Can I Try to Work While I am Waiting for my Disability Hearing?

by Vaughn Clauson on July 28, 2011



working while waiting for disability hearingBecause of hearing backlogs, you may have to wait 12 to 18 months before a hearing is scheduled in your case.  Obviously, while you are waiting for your court date, you need money for food, shelter and clothing.  I frequently get calls from clients asking if it is okay for them to try to return to work.  Here are my thoughts about this:

  • first, remember that Social Security defines disability in terms of your capacity to work.  In order to win, we have to prove that you would not be a reliable employee at even a simple, unskilled job.  If you return to work before your hearing, the judge may conclude that you do have the ability to work, even if you are in pain and you are not sure how long you will be able to remain employed.
  • at the same time, one or more unsuccessful work attempts may help your case.  Judges appreciate the efforts of a claimant who is trying to work and if you try but simply cannot meet attendance requirements, the judge may conclude that you really cannot work even though you are trying your best to fight the idea of disability.   Generally, a work attempt that lasts less than three (3) months is considered unsuccessful, so if your work record shows two work attempts lasting 4 to 6 weeks each, you will most likely not hurt your case.
  • part time work usually hurts your chances.  Even though you may testify that you only have the capacity to work 3 or 4 hours per day, the judge may conclude that if you can last 3 or 4 hours at Job 1, then you could probably last 7 or 8 hours at Job 2.  It is very difficult to win a case when there is on-going part time work.  Under Social Security’s 2011 regulations, earnings of less than $1,000 per month do not constitute “substantial” activity but, as a practical matter, I find that most judges look at the consistency of your part time work more so than the actual dollar amounts earned.

Generally, you will earn more money and you will be more fulfilled if you are able to work as opposed to collecting Social Security.  If you can work, you should but keep in mind that beyond minimal earnings associated with an unsuccessful work attempt, earnings while you are waiting for a hearing will reduce the likelihood of a favorable disability decision.

About

Vaughn Clauson is a US Air Force veteran, and an experienced disability attorney. Vaughn is a board certified specialist in Social Security disability law and has dedicated his career to representing the disabled. Vaughn and his associates have represented thousands of clients, and have experience with any type of disability claim.

{ 1 comment… read it below or add one }

weneeke April 4, 2012 at 10:00 pm

The real issue is what is going on with these backlogs. Sounds like an HR problem and miscommunication. I wonder how many college-educated people who don’t have a job could use their abilities and skills to help speed up this process. I bet every state in the US has a college that offers a Paralegal program. Some of these cases could probably be decided in mediation or whatever they call it. Atleast give these people temporary benefits until the case is heard. I think they need to re-define case. Is every claim or should every claim be treated as a case?

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