Can I File for Disability if I am Working 20 Hours Per Week?
Posted Oct 07 2008 7:18pm
A common question that I see has to do with part time work. As I have written previously, I am not a big fan of part time work, as you will see from my answer to this question that I recieved by email:
I have had fibromyalgia for many years, an autoimmune disease requiring weekly chemo injections, herniated discs in my back. I have been on FMLA for 2 years - ran out of time 4 months early this time - will be losing my insurance at work at the end of this month as I cannot afford the expense of Cobra ($650.00) per month. I am only able to work around 20 hrs a week which is a struggle. I cannot quit working completely as I will have no income to support myself at all. All of this info to answer this question - do I have to be out of work to file for disability? - J
Jonathan Ginsberg responds: J, thank you for your question. Here is the issue in a nutshell. At the outset, if you call Social Security to apply (800-772-1213), the first question you will be asked by the operator is whether you are working. If you respond "yes," there is a chance that the operator will not even take your claim, especially if you are earning more than minimum wage.
Assuming that the Social Security operator does take your claim, here is what you will face:
First, you may have a problem with your date last insured for Title II Disability. As you may know, you have to be "insured" for Disability. Except in the case of claimants in their 20's Social Security looks at your earnings record during the 10 year period prior to your becoming disabled. You need work credits that amount to five out of the last ten years. Logically, if you are working full time, your "insured" status follows you for approximately 5 years after you stop working. When you work part time, however, you may very well lose ground and in a worst case situation, your date last insured may have already run, meaning that you would not be eligible at all for Title II. Unlikely, but a possibility. You definitely need to find out your "date last insured" for Title II.
Second, I think that part time work muddies the waters. The legal definition of disability for Social Security purposes is whether you are unable to engage in substantial activity (i.e. work) because of a medically determinable condition or conditions that has lasted 12 consecutive months, is likely to last 12 consecutive months or result in death. When you are working part time, you create a lot of questions for Social Security. Is your work "substantial" (this is a legal determination)? when is your onset date? could you perform a less demanding task 40 hours a week?
The disability adjudicators who work for the State Agencies (the initial application and reconsideration appeal decision-makers) do not have the training or authority to find your disabled when there are so many legal determiantions that have to be made. This means that your case will end up before a judge at a hearing at some point in the future (18 months to 3 years down the road). Judges see folks all day, every day who are not working at all. While they admire the work ethic of someone who is working part time, the issue usually comes down to whether that claimant could perform a lighter, less demanding job full time. I can't cite any statistics, but I'd be surprised if the approval rate for claimants working part time is more than 20%, as opposed to around 50% for claimants as a whole at hearings.
So, in my view, part time work makes it less likely that you would be approved. Every case is different, of course, and you should speak with an attorney who practices where you live for legal advice.