By Robert J. Osborne, Esq.

The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.  If you can engage in substantial gainful activity, the Social Security Administration will find that you are not disabled.  The work that you have done, legal or illegal, during any period in which you believe you are disabled may show that you are able to work at the substantial gainful activity level.  Even if the work you have done was not substantial gainful activity, it may show that you are able to do more work than you actually did.  If you apply for Social Security Disability Benefits or Supplemental Security Income, the Social Security Administration will consider all of the medical and vocational evidence in your file to decide whether or not you have the ability to engage in substantial gainful activity.

Substantial gainful activity is work activity that is both substantial and gainful.  Substantial work activity involves doing significant physical or mental activities.  Significant activities are useful in the accomplishment of a job, and have economic value.  Substantial work can be part-time or full-time.  Your work may be substantial even if you do less, get paid less, or have less responsibility than when you worked before.  Gainful work activity involves work activity that you do for pay or profit – the kind of work a person usually does for pay or profit, even if you do not get paid or make a profit.  If your duties require use of your experience, skills, supervision and responsibilities, or contribute substantially to the operation of a business, this tends to show that you have the ability to work at the substantial gainful activity level.  Supervisory, managerial, advisory or other significant personal services that you perform as a self-employed individual may show that you are able to do substantial gainful activity.

The Social Security Administration will use your earnings to determine whether you have done substantial gainful activity, unless you, your employer, or others provide information that shows that the Social Security Administration should not count all of your earnings.  The amount of your earnings from work may show that you have engaged in substantial gainful activity. Generally, if you worked for substantial earnings, the Social Security Administration will find that you can engage in substantial gainful activity.  However, the fact that your earnings were not substantial will not necessarily show that you cannot do substantial gainful activity.

Additionally, the Social Security Administration will look at how well you do your work when it determines whether or not you are doing substantial gainful activity.  Working at a satisfactory level may show that you work at the substantial gainful activity level.  However, if your impairments keep you from doing ordinary or simple tasks satisfactorily, without more supervision or assistance than other people doing similar work, you may not work at the substantial gainful activity level.  Additionally, work that involves minimal duties, that make few, if any, demands on you and that are of little or no use to your employer or a business, may show that you cannot work at the substantial gainful activity level.

If your work is done under special conditions, the Social Security Administration may find that your work does not show that you have the ability to do substantial gainful activity.  Work done under special conditions may take into account your impairment, such as work done in a sheltered workshop or as a patient in a hospital.  Additionally, the Social Security Administration may find that your work does not show that you are able to do substantial gainful activity if the removal of special conditions that were related to your impairment and essential to your work makes you stop or reduce your work.  However, work done under special conditions may show that you have the necessary skills and ability to work at the substantial gainful activity level.  Here are some examples of the special conditions that may relate to your impairment:

(1)       You required and received special assistance from other employees in performing your work;

(2)       You were allowed to work irregular hours or take frequent rest periods;

(3)       You were provided with special equipment or were assigned work especially suited to your impairment;

(4)       You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work;

(5)       You were permitted to work at a lower standard of productivity or efficiency than other employees; or

(6)       You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer’s concern for your welfare.

While the time you spend in work is important, the Social Security Administration will not decide whether or not you are doing substantial gainful activity only on that basis.  The Social Security Administration will still evaluate your work to decide whether it is substantial and gainful regardless of whether you spend more time or less time at the job than workers who are not impaired and who are doing similar work.