Question about when Social Security Disability Benefits began (date of onset)
"I visit your site often and learn so many titbits. When I see an invite to ask a question, I am not shy of asking for help.
30 year practicing Tax CPA in a closed Corporation, he is shareholder/employee. Most years he receives a reasonable salary 0f 21-33K. (2001-2010).
November of 2010 is diagnosed with ALS, files a claim in January of 2011 and is denied on the grounds he is self-employed.
The years of 2011 and 2012 he is paid 3200.00. He would like to not deal with the argument with SS about SGA, and put his start date as 4/12. I believe he has a start date of 11/10 because...
He hired an assistant, took a reduction in salary, works less hours and at odd hours, has lost clients, has his business up for sale, allows himself special consideration to complete his work. Uses computers and assistant to compete work. Only does tax work, has not renewed his professional license, and is having difficulties staying alive.
Will SS average the hours he works over the period of the year. He normally would only work until 4/15. So his wages are for only 4 months of work, in both 2011 and 2012.
On his application do I ask for a compassionate allowance or will they know this?
Do I remain quiet about his corporation and that he can control his wage?
Do I file the claim and then file another claim to have the original onset date of 11/10 be re-opened, as SS made an they error calling him self-employed.
I would appreciate any help..."
I would tend to go with the April of 2012 disability onset date as it appears from your case information that the decision made in January of 2011 was correct according to Social Security Disability guidelines. Social Security does not differentiate between terminal conditions and non-terminal conditions when making an SGA determination. If a disability applicant is performing SGA it does not matter what their disabling condition is. Terminal or not, it will be denied.
Social Security uses three tests to evaluate work activity when you apply for Social Security Disability.
1. If your subject is performing significant services to the business and earning a monthly average income of $1040.00 in 2013 ($1000.00 in 2011). The disability claim will be denied for disability benefits.
2. If your subject's work is comparable to other tax preparers or accountants without a disability who are doing the same kind of work, their disability claim will be denied even if they are not actually taking a salary above the SGA limit,
3. Your subject's work is worth more than the Social Security Disability SGA earnings limit in terms of how it affects the business if you compare it to what they would have to pay an employee to do the work they are doing.
The subject of this case may very well be performing the usual duties of accountants who specialize in tax preparation. Even if he has hired an assistant and used a computer to do his work, he is still most likely performing the normal duties of a tax preparer.
You stated he works for 4 months per year and is usually done by 04/15/2012, and I am sure that is not too different from others who work in the tax preparation business. For these reasons, I think you would have a hard time making an argument that he was not performing SGA for the time prior to that date.
It is hard to make an argument that he has special considerations since he is the employer and employee. Calling your case subject self-employed would not be grounds for a reopening of the 01/11 denial because, while not technically self-employed, your case subject works for his own corporation. Self-employed, employed, and corporate officers can all receive an SGA denial which is what your case subject received.
Of course, you and your case subject can decide what you wish to do as far as disability onset, as I am just offering an opinion. To answer your question about asking for this to be a compassionate allowance, you will not need to specifically request this. The Social Security system can identify ALS as a compassionate allowance.
About the Author: Tim Moore is a former Social Security Disability Examiner in North Carolina, has been interviewed by the NY Times and the LA Times on the disability system, and is an Accredited Disability Representative (ADR) in North Carolina. For assistance on a disability application or Appeal in NC, click here.
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