide to take early retirement, then at the age of 62, you can start drawing a retirement income benefit. Your benefits will be reduced from the full amount that you would draw if you waited until you reached full retirement age — originally 65 but increasing to 67 for people born after 1960. If you take early retirement at 62 and keep working, there is monthly earnings amount, that is always subject to change, that marks a threshold beyond which your retirement income gets reduced even further. If you wait until you reach full retirement age to retire, then there is no limit on how much you can earn and continue to draw your full benefit.

The question for people taking early retirement who continue to work is how much MAY they make without suffering benefit reduction. If you want to make sure your Social Security early retirement benefits are not impacted, you can adjust your work hours to make sure your monthly income is below the threshold amount that causes income benefit reduction. It’s the opposite for people drawing Social Security disability benefits.

Again, the question for you, if you are drawing disability benefits is how much you are able to make. If you’re drawing, or want to draw, disability benefits and you are still working, but you’re working just a few hours a week and getting paid less than the SGA threshold amount, the question is still asked, If your boss offered to adjust your work hours to let you draw more than $1010 a month, would you be able to do it. If the answer to that question is yes, then you are not disabled under the Social Security Administrations rules.

Case Study: Mild Intellectual Disability and Social Security Disability

Last week we got a fully-favorable decision in a mild intellectual disability case for a 20-year-old gentleman, "Gerald." Gerald had tried to work but his best job -- working in a butcher shop -- was too physically demanding.
He had a Scheuermann's disease diagnosis, or adolescent kyphosis (meaning "hunchback"). In older people, especially small women who are already at risk for osteoporosis, kyphosis is often caused by vertebral compression fractures. As osteoporosis takes its toll on bone density, the vertebral discs collapse in upon themselves.
In younger people, adolescent kyphosis happens when the bones of the spine are wedged together. Doctors don't know why it happens, but Gerald believed his own problems began with a four-wheeler accident several years ago.
The problem with Scheuermann's disease in disability cases is that it's usually not sufficient to get a 20-year-old approved for benefits. Gerald wasn't able to work in the butcher shop because a big part of his job was carrying heavy meat boxes all day from the cooler to the cutting tables. He could help with lighter tasks, but the boss needed someone who could do everything. Gerald had a "severe" impairment that would get him past Step Two, but it wasn't severe enough to meet the musculoskeletal listings. A good rule of thumb is that if you're under 50, you have to meet or equal a listing.
Gerald's case didn't look good. He had a real and significant physical impairment that affected his ability to work, but not bad enough to stop him completely.
Social Security's view of this is that even though you might not be able to do physical work, while you're younger you can still train for a job that doesn't require as much physical effort. So why wasn't Gerald able to find something? Or at 20, why wasn't he enrolled in a technical school or college?
It was fairly obvious if you bothered to sit and talk with Gerald for more than a few minutes. He was a good kid, wanted to work, and was terribly frustrated with his circumstances, but once you got to know him, it was clear his mental limitations had the worst impact on his ability to work.
We ordered Gerald's high school records and discovered he had a full scale IQ between 60 and 70. That's not sufficient by itself to meet the listing for mild intellectual disability, but Gerald had one additional significant work-related impairment -- his Scheuermann's kyphosis.
It sound's simple enough, but Gerald's case required a hearing before the ALJ and then a six-page legal brief to the ALJ on the interpretation of the term "significant" as used in Listing 12.05C. This is a case we're especially proud of because our hard work paid off for a young man who otherwise would have been faced with a bleak and hopeless existence.

Social Security Disability with a Part-Time Job?

In an earlier post, I said the question about whether you’re working isn’t as straightforward as it sounds. That’s because the ALJ doesn’t actually ask the question in those words. The ALJ asks if there are any “SGA issues.” SGA is the acronym for Substantial Gainful Activity, an expression from the Social Security regulations meaning significant mental or physical activity normally done for pay or profit. The regulations give specific dollar figures the ALJ uses to decide if your are doing SGA, but other factors are considered, as well.

