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.