DI 11010.145: Unsuccessful Work Attempt (UWA) Overview

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~~Effective Dates: 06/08/2017 - Present~~
Effective Dates: 06/06/2018 - Present
TN 58 (06-17)
DI 11010.145 Unsuccessful Work Attempt (UWA) Overview
A. Definition of UWA
A UWA is an effort to do work in employment or self-employment that discontinues or reduces to the non-Substantial Gainful Activity (SGA) level after a short time (no more than 6 months) because of the impairment or the removal of special conditions related to the impairment that are essential to the further performance of work. Work performed during a UWA does not prevent a finding of disability.
B. Procedures for processing claims or post-entitlement actions involving UWA
1. FO responsibilities when applying the UWA policy
The Field Office (FO) employees are responsible for applying the UWA policy when claimants apply for Title II or Title XVI benefits or when beneficiaries receive Title II benefits based on disability that, after working in employment or self-employment despite:
The Field Office (FO) employees are responsible for applying the UWA policy when claimants apply for Title II or Title XVI benefits or when beneficiaries receive Title II benefits based on disability after working in employment or self-employment despite:
* severe impairment, or
* involuntary discontinuing or markedly reducing such work.
We may use UWAs to help DDS establish an onset date, which may affect Primary Insurance Amounts (PIA) or the retroactivity of disability benefits.
NOTE: The FO is responsible for a final determination of a UWA in work continuing disability review (CDR) cases.
2. FO responsibility for documenting a UWA
When determining if a work attempt was unsuccessful, request an SSA-821-BK (Work Activity Report – Employee) or SSA-820-BK (Work Activity Report – Self Employed Person) and consider these three questions:
* Was the work activity substantial enough to warrant a finding that they engaged in SGA during the time he or she actually worked? For a definition of substantial gainful activity, see DI 10501.001.
* How long did the work last?
* Did the claimant or beneficiary stop the work, or reduce it to the non-SGA level due to the impairment or the removal of special conditions related to the impairment?
Review the information on the SSA-821-BK or SSA-820-BK and record the UWA information on Form SSA-823 (Report of SGA Determination – For SSA Use Only). For more information on form SSA-823, see DI 10505.035G.
NOTE: If work is below SGA, UWA does not apply. Do not mark a UWA on the SSA-823 if work is below SGA.
3. Disability Determination Services (DDS) responsibilities for UWA
The DDS has the final responsibility for determining whether a period of work was a UWA in initial claims and medical CDRs. For DDS processing instructions for UWAs, see DI 24005.001.
4. Evaluating a UWA
FO employees use the UWA policy in initial Title II and Title XVI disability cases to assist DDS with establishing the onset of disability date. FO employees use the UWA policy in Title II continuing disability cases to determine whether the disability continues or ceases because of work activity.
The UWA policy does not apply when determining whether benefits are payable during the re-entitlement period of the Extended Period of Eligibility (EPE) after there is a cessation determination due to SGA. The EPE re-entitlement period begins with the month immediately following completion of the Trial Work Period (TWP) and ends 36 months later (unless a rolling EPE applies). The UWA does not apply to the TWP. However, when considering a work effort as a potential UWA, always evaluate the entire period of work before determining if it meets the UWA criteria, even when some of the months fall within the TWP.
NOTE: Do not apply UWA policy to work occurring in the Initial Reinstatement Period (IRP) in Expedited Reinstatement (EXR) cases. For more information about the IRP, see DI 13050.066.
Examples of evaluating a period of work with SGA in the TWP:
Example 1
The beneficiary begins work at the SGA level in the sixth TWP month. The work effort continues at the SGA level for 7 months, and ends in the third month of the EPE. Even though there are only 3 months of SGA after the TWP, we cannot consider the work as a UWA because the entire work effort exceeds 6 months.
Example 2
The beneficiary begins work at the SGA level in the ninth TWP month and ends in the third month of the EPE. Because the period of SGA lasted only 4 months, you may evaluate and determine that the three months that fall in the EPE are a UWA.
C. Policy for an event that must precede a UWA
There must be a significant break in the continuity of a claimant or beneficiary’s work before we can consider them to have begun a work attempt that later proved unsuccessful.
A significant break in a claimant or beneficiary’s work occurs if they:
* Discontinued or reduced work activity to the non-SGA level because of the impairment or the removal of special conditions related to the impairment that are essential to the further performance of the work; or
* Discontinued or reduced work activity to the non-SGA level prior to the onset date of the impairment for reasons unrelated to the impairment (such as retirement or layoff); or
* Never previously engaged in work activity.
Consider work to be “discontinued” if they were:
* out of work for at least 30 consecutive days, or
* forced to change to another type of work or another employer because of their impairment.
NOTE: On rare occasions, a break lasting less than 30 days may satisfy this requirement if the subsequent work episode was brief and clearly unsuccessful because of the impairment.
D. Policy for an event that must follow a UWA
After the first significant break in a claimant’s or beneficiary’s continuous work activity, regard the following period of work as continuous until the impairment or the removal of special conditions related to the impairment essential to the further performance of work, causes the work to discontinue, or reduce to the non-SGA level. Each continuous period, separated by significant breaks, may be a UWA as the beneficiary or claimant met the duration and conditions of work criteria.
E. Policy for duration and conditions of work
Prior to November 16, 2016, there were additional requirements to evaluate work that lasted between 3 and 6 months. We published a final rule that removed some of the evaluation requirements for a UWA that lasts between 3 and 6 months. The final rule became effective on November 16, 2016.
1. Work effort of 6 months or less
To consider work activity a possible UWA:
* the work activity must have ended, or have been reduced to the non-SGA level, within 6 months due to the impairment; or
* the work activity must have ended, or have been reduced to the non-SGA level because of the removal of special conditions related to the impairment that are essential to the further performance of work. For examples of special conditions, see DI 11010.145F.
Accept the documented allegation when the reason work ended or reduced has a reasonable relationship to the impairment.
Example of a work effort that last 6 months or less:
Work from November 5, 2015, through a date no later than May 4, 2016, is a work effort of “6 months or less.”
2. Work effort of over 6 months
SGA-level work lasting more than 6 months cannot be a UWA regardless of why it ended or reduced to the non-SGA level.
Example of a work effort that lasted over 6 months:
Work at the SGA level from November 5, 2015, through May 30, 2016 is a work effort of “over 6 months.”
F. Special conditions
The removal of special conditions related to the impairment that are essential to the further performance of work is one situation where SGA-level work may have ended or reduced to the non-SGA level. That is, a severely impaired person may have worked under conditions especially arranged to accommodate his or her impairment, or may have worked through an unusual job opportunity, such as in a sheltered workshop. Special or unusual conditions may be evident in many ways. For example, the claimant or beneficiary:
* required and received special assistance from other employees in performing the job;
* was allowed to work irregular hours or take frequent rest periods;
* was provided with special equipment or was assigned work especially suited to the impairment;
* was able to work only within a framework of specially arranged circumstances, such as where other persons helped him or her prepare for or get to and from work;
* was permitted to perform at a lower standard of productivity or efficiency than other employees; or
* was given the opportunity to work, despite his or her impairment, because of family relationship, past association with the employer, or other altruistic reason.
For more information about special conditions, see DI 10505.010A.4.

POMS Reference

DI 11010.145: Unsuccessful Work Attempt (UWA) Overview