[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]
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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.
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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.
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\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).
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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\
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\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).
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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.
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\9\ 20 CFR 404.1574(c) and 416.974(c).
\10\ 20 CFR 404.1574(a)(1) and 416.974(a)(1).
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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\
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\11\ 20 CFR 404.1574(c)(4) and 416.974(c)(4).
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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\
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\12\ 20 CFR 404.1574 (c)(3) and 416.974(c)(3).
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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.
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\13\ 20 CFR 404.1592c and 416.999a.
\14\ 20 CFR 404.1592b and 416.999.
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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.
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\15\ 20 CFR 404.1592c and 416.999a.
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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.
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\16\ 20 CFR 404.1592e.
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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