Social Security Disability and the Unsuccessful Work Attempt

I previously wrote about the various exceptions which may allow you to keep your Social Security disability benefits even if you return to work. The most common of these is an Unsuccessful Work Attempt (UWA).

If you work for 6 months or less at a substantial gainful activity (SGA) level, your work may qualify as an Unsuccessful Work Attempt and not affect your application for benefits (or your current Social Security disability benefits if you have already won your case).

Another benefit of the Unsuccessful Work Attempt exception is that it applies for both Social Security Disability Insurance (20 CFR 404.1574) and Supplemental Security Income (SSI) (20 CFR 416.974) cases. This is a major difference between Unsuccessful Work Attempts and Trial Work Periods.

A common misconception about Unsuccessful Work Attempts:

Before we get into what you need to prove to qualify for an Unsuccessful Work Attempt, let’s talk about the biggest mistake people make about Unsuccessful Work Attempts.

Work lasting longer than 6 months cannot be an Unsuccessful Work Attempt. FALSE!

If the earnings drop to below the SGA level before the end of the 6 month period, the work can still be an Unsuccessful Work Attempt even if it lasts for more than 6 months.

The regulations dealing with Unsuccessful Work Attempts clearly state this (20 CFR 404.1574 & 20 CFR 416.974).

Ordinarily, work you have done will not show that you are able to do substantial gainful activity if, after working for a period of 6 months or less, your impairment forced you to stop working or to reduce the amount of work you do so that your earnings from such work fall below the substantial gainful activity earnings level.

How to qualify for an Unsuccessful Work Attempt

Here is how to prove your work was an Unsuccessful Work Attempt and should not count against you even though it would otherwise count as a substantial gainful activity.

1. A “significant break” between prior work and the Unsuccessful Work Attempt.

According to SSR 05-02, a “significant break” means the following:

  1. You were out of work for at least 30 consecutive days. Or
  2. You were forced to change to another type of work or another employer.
  3. However, on rare occasions a break lasting a few days less than 30 may satisfy this requirement if your subsequent work episode was brief and clearly not successful because of your impairment.

It is even possible to have a significant break without leaving your last job. Again, referring to SSR 05-02:

Such an interruption would occur when, because of your impairment or the removal of special conditions related to your impairment that are essential to your further performance of the work, the work was discontinued or reduced (or limited) to the non-SGA level.

How about that! You could even meet the “significant break” requirement if your earning drops below SGA levels due to a removal of special conditions.  Don’t worry, I will provide examples of “special conditions” in just a bit.

The next requirement changes depending on whether you worked for less than 3 months, or if you worked less than 6 months.

2. If you worked 3 months or less.

We will consider work of 3 months or less to be an unsuccessful work attempt if you stopped working, or you reduced your work and earnings below the substantial gainful activity earnings level, because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work.

This is the easiest way to have work qualify as an Unsuccessful Work Attempt.

If you work for 3 months or less at an SGA level, and had to stop either because of your disability or because the boss took away a special accommodation, it may qualify as an Unsuccessful Work Attempt, and not count against you.

3. If you worked between 3 and 6 months. 

We will consider work that lasted longer than 3 months to be an unsuccessful work attempt if it ended, or was reduced below substantial gainful activity earnings level, within 6 months because of your impairment or because of the removal of special conditions which took into account your impairment and permitted you to work and

(i) You were frequently absent from work because of your impairment;

(ii) Your work was unsatisfactory because of your impairment;

(iii) You worked during a period of temporary remission of your impairment; or

(iv) You worked under special conditions that were essential to your performance and these conditions were removed.

If you worked longer than 3 months, but less than 6 months, Social Security has a few more requirements to prove that the work was an Unsuccessful Work Attempt.

You still have to show that you had to stop either because of your disability. Additionally, you also have to show that you either missed a lot of work, did not do a good job, were working while your condition was better, or you had special accommodations which let you do the job, until the accommodations were taken away.

4. If you worked more than 6 months. 

We will not consider work you performed at the substantial gainful activity earnings level for more than 6 months to be an unsuccessful work attempt regardless of why it ended or was reduced below the substantial gainful activity earnings level.

In short, if you work more than 6 months at a SGA level, it cannot be an Unsuccessful Work Attempt.

You can have more than one UWA:

Did you know that you can have more than one Unsuccessful Work Attempt?

As long as you meet the requirements of a “significant break” between Unsuccessful Work Attempts, many jobs can qualify as UWA.  This often comes up in bi-polar disorder cases where an individual has a tried to work in a lot of jobs, but has not lasted very long at any of them (often due to problems working with supervisors, co-workers, or the public).

If you can eliminate each job as an Unsuccessful Work Attempt, you may be able to push the onset date further back and potentially increase your back benefits.

When CAN’T you use an Unsuccessful Work Attempt:

This will not apply for most people, but it is good to keep in mind:

When the UWA is Applicable: The UWA policy explained in this SSR is to be used in initial disability cases. It is also to be used in continuing disability cases in determining whether, because of work activity, your disability continues or ceases. However, the UWA criteria do not apply in determining whether payments should be made to you for a particular month during the reentitlement period after disability has been ceased because you did SGA, or during the initial reinstatement period after you have been reinstated through the expedited reinstatement provision. SSR 05-02

Basically, you can use an Unsuccessful Work Attempt to excuse work which is a substantial gainful activity when you are trying to get benefits or during a Social Security review if you have already won your case. However, you cannot use a Unsuccessful Work Attempt during a the Extended Period of Eligibility following a Trial Work Period.

Work under special conditions:

SSR 05-02 provides guidance about what constitutes “work under special condition.”

Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or
b. Were allowed to work irregular hours or take frequent rest periods; or
c. Were provided special equipment or were assigned work especially suited to your impairment; or
d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

Remember that these are examples only and other accommodations may also qualify as work performed under special conditions.