TN 38 (03-16)
DI 13010.105 Beneficiary Returns to Substantial Gainful Activity (SGA) Within One Year of the Onset Date - Title II
Title II beneficiaries, who return to SGA within one year of their disability onset date, may not meet the 12-month duration requirement. For the definition of duration requirement for disability, see DI 25505.025B. If the claimant returns to SGA within 12 months of the earliest possible onset and we have not yet adjudicated the claim, deny the claim. In determining the earliest possible onset, consider all factors, including prior and current entitlement to supplemental security income (SSI), or date first insured (DFI).
If we adjudicated the claim, we may decide that:
the trial work period (TWP) provisions apply, see DI 13010.035;
the claim should be reopened to an SGA denial; or
disability determination services (DDS) may need to consider an earlier or later onset date, refer to the policy in this section.
EXCEPTION: For exceptions to the duration requirement, see DI 25505.025E. Some cases involving claimants with statutory blindness do not have a 12-month duration requirement. For cases involving allegations or evidence of visual disorders or blindness, refer to DI 11005.070 and DI 11005.072.
Reminder: Effective December 1, 2012, use 3694 DIG code in all stat blind allowances.
DI 27505.001 Conditions for Reopening a Final Determination or Decision
DI 25501.200 Overview of Onset Policy
A. Definitions of terms
1. Date of the final determination
The date of the final determination is the date on the disability award notice.
You can view a copy of the notice of award in the Online Retrieval System (ORS). If the notice of award is not available in ORS, use the Modernized Claims System (MCS) clearance date to determine the date of the final determination.
IMPORTANT: The date the DDS examiner signed the Form SSA-831 (Disability Determination and Transmittal) is not the final determination date.
2. Onset date of disability award
The onset date is the first day the claimant meets the definition of disability or statutory blindness as defined in the Social Security Act and regulations. (See POMS section DI 25501.200.)
3. The established onset date (EOD)
The EOD is the date an adjudicator determined a beneficiary meets Social Security Administration’s (SSA’s) definition of disability or statutory blindness and all the relevant entitlement or eligibility factors. The EOD is not the first month benefits are payable.
You can find the EOD on the:
Form SSA-831 (Disability Determination and Transmittal) Item 15A, see DI 26510.010;
Master Beneficiary Record (MBR), date of disability onset (DDO) field in the disability data (DISB) segment; or
Disability Control File (DCF), on the Entitlement Selection (ESEL) screen, see MS CDR 002.005.
DI 25501.200 Overview of the Onset Policy
DI 25501.300 through DI 25501.390 (Establishing Onset Date)
DI 27505.001C Conditions for reopening a final determination or decision
4. Return to SGA within one year of the onset date
SSA defines return to SGA within one year (12 months) of the onset date on an exact year basis.
a. Return to SGA within one year of the onset date met
If a beneficiary returns to SGA before the first anniversary of the first day he or she met the statutory definition of disability, he or she has returned to SGA within one year of the onset date.
EXAMPLE: The beneficiary’s onset date is January 17, 2013. If he or she returns to SGA on or before January 16, 2014, then the beneficiary returned to SGA within one year of the onset date.
b. Return to SGA within one year of the onset date not met
If the beneficiary does not return to SGA until the day of the first anniversary of the first day he or she first met the statutory definition of disability or later, then he or she has not returned to SGA within one year of the EOD.
EXAMPLE: If the same beneficiary returned to SGA on January 17, 2014 or later, then he or she has not returned to SGA within one year of the onset date.
B. Field Office (FO) and Processing Center (PC) instructions when the beneficiary returns to SGA within 12 months of the onset date
In all cases, develop the earnings and work activity, and all applicable work incentives, to determine SGA per DI 10505.035 or DI 10510.025. Document the work activity and make an SGA determination by completing forms:
SSA-820-BK (Work Activity Report - Self-Employment); or
SSA-821-BK (Work Activity Report - Employee); and
SSA-823 (Report of SGA Determination).
1. DDS has established EOD -- FO has jurisdiction
Is the SGA month at least 12 months after the Established Onset Date (EOD)?
12-month duration is met, and no reopening is needed. Apply TWP pprovision as applicable. (See DI 13010.035.)
NOTE: Work activity protected by the TWP raises an issue of medical recovery in cases with a medical diary (MIE) see DI 13010.012.