If you have what we call a “public job” here in the deep south, meaning you work for a boss who takes withholdings out of your paycheck, the Social Security Administration will get your earnings history for the ALJ from your boss’s monthly federal payroll tax returns. As a general rule, if your earnings history average is less than $1010 per month in 2012 (or smaller amounts in earlier years), the ALJ will find that you are not doing SGA and move on to the second step of the sequential analysis. This means that you may be working, you may have a part-time job, but still be unable to go hard enough to make the SGA amount. You’re working, but your work isn’t SGA.

On the other hand, you may have a part-time job because your boss doesn’t need you full-time. If that’s the problem, then your work may be SGA even though you’re not earning the minimum amount.

Some people are lucky enough to have a boss who keeps paying you even though you can’t work anymore. This usually comes up in small, family-owned, incorporated businesses where your “boss” is also your spouse, your parent, or a son or daughter. The goal here would be to prove that your income is not earned, but is rather a gift. Also, if you own a business that continues as a going concern even though you can’t provide management and supervisory services, then your income is not earned. You’re not doing work that counts as SGA. Its more like investment income.

Another thing to keep in mind is that your activities of daily living (your ADLs), don’t count as SGA. The regulations specifically exclude “activities like taking care of yourself, household tasks, hobbies, therapy, school attendance, club activities, or social programs [from] substantial gainful activity.” The ability to do these things may show that you are able to do SGA, but are not themselves SGA. So even if you are going to school, doing occasional housework, driving and visiting with friends, going to church and so forth, you can still pass the first part of the five-step sequential analysis.

What if you are working even though you are disabled?

The first question when deciding whether you are disabled is whether you are working? This questions isn’t as straightforward as it sounds, but it’s a critical question. If you are working, then you can’t meet the medical requirement for benefits. A lot of people say they have no choice; they have to work because they have a mortgage, or they have children to support, or they will lose everything. They say they are working, even though can’t actually do what they are doing.

The Social Security Administration regards this as strictly impossible: if you are not actually able to work, then you would not be working. If you are actually working, then you are able to work despite the pain. This is formally logical and it’s a neat and easy way for an ALJ to say “No” without having to analyze medical records. But we all know people who keep going even though they’re not actually able to. The formal logic that automatically excludes makes sense, but it’s not always fair, and its not always safe.

Think about it, how do you keep working even though you are not actually able to do the job?

Painkillers.

I once represented a truck driver who kept working even though a painful back problem made it physically impossible for him to sit in a truck all day. This was earlier in my career -- before I learned to check work history reports. At the hearing, the judge pointed out that the Administration’s records showed my client’s recent earnings were higher than the monthly cutoff amount. The judge let me withdraw the hearing request on the record to protect any future claim from the res judicata effect of a decision.

After the hearing, my client asked what just happened, and I asked him the same thing. I’d already told him that if he was still working, he wouldn’t meet the medical requirements. He admitted that he was still driving an 18-wheeler. He said if he didn’t he would lose his house. He confessed that he managed to keep going with pain killers. He hadn’t been forthcoming with his doctor, who also thought he was out of work. The doctor prescribed powerful narcotics for the pain, and the truck drive used them to ease pain that should have otherwise kept him out of the cab of his truck.

I pointed out to the man that even though the drugs were legal, it was still illegal for him to drive while using them, that if they made him less safe to drive he could be charged with DUI, and that if he caused an wreck that killed someone, he would be charged with vehicular homicide and might even serve time in prison. Nevertheless, I’ve got to empathize with the man. The thought of being out of work is terrifying. Most people live week-to-week and permanent unemployment means financial ruin and dependence on others. Unfortunately, those are the circumstances of most Social Security claimants.

How does the Judge decide if you get Social Security Disability Benefits?

ALJs follow a five-step sequential analysis to determine whether you’re disabled. It’s called a sequential analysis because it works like a flow chart or a decision tree. At each step, the ALJ asks a question, and the answer determines what happens next.

