WHAT IS AN UNSUCCESSFUL WORK ATTEMPT?
An unsuccessful work attempt is when you try to work while you are waiting for benefits. But, you aren’t able to work due to your disability. Many people call us, while they are waiting for the SSA to make a decision, and ask if they can make a “work attempt.” Next, they ask if working will make them ineligible for disability benefits.
The best answer to that question is if you can’t work because of a disability, then don’t try to work. Obviously, not working means you have no money to pay the bills. Most people quickly run out of savings. Then, they want to attempt a part-time job or even work one day a week. However, whenever you work, the SSA is going to see that “work attempt” as evidence that perhaps, despite your disability, you could work.
Despite their disabling impairments, some people do try to work. If the work attempt is less than six months and ends due to your disability, then the SSA may find that your attempt at work is an “unsuccessful work attempt” or, for short, a “UWA.”
AN UNSUCCESSFUL WORK ATTEMPT MUST MEET CERTAIN CRITERIA
Social Security disability law requires that your disabling impairments cause an inability to work at substantial gainful activity (SGA) for at least 12 months or more. However, SSA regulations permit an individual to work for six months or less, in spite of the impairment, even within the initial 12-month period of disability.
On November 16, 2016, the SSA issued 20 CFR 404.1574(c). That regulation states that a claimant can be found disabled for the required minimum of 12 months in a case in which the worker is off work for 30 days or more, then attempts to return to work for up to six months or less, at which point the same health impairment forces the claimant to stop work again for an indefinite period. That is a long sentence. But, this post explains what the regulation means.
If you are performing substantial gainful work activity or you work for a period of time during which you are claiming disability, then it is important to determine whether your work is an unsuccessful work attempt (UWA) under the provisions of SSA’s law.
HOW DOES SSA DEFINE THE “UWA” OR UNSUCCESSFUL WORK ATTEMPT?
The UWA concept is designed to provide an equitable means, in making SGA determinations, to disregard relatively brief work attempts that do not demonstrate the ability of the claimant to sustain SGA.
SSA’s regulations state: “We generally consider work that you are forced to stop or to reduce below the substantial gainful activity level after a short time because of your impairment to be an unsuccessful work attempt. Your earnings from an unsuccessful work attempt will not show that you are able to do substantial gainful activity.”
For self-employed individuals, SSA regulations 20 CFR §§404.1575(a)(2) and 416.975(a) state: “We will generally consider work that you were forced to stop or reduce to below substantial gainful activity after 6 months or less because of your impairment as an unsuccessful work attempt.”
If you lose a job, you may be eligible for unemployment benefits. This is a very different type of benefit than an unsuccessful work attempt.
SOCIAL SECURITY RULING 84-25
The SSA issues Social Security Rulings (SSR) to help us understand how they apply their rules. SSR 84-25 explains the UWA concept. It states that the UWA concept is applicable to both an initial disability case and when an individual’s disability continues or ceases.
Both SSR 84-25 and the regulations state that there must be a significant break in the continuity of your work activity before it will be found that you began a work attempt that later proved unsuccessful.
For SGA determination purposes, substantial work may be disregarded if it is reduced to the non-SGA level after a short time because of your impairments. Likewise, your work may not count if special conditions related to the impairment were essential to further performance of the work.
WHAT IS A BREAK IN WORK ACTIVITY?
In order for there to be a significant break in work activity certain events must occur. For example, a break occurs when, because of your impairment or the removal of special conditions related to the impairment that are essential in further performance of the work, the work was discontinued.
Likewise, a break occurs if your earnings go below the non-SGA level. An interruption can also occur when, before the onset of the impairment, you discontinue work for other reasons. Those reasons include retirement or never having engaged in work activity.
Work will be considered “discontinued” if you were:
(1) out of work for at least 30 consecutive days or
(2) you were forced to change to another type of work or another employer. (On rare occasions a break lasting a few days less than 30 days may satisfy this requirement if the subsequent work episode was brief and clearly not successful because of disabling impairments.)
(3) The third criteria for an unsuccessful work attempt is that your work effort must be six months or less. Additionally, the work effort must have ended or have been reduced to the non-SGA level within six months. Furthermore, the reduction must be due to the impairment or to the removal of special conditions related to the impairment that are essential to the performance of work.
SPECIAL CONDITIONS FOR AN UNSUCCESSFUL WORK ATTEMPT
The SSA considers special conditions when looking at a UWA. For example, you may work under conditions that accommodate your impairments or you may work due to an unusual job opportunity, such as in a sheltered workshop. These are special conditions.
Special or unusual conditions, for example, may be that you require special assistance from other employees to perform your job. Likewise, your supervisor may allow you to work irregular hours or take frequent rest period. Some employers give the worker special equipment to help them work despite their disability.
Also, some people are only able to work due to specially arranged circumstances, such as when they need help getting ready for work. Or, they need help traveling to and from work.
OTHER SPECIAL CONDITIONS FOR UWA
Additionally, special conditions exist when a worker performs at lower productivity than other workers and the employer allows it. Another example that we often see is, despite the individual’s medical condition, a family member employs the worker.
Likewise, your employer may keep you on the payroll due to your years of loyal work for the company. Also, your employer may let you keep your job for other altruistic reasons.
