Understanding the interplay between individual unemployability and substantial gainful activity is important when pursuing disability benefits. Regarding individual unemployability, the Department of Veteran Affairs (the “VA”) defines this term to mean a “a total disability rating for compensation, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disability 38 CFR § 4.16(a).” The VA states that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled, in accordance with 38 CFR § 4.16(b).
Regarding Substantial Gainful Activity (“SGA”), this term is utilized by the Social Security Administration (“SSA”) to describe a level of work that is both substantial and gainful. It refers to work activity that involves doing significant physical or mental activities, that is done for pay or profit. As of 2024, the substantial gainful activity threshold is $1,550 per month, before taxes, or $2,590 per month before taxes if you are blind.
How to Utilize SGA to Prove Individual Unemployability
As you can see, we have two different definitions, from two different regulations, that seem to say the same thing: if you cannot work above a certain monetary threshold amount, then you are entitled to benefits based on the same.
The disability benefit attorneys at Bross & Frankel, P.A. understand both Social Security Law and Veterans’ Disability law, which puts us in a unique position to use our knowledge on the notion of Substantial Gainful Activity, and the rules of Social Security Disability, to prove Individual Unemployability.
First, we take the time to understand the barriers that prevent working. Is it based on a combination of service-connected disabilities and do we have the ratings necessary to establish that one or more of your service connected could be a barrier to working? Second, can we establish based on those disabilities that you are unable to engage in a substantially gainful occupation as a result of the same?
These questions can be approached nearly identically to the question of disability under the Social Security Administration rules and regulations. We look at the different types of work, including the physical demands of certain jobs, as well as whether or not there are any requirements beyond the physical that will impact an individual’s ability to work. Some common threads between Social Security and Individual Unemployability include:
- The ability to stand/walk/lift and carry
- Additional postural limitations, such as being able to use your arms and hands
- Your ability to concentrate and focus throughout the workday
- The likelihood that you will be absent or tardy multiple days per month
- How these limitations will impact your ability to work on a “regular and continuing basis”, meaning 8 hours a day for 5 days a week.
