Does Your Work Count as Substantial Gainful Activity (SGA)
Find Out How Much You Can Work and Earn Under Social Security’s Monthly SGA Test
No matter how severe your disability, the Social Security Administration (SSA) will deny your claim for Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) if you are engaging in substantial gainful activity (SGA).
The SSA follows a sequential process. You must offer sufficient proof at every step (except for steps three and five (where the burden shifts slightly to the SSA). If you fail to do so, the evaluation ends, and the SSA finds you are not disabled.
Satisfying the SGA step of the disability evaluation will be easy for many of you reading this article. You have nothing to worry about if you have not worked since the onset date of disability used in your DIB or SSI application.
However, those who worked after the alleged onset date or continue to work must know how the SSA determines if the work is substantial gainful activity. Otherwise, your disability claim will end without the SSA reviewing the medical evidence.
This article explains the SSA’s rules and regulations on substantial gainful activity. And it discusses what evidence you should consider presenting if you continue to work while your DIB or SSI claim remains pending.
In addition, this article may help those of you who are over age 50 who seek disability benefits. Often, the SSA’s determination depends on whether you can perform past relevant work based on the SSA’s residual functional capacity (RFC) assessment. So if you held a relatively easy job (physically) for a short time, you could use the SSA’s SGA regulations to eliminate this job as past relevant work.
Contact us today if you have questions about applying for disability (or refiling after a prior SSA denial) or want to speak with one of Virginia’s best disability lawyers. We represent injured workers, motor vehicle crash victims, and persons with severe physical and medical impairments throughout the Mid-Atlantic.
How Does Social Security Define Substantial Gainful Activity?
Work must be “substantial” and “gainful” to derail your disability claim at step one. Otherwise, the SSA must proceed to step two in the sequential evaluation process (whether you have severe medically determinable impairments.
Let us look at how the SSA and courts define these terms.
What Does Social Security Consider Substantial Work Activity?
Even part-time work can be substantial work activity.
So can light-duty employment that involves less responsibility, fewer hours, lower pay, and less physically or mentally demanding work than you did before the injury or medical impairment that is the basis for your SSDI or SSI claim.
What Does the SSA Consider Gainful Work Activity?
Federal regulations state that work activity is gainful if:
- You are working for pay or profit
- The work you are doing is the type usually done for pay or profit, regardless of whether you receive compensation for the tasks
- You are doing work to get paid, though you may not realize a profit (or even lose money)
How Does Social Security Evaluate Work to Determine if it is Substantial Gainful Activity?
Social Security’s analysis of work activity may examine these questions:
- Did you use your experience and acquired job skills?
- Were you supervising other works?
- Did you contribute to the business’s operations?
- How well did you perform?
- Did the employer provide additional supervision or assistance compared to other persons doing the same job?
- Were you allowed to take breaks as needed?
- What were the actual physical and mental demands?
- How many hours did you work per shift or week?
The Use of Actual Earnings to Determine if Work Activity Constitutes SGA
The SSA has several guides to decide if a specific activity you have done (or continue to do) is SGA.
However, when you have worked as an employee for someone other than yourself, the SSA will typically look at your earnings to determine if you have done substantial gainful activity. Indeed, the inquiry rarely goes beyond that unless you try to prove that work above the SGA earning level is not SGA.
If you earned above the monthly SGA amount for the period you performed the work, the SSA might deny your application at step one. Or consider that job to be SGA when evaluating your claim during later stages of the evaluation process. The more jobs you have to exclude, the more challenging it is to receive SSDI or SSI payments.
For non-blind persons, the monthly SGA amount for 2022 is $1,350.
For blind persons, the monthly SGA amount for 2022 is $2260.
The SSA adjusts (increases) the SGA amount each year.
The SSA’s Use of Other Information When Your Earnings are Below the Relevant SGA Amount
Typically the SSA will not look beyond your earnings record if it shows that you earned less than the monthly SGA amount for the period in question.
But there are exceptions.
The SSA might find that you are engaging in substantial gainful activity despite earning less than the monthly limit if evidence indicates you can control the timing of payment or the amount of income you make. In these situations, the SSA may consider how much other people earn for performing the same or similar occupations in your community.
Activities that May Require Significant Physical or Mental Abilities But that the SSA Does Not Consider as SGA
Social Security has a broad definition of substantial gainful activity.
However, there are some activities it excludes explicitly from being considered SGA, such as:
- Taking care of yourself (but taking care of family members, especially the elderly or young children, might constitute SGA)
- Household chores
- Hobbies (though you should explain how your medical impairments limit or prevent you from doing your hobbies as you once did)
- Attending physical therapy (or work hardening)
- Attending group counseling (standard for those who suffer from mental health impairments)
- Going to church (though you should present testimony on how long you can sit, whether you need breaks, and if you can follow the sermon)
- School attendance (though you should explain whether your attendance or grades have suffered because of your health)
But remember, just because the SSA will not deny your application at step one because of these activities does not mean it will ignore them completely.
The SSA may still use your ability to do these activities as evidence that you are not disabled. So be sure to testify to explain how your physical or mental conditions impact your capabilities.
Does Social Security Consider Volunteering as SGA?
Sometimes.
The SSA may determine that your volunteer work is a substantial and gainful activity in some situations.
Here are some factors that Social Security might use in analyzing volunteering:
- Do you spend more than ten hours per week volunteering?
- What are the physical demands of the volunteer work? For example, are you driving children or disabled adults around? Are you building a house for someone less fortunate?
