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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.
Return to: Social Security Disability Resource Center, or read answers to Questions
How Much Income Can A Person Earn If He Draws Social Security Disability?
Will Work Cause You To Lose Your Disability Benefits?
What medical conditions get you approved for disability?
Social Security Disability qualifications
How to claim disability benefits
Social Security Disability SSI - Eligibility Requirements and Criteria to Qualify
Maximum I can Work and Make if I am on SSD or SSI Disability Benefits
Will Social Security deny my disability claim if I am working?
Disability requirements and how to file in Virginia
Medical conditions for which you can file and apply for disability
Information on the following topics can be found here: Social Security Disability Questions and in these subsections:
Frequently asked questions about getting Denied for Disability Benefits | FAQ on Disability Claim Representation | Info about Social Security Disability Approvals and Being Approved | FAQ on Social Security Disability SSI decisions | The SSD SSI Decision Process and what gets taken into consideration | Disability hearings before Judges | Medical exams for disability claims | Applying for Disability in various states | Selecting and hiring Disability Lawyers | Applying for Disability in North Carolina | Recent articles and answers to questions about SSD and SSI
These pages provide answers to basic questions about pursuing disability benefits
What Mental Problems Qualify for Disability?
Disability for a mental condition
Tips for Filing for disability
Financial Help Filing For Disability
Checklist for filing for disability, SSI or SSD
Qualifying for disability benefits, how to qualify for SSD or SSI
Filing a disability application: the steps
Disability award notice, how long it takes to get benefits
How to Apply for Disability - Where do I go?
What makes you eligible to get disability?
How to check my disability claim status?
Can a disability attorney speed up a disability case?
SSI disability Award Letter
How long to get approved for disability?
How to apply for disability benefits
How long does disability back pay take?
What are qualifications for getting disability?
What medical conditions can you file disability for?
Disability Lawyer help questions
Social Security Attorneys, Disability Representatives