[Federal Register Volume 81, Number 91 (Wednesday, May 11, 2016)]
[Proposed Rules]
[Pages 29212-29215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-10932]


=======================================================================
-----------------------------------------------------------------------

SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404, 411, and 416

[Docket No. SSA-2014-0016]
RIN 0960-AH66


Unsuccessful Work Attempts and Expedited Reinstatement 
Eligibility

AGENCY: Social Security Administration.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: We propose to remove some of the requirements for evaluation 
of an unsuccessful work attempt (UWA) that lasts between 3 and 6 
months. We also propose to allow previously entitled beneficiaries to 
apply for expedited reinstatement (EXR) in the same month they stop 
performing substantial gainful activity (SGA). Provisional benefits 
will begin the month after the request for EXR if the beneficiary stops 
performing SGA in the month of the EXR request. These changes would 
simplify our policies and make them easier for the public to 
understand.

DATES: To ensure that your comments are considered, we must receive 
them no later than July 11, 2016.

ADDRESSES: You may submit comments by any one of three methods--
Internet, fax, or mail. Do not submit the same comments multiple times 
or by more than one method. Regardless of which method you choose, 
please state that your comments refer to Docket No. SSA-2014-0016 so 
that we may associate your comments with the correct regulation.
    CAUTION: You should be careful to include in your comments only 
information that you wish to make publicly available. We strongly urge 
you not to include in your comments any personal information, such as 
Social Security numbers or medical information.
    1. Internet: We strongly recommend that you submit your comments 
via the Internet. Please visit the Federal eRulemaking portal at http://www.regulations.gov. Use the Search function to find docket number 
SSA-2014-0016. The system will issue a tracking number to confirm your 
submission. You will not be able to view your comment immediately 
because we must post each comment manually. It may take up to a week 
for your comment to be viewable.
    2. Fax: Fax comments to (410) 966-2830.
    3. Mail: Mail your comments to the Office of Regulations and 
Reports Clearance, Social Security Administration, 3100 West High Rise 
Building, 6401 Security Boulevard, Baltimore, Maryland 21235-6401.
    Comments are available for public viewing on the Federal 
eRulemaking portal at http://www.regulations.gov or in person, during 
regular business hours, by arranging with the contact person identified 
below.

FOR FURTHER INFORMATION CONTACT: Kristine Erwin-Tribbitt, Office of 
Retirement and Disability Policy, Office of Research, Demonstration, 
and Employment Support, Social Security Administration, 6401 Security 
Boulevard, Robert Ball Building 3-A-26, Baltimore, MD 21235-6401, (410) 
965-3353. For information on eligibility or filing for benefits, call 
our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or 
visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION:

SGA and UWA

    To be eligible for disability benefits, an individual must be 
unable to engage in any SGA.\1\ SGA is work activity that is both 
substantial and gainful.\2\ Work activity is substantial if it involves 
the performance of significant physical or mental activities.\3\ 
``Gainful work activity'' is work done for pay or profit, or if it is 
the kind of work usually done for pay or profit, whether or not a 
profit is realized.\4\ We will not determine that an individual is 
disabled or continues to be disabled if he or she is able to perform 
SGA.
---------------------------------------------------------------------------

    \1\ 42 U.S.C. 223(d)(1), 42 U.S.C. 1382c(a)(3)(A).
    \2\ 20 CFR 404.1572 and 416.972.
    \3\ 20 CFR 404.1572(a) and 416.972(a).
    \4\ 20 CFR 404.1572(b) and 416.972(b).
---------------------------------------------------------------------------

    We use several rules to decide whether an individual has performed

[[Page 29213]]

SGA. Generally, our first consideration in evaluating work activity 
will be the earnings derived from the work activity.\5\ We use earnings 
guidelines to evaluate whether work activity is SGA.\6\ We ordinarily 
consider an individual who is earning more than a certain monthly 
amount to be engaged in SGA.\7\ For the self-employed, we consider 
income or the value of the individual's activities to the business when 
determining whether he or she engaged in SGA.\8\
---------------------------------------------------------------------------

