SSR 84-24: TITLES II AND XVI: DETERMINATION OF SUBSTANTIAL GAINFUL ACTIVITY FOR PERSONS WORKING IN SPECIAL CIRCUMSTANCES -- WORK THERAPY PROGRAMS IN MILITARY SERVICE -- WORK ACTIVITY IN CERTAIN GOVERNMENT-SPONSORED PROGRAMS
PURPOSE: To state the policy for determining whether the work activity of employees in two types of situations is substantial gainful activity (SGA) under the disability provisions of the law. The two situations are (1) work therapy programs in the military service and (2) work activity in certain government-sponsored programs.
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.
INTRODUCTION: Under the disability provisions of the law, except within the trial work period (TWP) provisions, a person who is engaging in 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).)
SGA is defined in the regulations (sections 404.1572 and 416.972) as work that "involves doing significant physical or mental activities" and that, in the case of employees, "is the kind of work usually done for pay. . . ." Social Security Ruling (SSR) 83-33, Program Policy Statement (PPS)-107, Determining Whether Work Is Substantial Gainful Activity -- Employees, discusses the evaluation of work activities of employees generally. This PPS about work in special circumstances contains additional guides concerning the evaluation of work activity of employees in the military service and in certain government-sponsored programs.
POLICY STATEMENT: (The two distinct types of work situations described in this PPS will be discussed separately.)
- 1. For persons in the military service who are being treated for severe impairments, the amount of pay is not an appropriate basis for making an SGA evaluation. The service person may be on limited duty status and working in a therapy program while receiving full pay. For SGA purposes, we compare the military work activities with those in civilian occupations and assess the reasonable worth of the work. Several bases for comparison are provided.
- 2. For civilians in certain government-sponsored job training and employment programs, we evaluate on a case-by-case basis under the usual SGA earnings and services tests discussed in SSR 83-33, PPS-107. In programs such as these, subsidies often occur. The value of any subsidy must be subtracted so that only "countable earnings" are considered.
- For volunteers under the Domestic Volunteer Service Act of 1973 (Public Law 93-113) (DVSA) and the Small Business Act (SBA) 15 U.S.C. section 631 et seq., we do not consider for SGA (or TWP) purposes any stipends, support services payments, expense allowances, or reimbursement of out-of-pocket expenses. Likewise, the SGA tests of "comparability" and "worth of work" (as discussed in SSR 83-33, PPS-107) do not apply to such volunteers with regard to their DVSA or SBA activities.
Evaluation of Work Activity in
Work Therapy Programs in Military Service
The following relates to Policy Statement 1.
A person in the military service who is being treated for a severe impairment usually continues to receive full pay. Therefore, for SGA purposes, it is not appropriate to evaluate his or her work activity based on the amount of pay received. Instead, it is necessary to use nonmonetary SGA criteria in assessing the work activity of a service person receiving treatment at a military hospital and working in a designated therapy program or on limited duty. That is, we compare the activity with similar work in the civilian work force and determine its reasonable worth.
Severely impaired service persons may, for example, be placed on limited duty status and put to work in a hospital, office, mailroom, laboratory, or the like. The controlling factor in these cases is an objective evaluation of the work activity itself, and not the service person's duty status, or whether or not a formal therapy program is involved. The fact that a therapy program or limited duty status is involved necessarily suggests that special conditions may exist.
This requires that we consider the real value of the work effort within the military setting and then equate its value to similar work in a nonmilitary setting.
Description of Military Work Activities
The service person is the primary source of information about the activities involved in his or her particular work therapy program. Documentation will help to resolve the extent of any subsidy in the military service pay and the actual worth of the limited duties.
If, however, the service person's description of duties is equivocal or apparently inaccurate, or if it shows activities not readily correlated to jobs in the civilian community, corroborative information is necessary. Military personnel having supervisory and administrative knowledge of the details and status of the limited work should be contacted.
Comparison of Military and Civilian Work Activities
- 1. Comparison based on firsthand knowledge: In some situations the person's description of job duties may offer reasonable assurance that the work activity can be readily identified and compared to a similar type of civilian occupation, such as clerk-typist, truck mechanic, or the like. The adjudicator may be sufficiently aware of prevailing work and pay scales in the community to be able to equate service persons' job duties with those in the nonmilitary economy and to determine the worth of the services performed. In appropriate situations the file should reflect the details of such knowledge, inasmuch as the SGA determination must be made on the basis of what the person does and how much such activity would be worth in the civilian community.
- 2. Comparison based on military occupation manuals: If no obvious comparison can be made between the person's military work duties and a civilian occupation, it may be necessary to consult the military occupation manuals. These manuals, published by each branch of military service and available at military hospitals and installations, provide a classification system for all military service occupations for enlisted personnel, commissioned officers, and warrant officers. They describe the duties and personnel qualifications for each listed military occupation. For those occupations with a "direct, or reasonably related, civilian counterpart," one or more "civilian source jobs" are listed according to the job code or title in the Department of Labor's Dictionary of Occupational Titles (DOT). This correlation of military service occupations with civilian jobs classified in the DOT makes the military occupation manuals an indispensable reference source for comparing military and civilian work activities.
