Social Security’s regulations encourage people to return to work, despite their disability, without fear that if they fail in their return to work that the period of time that they returned to work will be used against them in a claim for disability benefits. The regulations do this by allowing some attempts ot go back to work to be deemed “unsuccessful work attempts.” The controlling regulation is found at 20 C.F.R. ยง 404.1574(c). If a claimant tries to go back to work and lasts less than six months, SSA may determine that that work was an unsuccessful work attempt. An unsuccessful work attempt will not preclude a disability award for that time period. SSA treats work attempts lasting between three and six months differently. It is easier for a work attempt of less than three months to be deemed an unsuccessful work attempt.
In order for a work attempt to be an unsuccessful work attempt a person’s physical or mental impairment must have first forced them to stop working or to reduce the amount of work below the substantial gainful activity earnings (in 2009, the SGA amount is $980 gross per month). The claimant must have stopped working for at least thirty days or reduced his or her work and earnings below the substantial gainful activity earnings level because of the impairment or because of the removal of special conditions that were essential to the further performance of the work. If the person then returns to work unsuccessfully for less than three months, the work attempt will not be held against them. If the claimant returns to work over three months, but less than six, the claimant must show
- He or she was frequently absent from work because of the impairment;
- His or her work was unsatisfactory because of the impairment;
- He or she worked during a period of temporary remission of the impairment; or
- He or she worked under special conditions that were essential to his or her performance and these conditions were removed.
If a claimant returns to work for over six months at SGA levels, the work will count as that prevents a person from establishing that he or she was disabled and entitled to benefits during that time period.
