DI 13010: Work Activity
TN 15 (11-02)
When a Title XVI or Title II/XVI recipient (other than one receiving benefits based on blindness) returns to work less than one year after onset, the same issues arise as in Title II case. Four choices are possible:
Reopen and revise an allowance to a denial or later onset if the determination is final (See GN 04001.040),
Prepare a SSA-831-U5 Disability Determination and Transmittal, denial determination (refer to the NOTE in DI 13010.105 to decide when a new determination as opposed to a reopening is appropriate),
Cease benefits, or
Continue benefits under section 1619 (see SI 02302.030).
The choices made will be contingent on whether the recipient met the 12 months duration or expected duration requirement for entitlement, (see DI 25505.025) and if so, whether the period of disability should cease or continue. (See B. through C. below to determine which situation applies.) Also, special consideration must be made for the Title XVI recipient (see DI 13010.110A).
NOTE: When a Title II/XVI recipient returns to work less than one year from onset, the Title II instructions in DI 13010.105 apply to the Title II portion of the concurrent case, and the Title XVI instructions in this section apply to the Title XVI portion.
A. Policy – Special Considerations
1. Date of final determination
The final determination date for purposes of evaluating work activity prior to one year from onset is the date of notice of the initial allowance. The final determination date is needed to determine whether a return to work at the substantial gainful activity (SGA) level requires a reopening See DI 27501.001A.3. and GN 04001.040A.2.
2. Date of onset
Unlike Title II beneficiaries, the date of application is usually established as the date of onset of disability for a Title XVI recipient. Accordingly, if an onset date has been established under Title II for a Title II/XVI claim, use the onset date established for the Title II claim as the actual date of onset to determine if the duration requirement has been fulfilled for both claims. If an onset date later than the month of filing has been established for a Title XVI-only claim, use that date of onset as the actual date of onset to determine if the duration requirement has been fulfilled. Otherwise, if the actual onset date is needed to determine if the duration requirement has been met, develop and prepare a work issue determination. Send the folder to the DDS that made the original disability determination and annotate the route slip “The claimant began work at a substantial gainful activity (SGA) level after the month of filing. Determine the actual date of onset, considering whether the duration requirement was met, in view of the claimant's work activity”. If a potential earlier onset date is not possible for duration requirements, reopen the claim to an SGA denial.
Example:
A claimant filed a Title XVI application in 12/2001 with an onset date of 12/01/2001. In 04/2002 the claimant reported that he had returned to work in 03/2002, before the date of the final determination. The Field Office (FO) developed the work activity and determined that the work was SGA and that the claimant could be protected under 1619 (see SI 02302.030) if duration was met. The Field Office (FO) then forwarded the Title XVI claim to the Disability Determination Services (DDS) that prepared the original disability determination to determine whether the duration requirement was met.
3. No waiting period
Unlike Title II beneficiaries, Title XVI recipients are not required to serve a 5-month waiting period. Thus, substantial gainful activity (SGA) after the date of the final determination, but within 5 months from the date of onset, could result in differing determinations under Title II and Title XVI, i.e., a determination of denial under Title II and a determination of allowance under Title XVI.
Example:
A claimant filed concurrent applications for Title II and Title XVI disability benefits in 07/2002. An onset was established as of 07/2002 under both titles. On 09/18/2002, after the receipt of the final determination, the claimant reported that she had returned to work on 09/15/2002. The severity and expected duration requirements for disability were met prior to the individual' s return to work. Since the individual returned to work in the waiting period, and the work activity was found to be substantial gainful activity (SGA), the Field Office (FO) reopened and revised the Title II allowance determination to a denial. However, because the individual was not required to serve a waiting period for Title XVI payments, the Field Office (FO) handled the work under section 1619 (see SI 02302.030) provisions.
B. Policy - return to work less than 12 months after onset and information received prior to date of final determination
When a claimantl returns to work less than 12 months after onset and prior to the date of the final determination the issue to be resolved is whether the work performed is substantial gainful activity (SGA).
In determining if the work prior to the final determination is substantial gainful activity (SGA), the nature of the work, the earnings, and the duration of the work prior to the final determination must be considered. Therefore, consider earnings under substantial gainful activity (SGA) guidelines (value the services when performed) for work performed prior to the final determination. However, handle work performed after the final determination under the earned income provisions of section 1619 (see SI 02302.030).
1. Work is substantial gainful activity (SGA)
If the work activity is SGA and the folder is in the FO, prepare a SSA-831 denial determination per DI 11010.205. Place a previously prepared allowance determination in the folder and annotate “Do Not Process” in the “Remarks” section of the SSA-831.
If the folder is in another location, e.g., Title II/XVI case released to Office of Central Operations (OCO) or Payment Service Center-Disability Processing Branch (PSC-DPB)” for payment of Title II benefit, recall it. When received, prepare a SSA-831 denying benefits. Process a previously prepared, uneffectuated, SSA-831 allowance determination as in the first paragraph of this subsection.
If the claimant returned to SGA less than 12 months after onset, but his work activity later stopped, send the case to the DDS to consider a later onset date. If a later date of onset cannot be established or the 12-month duration is not met, issue an SGA denial. Process a previously prepared, uneffectuated, SSA-831 allowance determination as in the first paragraph of this subsection. Use MISSICS to code the denial. On the Build SSR (DSSR) screen show Y for Close Event. On the Adjudicative Decision (DADJ) screen, enter Y for Close Initial Claim, 2 for initial Claim Decision, and N33 for Denial Code.
2. Work is not substantial gainful activity (SGA)
If the work is not SGA and is continuing after the date of final determination, handle the work activity as earned income. Consider whether the work activity should be handled as trial work period (TWP) service months if the claimant is also entitled to a Title II benefit.
C. Policy - Return to Work Less Than 12 Months After Onset and Information Received After the Date of Final Determination
1. SGA began before date of final determination
When SGA began before the date of the final determination but the information was received after this date, reopen the prior determination and revise to a denial. If the folder is not on hand, recall it from the office retaining it (e.g., WBDOC, OCO or PSC-DPB).
When SGA began before the date of the final determination but stopped, and the unsuccessful work attempt (UWA) criteria are not met (see DI 11010.145), forward the case to the DDS to consider later onset dates.
2. SGA began after date of final determination
When SGA began after the date of the final determination, handle under the 1619 (see SI 02302.030) provisions (see DI 13005.016).
3. Work is not SGA
Follow the applicable instructions in DI 13010.020.
D. Policy - Acquiescence Rulings
Prior to 3/27/2002, there were several acquiescence rulings in effect that restricted SSA from denying an individual who returned to work within a year of onset and prior to the date of determination. Based on the Supreme Court ruling on Barnhart vs. Walton effective 03/27/2002, the following acquiescence rulings are no longer applicable:
AR 00-5(6) - Salamalekis v. Apfel, 221 F.3d 828 (6th Cir. 2000),
AR 98-1(8) - Newton v. Chater, 92 F.3d 688 (8th Cir. 1996),
AR 92-6(10) - Walker v. Secretary of Health & Human Services, 943 F.2d 1257 (10th Cir. 1991), and
AR 88-3(7) - McDonald v. Bowen, 818 F.2d 559 (7th Cir. 1986).
Do not reopen cases that were properly processed under the above acquiescence rulings prior to 03/27/2002. However, if an acquiescence ruling cited in this subsection was applied on or after 03/27/2002, reopen the determination if possible under the rules of administrative finality.
E. Policy - Return to Work More Than A Year After Onset
Develop and resolve the work activity in accordance with the procedures in SI 02302.010.