05-3828. Social Security Ruling, SSR 05-02; Titles II and XVI: Determination of Substantial Gainful Activity if Substantial Work Activity Is Discontinued or Reduced-Unsuccessful Work Attempt

AGENCY:

Social Security Administration.

ACTION:

Notice of Social Security ruling.

SUMMARY:

In accordance with 20 CFR 402.35(b)(1), the Commissioner of Social Security gives notice that Social Security Ruling (SSR) 84-25 is being superseded by this Ruling. This Ruling states the policy for determining whether substantial work activity that is discontinued or reduced below a specified level may be considered an unsuccessful work attempt (UWA) under the disability provisions of the law.

EFFECTIVE DATE:

February 28, 2005.

FOR FURTHER INFORMATION CONTACT:

John Nelson, Office of Program Development and Research, Social Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-6401, [phone].

SUPPLEMENTARY INFORMATION:

Although 5 U.S.C. 552(a)(1) and (a)(2) do not require us to publish this Social Security Ruling, we are doing so in accordance with 20 CFR 402.35(b)(1). Social Security Rulings make available to the public precedential decisions relating to the Federal old-age, survivors, disability, supplemental security income, and black lung benefits programs. Social Security Rulings may be based on case decisions made at all administrative levels of adjudication, Federal court decisions, Commissioner's decisions, opinions of the Office of the General Counsel, and policy interpretations of the law and regulations.

Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, in accordance with 20 CFR 402.35(b)(1), and are to be relied upon as precedents in adjudicating cases.

If this Social Security Ruling is later suspended, modified, or rescinded, we will publish a notice in the Federal Register to that effect.

(Catalog of Federal Domestic Assistance, Programs 96.001 Social Security—Disability Insurance; 96.006 Supplemental Security Income)

Dated: February 22, 2005.

Jo Anne B. Barnhart,

Commissioner of Social Security.

Policy Interpretation Ruling

Purpose: To clarify the policy stated in Social Security Ruling (SSR) 84-25 for determining whether substantial work activity that is discontinued or reduced below a specified level may be considered an unsuccessful work attempt (UWA) under the disability provisions of the law.

Citations (Authority): Sections 216(i), 223(d), and 1614(a) of the Social Security Act, as amended; Regulations No. 4, subpart P, sections 404.1571-404.1576; Regulations No. 16, subpart I, sections 416.971-416.976.

Pertinent History: Under the disability provisions of the law, except within the trial work period (TWP) provisions and section 1619 of the Social Security Act, if you are engaging in substantial gainful activity (SGA) you are not eligible for payment of disability benefits. (See Social Security Ruling (SSR) 83-33, Program Policy Statement (PPS)-107, Determining Whether Work Is Substantial Gainful Activity—Employees, regarding evaluation of work activity of employees. See SSR 83-34, PPS-108, Determining Whether Work Is Substantial Gainful Activity—Self-Employed Persons, regarding evaluation of work activity of self-employed persons.) The UWA concept was designed to provide us an equitable means, in making SGA determinations, to disregard relatively brief work attempts that do not demonstrate sustained SGA. We will not consider work we determine to be an UWA as substantial gainful activity when we determine if you are under a disability or when we determine if your disability has ceased.

The UWA concept is contained in our regulations. If you are an employee, sections 404.1574(a)(1) and 416.974(a)(1) of the regulations state: “We generally consider work that you are forced to stop or to reduce below the substantial gainful activity level after a short time because of your impairment to be an unsuccessful work attempt. Your earnings from an unsuccessful work attempt will not show that you are able to do substantial gainful activity.” See also 404.1574(c) and 416.974(c). If you are self-employed, sections 404.1575(a) and 416.975(a) state: “We will generally consider work that you were forced to stop or reduce to below substantial gainful activity after 6 months or less because of your impairment as an unsuccessful work attempt.” See also 404.1575(d) and 416.975(d).

SSR 84-25 indicated that the UWA concept is applicable to both your initial disability case and when we determine whether, because of work activity, your disability continues or ceases. Both SSR 84-25 and the regulations state that there must be a significant break in the continuity of your work before we will consider you to have begun a work attempt that later proved unsuccessful. However, SSR 84-25 and the regulations do not address how the UWA significant break concept should be applied in your initial disability case when your prior work activity stopped before onset of your impairment or where you had no prior work activity. This revised Ruling addresses these issues under the section “Event That Must Precede a UWA” and removes outdated material from the “PERTINENT HISTORY” section of SSR 84-25.

Policy Statement: For SGA determination purposes, your substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of your impairment, or the removal of special conditions related to your impairment that were essential to your further performance of the work. The UWA criteria differ depending on whether your work effort was for “3 months or less” or for “between 3 and 6 months.” If your work attempt was “unsuccessful,” we will not be precluded from finding that you are under a disability during the time that you performed that work.

