The Link Between Individual Unemployability & Substantial Gainful Activity

What is Individual Unemployability?

The Department of Veteran Affairs defines Individual Unemployability as a “a total disability rating for compensation, where the scheduler rating is less than total, when the disabled person is, in the judgement 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 Department of Veteran Affairs 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. 38 CFR § 4.16(b).  

However, just because you are rated 100% permanent and total based on individual unemployability does not mean you cannot work at all.  The VA regulations state that a veteran can receive IU as long as they are not engaged in more than marginal employment, which the VA defines as any job that pays less than the federal poverty line for one person.  In 2024, the Federal poverty line for one person is $15,060 per year, or $1,255.00 per month.

What is Substantial Gainful Activity?

Substantial Gainful Activity (SGA) is a term used by The Social Security Administration 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 (20 CFR § 404.1572). 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.

Using Our Firm’s Experience with SGA to Prove Individual Unemployability

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 attorneys at Bross & Frankel, P.A. know 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.  

Choosing a Firm with Experience in both SGA and Individual Unemployability

Navigating the terms of individual unemployability and Social Security Disability involves a lot of nuance and evidence.  We at Bross & Frankel, P.A. are equipped to handle not only a Social Security Disability Claim, but an Individual Unemployability Claim through the VA as well.  

At Bross & Frankel, P.A. we are proud to represent the men and women who have bravely served our country. We work with veterans to help them get the benefits that they are entitled to, including disability compensation and related benefits. If you have questions about individual unemployability or Social Security disability, or to schedule a free claim review with a veterans disability attorney, contact our office today at (856) 795-8880 or fill out our online contact form.