Substantial Gainful Activity

What does substantial gainful activity mean (SGA)?  I get this question all the time, and it is difficult to answer without a lengthy explanation.  According to Social Security’s POMS (Program Operations Manual System) manual, SGA is defined as “the performance of significant physical or mental activities in work for pay or profit or in work of a type generally performed for pay or profit. Work may be substantial even if it is performed on a seasonal or part-time basis, or even if the individual does less, is paid less, or has less responsibility than in previous work.”

A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in SGA.  In 2013, the earnings amount threshold that SSA considers SGA is $1,040 ($1,740 for blind applicants).  This does not mean that if you earn less than the amount set by SSA, you automatically are working less than SGA level.  If you have the ability to work at SGA level, regardless of earnings, your claim may be denied.  For example, illegal activity can be considered to satisfy SGA.  In Dotson v. Shalala, 1 F.3d 571 (7th Cir. 1993), the claimant was supporting a $200-$300 per day heroin habit by stealing.  The Administrative Law Judge (ALJ) found that in order to steal he must “case” the area in which he has determined to steal the property. He must then plan on how he is going to steal the property and then actually steal it. During the month in which the hearing was held the claimant was stealing chainsaws. Lifting and carrying the chainsaws would also be significant physical activity. The planning and execution of the larceny entails significant mental activity. From these activities the claimant earns enough money to support his cocaine habit and provide him with other money in substantial amounts exceeding $200 to $300 a day. [Emphasis in original.]  Shalala, 1 F.3d at 574.  Similarly, volunteer work may be considered SGA if it is the type of work that others may receive earnings from.

On the other hand, high earnings doesn’t necessarily mean that the claimant was engaging in SGA.  For example, if he or she was working under special conditions that, but for the special conditions, the claimant would not have earned the amount they received.

What Is a Medical-Vocational Allowance In Social Security Disability?

A medical vocational allowance is the term used by Social Security (SSA) when your condition does not meet the criteria in SSA’s listings but it is determined that you are still unable to work.

To be approved for Social Security disability benefits, SSA will evaluate your claim using the five step sequential evaluation process.  At steps 1 and 2, SSA addresses whether you are performing substantial gainful activity and if  you have a severe impairment.  At step 3, SSA evaluates your claim to determine if you meet a listing.  To meet a listing, you must meet specific criteria to be found disabled.  The criteria is different  for each listing as it applies  to different conditions and, unfortunately, most claimants do not meet a listing.

If you do not meet a listing, SSA will further evaluate your claim under steps 4 and 5  to determine the impact your disability has on your ability to work.  SSA will examine your illness, conditions and limitations to determine if you can do your past work, and if not, if there are any other jobs that you could still perform based upon your age, education and work history.  This is called your residual functional capacity.  If it is determined that there are no jobs that you could perform based on your residual functional capacity, then your claim will be approved under a medical vocational allowance.

Autism Legislation

Massachusetts Advocates for Children posted an interesting summary of the Massachusetts legislative priorities for Autism Commission related bills.  One is particularly interesting in that it would require the Board of Education to provide a mechanism for Special Education teachers to receive an Autism Endorsement.  The endorsement will address the specific competencies needed for teachers to address the complex and unique needs of students with autism.  If passed, starting in 2016, IEP Teams for students with autism would include a teacher with an Autism Endorsement to ensure that the school can fully address the complex communication, behavioral, sensory, social, and academics needs of youth in the least restrictive environment.

To see a summary of the Bill, click here for the Massachusetts Advocates for Children website.

Redetermination For Children’s Disability at 18

Many parents have asked what happens to their child’s disability benefit when they turn 18.  Do they automatically lose the benefit?  The answer is no.

At age 18, the child must go through a process called a redetermination of benefits to determine whether or not their benefits should continue.  The reason for this process is because the standard to determine disability is different for adults as it is for children.  As a child, the Social Security Administration (SSA) determines limitations based on functioning over six domains of function.  When the child turns 18, SSA must examine the child’s limitations and how it affects their ability or capacity to work.