    \5\ 20 CFR 404.1574(a)(1) and 416.974(a)(1).
    \6\ Id.; see also 20 CFR 404.1574(b) and 416.974(b).
    \7\ 20 CFR 404.1574(b)(2) and 416.974(b)(2).
    \8\ 20 CFR 404.1575(a)(2) and 416.975(a).
---------------------------------------------------------------------------

    Disability evaluation is generally concerned with the ability to 
work over an extended period rather than in short, isolated periods. 
Disability claimants and beneficiaries may attempt to return to work 
and engage in SGA following a break in the continuity of their work. 
For SGA determination purposes, we may disregard work in employment or 
self-employment if a claimant or beneficiary, after working for a 
period of 6 months or less, stops working or reduces the amount of work 
so that the earnings fall below the SGA level because of the original 
impairment or the removal of special conditions that were essential to 
the performance of his or her work, and if there was a significant 
break in the continuity of work before this work attempt.\9\ We call 
this a UWA. Earnings from a UWA will not show that a claimant or 
beneficiary is able to do SGA.\10\ For purposes of the Social Security 
disability program under title II of the Act, we apply UWA policies 
when we determine initial entitlement to benefits as well as after 
approval for benefits. For purposes of the Supplemental Security Income 
(SSI) program under title XVI of the Act, we apply UWA only when 
determining initial entitlement to benefits.
---------------------------------------------------------------------------

    \9\ 20 CFR 404.1574(c) and 416.974(c).
    \10\ 20 CFR 404.1574(a)(1) and 416.974(a)(1).
---------------------------------------------------------------------------

    Under our current rules, we evaluate the success of a work attempt 
by its duration. We look at work attempts lasting less than 3 months 
and those lasting between 3 and 6 months. We consider work of 3 months 
or less to be a UWA if the claimant or beneficiary stopped working or 
reduced the work and earnings below the SGA earnings level because of 
the claimant or beneficiary's impairment, or because of the removal of 
special conditions which took into account the claimant or 
beneficiary's impairment and permitted the claimant or beneficiary to 
work. In contrast, to qualify as a UWA, we require the work attempt to 
last between 3 and 6 months to meet the same conditions for work 
attempts lasting 3 months or less and to also meet several additional 
conditions. The claimant or beneficiary must also have: (1) Been 
frequently absent from work because of his or her impairment, (2) 
performed the work unsatisfactorily because of his or her impairment, 
(3) worked during a period of temporary remission of his or her 
impairment, or (4) worked under special conditions essential to his or 
her performance and those conditions were removed.\11\
---------------------------------------------------------------------------

    \11\ 20 CFR 404.1574(c)(4) and 416.974(c)(4).
---------------------------------------------------------------------------

    We propose to revise 20 CFR 404.1574(c), 404.1575(d), 416.974(c), 
and 416.975(d) to remove the additional conditions that we use when 
evaluating a work attempt in employment or self-employment that lasts 
between 3 and 6 months. We propose to use the current 3-month standards 
for all work attempts that are 6 months or less. This change would 
apply to Social Security Disability Insurance (SSDI) and SSI claimants 
and beneficiaries.\12\
---------------------------------------------------------------------------

    \12\ 20 CFR 404.1574 (c)(3) and 416.974(c)(3).
---------------------------------------------------------------------------

    Under the current rule, when an individual works between 3 and 6 
months, we are required to perform additional development to determine 
if any of the additional conditions are met. This additional step 
delays case processing, in part, because we must contact the 
individual's employer and physician for information to support the 
individual's claim. Our proposed changes would result in simplified 
case processing and faster and better determinations and decisions.

