[Federal Register: February 28, 2005 (Volume 70, Number 38)]
[Notices]
[Page 9692-9694]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28fe05-134]
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SOCIAL SECURITY ADMINISTRATION
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.
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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being superseded by this Ruling.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, (410) 966-5114.
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).
[[Page 9693]]
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rescinded, we will publish a notice in the Federal Register to that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
[[Page 9694]]
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.
[FR Doc. 05-3828 Filed 2-25-05; 8:45 am]
BILLING CODE 4191-02-P