So how does SSA determine a child’s ability to work at age 18 with little or no work experience.  SSA will assess the child’s ability to work or enter the workforce based on limitations observed in school, part-time work or volunteer position, and discussing the child’s limitations with persons that may have made observations regarding the ability to work.

Documentation will be needed to show these limitations and may include:

  • Medical records
  • School records
  • Teacher statements
  • Counseling records
  • Statements by employers, charities, internships and volunteer opportunities
  • Statements by family

Am I Eligible For Social Security Disability – Part 5

In our final part of our 5 part series, we are discussing the process you must go through to be approved for social security disability benefits.  We’ve already discussed the first four steps, which address working, the severity of your impairment, if your medical condition meets or equals a listed impairment by the Social Security Administration, and whether you can perform your past work.  In this series, we will discuss step 5 of the sequential evaluation process which addresses if you can perform any other type of work.  The 5 step sequential evaluation process is noted below for reference:

  1. Are you currently working?  Does your impairment prevent you from performing substantial gainful activity?
  2. Is your condition severe?
  3. Does your medical condition meet or equal a listed impairment?
  4. Can you perform your past work?
  5. Can you do any other type of work?

Step 5

Step 5 of the sequential evaluation process analyzes whether you are able to adjust to other types of work.  The work must be of the type that exists in significant number in the national economy.  The analysis will factor in your past work, your age, remaining work capacity and education level.  If the SSA finds that you cannot adjust and take on other types of work, the SSA will likely find that you are disabled.  If you were denied at any step, please contact Sharry Law Office for a free case evaluation and discuss your appeal.

Evaluating Functional Equivalence In Childhood Disability

In children’s disability cases, if the child’s impairment is not severe enough to meet a Social Security “listing”, meaning an approval for disability benefits, then an assessment must be done to determine if the impairment functionally equals a listing.  For functional equivalence, the child must have one “extreme” or two “marked” limitations in the six domains of functioning. 

The six domains of functioning are:

  1. Acquiring and using information
  2. Attending and completing tasks
  3. Interacting and relating with others
  4. Moving about and manipulating objects
  5. Caring for oneself, and
  6. Health and physical well-being.

The evaluation of how functioning is affected will be done during all of the child’s activities; meaning activities done at home, at school, and in the community.   First, Social Security will identify which of the child’s activities are limited, and which domains are involved in those activities.  They will then determine whether the child’s impairment(s) could affect those domains and account for the limitations.  Second, Social Security will then rate the severity of the limitations in each affected domain(s).  If SSA finds one extreme limitation, or two marked limitations, the child will be approved for disability benefits.

Disability Benefits For Children With HLHS

I’ve addressed children’s disability benefits in previous posts, but would like address a specific disability, hypoplastic left heart syndrome, in this post.  Hypoplastic Left Heart Syndrome (HLHS) is a congenital heart defect where most of the structures on the left side of the heart are too small and underdeveloped (hypoplastic) to provide enough red blood flow for the body’s needs.  The Social Security Administration has listed HLHS on their list of compassionate allowances. Compassionate allowances are medical conditions so serious that their conditions obviously meet disability standards.  Compassionate Allowances are a way of quickly identifying diseases and other medical conditions that will ultimately qualify for benefits.

To recap, children’s disability benefits will be awarded to those children with:

  1. physical or mental condition(s) , or combination of conditions, that results in marked and severe functional limitations;
  2. The condition(s) must have been disabling, or expected to be disabling, for at least 12 continuous months; and
  3. The child must not be working and earning more than $1,010 per month.

HLHS is a rare congenital congenital heart defect (CHD) that may be diagnosed at birth or on a prenatal ultrasound.  HLHS consists of under-development of the left side of the heart.  Usually, the entire left side of the heart is affected, and can include the left ventricle, mitral valve, the aortic valve and the aorta.  Because of the under-development of the left side of the heart, the right side of the heart must work harder to maintain circulation to sustain both lungs and the rest of the body.  This, in turn, may cause heart failure.