First, the ALJ asks whether you are working? This seems like a straightforward question, but it’s not. For the purposes of this post, if you ARE working, the analysis is over. You can’t go on to the second step and you can’t get disability benefits. You may go on to the second step only if you are NOT working.

Next the ALJ asks whether you have a severe medical or mental impairment that affects your ability to work? This is a low hurdle, but if your impairments are not “severe” as defined by the regulations, you are not disabled and you can’t go on to step three. You can go on to the next step only if you have a severe impairment.

Third, are your impairments severe enough to meet a “Listing”? This is the first point where the ALJ can find you disabled. If you meet a listing, the analysis is over. You get your benefits. But the test at the third step is extremely difficult. There are fourteen different categories of impairments, or “Listings.” To meet one you have to present medical evidence proving you have one of the listed conditions, and that you’re as bad off as described in the listings. If you don’t meet a listing, you go on to the fourth step.

Fourth, do you have the Residual Functional Capacity to do any of your past jobs? This step is actually a two-part test. First, the ALJ determines your Residual Functional Capacity (your RFC), and then whether your RFC prevents you from doing work you did in the past. The “RFC” asks, “How bad off are you, really?” You’ve proved you have a severe impairment, but it’s not bad enough to meet a listing. Is it bad enough to keep you from doing any job you did in the past? If not, then you’re not disabled and you can’t go on to the fifth step. If yes, you can go on to the fifth step.

Fifth, and finally, the ALJ asks whether there is there another job in the national economy you could do despite your impairments? Despite the fact that your impairments prevent you from doing work you did in the past, the Commissioner gets to try to prove there is a job you could do despite your impairment. The Commissioner has to actually prove that such a job exists, and the ALJ has to take your RFC, your educational level, your work experience and your age into consideration when evaluating any job the commissioner proposes. If such a job exists, then you’re not disabled, but if the Commissioner can’t prove such a job exists, you get your benefits.

You can apply for Social Security Benefits by telephone

You can apply for your Social Security benefits by telephone. (If the process I'm describing here is overwhelming, we will help you: K Todd Butler PC, or call toll-free (855) 818-6974.)

I’ve noticed a lot of people who call about Social Security haven’t actually applied for benefits yet. If health problems are bad enough to keep you out of work for a year, you need to apply for your benefits right away.

It’s not difficult for most people. You don’t even have to go in person to the local office. You can even apply online, though I’ve found that for most people, a telephone call is easier.  An online local office finder that will give you toll-free number.  You just need your zip code.  If you need help, call us and we’ll find it for you.

Your first call to Social Security will turn into a series of calls. Usually, in your first call, you set up an appointment for someone at Social Security to call you back and get additional information.

There are several types information you want to try to have available. And remember, the main thing here is to “try.” It will ultimately take a trained paralegal to get most of this information.

Initial information you want to have includes a list of all of your doctors, clinics and hospitals. Social Security’s Disability Starter Kit asks for any medical records you may have, but most people have very few. At most, you probably have a few pages of instructions from a doctor and a stack of medical bills.  These aren’t useful to Social Security, but they will help you put your list together.
You also need the names and birth dates of any children you have who are still under 18, and you need your husband or wife's name and birth date. You also need to know the dates of all of your marriages and divorces, your place of birth and your mother’s maiden name.
You will also need to state a date of onset — the date your physical or mental health (or both combined) became so bad that you had to stop working.

Again, call us if you need help finding your date of onset.  It's important for several reasons.  It impacts the amount of your back-benefit (the lump-sum you get paid when Social Security decides you've been disabled for a long time and that you're owed a back benefit).

Also, your date of onset can also impact your Medicare eligibility.  You become eligible for Medicare when you have been eligible for Social Security disability benefits for two years.  If you're date of onset was more than two years ago, then you may become eligible for Medicare benefits as soon as you start drawing your monthly benfit check.