Effective/Publication Date: 02/28/2005
POLICY INTERPRETATION RULING
SSR 05-02: Titles II and XVI: Determination of Substantial Gainful Activity if Substantial Work Activity is Discontinued or Reduced—Unsuccessful Work Attempt
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.
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
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 that are essential to your further performance of work. (Examples of “special conditions” are given below.)
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:
You must have had frequent absences from your work due to your impairment; or
Your work must have been unsatisfactory due to your impairment; or
Your work must have been done during a period of temporary remission of your impairment; or
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.”)
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.
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:
May have required and received special assistance from other employees in performing the job; or
Were allowed to work irregular hours or take frequent rest periods; or
Were provided special equipment or were assigned work especially suited to your impairment; or
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
Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.
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:
When and why was the SGA-level work interrupted, reduced or stopped?
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?
Were there frequent absences from work? Were days and hours of work irregular and, if so, why?
Was job performance unsatisfactory because of the impairment?
Did the employer reduce your duties, responsibilities or earnings because of your impairment?
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?
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?
The policy explained herein is effective as of the date of publication of this SSR.