[Federal Register Volume 70, Number 38 (Monday, February 28, 2005)]
[Notices]
[Pages 9692-9694]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-3828]


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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being superseded by this Ruling.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rescinded, we will publish a notice in the Federal Register to that 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