Approved Claimant Returns to Work - Are there any Defenses to a Continuing Disability Review or Termination Action by SSA
Posted Aug 24 2009 10:24pm
How should you prepare for a Continuing Disability Review (CDR) or notice of proposed termination? It depends on how vulnerable you are to losing. I received the following question from one of my readers:
I received a letter from SSA saying that they are reviewing my current SSDI benefit and possible to end my benefits due to substantial work between 2004 and now. I would like to have your advisement how I should handle this and what options I can do to keep my SSDI benefits. I only have Medicare insurance and living with AIDS. Also, I am deaf.
My response: Social Security is saying that you engaged in "substantial activity" from 2004 to the present. "Substantial activity" is a term of art and refers to activity that is work or work like activity. Substantial activity can be work for pay, volunteer work, school or other similar activites.
In a CDR context, Social Security is most likely looking at your earnings record. As you know, when you work your employer files copies of all W-2's and 1099's generated on behalf of employees. If you were working and your employer was withholding taxes as the law requires there is a written record of your earnings.
I have posted a table on this blog setting out what you can earn and still fall below SGA (substantial gainful activity). Social Security will look at your earnings month by month to calculate how many months you exceeded SGA. You could, in theory, could be asked to repay SSA for each month that you received earnings over SGA and also collected SSDI.
Note that a couple of other concepts apply hear. After you are deemed disabled, you are eligible for a trial work period of 9 months in which you can earn over SGA but still receive full benefits. Beyond that, you are placed into an extended period of eligibility (EPE) for disability for an additional 36 months. While in your EPE, you will be paid for months where you were under SGA and not paid for months over. So, your overpayment problem will reflect amounts paid to you during your EPE in months when you were over SGA.
If you take the position that you were not actually performing work at SGA level despite payment at or over SGA amounts, you will need to put on evidence to convince a judge that your benefits should not be terminated. This evidence can include your testimony, testimony from any employer and medical evidence. For example, if a relative gave you a "job" for the purpose of supporting you and getting a tax deduction and building up your Social Security account, and you were not doing anything of value you might have an argument.