TN 14 (06-17)

A. Establishing an EOD before or during an UWA

1. Definition of a 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.

For a complete discussion of UWAs, see DI 11010.145 and DI 24005.001.

2. UWA and EOD

A UWA may affect a claimant’s primary insurance amount (PIA) and the retroactivity of disability benefits because of the potential impact on the EOD. Work determined to be a UWA does not preclude a finding of disability. The disability determination services (DDS) may establish an EOD at the earliest possible date, on or before a period that a claimant was performing work activity, if that work is determined to be a UWA.

3. Conditions for a UWA and duration

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. That final rule became effective on November 16, 2016.

Disability evaluation is generally concerned with the ability to work over an extended period rather than for short, isolated periods. When a claimant works (in employment or self-employment) despite a severe impairment and then stops or reduces such work below the SGA level for 30 days or more, it raises these questions:

• Was the work substantial enough to warrant a finding that the individual was engaged in SGA during the time he/she actually worked? See DI 10501.001 for a definition of substantial gainful activity.

• 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?

• Regardless of the amount of money earned and duration of the work, does the medical and vocational evidence indicate the ability to engage in SGA before, during, or after the period of actual work?

a. 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 within 6 months because of the removal of special conditions related to the impairment that are essential to the further performance of work.

For example, work from November 5, 2015 through a date no later than May 4, 2016, is for “6 months or less.” Examples of “special conditions” are in DI 11010.145F.

b. 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.

For example, work at the SGA level from November 5, 2015 through May 30, 2016 is a work effort of “over 6 months.”

B. Component roles and responsibilities for establishing the EOD involving a UWA period

Both the field office (FO) and the DDS have a role in making UWA determinations.

1. FO roles and responsibilities

The FO will:

• develop information on the nature and duration of any work performed after the earliest possible potential onset date (POD) and the reasons for its termination or reduction.

  NOTE: Give special attention to determining the beginning and ending dates of periods of work.

• prepare a determination as to whether or not the work performed after the earliest possible POD was SGA.

• document the findings for the DDS using an SSA-820-BK (Work Activity Report--Self-Employed Person) or SSA-821-BK (Work Activity Report--Employee), if the work was SGA. The FO will make a recommendation regarding SGA and UWA on an SSA-823 (Report of SGA Determination). The FO has final responsibility for a determination of a UWA only in non-medical continuing disability review (CDR) cases.

2. DDS roles and responsibilities

The DDS:

• will make the final determination regarding UWAs in all claims except CDRs with no medical issues. FOs make the final determination regarding UWAs in CDRs where there is no medical issue.

• will recognize work activity not developed by the FO, which may be pertinent to establishing an EOD. Work that is determined to be a UWA does not preclude a finding of disability.

• may establish an EOD on or before a period in which the claimant performed the UWA.

C. Component instructions for establishing the EOD involving a UWA period

1. FO instructions

The FO will:

• follow the instructions in DI 11010.145 when there is a possibility of a UWA.

• document work on form SSA-820-BK or SSA-821-BK.

• record the UWA information and make recommendations on form SSA-823.

2. DDS instructions

The DDS will:

• Determine the duration of the potential UWA.

  NOTE: If the claimant or beneficiary’s work effort does not exceed 6 months, and if the alleged reason work ended or reduced has a reasonable relationship to the impairment, then we do not require verification of the reason work ended or reduced. The DDS should request assistance from the FO to obtain any additional information necessary to make a UWA determination.

• Document the file with the UWA determination, either in the disability determination explanation (DDE) or on a Form SSA-5002 (Report of Contact) that explains your UWA determination and the facts used to support your determination.