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RobertJDFL, Lawyer
Category: Employment Law
Satisfied Customers: 13675
Experience:  Experienced in multiple areas of the law.
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I don't know if I am asking in the correct category or not

Customer Question

I don't know if I am asking in the correct category or not but here is my question: I was diagnosed with non Hodgkin's lymphoma in April of 2014. I began chemo in July of 2014 followed by radiation treatments until January of 2015, at which time I was told I was in remission. I am a self employed artist and gallery owner. I missed many months of work completely and, to this day, I am only able to work at my family business one day a week. Since this is my family's business and I am the sole proprietor, our income has been greatly compromised since April of 2014. I haven't approached this question yet as I have been spending most of my full time just trying to survive. Is there any kind of disability that I could be receiving due to not being able to work most of the time because of complications of the chemo and radiation that I have been having? I don't see me returning to work full time in the near future. My son and wife are trying to handle the business as good as they can, but I'm the main artist, sales guy and my artwork sells the most. The income of my business has been way down since my diagnosis. We have mostly been living off the income of investments we have because the gallery income will not cover our bills since I cannot be there to tend to our business. Please let me know what you think and if there could be disability for this kind of situation. Thank you! Louis
Submitted: 8 months ago.
Category: Employment Law
Expert:  RobertJDFL replied 8 months ago.

Thank you for using Just Answer. I am a licensed attorney and look forward to helping you. I am reviewing your question and will reply back shortly.

Expert:  RobertJDFL replied 8 months ago.

Although it is not a quick resolution, as typically the approval process can take a year or longer, you could apply for SSDI (Social Security Disability Insurance) through the Social Security Administration (SSA).

One of the most important rules for Social Security disability is that your medical disability must have lasted, or be expected to last, for at least one year for benefits to be awarded. There are no temporary disability benefits through Social Security. In addition, Social Security disability is for fully disabled, not partially disabled, people.

To qualify for benefits, under either SSDI or SSI (SSI is Supplemental Security Income for people with little or no work history but pays far less, you must have a medical condition that is severe and either:

  • meets the strict requirements of a Social Security impairment listing, or
  • makes working at any of your past jobs impossible, or
  • makes working at a less physically or mentally strenuous job impossible. (Social Security takes into account your education, age, and skill set, but not whether there are jobs in your area, when making this determination.)

Most people will not meet a specific "listing" criteria. therefore, you need to have evidence that your medical condition causes specific functional limitations that keep you from being able to perform job duties. Functional limitations can include things like how well you can see and hear, how long you can sit or stand, how well you can stoop, crouch, bend, and how well you can grasp things. There are other things that are factors - for example, a person who is only able to work one day a week or needs frequent rest breaks wouldn't be productive enough, and would miss too many days, to be considered employable. This article talks a little bit about qualifying disabilities.

On the legal/financial side, if you earn a certain amount of money per month (called the "substantial gainful activity," or SGA level), you are considered to be gainfully employed, and therefore not eligible for disability benefits. In 2016, the SGA level is $1,130 per month. Therefore, a person could technically work part-time and still qualify; however, doing so runs the risk of an examiner determining that because a person can do "X" job for so many hours, they are capable of doing other work -maybe even an easier, less strenuous job, on a full-time basis.

Applying for SSDI involves making an appointment with your local Social Security office and going in person. Most people are denied at the initial level, which can take several months to hear back on. The next level of appeal (which not all states have) is called "Reconsideration" -a second look at your case by another examiner. That can take another couple months to review. If you are denied at that level, you have the right to ask for a hearing in front of an Administrative Law Judge. Believe it or not, most people who are approved qualify at hearing, where a judge can hear from the person (you are allowed representation) and their representative can question the medical and/or vocational experts. However, the wait for a hearing can be long - waiting a year for a hearing wouldn't be atypical.

Navigating SSDI is tricky, and you want the best chance at getting your case approved as soon as possible. My recommendation, that while it is not required, is that you hire a social security disability lawyer to represent you. Such lawyers work on contingency, meaning you pay nothing unless they recover money for you.

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If you need clarification about my answer or additional information, please use the SEND or REPLY button to continue our conversation. Your satisfaction is my goal and I am here to help!

Customer: replied 8 months ago.
Does being self employed and owning your own small business a help or a detriment? My wife and I do have a retirement portfolio, but I do not know what it makes per month as it consists of bonds, stocks and annuities. I do not pay myself a salary as all money that is made in my business goes directly back into the business to keep it running.
Expert:  RobertJDFL replied 8 months ago.

I wouldn't say it helps or hurts in that they going to use the same test to determine if you can do any type of work on a full-time basis, the same as if you were working for someone else. However, the test to determine whether you are engaged in substantial gainful activity is slightly different when you own your own business.

The “inability to engage in substantial gainful activity” is required for receiving SSDI; in 2016, you can’t make more than $1,130 per month and qualify for SSDI.

If you are self-employed, however, the SSA recognizes that your net profit isn’t necessarily a good indicator of whether you’re doing substantial gainful activity. Instead the SSA will apply what they call “The Three Tests” to determine if your work activity is SGA. Your work will be considered SGA if you perform work that:

  • provides significant services to the business and brings in $1,130 or more in average monthly income
  • is comparable to the work of persons without disability in your community engaged in the same or similar businesses, or
  • is worth $1,130 per month in terms of its effect on the business or what it saves you from having to pay an employee to do the work.

So long as you make under that $1130/month threshold. you'res still financially eligible.

Expert:  RobertJDFL replied 8 months ago.

Just checking in to see if there was any additional information you needed about this matter? Anything I could clarify about my answer?

If not, please remember to leave a positive rating by clicking on the stars at the top of the page so that I am credited for my time and assistance. Thank you.

Customer: replied 8 months ago.
Thank you. What would you have to provide as proof of your income?
Expert:  RobertJDFL replied 8 months ago.

Sorry for the tardy reply, I didn't get any notification that you had asked a follow-up question!

The most common way would be through your tax returns filed with the IRS. If you don't have that, regular pay stubs could also be used to establish earnings (but most self-employed people don't take a regular salary, and their income can vary month to month and year to year, as I'm sure you know).

Expert:  RobertJDFL replied 8 months ago.

Just checking in to see if there was any additional information you needed about this matter? Anything I could clarify about my answer?

If not, please remember to leave a positive rating by clicking on the stars at the top of the page so that I am credited for my time and assistance. Thank you.