- Military reference materials should be used only when necessary for equating the job duties of service persons with those performed in the civilian sector. Access to the manuals will generally be through the officer in charge of personnel matters at the military hospital or installation where the manuals are maintained.
- 3. Comparison based on contact with other sources: Other steps may be indicated if reasonable doubt remains as to what represents an equivalent civilian job or as to how the value of the service person's work activities compares with the pay for similar civilian work.
- Contact may be made with employers, the U.S. Employment Service, or other informed sources of employment and vocational data, including a vocational specialist. These contacts are expected to be for advice and information gathering only, to aid judgments in the case. In some instances the military occupation manuals will not list, in conjunction with a military job, any related civilian job. Or they may list only one civilian job which happens not to exist in the community in which the comparison is conducted. The title of the disabled person's military service occupation and/or of the listed civilian job may, however, lead the vocational specialist to identify closely related civilian occupations discussed in the DOT with which the adjudicator may satisfactorily compare the military service occupation.
Evaluation of Work Activity in Certain Government-Sponsored Programs
The following relates to Policy Statement 2.
Under discussion are civilian government-sponsored job training and employment programs, as well as volunteer programs.
- 1. Job Training and Employment Programs
Federal funds have been made available to State and local agencies to
provide job training and employment opportunities for economically
disadvantaged, unemployed and underemployed people to prepare them to
function acceptably in various kinds of competitive employment.
Documentation and Evaluation
- A. The work activity of a person in a government-sponsored job training program must be evaluated under the usual criteria for earnings and services as discussed in SSR 83-33, PPS-107, in order to determine whether he or she is engaging in SGA. A decision as to whether SGA is shown, and when such SGA may have begun, should be based on information as to the person's "countable earnings" and performance. Workers under any of these programs should not, therefore, be treated as a group. Rather, each case should be evaluated on its own merits.
- B. The "countable earnings" of a person involved in a government-sponsored job training program are determined in the same manner as for all types of employees, as discussed in SSR 83-33, PPS-107. It should be noted, however, that subsidies are frequently involved in work for such programs. It is important, therefore, to consider this possibility and, when appropriate, to develop thoroughly the issue of subsidy in accordance with the above PPS.
- If, after the issue of subsidy (and/or of impairment-related work expenses) is resolved, a person's "countable earnings" do not average more than the primary amount shown in the SGA Earnings Guidelines, and if the work does not meet either the test of comparability or the test of worth of work, the work activity will not be found to represent SGA.
- C. Under some government-sponsored programs, part of the participant's time may be devoted to on-the-job training. Whether the person's activity is all work or whether such training is also involved, all of the SGA tests as discussed above apply.
- D. For purposes of charging months of the TWP, the provisions in sections 404.1592 and 416.992 of the regulations apply.
- 2. Volunteer Programs
- The Federal government has administered a number of programs for volunteer activity under the DVSA and the SBA. Volunteers in such programs may have received payments in the form of a minimal stipend, payment for supportive services (such as housing, supplies, and equipment), an expense allowance, and/or reimbursement of out-of-pocket expenses.
- Such payments cannot be counted as earnings, income or resources to reduce or eliminate payments made under other government programs. Therefore, neither payments made to volunteers nor the services performed by them under the DVSA or SBA are to be evaluated for the purpose of determining SGA (or TWP) under title II or title XVI of the Social Security Act. This means that none of the SGA tests -- earnings, comparability of work activity, or worth of work activity -- is to be applied to volunteer activity under the DVSA or SBA.
- This exclusion from the SGA (and TWP) provisions applies only to volunteers participating in programs explicitly mentioned in the DVSA and the SBA: Volunteers in Service to America (VISTA); University Year for ACTION; Special Volunteer Programs; Retired Senior Volunteer Program; Foster Grandparent Program; Older American Community Services Programs; Service Corps of Retired Executives (SCORE); and Active Corps of Executives (ACE).
- The protection of the exclusion explained here does not cover volunteers for any work they may undertake in activities outside the specified programs. Nor does this protection apply to nonvolunteers associated with the programs, that is, program operating personnel and those persons served by the programs.
Documentation and Evaluation
Since the person involved may be unaware of the DVSA or the SBA, or the organization or agency responsible for the volunteer programs, it is important that any evidence of activity under one of these programs be noted. If it appears that the person is involved in one of the programs, the supervisor is to be contacted to establish whether the person is a volunteer or an employee. A detailed description of his or her activities is necessary, along with information as to the type and amount of payment(s) received, such as wages, stipend, expense allowance, and reimbursement of out-of-pocket expenses.
If it is found that the person engaged in volunteer activity in one of the programs, neither the payments received nor the services performed will be considered for SGA (or TWP) purposes. If, however, the person is found to be an employee rather than a volunteer, his or her earnings and services are to be evaluated in the usual manner for SGA (and TWP) purposes.
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 00503.140-00503.145; SSR 83-33, PPS-107, Determining Whether Work Is Substantial Gainful Activity -- Employees.