Step 1 - Work

Some attorneys tell claimants that they cannot be "working" and receive Disability benefits. This is not completely accurate. You cannot be performing "substantial gainful activity" (SGA) and qualify for benefits. In 2009, SGA is defined as earningf over $980. If the claimant is working and earnings over $980, they generally don't qualify for benefits; however, there are exceptions. For example, earnings don't count if they are "subsidized." Subsidized earnings mean that someone is simply trying to help the claimant and wouldn't pay some else as they are paying the claimant.

For example, John works for Steve. Steve has known John since he was a small boy. Steve has owned the company for years and has done quite well for himself. He gives John a job and pays him well because he knows that John couldn't support his family without the job. He lets him take frequent breaks and overlooks the fact that John can't really do the job as well as someone else might do it. If John is ill, Steve lets him go home or tells him not to come in. Steve gives John the job because of his long-term friendship, and he wouldn't pay someone else to do the same work as John. This work may be "subsidized." If so, it won't count, and John can still qualify for benefits.

If the claimant is not earning over SGA (or an exception applies), then the case proceeds to step 2. The second step is: does the claimant have a severe impairment?

Disability and the Five-Step Process

So, what is a "disability?" It is any physical or mental impairment that has more than a minimal effect upon a person's ability to work. Social Security uses a five-step process in determining disability. They ask five questions: (1) is the person working? (2) does the person have a "severe" impairment? (3) does the person have an impairment that meets or equals one of their listings? (4) can the person return to their past relevant work? (5) can the person do any other work that exists in the national or regional economy?

I'll use future blogs to discuss each of these questions, but understand that each step in the five-step process is important. The claimant has the burden of answering the first four questions. If the claimant can prove that they cannot return to their past work, then the burden shifts to SSA to prove that there are other jobs that the claimant can perform, considering their age, education, past work experience, and health problems.