Returned to work before the award, SSA doesn't know.

Question from Phred:

I was awarded SSD benefits in a hearing last October '07. My backpay after waiting period actually began May '07, so I received a check in January for a period from May thru December, I guess? I began receiving regular SSD checks in February '08 and have received two so far. I haven't cashed either, because I had started working during this time. I didn't think I could financially survive, actually I couldn't and physically I struggled to get through each day. Now, I'm scared to death. I'm going to stop working, but if I do and SSA all of a sudden says I've been working and cuts off my checks I'll lose everything. I'm between the proverbial rock and a hard place. If they turn them off, can I have them turned back on? If I have to repay anything, that's not really a big issue I just need to know that I'll have that SSD check coming in each month. Have I really screwed up?

The ALJ's decision came in December '07 stating my disability began Nov, '06. I can stop working immediately. My salary is $20,050/yr. My disability came as a result of a car wreck in Oct '04, I was off work from Oct 04 for over two years. I applied for SSD in '05. In Nov '06 I ended up taking this job I now have out of starvation making 1/5 what I was then and never thinking I would ever get approved. I was wrong. After getting approved, I was petrified. I''se missed a lot of work due to pain, etc and take monthly steroid shots for pain, inflammation, etc but it? getting worse. Sitting at a desk is making a bad back and hip situation worse. At any rate, I have received two checks thus far that I have not cashed in addition to back pay from May 07 thru Dec 07. I just don't want to lose everything (like my house) by quitting my job only to have SSA stop my benefits because I made some bad decisions.
 

Response from Alan:

(Ed. Note: Phred in this case isn't a PH patient. Alan usually reserves such detailed answers for PH patients, but thought this issue might be of such general interest that it should be included on our site.)

Hi Phred,

I can sympathize with your circumstances. So can SSA, I imagine, tho it is certainly possible you could have been overpaid.

There are four points that SSA will need to resolve:

Was your work of brief duration, ending because of your impairment? (If so, it can be ignored.)

Was your work "substantial gainful activity"(SGA)? (If not, your work will have no effect on your benefits.)

Did you return during your waiting period? (If you worked at SGA during your waiting period, your benefits might have been incorrectly awarded.)

Did you return prior to the decision on your claim? (If so, the decision might have to be reopened to consider your work.)


I'll address each of these and then give you some advice.

Was your work of brief duration? No. "Brief Duration" is usually considered to last less than 3 months, and can never exceed 6 months.

Was your work SGA? Based solely on your gross earnings (yearly salary divided by 12) the answer would be yes. However SSA will subtract some expenses (like medication) you had to spend out of pocket to keep your condition under enough control that you could work. They will also make a judgment about whether or not you fully earned your salary, and only count what you truly earned. For example if co-workers had to actually do 50% of your duties for you, SSA would only count value of the 50% that YOU actually performed.

Did you return to work during the waiting period? Yes. Your waiting period began the same month as you returned to work.

Did you return to work prior to the decision on your claim? Yes.

All four of these things are related. Your work can't be ignored. If SSA finds your earnings are SGA, I believe they will ask the judge to re-open your decision to consider the earnings. The likely outcome is that the judge would revise your "favorable reversal" (award) to an "unfavorable affirmation" (a denial.) You would be required to repay the benefits you have received so far. That said, I try never to speak for an ALJ; the judge has the sole discretion here.

My first advice is contact SSA now to report your return to work. I'd go in person, but if that isn't possible write a letter including the date of your return, your employer's name and address and copies of your paystubs for the time you've worked. (Paystubs are what they need; a W-2 doesn't have enough information.) If the paystubs aren't available, SSA will write to your employer for a monthly breakdown. If you visit in person, they will likely help you fill out a questionnaire about your work to determine if there are things to subtract from your gross wages before the SGA decision is made.

They should give you a receipt for both your report of returning to work and any paystubs you give them. That receipt is very important. Be sure to ask for it if it's not offered, and hang on to it after you get it. If they later lose track of your report, this proves that you told them about the work.

My other advice is not to spend the payments you've received to date or any that you receive until you hear what they've decided. Open a savings account if you want and put the checks in that, but until you hear the decision, don't spend them. I think there is a substantial possibility you will have to repay them, however it may take a while for the decision to be made.

Finally, don't put it off any longer. The worry can't be doing you any good, and SSA is likely very close to noticing the earnings and initiating the contact themselves. It's better if you go to them than for them to come to you.



Best wishes,

Alan




 

May 9, 2008