TN 10 (12-17)

DI 33025.050 Disability Hearing Unit (DHU) Discovers Substantial Gainful Activity (SGA) Issue Prior to or During the Hearing

A. Introduction - DHU responsibilities

This section explains the actions taken when the DHU discovers an SGA issue prior to or during the hearing in Title II CDR cases; and in initial Title II, Title XVI or concurrent cases that are escalated to the reconsideration level and are evaluated together with CDR reconsiderations.

B. Procedure for handling cases involving SGA

1. Possible SGA discovered prior to hearing

If the DHU receives a case, discovers an SGA issue is material, and development is required, follow these steps:

  1. Postpone any scheduled hearing.

  2. If there is not enough time for written notice of postponement to reach the individual prior to the date of the scheduled hearing, telephone the individual and advise him or her that the hearing is being postponed pending resolution of the work issue. Advise the individual that we will send a written confirmation of the postponement shortly, and then take action to send the confirmation notice.

  3. Forward the claim to the field office (FO). Include a message for a certified electronic folder (CEF), or attach an SSA-408 to a paper claims folder, stating, “Necessary action on SGA Issue, SSA-789 filed.” If the FO does not issue a determination based on SGA, or if EPE applies, return the folder to the DHU. If the FO issues a determination based on SGA, advise the DHU. If the official folder is paper, send a copy of the FO’s completed SSA-833 to the DHU.

  4. Cancel the hearing process if the FO advises they issued a determination and no DHO decision is needed.

  5. Resume the hearing process if the FO returns the case because work was SGA, but EPE applies because work is not SGA.

2. Possible SGA discovered during hearing

If the DHO receives a case where an SGA issue is material during the hearing, follow these steps:

  1. Proceed with the hearing.

  2. If the evidence is sufficient to render a final medical improvement review standard (MIRS) cessation decision, do so; do not return the case to the FO just to develop for work activity.

  3. If the evidence is not sufficient to render a final MIRS cessation, document the DHU folders to show the actions taken in the DHU, and return the case to the FO as indicated in section B.1 above.

  4. Do not request development or reschedule a supplemental hearing until the FO completes its action on the SGA issue.

  5. Document the claims and DHU folders to show the specific development needed. State that the DHU will schedule a supplemental hearing, if needed, if the FO returns the case to the DHU. Refer to DI 81020.255 Processing a Reconsideration Appeal of an Electronic Continuing Disability (eCDR) Cessation for additional information.

  6. Forward the claims folder to the servicing FO. Include a message for a Certified Electronic Folder (CEF), or attach an SSA-408 to a paper claims folder, stating, “Necessary action on SGA Issue, SSA-789, filed.”

  7. Advise the individual of the status of the case.

C. References

  • DI 24001.001 Definition of Substantial Gainful Activity (SGA)

  • DI 28020.050 Substantial Gainful Activity (SGA)

  • DI 28050 Work Activity Cases Trial Work Period

  • DI 28055.001 Extended Period of Eligibility (EPE) and Related Medicare Provisions – General

  • DI 28075.600 Overview of the 1619 Continuing Disability Review (CDR) Process

  • DI 28075.610 Disability Determination Services (DDS) Development and Evaluation in 1619 Cases

  • DI 81010.085 Transferring Cases in the Electronic Disability Collect System (EDCS)

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