I'm a lawyer based out of Massachusetts who has a question for you. I've found your website to be helpful in the past and was hoping you could shed some light on this issue for me.
I represent a Title II client who, because of possible eviction, returned to work in April 2012. His onset date is July 2009. Based on speaking with my client, his employment is clearly unsustainable. But he is doing it so that his family will not need to move into their car. His work history is solid and he is a very credible client. During the hearing in June 2012, the ALJ seemed moved by my client's plight. I argued that my client's limited work activity should be considered a Trial Work Period which would end upon receipt of his Title II benefits.
The ALJ was unsure whether he could award someone based on these circumstances. I stated that I had represented several claimants in the past who had been mid-TWP at the time of their hearings and had been awarded benefits, though I had never actually had to research the regulations that allow this. The ALJ asked me to write a post-hearing brief addressing this issue.
So far, I haven't found anything supportive. I'm citing POMS 13010.035 in my brief, specifically about the part where it says the TWP period begins the later of either the filing date or the entitlement date... But I don't necessarily know if that will be enough to convince the ALJ. I'm beginning the caselaw research shortly, but was just wondering if you had ever run into this before. If you have time, could you drop me a line?
Thanks and I hope you're having an excellent week!"
Initially, I felt that you could not argue that trial work months could be applied to work performed prior to adjudication However, I found what might allow you to argue that your client's current work activity should be considered trial work months.
Regulations No. 4 -- Section 404.1591, 404.1592
DI 24010.001 Return to Work. B Policy- Factors that are considered in Return to Work (Title II)
Work performed in or after after the month of entitlement and more than 12 months form onset is protected by the trial work provisions, regardless of whether the work occcurs before or after the final determination.
I think that this may work because your client started performing SGA after his potential month of entitlement and more than twelve months after his onset.
If you do not feel that this option is good, you could always make an argument that your client has had an unsuccessful work attempt under DI 24005.001D and the criteria listed. If you make the argument that his unsuccessful work attempt began April and ended "now" and that reduced his work activity to under the SGA monthly limit of $1010.00 as of "now" due to his inability to sustain the work considering his condition or conditions.
With either of these, you should be able to maintain your date of filing and back pay disability months.
Additional Information on:
Social Security Disability
Social Security Disability Questions
- How do you prove your disability case if you have a mental condition?
- Do I need an attorney for Social Security disability?
- What is a Social Security Disability Denial based on?
- Social Security Disability Status
- Tips for Getting Disability Approved
- Filing a Disability Application - the Information needed by SSA
- When does social security consider you eligible for disability benefits?
- The rate of approval for Social Security disability and SSI decisions
- How much does Social Security Disability or SSI pay?
- Application Process for Social Security Disability and SSI
- Social Security Back Pay
- How do I File and Apply for Social Security Disability or SSI?
- If You Are Currently Working Are You Eligible To Receive Social Security Disability Benefits?
- How to apply for Social Security Disability SSI benefits for children
- Can you get Social Security Temporary Disability?
- Social Security Disability Hearing - How Do I Request One?
- Levels Of The Social Security Disability and SSI Application and Appeal Process
- How much does Disability Pay?
- Working - Are You Allowed to Work While Receiving disability?
- How to Claim Disability When you Have a Medical Problem
- How do you Win Benefits under Social Security Disability?
- Social Security Disability Back pay and How Long it Takes to Qualify for it
- To qualify for Social Security disability or SSI, how severe must a condition be?
- Tips to Prepare for Filing for Social Security Disability or SSI
- How to qualify for disability - The Process of Qualifying
- What is the difference between Social Security disability and SSI?
- Filing an Application for Disability Benefits under SSD or SSI
- Social Security Disability Attorney Qualifications and Expenses
- Do I automatically receive Medicare benefits if I'm approved for disability benefits?
- What is the Role of a Social Security Disability Representative?
- Qualifications for SSI and Social Security Disability
- Can you get temporary Social Security disability or SSI benefits?
- How do you apply for disability for your child or your children?
- How does back pay for Social Security disability work?
- The Social Security Disability List of Impairments
- Who qualifies for disability benefits under the SSD or SSI program?
- Social Security Disability SSI - Retroactive Benefits Vs Back Pay Benefits
- Social Security Disability, SSI, Mental Disorders, and Functional Limitations
- How To Get Disability Through SSDI or SSI Approved
Join the Facebook page: Social Security Disability on Facebook