DI 24001.005 Initial and Subsequent Work Issue Cases
IMPORTANT: Effective February 2012, the DDS can make “clearly not SGA” determinations (see DI 10501.025).
If the sole issue to be resolved is whether the claimant is or was engaging in substantial gainful activity, (SGA) the FO has jurisdiction. The DDS will resolve the medical and vocational issues when the case cannot be decided solely on work issues, unless the case is otherwise excluded from DDS jurisdiction.
Performance of SGA effective July 1, 1987 on, is not a basis for finding that disability ended in title XVI claims once the requirements for initial eligibility, including any applicable duration requirement, have been met.
Work issue cases sent to the DDS from the FO will contain a work issue determination on the SSA-823 (Report of SGA Determination-For SSA Use Only) or on the SSA-3367 (Disability Report-Field Office), as appropriate. This determination will resolve whether the work is or was SGA and should be considered by the DDS when its determination is made. If a rationale is required per existing instructions, the FO's determination should be incorporated by reference.
If the work issue has not been resolved, the DDS should return the file to the FO, unless the work is protected by the trial work provisions. Any DDS questions or problems which arise pursuant to a FO work issue determination should be referred to the ARC, Programs.
B. Work Issue Defined
Any indication that a claimant is or has engaged in work activity during a period when disability was alleged or determined may raise a work issue. Work issues may come to the attention of the FO from an allegation on an application or elsewhere, a report of work activity, an earnings record posting, or a report from an employer. Posted earnings do not always represent a work issue: for example, they may be non-work payments such as vacation pay, scrambled wages, etc. However, these payments should be explained.
C. Work Issues in Foreign Claims
Jurisdiction and responsibility for work issues in foreign claims will be handled by the International Program Service Center (INTPSC).
D. SGA Cases
SSA has jurisdiction of disability cases where the sole issue to be resolved is whether or not the individual is or was engaging in substantial gainful activity, unless the work activity is “clearly not SGA.” To process “clearly not SGA” cases, see DI 10505.003. If the DDS has received the disability transmittal and the FO subsequently establishes that the claimant is engaging in SGA, the FO will contact the DDS by telephone and request that the folder be returned to the FO. However, in both a title II and a title XVI case where a visual impairment is alleged or a period of a disability is possible, the FO will send the case to the DDS for a determination, regardless of whether the claimant is engaging in SGA. (See DI 24001.005A., DI 24001.005B., and DI 24001.005F.)
E. Reports Received by FO (Initial, Reconsideration, Reopening and CDR Cases)
If a beneficiary reports a return to work, after the folder has been transmitted to the DDS, the FO will alert the DDS by telephone. The FO will then develop the work activity and make a determination on the work activity even if it is obvious that the work is not SGA. If it is determined that the work activity is SGA and that the criteria for FO jurisdiction are met, the FO will again telephone the DDS and request the folder be returned for a denial based on SGA.
If the FO concludes that the work activity is not SGA, the DDS has jurisdiction. The FO will record the work information on an SSA-821-BK or SSA-820-F4 and forward the material to the DDS by SSA-408.
F. Reports Received by DDS
When a report that the claimant has returned to work is received directly by the DDS, determine if the work activity is “clearly not SGA”, following instructions in DI 10505.003B.1.b. Annotate the folder to show the status of the medical/vocational development in the event that the file is subsequently returned to the DDS. Then unless the work is “clearly not SGA", cease all development and return the folder to the FO for resolution of the work issue.
If a consultative examination (CE) was performed and the report is outstanding, return the case to the FO without the report for a determination based on work. When the CE report comes in, send it to the FO for association with the folder. However, if a CE is scheduled but has not yet been completed, it should be cancelled.
If the FO determines that the work activity does not alter the case jurisdiction, they will record the work information on an SSA-821-BK or SSA-820-F4 and return the folder to the DDS.
However, if there is sufficient information on hand to permit a determination of denial to be immediately made on medical/vocational grounds, DDS will prepare and effectuate the determination. In addition if a CE was performed and the report is pending, notify the FO of the denial by telephone and hold the case until the report is received.
G. Report of Work Received by DDS After Claim is Sent to INTPSC
If a work issue is identified after a claim has been transmitted to INTPSC, send the report to INTPSC for processing.
H. SGA Ceased After Alleged Onset Date (AOD)
When the work issue determination prepared by the FO shows that the claimant engaged in SGA after the alleged onset date (AOD), but subsequently ceased SGA, the FO will develop the facts. This development will include the reason the claimant stopped engaging in SGA, a determination that the work was SGA, and a recommendation in item 12 of Form SSA-821-BK or item 14 of Form SSA-820-F4 as to whether it was an unsuccessful work attempt. The DDS has the final responsibility for determining whether a period of work was an unsuccessful work attempt, except in a continuing disability review case where there is no medical issue.
If the claimant is currently engaging in SGA which began in or after the month of filing, but did not engage in SGA during a period of at least 12 months prior to the date the current work activity began, the DDS will determine whether he or she was disabled for at least 12 months. If he or she was disabled and if there was no medical recovery prior to the month of filing, an allowance is justified. In post-adjudicative cases, all work activity performed July 1, l987, or later by a title XVI nonblind individual will be handled under section 1619 (see SI 02302.001ff). The title II claimant is entitled to a trial work period. If recovery has occurred in or after the month of filing, the title II claimant's trial work period will end as of the month of recovery. If recovery has not occurred, the title II claimant's trial work period will continue. (See DI 13010.035C. for the policy on who is not entitled to a TWP.) The title II claimant is entitled to a trial work period in situations in which the work began in or after the month of application, and more than 12 months after onset, even if the return to work occurred prior to adjudication. (See DI 13010.105E where return to work at an SGA level occurs less than 12 months after onset and prior to adjudication.)
I. DDS Jurisdiction - Continuing Disability Work Issues Case
The FO will forward to the DDS cases in which the beneficiary is working (regardless of whether or not he/she is engaging in SGA) and either (1) the continuing disability review (CDR) development indicates possible ability to engage in SGA; e.g., new and material evidence or a statement of ability to engage in SGA, or (2) there is a medical improvement expected diary.