With rising costs of living, many people who struggle to maintain regular employment due to their health conditions wonder if they can perform any work. This is especially true while they are waiting for Social Security Disability benefits to be approved. To answer this question, it is helpful to have an understanding of what the Social Security Disability program is.
Social Security Disability Insurance is a federally administered program available to United States citizens who have worked and paid taxes on their earnings for at least five of the last 10 years. The program is similar to an insurance plan where the taxpayer pays “premiums” for eligibility through their payroll taxes. Employers and employees each pay 6.2 percent of wages up to the taxable maximum of $147,000 in 2022. Self-employed individuals pay 12.4 percent of earnings. These payroll taxes finance both the Disability Insurance and Retirement portions of the Social Security program.
Social Security is available for those who have a medical condition which prevents them from working over a “substantial gainful activity” level for at least one year, or that will result in death. It is not intended to provide assistance for shorter periods of time when a person is out of work. Additionally, it is not an unemployment insurance program. In fact, applying for unemployment benefits while also applying for Social Security Disability benefits can harm your case – when applying for unemployment, you are certifying that you are able to and available for work. The monthly income limit for your work earnings to constitute “substantial gainful activity” changes on an annual basis. In 2022, the limit is $1,350. In 2023, the monthly limit will increase to $1,470. It is important to note that these figures are gross, pre-tax income, and not take home pay.
However, there are some special circumstances where you may be eligible for Social Security Disability benefits even if your earnings exceed the monthly substantial gainful activity limit.
Depending on your specific employment situation, if you are receiving substantial accommodations, your work earnings may be considered “subsidized” and not count as substantial gainful activity. Social Security follows regulation SSR 83-33 when evaluating whether your work activity falls under this exception.
Social Security describes a “subsidy” as when an employer pays more in wages to an employee to the reasonable value of the actual services performed because of a benevolent attitude toward the disabled individual. To evaluate the amount of one’s earnings that are a subsidy, Social Security looks at the amount of time, energy, skills, and responsibility which were involved in the employee’s services. SSA will then compare this will the time, energy, skills, and responsibility required by unimpaired individuals in the community to perform the same work. Social Security will look at any gross indications of a lack of productivity, such as when unusual supervision or assistance is required to perform simple tasks.
Social Security advises that the following circumstances indicate the strong possibility of a subsidy: “sheltered” employment, mental impairment is involved, a marked discrepancy between the amount of pay and value of the services, the employee does not fully earn his or her pay (such as through receiving unusual help from others in doing the work), the nature or severity of the impairment indicates that the employee receives unusual help from others in doing the work, or the employee is involved in a government-sponsored job training and employment program.
When determining whether your specific employment situation fits, there are some helpful factors to consider. One is to consider why you were hired for the position. If your employer is a family member who is employing you to try to help provide you with more income or because they believe that performing some work may help you with your condition, this may help support your employment being considered a subsidy. Another factor is whether you are eligible for termination and what your employer’s reason for continuing to employ you is if your performance is not satisfactory.
Social Security broadly evaluates these factors in two categories: the need for services, and the relationship of pay to services. Regarding the need for services, Social Security looks at the disabled person’s job duties and how much time is spent on these duties. This will be compared to who may have performed the job before the person was hired, and how much time the prior employee spent on the duties of the job. If the person leaves the job, Social Security would determine whether or not that person would be replaced, and if so, how much time the replacement would spend on the disabled person’s job duties. Regarding the relationship of pay to services, Social Security will consider how the disabled person’s pay was calculated, and if it is reduced proportionately when absent from work. This will be compared with the employer’s normal procedure regarding pay and absenteeism for the remaining employees. Social Security will examine whether the disabled person receives any unusual assistance or supervision when performing his or her job duties. Further, Social Security will evaluate the overall relationship between the employer and disabled person, such as whether they were friends or family members, or if they were employed for several years in the past prior to becoming disabled.
If your employment falls into this area and you are applying for Social Security Disability benefits, it is critical that you receive documentation from your employer which outlines the conditions for your employment. The employer should state in the documentation any accommodations that you receive due to your medical conditions, such as additional breaks, the ability to arrive late or be absent as needed without limitation, or additional help which you receive from your coworkers or supervisors with completing these tasks.
An experienced attorney can guide you through this process.
If you are working in a heavily accommodated environment due to your medical conditions but are applying for Social Security Disability benefits, it is critical to work with an experienced law firm who can help give you the guidance you need to navigate your situation. Give LaBovick Law Group a call at (561) 625-8400. One of our experienced Social Security Disability attorneys can provide you with a free case evaluation.