In the realm of Social Security disability, an unsuccessful work attempt is a term used by disability lawyers and the Social Security Administration (SSA) as an "excuse" for why an applicant was working if he or she was applying for Social Security disability. (If a disability applicant is working at or above the substantial gainful activity (SGA) level, which is $1,040 in 2013, the applicant will not be eligible for disability benefits.) If a period of work can be characterized as an unsuccessful work attempt (UWA), it can be disregarded, opening the way for the applicant to be found eligible for disability benefits during that time period.
A UWA is not, as is commonly believed, part of the trial work period rules, during which you can continue to receive benefits while attempting to go back to work.
What Counts as an Unsuccessful Work Attempt?
First, to count as an unsuccessful work attempt, you must have stopped working for some period of time before starting your new work attempt (the one you want to count as a UWA). In other words, there must have been a significant break in the continuity of your work before the unsuccessful work attempt. If you worked for years and never stopped working because of your disabling symptoms before the date you claim you became disabled on your disability application, your work cannot be counted as a UWA.
Specifically, you must have stopped working for at least 30 days because of your impairments (or reduced your earnings below the SGA level for 30 days because of the impairments), either because you were forced to change to another type of work or another employer because of your impairment, because special working conditions related to your impairment were removed (see below), or because of reasons unrelated to the impairment (such as a layoff).
Second, depending on how long your work effort lasted, there are different rules.
Less Than Three Months
If you worked for less than three months and then left work or reduced your work below the SGA level because of your medical impairment, the work effort can be treated as an unsuccessful work attempt. Your impairment may have caused you to leave because you couldn't do the work, your doctor's restrictions wouldn't allow you to do the work, or special conditions that you required to be able to do the work despite your impairment were removed. "Special conditions" are accommodations an employer makes so that you can do your job, and include (but are not limited to):
- special assistance from other employees in performing your job
- special equipment
- special arrangements, such as help getting you ready for work or getting to and from work
- permission to work irregular hours
- permission to take frequent rest breaks
- permission to work at a lower level of productivity than other employees
- work assignments specially suited to your medical condition, or
- being allowed to work despite your impairment because of a family or past work relationship with your employer or other philanthropic reasons.
Between Three and Six Months
If you worked between three and six months, this work effort can be treated as an unsuccessful work attempt only if it ended (or was reduced below the SGA level) because of the removal of special conditions AND
- you were frequently absent from work due to your impairment
- your work was unsatisfactory because of the impairment
- you were working during a period of temporary remission of your impairment, or
- you were working under special conditions.
Over Six Months
Work efforts at the SGA level for over six months can not be treated as unsuccessful work attempts regardless of why the work ended (or was reduced below the SGA level).
Why Do You Want Your Work to Count as an Unsuccessful Work Attempt?
The date an SSDI applicant stopped working due to disability is called the disability onset date. Unsuccessful work attempts can be used to determine the onset date; a decision to treat a period of work as an unsuccessful work attempt can lead to an earlier onset date (before the unsuccessful work attempt), while a denial of unsuccessful work attempt treatment for a period of work can result in a later onset date (after the completion of the work attempt).
EXAMPLE: Jacob files an SSDI application in August 2012 claiming an onset date of September 1, 2010. After not working in September and October of 2010, Jacob worked at the SGA level for two months during the Thanksgiving and Christmas holidays in 2010 and then stopped working because of his impairment. His work attempt is an unsuccessful work attempt, so he is entitled to an earlier onset date of September 1, 2010. Without these UWA rules, his onset date would be January 1, 2011, and he would not get as many months' backpay as he will with the onset date of September 1, 2010.
Any period of work after an applicant's onset date (after which entitlement to disability benefits has been established) is subject to the trial work period rules and cannot be treated as an unsuccessful work attempt.
EXAMPLE: Jacob files an SSDI application in August 2012 claiming an onset date of September 1, 2010. He worked during the Thanksgiving and Christmas holidays in 2010, stopped, and then worked at the SGA level for two months during the holidays in 2011 before again quitting work due to his impairment. His 2010 work attempt is an unsuccessful work attempt, but his second work attempt in 2012, after he became entitled to benefits, is not an unsuccessful work attempt. Instead, it is subject to the trial work period rules.
(For information on work and disability in general, see our topic area titled Can I Work and Apply for Disability?)
Getting Help Proving an UWA
If you've been denied Social Security disability benefits because of working at the SGA level, and you want to assert that your work was an unsuccessful work attempt, you'll probably need the help of a disability lawyer to argue your case at a hearing.
Find a local disability attorney who can help you.