It is important to note that a work effort of over 6 months cannot be an UWA regardless of why it ended, even if the earnings go below the non-SGA level.
WHAT IS A CLOSED PERIOD OF DISABILITY BENEFITS AND CAN YOU HAVE AN UNSUCCESSFUL WORK ATTEMPT DURING ONE?
A closed period of benefits means you win benefits, but your period of disability has a beginning and an end. However, a closed period cannot exist unless you have been off work for 12 months or more.
In order to explain this, let’s look at an example, such as a car accident. If you are in a terrible car accident, your injuries may prevent you from working. However, over a period of two years, your injuries may heal.
Therefore, two years from the date of your accident, you return to work. If you injuries were severe enough and you can prove you couldn’t work during those two years, then you would be eligible for disability benefits. In essence, if you request a period of benefits with a beginning and an end, it is like requesting past due disability benefits. You will not get ongoing benefits into the future. However, benefits do pay out two months past the end date of the closed period.
If you return to work after you heal, you become ineligible for ongoing benefits, as you are working. Working makes you ineligible for a monthly disability benefits. However, you can still receive benefits for the time that you were unable to work due to your disability. A closed period of benefits can even occur if you tried, unsuccessfully to work, in the middle of those two years.
For example, if you tried to return to work for one month and you couldn’t keep going for 40 hours week due to your disability, then your work attempt is an unsuccessful work attempt. SSD benefits are still payable in the months of an unsuccessful work attempt.
CANNON DISABILITY LAW CAN HELP YOU TODAY
We know that having a disability that keeps you from working is a huge change. Also, it is not an easy transition. You need money every month. That is where we come in. Cannon Disability’s lawyers can help you win disability benefits.
We can help you even if you have had an unsuccessful work attempt since you applied for benefits. If you are looking for an advocate to help you, then you are in the right place. You can trust us.
If you want to know more about Cannon Disability’s representatives, then go to our About Us page. There you can read about our legal experience. For example, Andria Summers can help you understand the disability rules. Dianna Cannon has been representing disability claimants for thirty years. Likewise, she has also won thousands of disability cases. Brett Bunkall also has significant experience helping people obtain their SSI and SSD benefits.
In the past 30 years, we have won over 20,000 disability cases for our clients. Also, we help our clients argue for an unsuccessful work attempt so they don’t lose benefits. Our application specialists can help you apply for SSI and SSD benefits using the SSA’s website.
WE WORK ON A CONTINGENCY FEE BASIS
If you need disability benefits, then you should hire us to help you with your case. In order to hire Cannon Disability, all you need to do is call or contact us. We offer a free consultation over the phone. And, it doesn’t cost anything to call us.
Better yet, it also doesn’t cost you any upfront money to hire us. Why? Because you only pay us an attorney fee when we win your case. This is a contingency fee. It means if we win your case, you pay the attorney fee out of your back benefits. If you do not win your case, then there is no attorney fee to pay. The attorney fee is set by the SSA at 25% of the claimant’s back benefit.
If there are costs in your case, then you pay those. Your costs are things like paying for medical records, mailing, or filing fees. Typically, however, you will mostly pay for the cost of a copy of your medical records. Sometimes, you might pay your doctor to write you a letter of support.
Try not to worry about costs. In most cases, the client’s costs are less than $100. Once we win your SSI and SSD case, the attorney fee comes from your back benefit. However, to hire most lawyers, you have to pay upfront fees. We don’t require that.
WHAT IS A FREE CONSULTATION?
Cannon Disability offers a free consultation. But, what does this mean?
For most people who want to become clients, it means we will talk to you about your case over the phone. We will not charge you to examine the merits of your case. Most lawyers do charge an attorney fee to review your case. We do not.
Please understand, however, that providing a free consultation is not the same thing as accepting representation. We examine your case based upon the facts you give us. Sometimes, we will request that you send us medical records or a copy of your SSA paperwork. We do this so we can understand the details of your case. Even if we ask for more information, it does not mean we accept representation.
You will know if you hire our legal team because we will send you our contract and other SSA paperwork. This paperwork must be returned to us immediately. If you do not sign and send the paperwork back, then we are not representing you. We will send you a pre-paid envelope to send the paperwork back to us. Or, we will accept signed paperwork electronically.
WHY YOU SHOULD RETURN YOUR PAPERWORK AS SOON AS POSSIBLE
If you don’t return your contract and other signed paperwork to us, then we are not yet your attorney. Therefore, if the SSA sends a denial or other paperwork, we won’t get a copy. We won’t get it because the SSA does not yet know we are representing you. Also, we can’t get your medical records until you send your paperwork to us. So, send it all back as soon as possible.
If you have questions, then we want to help you. Call us. We will answer your questions. But, we can’t do anything on behalf of your disability case until we have your official signed paperwork. You can review our client paperwork on our Fee Agreement and Important Forms page. Once you return your paperwork, we will send it into the SSA. Then, the SSA knows we are your legal team. After that, the SSA should call us about your case, instead of you.
Finally, we want you to have the disability benefits you need to take care of yourself and your family. Take advantage of our free consultation. Call now. See what we can do for you. Let our legal team answer your questions about when you are eligible for disability benefits. We will also answer questions for you if you have an unsuccessful work attempt.