Social Security Disability and the 12 Consecutive Month Rule: Have You Heard of It?

The basics of the 12 consecutive rule is that you as a claimant must be disabled for 12 months at one time and have not earned, as of 2008, $940.00(SGA) or more in anyone of those 12 months regarding work activity. If Social Security finds you disabled before 12 months have gone by and you then go back to work before the 12 months are up and you earn $940.00 (SGA) or more, your benefits may be immediately terminated. After 12 months have gone by then a new set of rules appply, called “Trial Work Period” (TWP) rules or the “Averaging Method” (AM) rules may be applicable. (See, SSR-83-35 for AM rules). Not to be overly technical but the following are some important cases of this often misunderstood and case shattering 12 consecutive month rule that is applicable to all claims:

In the case of Barhart v. Walton, 535 U.S. 212, 122 S.Ct. 1265, 1271-72, 152 L.Ed.2d 330 (2002), the Supreme Court held that the SSA’s interpretation of the statutory definition of disability as requiring that a claimant’s “inability to engage in any substantial gainful activity” (SGA) last, or be expected to last, for at least 12 months, was based on a lawful construction of the statue. The Court also held that the regulation set forth in 20 C.F.R. § 404.1592(d)(2), which provides that a return to work prior to the lapse of a 12-month period after onset of impairment, and prior to adjudication of disability, precludes a finding that a claimant is disabled, or is entitled to a trial work period, is a reasonable interpretation of the statue and lawful. Id. at 1273-74.

Often Social Security uses the 12 consecutive month rule as a general basis of a claim’s denial because you, the claimant, have not proven that the impairment will last the entire 12 months. However, when making the application you should not let the 12 month rule deter you but you should have your treating physician give a statement that your impairment will last beyond the 12th month of disability. In fact, the sooner you make your application is always the best course of action for many other reasons not covered under this topic.

So now that we know the basics of the 12 consecutive month rule what exceptions may be applicable? The 12 consecutive month rule mispplication has been used by the Social Security Administration in cases usually involving those who had already received disability benefits, but at some point went back to work earned substantial wages and then became disabled again. Below are some fact intensive case law holdings:

The Eleventh Circuit has found that SGA only bars entitlement to benefits during periods of employment where a claimant’s employment during the last three months of a four year period only barred receipt of benefits during the SGA activity and did not undermine the original determination that the claimant met a listed impairment. Merely, the claimant would not be entitled to receive benefits during periods of employment that rise to the level of SGA. Williams v. Apfel, 73 F. Supp.2d 1325, 1341 (M.D. Fla. 1999), citing Powell on behalf of Powell v. Heckler, 773 F.2d 1572, 1576 (11th Cir. 1985).

For example, suppose a claimant had a terminal illness such as Huntington’s Disease where he was out of work for a 12 month period but such period was before 2 years of continuous SGA work and now currently was out of work for only a 6 month period. One can argue that an applicable onset date was the prior 12 month period before the 2 years of SGA work. Notably, there still must be medical evidence to support the onset date and a fact intensive case by case analysis is required.

As far as partime work the Eleventh Circuit has held that at Step Five of the sequential evaluation process, “an ability to do part-time work does not preclude a finding of disability.” Kelly v. Apfel, 185 F.3d 1211, 1214 (11th Cir. 1999). One is to keep in mind the levels of SGA for each year worked and if evidence of Impairment Related Work Expenses (IRWE) and subsidies under Social Security Ruling (SSR)-83-33 is applicable.

In dealing with the 12 consecutive month rule one must consider many factors such as the claim status and the claimant’s earnings to name a couple. As a general rule it is best to seek advice from an attorney who has conducted at least several hundred hearings, if not more, in order to understand the applicability of the rule and those fact intensive claims which the 12 consecutive month rule may have an adverse effect upon in Social Security claims processing.