When the UWA is Applicable: The UWA policy explained in this SSR is to be used in initial disability cases. It is also to be used in continuing disability cases in determining whether, because of work activity, your disability continues or ceases. However, the UWA criteria do not apply in determining whether payments should be made to you for a particular month during the reentitlement period after disability has been ceased because you did SGA, or during the initial reinstatement period after you have been reinstated through the expedited reinstatement provision.

Event That Must Precede a UWA: There must be a significant break in the continuity of your work before you can be considered to have begun a work attempt that later proved unsuccessful. Such an interruption would occur when, because of your impairment or the removal of special conditions related to your impairment that are essential to your further performance of the work, the work was discontinued or reduced (or limited) to the non-SGA level. Such an interruption could also occur when, before the onset of your impairment, you discontinued (or limited) your work for other reasons, such as retirement, or never engaged in work activity. We will consider your work to be “discontinued” if you (1) were out of work for at least 30 consecutive days or (2) were forced to change to another type of work or another employer. (On rare occasions a break lasting a few days less than 30 may satisfy this requirement if your subsequent work episode was brief and clearly not successful because of your impairment.)

Event That Must Follow a UWA: After the first significant break in continuity of your work, your next period of work is regarded as continuous until another significant break occurs; that is, until your impairment, or the removal of special conditions related to your impairment that are essential to your further performance of work, causes your work to be “discontinued”, as defined above, or to be reduced to the non-SGA level. Each continuous period, separated by significant breaks as described, may be a UWA so long as criteria as to duration and conditions of work are met, as set out below.

Duration and Conditions of Work

1. Work Effort of 3 Months or Less: Your work must have ended or have been reduced to the non-SGA level within 3 months due to your impairment or to the removal of special conditions related to your impairment that are essential to your further performance of work. (Examples of “special conditions” are given below.)

2. Work Effort of Between 3 and 6 Months: If your work lasted more than 3 months, it must have ended or have been reduced to the non-SGA level within 6 months due to your impairment or to the removal of special conditions (see below) related to your impairment that are essential to your further performance of work and:

a. You must have had frequent absences from your work due to your impairment; or

b. Your work must have been unsatisfactory due to your impairment; or

c. Your work must have been done during a period of temporary remission of your impairment; or

d. Your work must have been done under special conditions.

(To illustrate how UWA time periods are figured, work from November 5, 2003, through a date no later than February 4, 2004, is for “3 months or less.” Work from November 5, 2003, through at least February 5, 2004, but through a date no later than May 4, 2004, is for “between 3 and 6 months.”)

3. Work Effort of Over 6 Months: Your SGA-level work lasting more than 6 months cannot be an UWA regardless of why it ended or was reduced to the non-SGA level.

4. Performance of Work Under Special Conditions: One situation under which your SGA-level work may have ended, or may have been reduced to the non-SGA level, as set out above, is “the removal of special conditions related to your impairment that are essential to your further performance of work.” That is, you may have worked under conditions especially arranged to accommodate your impairment or you may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evidenced in many ways. For example, you:

a. May have required and received special assistance from other employees in performing the job; or

b. Were allowed to work irregular hours or take frequent rest periods; or

c. Were provided special equipment or were assigned work especially suited to your impairment; or

d. Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or

e. Were permitted to perform at a lower standard of productivity or efficiency than other employees; or

f. Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.

5. Development of Reasons for Work Discontinuance or Reduction: When we consider why your work effort ended or was reduced to the non-SGA level, we do not rely solely on information from you. Therefore, if we do not already have impartial supporting evidence, we will seek confirmation from your employer. If the information from your employer is inconclusive or is not available, we may seek confirmation of the reason you discontinued or reduced your work with a physician or other medical source. After being apprised of the circumstances, the physician or other medical source could state whether, in his or her opinion or according to the records, your work discontinuance or reduction was due to your impairment.

Answers to questions such as the following will help to verify the nature and duration of your work and the reason it ended or was reduced:

a. When and why was the SGA-level work interrupted, reduced or stopped?

b. If special working conditions (as described in the preceding section) were removed, what were those conditions or concessions? When, how and why were they changed?

c. Were there frequent absences from work? Were days and hours of work irregular and, if so, why?

d. Was job performance unsatisfactory because of the impairment?

e. Did the employer reduce your duties, responsibilities or earnings because of your impairment?

f. When your work effort ended, was the continuity of employment broken? Did the employer grant sick leave or hold the position open for your return?

g. If you were self-employed, what has happened to the business since the discontinuance or reduction of your work? If the business continued in operation, who managed and worked in it and what income will you receive from it?

Effective Date: The policy explained herein is effective as of the date of publication of this SSR.

Cross-References: Program Operations Manual System, Part 4, sections DI 11010.210-11010.220 and DI 24005.001. Social Security Rulings 83-33 and 83-34.