TN 11 (11-12)

Citations:

20 CFR 404.1510, 404.1571 to 404.1576, 404.1583, 404.1584

A. Relationship between SGA, past work, and the established onset date (EOD)

1. Substantial gainful activity and the EOD

Substantial gainful activity (SGA) is a term we use to describe a specific level of work activity and earnings. We will not establish the EOD during a period a claimant engaged in SGA, except for establishing a freeze period for a claimant who meets our definition of statutory blindness.

2. How is work determined to be substantial and gainful?

Work is "substantial" if it involves engaging in significant physical or mental activities, or a combination of both.

Work is gainful if it is:

• performed for pay or profit;

• of a nature generally performed for pay or profit; or

• intended for profit, whether or not a profit is realized.

Work performed on a part-time basis may be SGA. Generally, we use earnings guidelines to decide if work is SGA. To determine if a claimant’s countable earnings received from employment are SGA, see DI 10501.015 Table of SGA Earnings and Guidelines).

• We evaluate a self-employed claimant’s work activity for SGA purposes either under the general evaluation criteria, which consists of three tests, or, when applicable, under the countable income test. For example, if a claimant is self-employed, we may consider the type of services performed and the hours worked in the business. For information on developing and evaluating self-employment, see DI 10510.001.

• If a claimant is “blind” as defined in the Social Security Act (Act), the SGA earnings threshold is higher than for non-blind claimants. For more information on SGA and title II claims, see DI 10515.001 through DI 10515.005.

3. The last day worked and the EOD

If medical and other evidence indicates the claimant was disabled on the last day he or she performed SGA, we establish the EOD on that day, even if the claimant worked a full day.

4. The EOD after a continuous period of SGA

Normally, we establish the EOD on the last day the claimant performed SGA

EXCEPTIONS: We may able establish the EOD prior to the last day of SGA if:

• evidence supports an earlier EOD in a statutory blindness cases, or

• there was no SGA for a period of at least 12 months after the beginning of a period of disability. (For more information on the effects of SGA on disability status, see DI 24001.010; and for information on closed periods under title II, see DI 25510.010.)

If a claimant has been working continuously at the SGA level and income averaging or unsuccessful work attempts (UWA) provisions are not applicable, consider the entire period of work as SGA, even if the earnings in the month SGA stopped have not yet reached the monthly SGA earnings level found in DI 10501.015.

EXAMPLE: Jeff has been working for the same company, doing the same job, and working at the SGA level for 15 years. Acceptable medical sources diagnosed Jeff with a mental impairment early in his career, but Jeff continued to work at an SGA level, with no subsidies, despite his impairment. Jeff stopped working on February 8, 2012 and subsequently applied for disability benefits. Jeff’s wages in the month of February were below SGA. We cannot establish the EOD earlier than February 8, 2012. The continuous period of work up to when Jeff stopped working on February 8, 2012 was performed at the SGA level.

5. Unsuccessful work attempts (UWA) and the EOD

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 specific information on establishing the EOD when there is a UWA period, see DI 25501.400. A period of work is not SGA if the claimant performs work during a period determined to be a UWA. A UWA can occur before or after the alleged onset date (AOD). If a claimant engages in SGA after his or her AOD, the adjudicator must consider whether that work was an UWA (see SSR 84-25). If we determine a period of work is an UWA, we may establish the EOD before or during this period if the claimant meets the medical, vocational, and technical requirements for disability during the UWA period. For more information on the EOD and unsuccessful work attempts, see DI 25501.400.

6. The role of past work when establishing the EOD

We consider whether the claimant has the ability to perform his or her past relevant work (PRW) when we make disability determinations at Step 4 of the sequential evaluation process (see SSR 82-62). We only consider work performed at the SGA level within the relevant period, which is generally 15 years, and that lasted long enough for the claimant to learn to do the work.

If we determine a claimant can perform his or her past work and deny the claim, the claimant may appeal that denial. On occasion, when we adjudicate the claim at a later date and level of appeal, some of the claimant’s past relevant work (PRW) may not be in the relevant period, and this could result in an allowance. In such cases, once we determine the claimant is currently disabled, we establish the EOD without considering when the past work no longer fell within the relevant period. For information on the relevant period for specific claim types, see DI 25001.001.B.65.

B. Component roles concerning the relationship between SGA, past work, and the EOD

1. Field office (FO)

The FO documents the claimant’s pertinent work activity before and after the AOD on an SSA-821-F4 (Work Activity Report -- Employee) or an SSA-820-F4 (Work Activity Report -- Self-Employed Person) and an SSA-823 (Report of SGA Determination).

2. Disability Determination Service (DDS)

The DDS must:

• be alert to evidence of work activity not developed by the FO that may be pertinent to the disability decision, including unresolved questions and discrepancies on the Disability Report—Adult (Form SSA-3368-F8).

• make the final UWA determination. For an explanation of UWAs, refer to DI 24005.001 and for an explanation of establishing an EOD before or during a UWA period, see DI 25501.400.

• recognize the effect of a period of work on the date of the EOD. For an explanation of the effect of SGA on onset, refer to DI 24001.010B.

C. Component instructions concerning the relationship between SGA, past work, and the EOD

1. Field office (FO)

• Resolve title II, title XVI, and concurrent title II and title XVI work issues when the question is whether the claimant or recipient is or was engaging in SGA since the AOD, or, if requested by the DDS, before the AOD.

• Include consideration of Income Related Work Expenses (IRWE), subsidies and special wage situations when making an SGA determination. See DI 10501.000

• Record all findings concerning SGA on the SSA-820 or SSA-821 and the SSA-823, in accordance with DI 10510.025 and DI 10505.035. Alert the DDS when a UWA is possible. Be alert to the possibility of an UWA (see DI 11010.145).

NOTE: The DDS has final responsibility for decisions about whether a period of work qualifies as an UWA (with the exception of continuing disability reviews (CDRs) that do not involve medical issues). For more information on UWAs, see DI 24005.001.

2. Disability Determination Service (DDS)

• Notify the FO of any work not previously identified by the FO. Ask the FO to complete an SSA-820, or an SSA-821 and an SSA-823 and provide a potential onset date (POD), as well as an UWA recommendation, if applicable.

• Make a final UWA determination. (See DI 24005.001.)

3. References

• DI 10501.001 Meaning of SGA

• DI 10501.015 Tables of SGA Earnings Guidelines and Effective Dates Based on Year or Work Activity

• DI 10501.020 Special Development Situations

• DI 10505.025 Responsibilities and Procedures - Work Issue Cases

• DI 10510.025 Documenting Self Employment Cases

• DI 10505.035 Documenting Employment Cases

• DI 10510.025 Documenting Self-Employment Cases

• DI 11055.095 Claimant Engaging in SGA

• DI 13010.105 Return to Work with a year of Onset (Title II)

• DI 13010.110 Return to Work Within A Year Of Onset (Title XVI)