It is not unusual for disability applicants to resume some work, often part time, while their application for disability is pending. The most common reason offered for this is that a person simply cannot survive economically without doing something productive during the two and a half to three years that it often takes to have a hearing.
The most obvious reason for not doing this, is that the work you perform is evidence that you can perform work. At your hearing, you may testify that circumstances compelled you to work, even though from a medical standpoint, you should not have been doing it.
Most judges hold it against disability applicants when they work during the application period. There is a rule that if earnings average over $1,170 on a monthly basis, the claim must be denied no matter how disabled a person may be from a medical standpoint. Some applicants think that if they make under $1,170, in average monthly earnings, they will avoid the problem. However, earnings under that amount are still likely to be very damaging to the disability applicant.
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Some disability applicants think that if the work does not have payroll withholding, sometimes known as “under the table” work, it will not produce a problem, because no one will find out about it. Actually, you will be asked about it under oath. Since you are not going to lie about it, it will be known to the judge.
With this said, going back to work while your application is pending is not necessarily the wrong thing to do, particularly if you think that the job may work out, and you may withdraw your disability application. After all, you would rather have a job than a disability check. Furthermore, if the job lasts less than six months, and you lose it because your medical condition makes you unable to perform it, you can argue that it is an unsuccessful work attempt, which only shows your strong work ethic.
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The key question to ask in determining whether you go back to work during a disability application is, “is my intention to keep this job for the long run, and withdraw the disability application if it works out; or is it my intention to survive out the application by doing some part-time work, then go on disability as a substitute for working?”
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If it is the latter, your best strategy is to try to tough it out, and not reenter the workforce. As a lawyer, I rarely discourage my clients from trying to work during the application period, simply because I cannot guarantee that anyone will be awarded. I would hate for someone to forgo a work opportunity, for a job that they actually think they can perform, on the promise that I will win their case.
Remember, you do not have an obligation to your lawyer to be disabled. Do not worry that the lawyer will be disappointed that no fee was earned when the case is withdrawn due to your having gone back to work. I actually consider that to be a happy ending.
Furthermore, if you were out of work continuously for a year before a medical recovery occurred, explore the possibility of closing a period of disability, and simply collect disability for the months that you were out. Judges are very often disposed to award in those scenarios.
Finally, if you are trying to work, you should always tell your lawyer about it. Keep your paycheck stubs, or some record of how much you make. Particularly, if you are working for someone that does not engage payroll withholding, having a record of exactly how much you made is critical. You do not want to go into a hearing and be vague about how much you made, or how much you worked. You will never remove the cloud that places over your case.
Working while claiming to be disabled is one of the toughest judgments to make, or for the lawyer to advise you on. At least talk to your lawyer about it, so that together, an appropriate strategy for dealing with the problem that it presents can be developed.
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