TN 7 (01-07)
DI 10510.020 Tests Two and Three of General Evaluation Criteria: Comparability of Work and Worth of Work Test
Work activity in self-employment performed by a title II disability beneficiary after he/she has received title II disability benefits for 24 months, must be evaluated under the “countable income test” (see DI 10510.010) if the purpose of the evaluation is to determine whether the beneficiary’s disability has ceased due to the performance of SGA. In all other cases, the work activity of non-blind self-employed individuals will be evaluated under three tests, all of which must be considered before it can be established that the individual’s work is not SGA.
A. Policy — Tests Two and Three of General Evaluation Criteria
If it is clearly established that the self-employed person is not engaging in SGA on the basis of significant services and substantial income under test one (DI 10510.015), the second and third tests of the general evaluation criteria must be considered. Under these tests, the individual will be determined to be engaged in SGA if evidence demonstrates that:
The individual's work activity, in terms of all relevant factors such as hours, skills, energy output, efficiency, duties, and responsibilities is comparable to that of unimpaired individuals in the same community engaged in the same or similar businesses as their means of livelihood; or
The individual's work activity, although not comparable to that of unimpaired individuals as indicated above, is, nevertheless, clearly worth more than the amount shown in the Earnings Guidelines when considered in terms of its value to the business, or when compared to the salary an owner would pay to an employee for such duties in that business setting.
B. Development of Comparability and Worth of Work Tests
When the impaired individual operates a business at a level comparable to that of unimpaired individuals in the community who make their livelihood from the same or similar kind of business, there can be a finding of SGA by the impaired person. To establish comparability of work activity, it is necessary to show that the impaired person is performing at a level comparable to that of unimpaired persons considering the following factors: hours, skills, energy output, efficiency, duties and responsibilities. The lack of conclusive evidence as to the comparability of the required factors will result in a finding that the work performed is not SGA under the comparability test.
An important part of the comparison is the selection of the group of unimpaired persons. The type of self-employment must be the same. In addition, the unimpaired persons must maintain on the basis of their activity a standard of living regarded as adequate for a particular community. Well-established businesses are generally the most reasonable choice for comparison.
Development must be specific. Each factor cited in 1. above must be described in detail, showing its contribution to the business operation. General descriptions are considered inconclusive evidence for the point-by-point comparison the evaluator is required to make. If only a general description is possible or available, any doubt as to the comparability of the factors should be resolved in favor of the impaired individual.
Evidence of the impaired individual's activities accompanied by a statement that the work is comparable to the work of unimpaired persons is insufficient for a sound decision. If necessary, a description should be obtained through a personal interview with an unimpaired self-employed individual from the selected group. It may be necessary to have a more comprehensive description of the impaired individual's activity than that which can be provided by the impaired person. Contact, therefore, should be made with people having first-hand knowledge of the impaired individual's work situation obtained through actual participation or observation. Adjudicators may want to keep a list of possible contacts or use the telephone book/internet to locate possible contacts in the area.
The degree to which evidence of comparability or worth of services should contain data supplied by outside authorities (e.g., county agents, etc.) will depend on the factual situation. In many instances, the familiarity of the FO with local conditions will make it unnecessary to document the file in great detail. For example, it may be evident in a poor farming area that management services on a small farm yielding a less-than-subsistence income would not be comparable to the full range of physical and mental activities performed by an able-bodied farm operator, nor would the services be clearly worth more than the amount shown in the Earnings Guidelines. On the other hand, where there is any doubt as to the comparability or worth of services, obtain evidence in appropriate detail and supplement it as required by opinions from authoritative sources in the community.