Can I work part-time and still qualify for New Jersey disability benefits?
Whether working part-time makes qualifying for New Jersey disability benefits more difficult depends on the facts of your case. An applicant for Social Security disability benefits who is working full- or part-time can still be found “disabled” under certain circumstances. The main factors that will impact your case are: the type of work you do, the amount you are earning, and the amounts, if any, of your impairment-related work expenses and subsidies.
Your part-time work must not be a “substantial gainful activity”
If you are working and performing “substantial gainful activity,” no matter how impaired you are, you cannot be found disabled and you will not qualify for New Jersey Social Security disability benefits. This is the first step of the Social Security Administration’s five-step sequential evaluation process to determine whether you are disabled for purposes of its two disability programs — Social Security disability and Supplemental Security Income, which is referred to as SSI. For more information about the sequential evaluation process, see The Sequential Evaluation Process.
What is “substantial gainful activity”?
To be substantial gainful activity, work must be both “substantial” and “gainful.” Substantial work activity involves doing significant physical or mental activities. Under the Social Security regulations, work may not be “substantial” when:
- You are unable “to do ordinary or simple tasks satisfactorily without more supervision or assistance than is usually given other people doing similar work.”
- You are doing work “that involves minimal duties that make little or no demands” on you and that are of “little or no use” to your employer or to the operation of a self-employed business.
The Social Security Administration defines “gainful” activity broadly: “Work activity is gainful if it is the kind of work usually done for pay or profit, whether or not a profit is realized.” Nevertheless, when you are an employee of someone else, whether work is “gainful” is usually determined by looking only at your earnings.
But if you are self-employed, the New Jersey Social Security Administration looks carefully at your work activity and its value to the business, even if you are working at a loss (as so many unimpaired self-employed people do from time to time). The Social Security Administration also does not want to let employed New Jersey disability claimants slip past this step if they are in a position to control the timing or amount of their income (e.g., when claimants are working for relatives).
Work is evaluated “without regard to legality.” Thus, illegal activity may be substantial gainful activity.
Deductions for “impairment–related work expenses”
Whether you are employed by someone else or self-employed, the New Jersey Social Security Administration allows deduction from earnings for what it calls “impairment–related work expenses,” which are payments you make for certain items and services that you need in order to work. These payments are generally for drugs or medical treatment for the disabling impairment but may also include payments for some transportation costs, vehicle modification, attendant care services, residential modification, etc. Such impairment-related work expenses may be deducted from your monthly earnings when determining if the work constitutes substantial gainful activity, even though such items and services are also necessary for normal daily activities.
However, the work expense rules must be reviewed carefully before making a deduction because some expenses you wouldn’t expect are included (such as payment for treatment for the disabling impairment that you have to pay whether you work or not) and some expenses that you might expect to qualify are excluded, such as payment for routine drugs. Routine drugs are not deductible unless they are necessary to control the disabling condition so as to enable you to work. Deduction may be made only if the cost is actually paid by you. Thus, if the cost is paid by insurance, it is not deductible; and neither is the cost of the medical insurance. Insurance co-pays, however, are deductible.
As a rule, impairment–related work expenses are deducted in the month you pay the bill, not when they are incurred. But some big ticket items may be spread over many months.
Deductions for subsidies
Sometimes, even after deducting impairment–related work expenses, you may still be earning more than the substantial gainful activity level, which I refer to herein as the SGA level. But your work situation may be unusual, so I will consider whether there is a marked discrepancy between the amount of your pay and the value of your services. If there is, your work may include what the Social Security rules call a “subsidy.”
There are several circumstances indicating a subsidy. For example, a New Jersey disability claimant could be working for a relative. The claimant may be doing very little work but he or she is being paid more than the claimant’s work is actually worth. This is not substantial work. This work involves a subsidy. One way I might prove a subsidy in such a case is to obtain from the New Jersey disability claimant’s employer an estimate of the true value of the claimant’s work. If the true value of the claimant’s work is less than the SGA level, the claimant will be found not to be performing gainful activity.
Other situations in which your work may not be “substantial” include work done under special conditions, such as:
- Where you are allowed to work irregular hours or take frequent rest breaks;
- Where you are allowed to work at a lower standard of productivity;
- Your work is done in a sheltered workshop where you might receive special assistance from others;
- Where you are provided special equipment or are assigned work especially suited to your impairment;
- Where you are able to work because someone helped you prepare for or get to and from work; or
- Where you are given the opportunity to work because of a family relationship, past association with the employer or the employer’s concern with your welfare.
Usually such insubstantial work done under special conditions is not an impediment to you being found disabled. When I represent a client working under such special conditions, I will typically ask the employer to compare the client’s work with similar work in the regular work force and to establish the “reasonable worth of the work.” When your earnings exceed the reasonable value of the work you perform, the New Jersey Social Security Administration considers only that part of your pay that you actually earn.
