It’s probably happened to you before—while screening a case, you notice there is work activity after the alleged onset date. The potential client tells you they had to go back to work to pay bills, which is reasonable. But the question remains: Is this a case worth taking on, and if so, how should you proceed? Before making the decision, it is important to consider whether you can get past Step 1 with an unsuccessful work attempt (UWA) or trial work period (TWP).
Use the UWA approach if your client has worked at the SGA level after the alleged onset date.
In order to reduce or eliminate SGA at Step 1, use the UWA approach. Note that your client must meet three criteria to use the UWA:
There must be work at the SGA level, which is a regulated monthly amount determined each year. The SGA amount applies only to the year the individual is alleging disability.
Prior to the UWA, there must be “discontinued” work activity or reduced earnings below SGA for at least 30 consecutive days. The reduced earnings can be due to an impairment, removal of special conditions, or another event such as retirement. Occasionally, I have seen individuals forced to move to another employer or type of work due to an impairment, which is also considered “discontinued” work.
Work is unsuccessful because the individual had to stop working due to an impairment, removal of special work accommodations, or earnings reduced below SGA level. The work must have stopped within six months to be considered an UWA.
Remember, the regulated monthly SGA amount is more than the trial work period (TWP) amount.
Use the TWP if your client is/was receiving benefits based on a Title II claim and has worked at the TWP level.
In order to get past Step 1 using the trial work period (TWP), it is vital to consider the following:
Disability has not officially ended until your client has earned the TWP amount for at least a total of nine months; the nine months do NOT have to be consecutive.
The nine months of TWP is within a rolling 60-month period of time. The first month an individual receives benefits starts a 60-month rolling period. Or, determine the 60 months by counting back 60 months from when the individual completes nine months of work/service at the TWP level. Only the months that fall within the 60-month period are counted towards a TWP.
The TWP is completed when nine months of service at the TWP level are identified within the 60-month rolling period.
After the TWP, if the individual continues to work, an SGA analysis will be applied to determine ongoing disability. You can get past Step 1 if the individual is protected under the Ticket to Work program as well.