EXR Eligibility and Provisional Benefits

    Previously entitled individuals may request EXR within 60 months of 
their prior termination of benefits if their medical condition no 
longer permits them to perform SGA. To qualify for EXR, a previously 
entitled individual must be unable to perform SGA due to an impairment 
that is the same as or related to an impairment that was the basis for 
the previous entitlement.\13\ The standard for evaluating disability on 
an EXR claim may be more advantageous to the claimant than the standard 
for evaluating disability on a completely new claim for benefits.\14\ 
EXR applies to both SSDI and SSI programs.
---------------------------------------------------------------------------

    \13\ 20 CFR 404.1592c and 416.999a.
    \14\ 20 CFR 404.1592b and 416.999.
---------------------------------------------------------------------------

    Currently, our regulations state that individuals are not eligible 
for EXR if they perform SGA during the month in which they apply for 
EXR.\15\ In many cases, a previously entitled individual will request 
EXR in the same month that he or she stopped working. However, since 
earnings already exceeded SGA for that month, the individual is not 
eligible to file for EXR until the following month. In such cases, we 
are required to deny the EXR request, and the individual can request 
EXR in the following month.
---------------------------------------------------------------------------

    \15\ 20 CFR 404.1592c and 416.999a.
---------------------------------------------------------------------------

    We propose to revise 20 CFR 404.1592c and 416.999a to allow 
previously entitled individuals to request EXR in the same month they 
stop performing SGA. This change would apply to SSDI and SSI claimants 
and beneficiaries. This change would make requesting EXR easier as we 
will be able to accept the request at first contact. It would also 
allow us to forward the individual's file immediately for a medical 
determination, reducing wait time and the possibility of a gap in 
benefit payments.
    For a beneficiary who has requested EXR, provisional benefits are 
available for a period of up to 6 months while we make a reinstatement 
determination.\16\ We stop paying provisional benefits when we send a 
notice of our determination on reinstatement, when the individual 
performs SGA, when the individual attains full retirement age, or when 
we have paid 6 months of provisional benefits. We also propose to 
revise 20 CFR 404.1592e(a)(1) to clarify that provisional benefits will 
begin the month after the individual files a request for EXR if the 
individual stops performing SGA in the month of request.
---------------------------------------------------------------------------

    \16\ 20 CFR 404.1592e.
---------------------------------------------------------------------------

Clarity of This Rule

    Executive Order 12866 requires each agency to write all rules in 
plain language. In addition to your substantive comments on this 
proposed rule, we invite your comments on how to make rules easier to 
understand.
    For example:
     Would more, but shorter, sections be better?
     Are the requirements in the rule clearly stated?
     Have we organized the material to suit your needs?
     Could we improve clarity by adding tables, lists, or 
diagrams?
     What else could we do to make the rule easier to 
understand?
     Does the rule contain technical language or jargon that is 
not clear?
     Would a different format make the rule easier to 
understand, e.g. grouping and order of sections, use of headings, 
paragraphing?

[[Page 29214]]

Regulatory Procedures

Executive Order 12866

    We consulted with the Office of Management and Budget (OMB) and 
determined that this proposed rule meets the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563, and was subject to OMB review.

Regulatory Flexibility Act

    We certify that this proposed rule will not have a significant 
economic impact on a substantial number of small entities because it 
affects individuals only. Therefore, a regulatory flexibility analysis 
is not required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    This rule does not create any new or affect any existing 
collections and, therefore, it does not require Office of Management 
and Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 9601, Social 
Security--Disability Insurance; 96.006, Supplemental Security 
Income; 96.008, Social Security--Work Incentives Planning and 
Assistance Program.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Reporting and recordkeeping requirements, Social security, Vocational 
rehabilitation.

20 CFR Part 416

    Administrative practice and procedure, Medicaid, Reporting and 
recordkeeping requirements, Supplemental Security Income (SSI), 
Vocational rehabilitation.

    Dated: March 14, 2016.
Carolyn W. Colvin,
Acting Commissioner of Social Security.

    For the reasons set out in the preamble, we propose to amend 20 CFR 
part 404 subpart P and 20 CFR part 416 subpart I as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

Subpart P--Determining Disability and Blindness

0
1. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority:  Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a), 
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and 
(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 
110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).

