Effective Dates: 10/15/2024 - Present Previous | Next

TN 49 (10-24)

DI 28030.026 Considering Activities Performed in Work During a Current Period of Entitlement or Eligibility Based on Disability as Evidence of the Ability to Function

Citations: 20 CFR 404.1574(b)(3)(iv), 20 CFR 404.1590(i)(2), 20 CFR 416.990(i), 20 CFR 404.1594(i), 20 CFR 416.994(b)(8)

This section provides instructions for evaluating activities performed in work during a current period of entitlement or eligibility based on disability for continuing disability review (CDR) cases. The current period of entitlement or eligibility based on disability (referred to as "current period" in this section for brevity), is the months the individual was both entitled to disability benefits and received the benefit, see DI 28030.026C.1. The section also provides guidance explaining when adjudicators need not or should not consider activities performed in work during the current period.

The adjudicator does not need to develop information about the activities performed in work explained in this section if the individual has not worked in the current period.

NOTE: The content in this section is separate from policy excluding work activity for beneficiaries as the basis of initiating a medical CDR review (DI 13010.012); policy related to the substantial gainful activity (SGA) exception; the policy related to potential fraud or similar fault (FSF) cases with work issues (DI 11006.015); the policy related to the Group II exceptions to the Medical Improvement Review Standard (MIRS) - including when a prior determination or decision was obtained by FSF ( DI 28020.900); and the exclusion of work performed in a current period of disability as past relevant work (PRW) (DI 28020.050).

A. Work activity during a current period

Consider all evidence the individual submits and evidence that is obtained from medical and non-medical sources when developing a continuing disability review (CDR) case, see DI 28030.020. Non-medical evidence may provide important information about how the individual functions. Examples of non-medical evidence may include information about activities of daily living (ADL) or the individual’s capabilities for activities performed in a work setting during a current period, see DI 28030.020D.4.

When we evaluate the activities an individual performed in a work setting, we evaluate the underlying physical or mental abilities needed to perform the work.

Work activity includes the kind of work usually done for pay, whether in cash or in kind, or for profit, whether or not a profit is realized, see DI 10501.001. The activities an individual performs in work for pay or profit during a current period (including work performed in a trial work period (TWP)) can be an indication of their overall functional limitations or abilities. Whether or not we use this information during a CDR depends on the type of benefit received and length of entitlement or eligibility.

Information about work activity since the CPD may be present in the SSA-454-BK, SSA-821, SSA-823, or indicated elsewhere in the file (e.g., noted in medical evidence or the SSA-3373-BK).

B. When to develop or consider activities performed in work during a current period as evidence of function

Evidence of function may provide useful information when evaluating impairment severity, see DI 28010.015. The activities performed in work may provide insight to evaluate function in the CDR sequential evaluation process. If there is information in the file about the activities performed in work when the adjudicator receives the case, follow the guidelines in DI 28030.026C and DI 28030.026D to determine if this information can be used in the determination.

1. When development of activities performed in work is not needed

Adjudicators do not need to obtain information about the activities performed in work during a current period as evidence of function if there is sufficient information in the file to make a determination and the available information is consistent.

2. When development of activities performed in work may be needed

The adjudicator may need to develop additional information about the activities performed in work during a current period if the available evidence (medical and non-medical) is not sufficient to determine if disability continues or ceases.

Examples of scenarios where information about the activities performed in work during a current period may be necessary are CDR cases where:

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    The available medical or non-medical evidence is not sufficient to evaluate impairment severity or determine if medical improvement (MI) has occurred, or

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    The available evidence contains inconsistencies and the activities performed in work may provide additional information.

If the above criteria are met and functional information is needed, the adjudicator will follow the instructions in DI 28030.026C or DI 28030.026D to determine if the information about activities performed in work should be obtained based on the claim type and period of entitlement.

If deemed necessary, the adjudicator may perform the required development by obtaining a description of the activities performed in work by contacting the beneficiary or recipient by phone, sending an SSA-3369-BK, or similar action. The adjudicator may add instructions clarifying the period of time needed to discuss work on the cover letter to the SSA-3369-BK in the Disability Case Processing System (DCPS) in the customize work history questionnaire box.

The adjudicator must document their call in the case notes section in DCPS or in an SSA-5002 (Report of Contact).

NOTE: When evaluating the activities an individual performed in work during a current period of entitlement or eligibility based on disability as evidence of functioning, the work performed does not have to meet the SGA guidelines in DI 10501.015.

C. Title II only beneficiary and concurrent Title II/Title XVI beneficiary

The instructions in this subsection apply to beneficiaries who are receiving Title II benefits (i.e., disability insurance benefits (DIB), disabled widow(er)’s benefits (DWB), or childhood disability benefits (CDB)).

The instructions in this subsection apply to scenarios for Title II or concurrent Title II/Title XVI beneficiaries when additional information is necessary to assess the individual’s functional abilities or limitations. Specifically, the instructions provide guidance when the activities performed in work during a current period of entitlement or eligibility based on disability can or cannot be used in the determination.

1. The 24-month requirement

If a beneficiary has been receiving Title II or concurrent Title II/Title XVI benefits and has performed work during a current period, the adjudicator must identify the period of entitlement before considering any activities performed in work when evaluating impairment severity, further explained in DI 28030.026C.2. and DI 28030.026C.3 in this section.