A social security disability claim can take up to 2 years to process before being awarded benefits or ultimately denied, depending on many factors.  Because HLHS is listed on SSA’s list of compassionate allowances, the process may be expedited, and families may receive benefits in a matter of weeks versus a matter of months or possibly years.

Am I Eligible For Social Security Disability – Part 4

In part 4 of our 5 part series, we are discussing the process you must go through to be approved for social security disability benefits.  We’ve already discussed the first three steps, which address working, the severity of your impairment, and if your medical condition meets or equals a listed impairment by the Social Security Administration.  In this series, we will discuss step 4 of the sequential evaluation process which addresses if you can perform your past work.  The 5 step sequential evaluation process is noted below for reference:

  1. Are you currently working?  Does your impairment prevent you from performing substantial gainful activity?
  2. Is your condition severe?
  3. Does your medical condition meet or equal a listed impairment?
  4. Can you perform your past work?
  5. Can you do any other type of work?

Step 4

Step 4 of the sequential evaluation process evaluates your past relevant work.  Generally speaking, past relevant is described as work you performed in the last 15 years.  Only work that was performed at the SGA (substantial gainful activity) should be factored into your past relevant work.  In order to figure out whether you can perform past relevant work, the SSA will examine the physical and mental requirements of your former job in conjunction with your current residual functional capacity. If you are able to perform past relevant work, you will not be considered disabled for purposed of social security disability benefits.  If SSA decides that you can no longer perform your past job, your case will be evaluated at step 5 to determine if you can do any other type of work.  To simplify the analysis, take the least-taxing job you performed in the previous 15 years and argue as to why you can no longer do that job.

In the next series, we will discuss step 5, “Can you do any other type of work?”

Social Security Administration Adds to Compassionate Allowances List

SSA has announced twelve additional Compassionate Allowances, including several for cardiac patients.  The Compassionate Allowances process quickly identifies diseases and other medical conditions that, by definition, meet SSA’s standard for disability benefits.

Impairments on SSA’s list of Compassionate Allowances are those that provide almost a 100% guarantee that the person will be found disabled.  Compassionate Allowances cases retain priority status on appeal and receive expedited processing.

The twelve new Compassionate Allowances conditions are:

  • Aortic Atresia
  • Eisenmenger Syndrome
  • Endomyocardial Fibrosis
  • Heart Transplant Graft Failure
  • Heart Transplant Wait List – 1A/1B
  • Hypoplastic Left Heart Syndrome
  • Left Ventricular Assist Device (LVAD) Recipient
  • Mitral Valve Atresia
  • Primary Cardiac Amyloidosis
  • Pulmonary Atresia
  • Single Ventricle
  • Tricuspid Atresia

Am I Eligible For Social Security Disability – Part 3

In part 3 of our 5 part series, we are discussing the process you must go through to be approved for social security disability benefits.  We’ve already discussed the first two steps, which address working and the severity of your impairment.  In this series, we will discuss step 3 of the sequential evaluation process which addresses whether your medical condition meets or equals a listed impairment by the Social Security Administration.  The 5 step sequential evaluation process is noted below for reference:

  1. Are you currently working?  Does your impairment prevent you from performing substantial gainful activity?
  2. Is your condition severe?
  3. Does your medical condition meet or equal a listed impairment?
  4. Can you perform your past work?
  5. Can you do any other type of work?

Step 3

Quite simply, if your condition meets or equals a listed impairment, you will be awarded benefits.  So if your condition is not on the list, does that mean you will be denied?  Not necessarily.  If  your medical condition does not meet or equal one of the listed impairments, it means you must be evaluated under steps 4 and 5 to be awarded benefits.  Steps 4 and 5 address your prior work history and whether you could potentially transition to other types of work if applicable.

In the next series, we will discuss step 4, “Can you perform past work?”