Go to Question 2.
Did SGA begin after the date of the final determination?
For the date of final determination, see DI 13010.105A.1. in this section.
Go to Question 3.
Go to Question 4.
Is the SGA month after the 5-month waiting period?
No reopening needed. Apply TWP provision as applicable see DI 13010.035.
Go to Question 4.
Is the work activity continuing above SGA?
NOTE: Some cases involving claimants with statutory blindness do not have a 12-month duration requirement. For cases involving allegations or evidence of visual disorders or blindness, refer to DI 11005.070 and DI 11005.072.
Determine if a potential earlier onset date is possible for duration requirements only. Follow instructions in DI 25501.220C. If an earlier onset date is:
not possible, go to question 5; or
possible, go to question 6.
Determine if the work attempt is an unsuccessful work attempt (UWA). See DI 11010.145.
If the work attempt is:
an UWA, STOP. Do not reopen the previous determination. Apply TWP months as applicable see DI 13010.035.
not an UWA, proceed to question 6.
NOTE: The DDS has the final responsibility for determining whether a period of work was an UWA, except in continuing disability review (CDR) cases where there is no medical issue. Since the EOD is established, the UWA determination in the situation is considered a continuing disability determination.
Can we reopen the determination per the rules in DI 27505.001?
Reopen the claim to an SGA denial using eWork.
Important: eWork generates the required due process notice, but does not create the final determination notice. The final notice must contain appeal rights for a hearing per GN 04001.090.
FO decision makers:
Create a personalized final notice Form SSA-L8100 (Social Security Notice of Revised Determination) using the document processing system (DPS) after due process has expired; and
Fax all documentation into the paperless system. You can find fax numbers for paperless at KCNET T2 Systems.
PC decision makers:
Create a personalized final notice using the appropriate PC notice system when due process time is expired; and
Route action control record (ACR) with instructions to the Benefit Authorizer for processing the reversal to 0N1 denial.
Restrict your evaluation of the work activity to the period after the “period adjudicated,” see DI 27510.001
Can an earlier, or later, EOD be established?
The FO will:
Develop information on the nature and duration of the work performed after the earliest possible onset date, and the reasons for its termination or reduction; give special attention to determining the beginning and ending dates of periods of work;
Document the SGA determination in the file prior to sending the file to DDS; and
Return the claim to the DDS for consideration of an earlier or later EOD following normal local procedures.
NOTE: If the DDS establishes a later EOD, they will provide the due process notice.
The PSC/DPB will:
Determine a later EOD, and send a personalized due process notice using the appropriate PC notice system;
ODO staff will return the file to the FO and ask them to forward to DDS for consideration of a later EOD; and
For instructions on processing medical reactivations, see DI 81010.143.
Go to Question 5.
2. DDS has not established EOD — DDS has jurisdiction of the case
Did the beneficiary return to SGA within 12 months of the potential onset date (POD), and before the date of the final determination? For definition of the POD, see DI 25501.220.
Go to Question 2
12-month duration is met.
Did SGA subsequently end?
Develop information on the nature and duration of the work performed after the earliest possible onset date, and the reasons for its termination or reduction. In determining the earliest possible onset, consider all factors including prior or current entitlement to SSI, date first insured (DFI), give special attention to determining the beginning and ending dates of periods of work. DDS has the responsibility for a UWA or a later onset determination. Notify the DDS via a message in eView, or call the examiner directly and ask DDS to consider a UWA or a later onset date. For instructions on how to create messages in eView, see DI 81010.080C.1.
Recall the file. Prepare a Form SSA-823 (Report of SGA Determination - SSA Use Only) explaining the SGA determination, and an SSA-831 denying disability benefits based on SGA and place in the folder. Process an SGA denial per DI 81010.140C, or for EDCS exclusions, follow DI 11010.190. In all cases prepare and release the personalized denial notice in DPS per DI 11010.345.
C. Acquiescence rulings
Prior to March 27, 2002, there were several acquiescence rulings in effect that restricted the Social Security Administration (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 March 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 processed under these acquiescence rulings prior to March 27, 2002. However, if we applied an acquiescence ruling cited in this subsection on or after March 27, 2002, reopen the determination under the rules of administrative finality. See section DI 27505.001.