Substantial Gainful Activity and Your Disability Claim

January 10,2017
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Even if you are still working a little bit, you still may be eligible for Social Security disability or supplemental security income benefits as long as your income stays below a certain amount each month and you can prove that you are unable to perform substantial gainful activity.

The Social Security Administration has set guidelines to help administrative law judges determine whether someone is capable of working on a sustainable basis.  A significant factor in this determination is whether you are, or are capable of, earning a certain amount of money every month.  If you are doing some work but earning less than this monthly baseline amount, you may still be eligible for benefits because you are not able to perform “substantial gainful activity”.  The SSA considers substantial gainful activity to be the ability to engage in competitive employment in the national economy.

The Substantial Gainful Activity Ceiling

The monthly income limits that form the ceiling for substantial gainful activity change on a yearly basis.  In 2016, the maximum amount an applicant for disability benefits could earn was $1,130 per month for disabled applicants who are not blind.  A blind applicant for disability benefits could earn up to $1,820 per month and still attain eligibility for disability benefits.  For 2017, these amounts are $1,170 for people who are not blind and $1,950 for people who are blind.  The Social Security Administration provides a running table of these amounts for reference at “www.ssa.gov/oact/cola/sga.html”.

What Income/Work Counts Toward the SGA Determination

Wages

The SSA will usually consider wages earned above the monthly limit as substantial gainful activity unless you only were able to perform this work during a relatively short duration of time. If your impairments forced you to stop working or reduce the amount you could work below the income levels considered substantial gainful activity, the Social Security Administration may disregard this work history as an unsuccessful work attempt. We will discuss the rules regarding what kind of job activity is an unsuccessful work attempt in another post.

Even if the work you are presently capable of performing has less responsibility, fewer tasks, or lower pay than your previous jobs, this work may still be substantial gainful activity. The Social Security Administration’s rule tends to favor people with jobs that do not pay well over those who perform skilled labor that commands a higher wage. For example, the SSA may consider someone who is physically or mentally capable of working only a few hours at a time at a job that pays a decent wage as disabled.

The result may be unfair to people with impairments who can perform skilled rather than unskilled work. However, the Social Security Administration makes it a higher priority to provide assistance to people based on the amount of money they earn. This is so so disabled people can receive a certain level of income for meeting their daily needs.

Illegal Activities

All paid activities can count as substantial gainful activity, even if they are not a normal or regular job.  This includes illegal activities such as:

  1. stealing
  2. gambling
  3. prostitution
  4. selling drugs (banned or prescribed)

While these activities will probably not show up in your tax records, the administrative law judge may receive records from prisons or learn about court dates.  This kind of information could also show up in reports from others such as a psychologist, social worker, doctor, or parole officer.

Seasonal and Temporary Work

An administrative law judge may consider the circumstances of your work to determine whether your physical or mental impairments are the reason for your low income.  People who perform seasonal work, do temporary jobs, or fulfill other forms of as-needed labor may not be considered disabled even if their income is below substantial gainful activity levels. This is because their work activity may indicate they are capable of working more if opportunities were available.

Unpaid Work, In Kind Payments, and Self-Employment

There are many ways that unpaid or low-paying work could still be considered substantial gainful activity. Working in return for non-monetary rewards can count, such as doing a job in exchange for food or a place to sleep.  Similarly, if you do not get paid for your work, the wages you should have received might be considered toward the substantial gainful activity ceiling.

If you are self-employed and cannot (or do not) pay yourself a reasonable wage, the administrative law judge may still find you are capable of performing substantial gainful activity.  The judge will consider your activity in managing the business against certain baselines for a percentage of work performed or hours worked, or may apply a formula based on an average of the net income you earn less impairment related work expenses.  These considerations often get complicated, so make sure you discuss them with your Social Security disability attorney.

Activities That Demonstrate Ability to Work

Even if you are not working at all, an administrative law judge can consider other activities you perform you don’t receive pay for but could demonstrate your ability to work.  The judge may consider a number of daily living activities you perform as comparable to working.   Examples of these kinds of activities include volunteer work, attending classes at school, organizing or attending regular meetings, and taking care of children or the elderly.

Excluded Income Sources

When reviewing your income history, the Social Security Administration should not include income from sources that are not work.  This means the SSA does not consider income sources such as an inheritance, investments, gifts you receive, or interest payments to you in determining the amount of earnings for making a substantial gainful activity determination.

Answering Questions About Your Work

When responding to an administrative law judge’s questions about your work history and earnings, you should try to be as truthful as possible.  Administrative law judges regularly receive copies of your employment income from the Internal Revenue Service as part of your disability application file.  They have very good information about the income your employer reported as paid wages. So lying to the administrative law judge about your income will only hurt your credibility.

Even so, a long time passes between the date of your application, the appeal process, and the date of your hearing.  If you do not know the answer to one of the judge’s questions about your earning history, it is far better to just tell the judge that you do not remember your exact earnings and tell the judge what you can remember about your work at the position.

To Learn More About Substantial Gainful Activity

For help with your Social Security disability claim, call the Hermann Law Group at 914-286-3030.  Your initial consultation is free.