Can I get Social Security disability without losing income?

I was recently asked the following question:

I need my job to survive. I can’t quit. I have some vacation days and sick time, but it is not enough to go without pay until they tell me I qualified.

How do I still work and file for SS Disability without loosing any income?

I have previously discussed working while applying for disability benefits. However, this question presents some new issues.

Here is why:

  • The processing time on an initial claim is about 4-6 months (in Colorado).
  • The test of disability under Social Security is an inability to perform work (at a substantial gainful activity level). So, working at SGA, after considering the exceptions) is a problem. Note: if an individual works below SGA level, it would not be a bar to receiving disability benefits. However, any work is still be an issue.
  • Social Security requires that a disability be expected to last 12 months or longer. This is the “durational requirement.” While Social Security does not require that a person is out of work  (or working below the SGA level) for 12 months, Social Security can deny cases if it feels that while a person is currently disabled, but is unlikely to remain disabled for 12 months.
  • There is also the 5 month waiting period (on SSDI claims), during which SSA withholds the first 5 months of benefits. If the alleged onset date is the last date an individual worked, Social Security would still keep the first 5 months of benefits. So, even if an individual is approved within 30 days of applying, there may still be a waiting period in which no benefits are paid. Note: this only applies in SSDI case (there is no waiting period in SSI cases). However, SSI cases do not pay benefits before the filing date.

If you have read all that and digested the information in the links, you have a pretty good idea of what you are up against. Theoretically, if an individual’s impairments limited him/her to work below the SGA threshold, they could continue to work and apply for benefits.

Conceivably, it is possible to document a declining ability to work and build up the case before the individual stops working to try to minimize the time without income.

However, you also have to be aware of the unintended consequences. Lawyers (and non-lawyer representatives) typically work on a percentage of back benefits. Since you are asking a lawyer to keep your back benefits to an absolute minimum, because you want a smooth transition from work income to disability benefits, a standard fee agreement may not work. If an individual asked my office to do something like this, I would probably require a fee petition based fee agreement along with a sizable deposit toward fees. This is because if successful, there wont be back benefits to take a percentage out of. AND, trying to prove inability to work, while an individual continues to work (!), is particularly difficult.

So, it is difficult, potentially do-able (or at least try-able), but costly.

UPDATE 10/13/11: If you have a condition described in the Compassionate Allowance list, it may be possible to get a very quick decision. So it would be worthwhile to review that list. The most up to date list is available here.

Photo by Thomas Leuthard

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