- What are the mental demands of volunteering? Are you interacting with others frequently despite alleging anxiety and panic attacks as a cause of disability? Do you have difficulty following instructions in the workplace but can complete many tasks when volunteering?
- Do you volunteer for a business or organization owned or run by a friend or family member?
- Is everyone else paid at the organization?
However, you can volunteer for the programs below without repercussions. Social Security will not consider volunteer work for these organizations as SGA:
- Service Corps of Retired Executives;
- Retired Senior Volunteer Program; or
- Foster Grandparent Program.
Can the SSA Classify Illegal Activity as Substantial Gainful Activity?
Yes.
The Social Security Administration may classify illegal acts such as stealing, panhandling, and prostitution as SGA.
SSR 94-1, which adopted Dotson v. Shalala, 1 F.3d 571 (7th Cir. 1993), explains when an administrative law judge (ALJ) may find that illegal activity constitutes SGA.
In Dotson, the claimant testified that he supported his drug habit ($200 – $300 of narcotics daily) through stealing and panhandling.
Based on this testimony and other evidence in the record, the ALJ found that most of the claimant’s monthly income (approximately $5,000) came from stealing and that stealing involved significant physical and mental activities. Therefore, the ALJ held that the claimant was engaging in SGA and was not eligible for disability benefits.
The claimant appealed the denial of benefits.
However, the Appeals Council, the Federal district court, and the U.S. Court of Appeals for the Seventh Circuit affirmed the SSA’s denial.
The appellate court found that nothing in the Social Security Act or its implementing regulations requires SGA to be lawful. And that its conclusion that illegal activity can be SGA gets support from the tax principle that unlawful earnings are “gross income” and are therefore taxable.
How Do I Prove that Work Activity Above the Monthly SGA Amount is Not SGA?
If your earnings report shows activity above the monthly SGA amount, you should develop evidence to show why the work activity was not substantial or gainful.
You should also prepare this evidence to combat a finding that your low-earning activity constitutes SGA based on other factors.
The goal is to show that the employer subsidized the work activity though you earned above the monthly SGA amount.
For example, an employer, usually a family member or friend, pays you more than the actual value of your labor because you are disabled. If you succeed in showing this, Social Security will consider the extra amount a subsidy and not count it against you when determining if you are performing SGA.
Here are some tips for proving that you are not engaged in a substantial gainful activity and that the employer subsidized the job.
- Present testimony (from yourself, co-workers, or past employers) about:
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- Any special assistance you needed and received when performing the work.
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- Whether you were permitted to make your schedule or take frequent rest breaks
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- How other persons drove you to or from work due to your medical impairments
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- Whether you received special equipment to perform the job
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- How often did you leave work early or arrive late because of your health?
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- The number of complete days of work you missed each month because of your medical impairments
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- Whether you got the job because of family, friends, or some other special relationship
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- The specific job task you had difficulty completing
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- Your reason for quitting
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- Any discipline you received for mistakes or problems related to your medically determinable impairments
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- Whether the employer transferred you to a different position because you were having trouble doing your past job
- Submit documents showing:
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- Any short-term disability, long-term disability, or workers compensation benefits (including a cash workers comp settlement)
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- Your attendance
- Offer proof that you spent money on specific items and services to enable you to work with your impairments. The SSA will subtract the reasonable costs of these services and items as work expenses. Examples of such things include:
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- Payments for attendant care services that help you travel to or from work, read, communicate, or complete personal functions such as eating, dressing, taking prescription medication, or toileting.
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- Payments to family members if such a person suffers an economic loss because they are helping you with activities.
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- Payments for medical devices you must use to work. For example, you can deduct the cost of durable medical equipment such as wheelchairs, canes, crutches, pacemakers, inhalers, and hemodialysis equipment from your earnings.
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- Payments for prosthetic devices that replace a body part such as the arm, leg, hand, or foot due to amputation
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- The cost of residential modifications if you make these changes to work from home. Examples include widening doorways, adding a ramp, or purchasing a chair lift for the stairs.
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- Payments for drugs to control your services. Examples include antidepressants for psychiatric disorders, immunosuppressive medications to prevent graft rejection after a burn injury, other medications to control the side effects of specific treatments, and surgery for a spinal condition (for example, a spinal fusion for lumbar stenosis)
Mileage (but not the cost of a vehicle) if your medical impairment requires you to purchase a particular automobile or modify your current one to operate it and get to work. You may also deduct mileage if you cannot take available public transportation due to your health.
Was the Job an Unsuccessful Work Attempt?
Another way to overcome earnings above the monthly SGA level is to prove the work activity was an unsuccessful work attempt.
Social Security will consider any job you performed for six months or less as an unsuccessful work attempt if:
- Your medical impairment forced you to stop working or cut your hours so that your earnings fell below the SGA amount AND
- There was a significant break in your work history before the attempt you want the SSA to classify as unsuccessful.
Get Help with Your Social Security Claim Now!
Proving that you are not engaged in substantial gainful activity is just the first step of the Social Security disability process.
You must also satisfy specific medical requirements and prove there is no other work you can do with your physical and mental condition limitations.
Not only work you have done in the past 15 years. But also other hypothetical jobs that exist in significant numbers in the national economy.
Click here to find out if you have a good chance of getting approved for disability.
Then contact us today for a free consultation. We want to help you navigate the Social Security process and get the cash and medical benefits (Medicare, Medicaid) you need to improve your quality of life.
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