ALJ Finds Unsuccessful Work Attempts

Empire Justice Center July 31, 2018

What do you do if you discover your SSDI client earned income over the Substantial Gainful Activity (SGA) amount since her alleged onset date?  If you are Mike Telfer of the Legal Aid Society of Northern New York (LASNNY) in Albany, you argue in a prehearing brief that each of your client’s prior positions were unsuccessful work attempts and not SGA.  Mike highlighted the significant breaks in time the claimant had before starting new jobs as well as the length of the jobs.  He also referenced statements from the claimant’s providers, as well as medical and employment records that demonstrated she was fired from positions due to excessive absenteeism.  Because the client left her positions due to her impairments and because her positions lasted under six months, Mike argued these positions should be classified as unsuccessful work attempts.  See POMS DI 11010.045. See also this related article.


As if that was not complicated enough, at the time of the hearing the client was employed and had been earning income over SGA for over six months.  As the client had been employed for more than six months, the position could not constitute an unsuccessful work attempt.  Mike argued, however, that the position was the beginning of a trial work period.  Mike pointed out the regulations state a trial work period begins when a claimant is entitled to SSD benefits.  See 20 C.F.R. § 404.1574(c).  He also cited case law from the 10th Circuit and district court cases in the 2nd Circuit holding a claimant need not be receiving disability benefits to be entitled to a trial work period, but need to have only filed an application for SSD benefits.


Furthermore, Mike argued if his client were found disabled, her onset date would be over two years before her application date.  She was thus not precluded from claiming a trial work period, as she returned to SGA more than one year after her onset.  See POMS 13010.105, explaining the ramifications of the Supreme Court’s decision in Walton v. Barnhart, 535 U.S. 212 (2002).


Mike also pointed out that his client’s claim did not fall within any exceptions in regulations to a trial work period.  As part of his argument, he noted the record did not reveal the client had medically improved to the point she was able to sustain employment without her conditions affecting her employment.  He referenced employment and medical records that demonstrated she had difficulty performing this job and jobs in general since her onset date.  Finally, he pointed out that as his client had not yet worked at her job for nine months, her job was still within the trial work period. At the hearing, the client testified about her jobs, including her past and current job performance, absences, and why she ended jobs.


In his decision, the ALJ found the client was disabled.  He found her positions subsequent to her onset date were unsuccessful work attempts and that her current employment was part of her trial work period.  He noted her current employment should be evaluated for trial work period service months.  He also advised her to inform SSA of any changes in her work activity and earnings to avoid an overpayment.


Many advocates would have been discouraged by this claimant’s work record and might not have pursued the claim.  Congratulations to Mike for thinking outside the box and creatively navigating these complicated work rules to his client’s advantage.  And thanks to Brooklyn Law student Chris Ehring for this summary of Mike’s case.