SSR 84-25: TITLES II AND XVI: DETERMINATION OF SUBSTANTIAL GAINFUL ACTIVITY IF SUBSTANTIAL WORK ACTIVITY IS DISCONTINUED OR REDUCED -- UNSUCCESSFUL WORK ATTEMPT

PURPOSE: To state 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.

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, a person who is engaging in substantial gainful activity (SGA) is not eligible for payment of disability benefits. (There was a temporary provision of the Act, section 1619(a), in effect until December 31, 1983, that authorized continued disability payments to title XVI recipients engaging in SGA, provided their income was within specified limits. These payments are being continued for the year 1984 under a demonstration project (49 Federal Register 9774, March 15, 1984).) (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 as an equitable means of disregarding relatively brief work attempts that do not demonstrate sustained SGA.

The concept is embodied in the disability regulations. Concerning employees, sections 404.1574(a)(1) and 416.974(a)(1) of the regulations state: "We will generally consider work that you are forced to stop after a short time because of your impairment as an unsuccessful work attempt and your earnings from that work will not show that you are able to do substantial gainful activity." With respect to the self-employed, sections 404.1575(a) and 416.975(a) state: "We will generally consider work that you are forced to stop after a short time because of your impairment as an unsuccessful work attempt and your income from that work will not show that you are able to do substantial gainful activity."

Specific criteria evolved for evaluating work activity lasting up to 6 months. Concerning a work effort of over 6 months, operating instructions stated that ordinarily we would consider it as successful regardless of why it ended or was reduced below the SGA earnings level. Instructions added, however, that in "unusual circumstances," a finding of UWA could be made, with such cases referred for postadjudicative study. Review of the cases referred has not shown that a UWA of over 6 months is warranted. The circumstances that existed in these cases (e.g., frequent absences, special conditions) and the reasons for work stoppage were not unusual and were generally no different from those that existed in cases where the work effort lasted no more than 6 months. Also, in some of these referred cases the period of work actually lasted longer than the 9 months allowed by law for TWP purposes. The provision for permitting the dismissal of work activity of over 6 months' duration as a UWA is accordingly being deleted from the UWA policy and will no longer be applicable. The UWA criteria currently being followed for work of 6 months or less remain unchanged and are described in this PPS.

POLICY STATEMENT: For SGA determination purposes, 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 the person's impairment or the removal of special conditions related to the impairment that are essential to the further performance of work. The UWA criteria differ depending on whether the work effort was for "3 months or less" or for "between 3 and 6 months." If a work attempt was "unsuccessful," a finding of disability during the time that such work was performed would not be precluded.

When the UWA is Applicable

The UWA policy explained in this PPS 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, disability continues or ceases. However, the UWA criteria do not apply in determining whether payments should be made for a particular month during the reentitlement period after disability has been ceased because of SGA.

Event That Must Precede a UWA

There must be a significant break in the continuity of a person's work before he or she can be considered to have begun a work attempt that later proved unsuccessful. Such an interruption would occur when, because of the impairment or the removal of special conditions related to the impairment that are essential to the further performance of work, the work was discontinued or was reduced (or limited) to the non-SGA level. Work is considered to be "discontinued" if the person (1) was out of work for at least 30 consecutive days or (2) was 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 the subsequent work episode was brief and clearly not successful because of the impairment.)

Event That Must Follow a UWA

After the first significant break in continuity of a person's work, the ensuing period of work is regarded as continuous until another such change occurs -- that is, until the impairment or the removal of special conditions related to the impairment that are essential to the further performance of work causes the 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.

UWA Criteria -- Duration and Conditions of Work

1. Work Effort of 3 Months or Less

The work must have ended or have been reduced to the non-SGA level within 3 months due to the impairment or to the removal of special conditions related to the impairment that are essential to the further performance of work. (Examples of "special conditions" are given below.)

2. Work Effort of Between 3 and 6 Months

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

: a. There must have been frequent absences due to the impairment; or
: b. The work must have been unsatisfactory due to the impairment; or
: c. The work must have been done during a period of temporary remission of the impairment; or
: d. The work must have been done under special conditions.

(To illustrate how UWA time periods are figured, work from November 5, 1982, through a date no later than February 4, 1983, is for "3 months or less." Work from November 5, 1982, through at least February 5, 1983, but through a date no later than May 4, 1983, is for "between 3 and 6 months.")

3. Work Effort of Over 6 Months

SGA-level work lasting more than 6 months cannot be a 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 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 the impairment that are essential to the further performance of work." That is, a severely impaired person may have worked under conditions especially arranged to accommodate his or her impairment or 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, the person:

: a. Required and received special assistance from other employees in performing the job; or
: b. Was allowed to work irregular hours or take frequent rest periods; or
: c. Was provided with special equipment or was assigned work especially suited to the impairment; or
: d. Was able to work only within a framework of especially arranged circumstances, such as where other persons helped him or her prepare for or get to and from work; or
: e. Was permitted to perform at a lower standard of productivity or efficiency than other employees; or
: f. Was granted the opportunity to work, despite his or her handicap, because of family relationship, past association with the firm, or other altruistic reason.

5. Development of Reasons for Work Discontinuance or Reduction

In considering why a work effort ended or was reduced to the non-SGA level, we do not rely solely on information from the worker. Therefore, if impartial supporting evidence is not already a part of the claims file, confirmation with the employer is required. If the information from the employer is inconclusive or if none is available, the reason for work discontinuance or reduction may be confirmed with the person's 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, the work discontinuance or reduction was due to the impairment.

Answers to questions such as the following will help to verify the nature and duration of 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 the person's duties, responsibilities or earnings because of the impairment?
: f. When the employee's work effort ended, was the continuity of employment broken? Did the employer grant sick leave or hold the position open for the person's return?
: g. In the case of a self-employed person, what has happened to the business since the discontinuance or reduction of work? If the business continued in operation, who managed and worked in it and what income will the disabled person derive from it?

EFFECTIVE DATE: The policy explained herein is effective as of the date of publication of this PPS.

CROSS-REFERENCES: Program Operations Manual System, Part 4, sections DI 00503.500-00503.515; SSR 82-67, PPS-77, Extension of Eligibility for Benefits Based on Disability; SSR 83-33, PPS-107, Determining Whether Work is Substantial Gainful Activity -- Employees; SSR 83-34, PPS-108, Determining Whether Work is Substantial Gainful Activity -- Self-Employed Persons.

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