0
2. Amend Sec.  404.1574 by revising the first sentence of paragraph 
(c)(1), revising paragraph (c)(3), removing paragraph (c)(4), and 
redesignating paragraph (c)(5) as (c)(4).
    The revisions read as follows:


Sec.  404.1574  Evaluation guides if you are an employee.

* * * * *
    (c)* * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after you worked for a 
period of 6 months or less, your impairment forced you to stop working 
or to reduce the amount of work you do so that your earnings from such 
work fall below the substantial gainful activity earnings level in 
paragraph (b)(2) of this section, and you meet the conditions described 
in paragraphs (c)(2), (3), and (4) of this section. * * *
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *
0
3. Amend Sec.  404.1575 by revising the first sentence of 
paragraph(d)(1), revising paragraph (d)(3), removing paragraph (d)(4), 
and redesignating paragraph (d)(5) as (d)(4).
    The revisions read as follows:


Sec.  404.1575  Evaluation guides if you are self-employed.

* * * * *
    (d) * * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after working for a 
period of 6 months or less, you were forced by your impairment to stop 
working or to reduce the amount of work you do so that you are no 
longer performing substantial gainful activity and you meet the 
conditions described in paragraphs (d)(2), (3), and (4) of this 
section. * * *
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *
0
5. Amend Sec.  404.1592c by revising paragraph (a)(4)(i) and (c)(2) to 
read as follows:


Sec.  404.1592c  Who is entitled to expedited reinstatement?

    (a)* * *
    (4)* * *
    (i) You are not able or become unable to do substantial gainful 
activity because of your medical condition as determined under 
paragraph (c) of this section;
* * * * *
    (c)* * *
    (2) You are not able or become unable to do substantial gainful 
activity in the month you file your request for reinstatement; and
* * * * *
0
6. Amend Sec.  404.1592e by revising paragraph (a)(1) to read as 
follows:


Sec.  404.1592e  How do we determine provisional benefits?

    (a) * * *
    (1) We will pay you provisional benefits, and reinstate your 
Medicare if you are not already entitled to Medicare, beginning with 
the month you file your request for reinstatement under Sec.  
404.1592c(a) if you do not perform substantial gainful activity in that 
month. We will pay you provisional benefits, and reinstate your 
Medicare if you are not already entitled to Medicare, beginning with 
the month after you file your request for reinstatement under Sec.  
404.1592c(a) if you perform substantial gainful activity in the month 
in which you file your request for reinstatement.
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--Determining Disability and Blindness

0
13. The authority citation for subpart I of part 416 continues to read 
as follows:

    Authority:  Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383 (b); secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. 
L. 98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 
423 note, and 1382h note).

0
14. Amend Sec.  416.974 by revising paragraph (c)(3), removing 
paragraph

[[Page 29215]]

(c)(4), and redesignating paragraph (c)(5) as (c)(4).
    The revisions read as follows:


Sec.  416.974  Evaluation guides if you are an employee.

* * * * *
    (c) * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *
0
15. Amend Sec.  416.975 by revising paragraph (d)(1) and (3), removing 
paragraph (d)(4), and redesignating paragraph (d)(5) as (d)(4).
    The revisions read as follows:


Sec.  416.975  Evaluation guides if you are self-employed.

* * * * *
    (d) * * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after working for a 
period of 6 months or less, you were forced by your impairment to stop 
working or to reduce the amount of work you do so that you are no 
longer performing substantial gainful activity and you meet the 
conditions described in paragraphs (d)(2), (3), and (4) of this 
section.
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *
0
16. Amend Sec.  416.999a by revising paragraph (a)(4)(i) and (c)(2) to 
read as follows:


Sec.  416.999a  Who is eligible for expedited reinstatement?

    (a) * * *
    (4) * * *
    (i) You are not able or become unable to do substantial gainful 
activity because of your medical condition as determined under 
paragraph (c) of this section.
* * * * *
    (c) * * *
    (2) You are not able or become unable to do substantial gainful 
activity in the month you file your request for reinstatement; and
* * * * *
[FR Doc. 2016-10932 Filed 5-10-16; 8:45 am]
 BILLING CODE 4191-02-P