Substantial gainful activity income levels
In determining if work is substantial gainful activity, the New Jersey Social Security Administration averages income according to rules that consider the nature of the work, the period of time worked, and whether the SGA level changed during the time the claimant worked.
The SGA level, which was $300 per month during all of the 1980s and $500 per month from 1990 until July 1999, when it was raised to $700, is becoming considerably more generous than it used to be because of cost-of-living increases that have been applied beginning with the year 2001. For example, for the year 2010, average countable earnings of more than $1,000 per month show that work was substantial gainful activity.
You can find the substantial gainful activity amount for the current year at www.ssa.gov/cola/.
For substantial gainful activity purposes, remember that gross earnings, not net earnings, are considered. When calculating gross earnings, sick pay and vacation pay are deducted you’re your gross earnings. Only earnings derived from actual work activity for the month in question are considered. If an individual receives sick or vacation pay for non-work days in a particular month, that pay should not be considered countable income for that month. Rather, the question is what work activity did the individual actually perform in the given month and what earnings did the individual actually receive for that work activity. Only the earnings paid as a result of work activity should be used in determining if the individual has engaged in substantial gainful activity in a particular month. However, note that bonuses count when evaluating whether work done was substantial gainful activity.
The type of part-time work you do matters
Sometimes, even when work is not considered substantial gainful activity, it may still prevent you from receiving New Jersey Social Security disability benefits. For example, if you are under age 50, you must prove your inability to do a wide range of sedentary work in order to be found disabled. If you are working part-time at a heavy job, that part-time work may be so inconsistent with a claim for disability benefits that you will likely be denied New Jersey disability benefits.
The issue you face is: How do you have the capacity to do a heavy job part-time but cannot do a sedentary job full-time? For the Social Security Administration, the fact that your earnings were not substantial will not necessarily show that you are not able to do substantial gainful activity.
To avoid this problem, you should provide me with details about your part-time job. However, in my experience, New Jersey disability claimants who work part-time usually do not perform jobs that are inconsistent with their disability claims. Working part-time at a job that is consistent with your claim may actually help by illustrating what you are capable of doing and showing your work limitations.
What information your New Jersey disability attorney needs and how to calculate earnings
In evaluating your claim for new Jersey Social Security disability benefits, I will need to establish exactly how much you are earning from your part-time job. I will ask you to provide me with copies of your check stubs or, if check stubs are unavailable, I may need to ask your employer for a month-by-month breakdown of your earnings.
During an initial interview with a New Jersey disability claimant, I will inquire about hourly wage and number of hours worked per week. I will then do an initial calculation of your earnings. When calculating your earnings yourself, beware of the mistake that claimants sometimes make when they simply multiply weekly earnings by four to demonstrate that their earnings are less than SGA. There are 4.3 weeks in a month.
If you find an occasional month that exceeds the SGA level, don’t worry. Earnings are supposed to be averaged over the time worked unless there is a reason not to average them (such as where work is reduced because of an impairment, or there are distinct periods of work involved, or the SGA level changes). Because the SGA level has changed annually since 2000, as a rule it is appropriate to average earnings over each calendar year in the current century. The years in the 1990s, before July 1999, however, can be averaged together for a claimant who worked steadily during those years to see if the claimant’s earnings exceeded $500 per month, the applicable substantial gainful activity amount.
Can I work part-time after I have been found disabled?
If you have already been awarded Social Security disability benefits, it is possible to work part-time and not lose your disability benefits. However, the full answer to this question depends on how much you earn and what kind of disability benefits you are receiving – Social Security disability benefits or SSI benefits.
If you are receiving Social Security disability benefits and your earnings are below the substantial gainful activity amount, your benefits will neither stop nor be reduced because of earnings. That is, you’ll continue to get your full Social Security disability benefit while you work part-time. It is also possible to earn more than the substantial gainful activity amount and still receive your full benefits during the nine-month trial work period.
If you are receiving SSI benefits and you go to work, the Social Security Administration will reduce your SSI benefits by one dollar for every two dollars you earn after the first $65 (or $85 if you have no other income). This means that you could earn so much working part-time that your SSI benefits will stop. But unless your benefits have stopped because of your earnings for an entire year, the Social Security Administration will start up your SSI benefits again if your earnings go down. After a year of receiving no benefits, you’ll have to apply all over again.
For more information about working part-time after you have been awarded New Jersey disability benefits, see Questions about working part-time.
Advice from a New Jersey disability attorney for Social Security disability claimants who are working part-time
If you are working part-time despite a disability, and you wonder whether you might still qualify for New Jersey Social Security benefits, consider obtaining an expert evaluation by a New Jersey disability attorney. Provide a brief description of your claim using the form to the right, and I will respond promptly.
Or you may contact me at:
Law Office of Maryjean Ellis, LLC
New Jersey disability attorney
Sparta, New Jersey
Representing Social Security disability claimants throughout Northern New Jersey and the surrounding areas.