Self Employed Work: if you have a Social Security Disability claim, beware!

Those engaging in self employed work while having an ongoing Social Security Disability claim have a greater burden of proving the work is not substantial, gainful actvity (SGA). In general, if a worker in the year 2012 makes $1010.00 (non-blind worker)(blind worker SGA $1690.00) or greater SGA will be assumed unless otherwise proven. See, SSR 83-24, 20 C.F.R. §§ 404.1573, 404.1574, 404.1575, 404.1576.  Even if the “self employed” worker does not make $1010.00 or greater, via a paycheck or otherwise, then SSA can impute SGA. In other words, that you made $1010.00 or greater, by your “services rendered” to the business. So, you can be self employed and lose money while doing so, but the “services rendered” rule can attribute SGA to you, thus no disability.

Any self employed person has a duty to report ANY and ALL work activity to SSA. Beware, often the Office of Inspector General (OIG) (investigative unit for SSA) will follow or use surveillance on an SSA claimant who was or is currently engaged in self employment work. Do not take a chance, assume you are being watched. Report all work activity to SSA in writing via U.S. Certified Mail. Obtain legal counsel for specifics on what the reporting should consist of to the SSA.

The interplay of the 12 consecutive month rule, meaning you have not engaged in SGA work activity over 12 consecutive months, and those “self employed”, is a SGA minefield for not qualifying for disability benefits. In general, those “self employed” claimants who go before a Judge must provide a monthly breakdown of an income and loss statement, provide details on the type of business, volume of business, and with specific regard, as to the “significant services” (services rendered rule) you the claimant/worker performed. The Judge must also consider the comparability and worth of the work.

The above details are a minefield which can be easily avoided. Simply do not engage in self employed work while your Social Security Disability claim is pending. If you have an incorporated business you should resign all officer positions. In Florida see, www.sunbiz.org if you are not sure about being an officer of the corporation. Holding stock in a corporation, closely held or otherwise does not impute “self employment” in and of itself. Self employment work is detail specific. If you are answering a phone for a business, this is indicative of work activity. Arranging deliveries, setting up work or jobs for another, scheduling deliveries of business related goods, etc., are examples of engaging in work activity. Do NOT split hairs in regards to self employment work. For example, a claimant may have a spouse or relative in the house who is self employed. The claimant must not “help” the spouse or relative with anything for the business enterprise. That spouse or relative is not to depend on a Social Security Disability claimant who alleges “total disability”. Common sense should be utilized. In the end, obtain an actual attorney, do not hire a law firm from the television, many send non-attorneys to your hearings which is not fully disclosed to you. Do your research, hire an attorney who will see you in person and can discuss the law of SSA’s self employment rules.

For more information please contact:

David W. Magann, Esq.