My colleague, Georgia elder law attorney Victoria Collier called me this afternoon with an interesting question about adult SSI claims and part time work in a sheltered work environment.

Victoria called me to participate in by phone in an office meeting she was having with an SSI claimant (a young man who is mildly mentally retarded) and the director of the group home where he resides.   The claimant has been working for the Salvation Army in a very structured work setting.   He earns less than $700 a month and works part time hours.

Several years ago, he had been receiving SSI benefits, but was cut off, possibly due to an overpayment issue involving his representative payee.

He does not now have a current application, although he was denied several times over the past few years.  No appeal was ever filed on a previous application.

Here is what I told the claimant and his group home guardian:

1. file a new application by calling 800-772-1213.  Make sure to tell the representative that you want to file for both Title II disability and Title 16 SSI..

2. When you answer questions about the claimant’s work capacity, make sure to advise Social Security that he works in a structured work environment and that he works part time.  You would want to argue that this level of work does not rise to “substantial activity” because it is not equivalent to competitive work.

3. If he is denied, which is likely, make sure to file the appeal (called a Request for Reconsideration) within 60 days of the denial.

My guess is that this is one of those cases that will end up before a judge to decide whether the part time, structured work setting employment rises to the level of  "substantial activity." 

This is yet another example of a case that falls outside of the neat categories within which Social Security is most comfortable.  The administrative people at the State Agency Disability Adjudication Services office are not trained or authorized to make a judgment call.  The claimant will eventually see a judge but he will be waiting two to three years for his day in Court.