A question from a Disability Lawyer

"Hi Tim, I'm a lawyer based in 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 2015. His onset date is July 2012. 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 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.

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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