Our regulations in 20 CFR 404.1574(b)(3)(iv) and 20 CFR 416.990(i) explain how we determine if the beneficiary has received Social Security disability benefits under Title II for at least 24 months, counting back from the date the field office (FO) notified the individual a continuing disability review was initiated. The months the individual has been entitled to Title II disability benefits and actually or constructively received the benefit count toward the 24-month requirement. For example, a beneficiary constructively receives a Title II benefit in a month where they were entitled to the benefit, but it was withheld due to an overpayment. The month(s) the overpayment was withheld is counted for purposes of the 24-month requirement because the beneficiary constructively received a benefit. The 24 months do not have to be consecutive.

NOTE: For Title II expedited reinstatement (EXR) cases, we consider the 24-month requirement to be met when the beneficiary completes the 24-month initial reinstatement period. Initial EXR decisions would be processed under current procedures outlined in this section.

a. FO 24-month period determination

The FO is responsible for determining the 24-month period of the entitlement if there is documentation in the file that a Title II or a concurrent Title II/XVI beneficiary has worked during a current period of entitlement or eligibility. The FO follows the guidelines in DI 13010.012C to determine if the 24-month requirement is met.

There are exclusion scenarios that the FO does not count towards the 24-month period, such as months a Title II/XVI concurrent beneficiary only received Title XVI benefits, see DI 13010.012C.2. Any months that disability benefits are continued under elected statutory benefit continuation pending a reconsideration or hearing on an initial CDR medical cessation determination will not be counted for the 24-month requirement.

b. DDS assistance request (AR)

Before developing any activities performed in work during a current period of entitlement or eligibility based on disability when evaluating impairment severity, the adjudicator must follow the instructions for submitting an AR to the FO in DI 81020.100 if:

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    It is unclear that a Title II or a concurrent Title II/XVI beneficiary that has worked in a current period of entitlement or eligibility based on disability has received benefits for at least 24 months; and

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    A determination cannot be made on an alternate basis without considering the activities performed in work during the current period of entitlement or eligibility based on disability.

It is not necessary to contact the FO for clarification if a Title II or a concurrent Title II/XVI beneficiary has clearly received benefits for less than 24 months.

Initiate an AR with the following request:

“Beneficiary has worked during a current period of disability entitlement. Please use the guidance in DI 13010.012C to determine if they have received benefits for a period of 24 months or more. Please provide this information to the DDS.”

The FO should respond to the DDS within 14 days of the AR, see DI 10005.010B.2. The DDS must follow the instructions for DI 81020.100D for following up on an AR. If the FO does not respond after the DDS has attempted to follow up on the AR and clarification is needed to make a determination, the adjudicator must return the case as no determination (ND) transaction following the instructions in DI 81020.127.

NOTE: If the adjudicator has not received clarification of the 24-month period from the FO but the available evidence (including any information about activities performed in work during a current period of disability) is consistent and supports a finding that disability continues, the adjudicator may proceed with a continuance.

2. Beneficiary receiving Title II benefits for less than 24 months

If the Title II beneficiary has:

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    Received benefits for less than 24 months during the current period, and

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    Worked or is working during the current period, then:

Consider any activities the individual performed in work during a current period as evidence of functional limitations or abilities when evaluating impairment severity in the CDR sequential evaluation process.

Use the activities the individual performed in work during a current period to evaluate function regardless of whether increased or decreased ability to function is demonstrated (i.e., the activities may support a determination that disability has ceased or disability continues). Specific activities performed in work will be considered, along with medical and non-medical evidence, when evaluating how the individual’s impairment(s) affect function. See DI 28030.026F.3 for examples.

Follow DI 28030.026F.2. to document the evaluation of the activities the individual performed in work.

3. Beneficiary receiving Title II benefits for at least 24 months

If the Title II beneficiary (i.e., DIB, DWB, CDB) has:

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    Received benefits for at least 24 months (consecutive or non-consecutive) during the current period, and

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    Worked or is working during the current period, then:

Do not consider any activities the individual performed in work during a current period as evidence of increased functional abilities that may result in a finding the individual is no longer disabled. Follow DI 28030.026F.1. to document that evidence of activities the individual performed in work during a current period were not considered.

For these individuals, we may find that the individual is no longer disabled, but only if that finding is based on evidence other than evidence of function from activities the individual performed in work during the current period.

Only consider activities the individual performed in work during a current period as evidence of functional limitations if the activities support a finding that an individual’s disability continues or does not conflict with a finding that their disability continues. Specific activities performed in work during a current period will be considered, along with medical and non-medical evidence, when evaluating how the individual’s impairment(s) affect function. Examples that may support that an individual’s disability continues are frequent absences from work, subsidies, special conditions, accommodations, reduced work hours, or unsuccessful work attempts. Follow DI 28030.026F.2. in this section to document the evaluation of the activities the individual performed in work activity.

D. Title XVI only recipient

The 24-month requirement does not apply to Title XVI only recipients.

The instructions in this subsection apply to scenarios for Title XVI only recipients when additional information is necessary to assess the individual’s functional abilities or limitations.

For a Title XVI only recipient, regardless of length of time the individual has received payments, consider the activities the individual performed in work during a current period as evidence of the individual’s functional limitations or abilities when evaluating impairment severity in the adult CDR sequential evaluation process. Any activities performed in work during a current period for Title XVI only recipients will be used to assess functional limitations or abilities.

Use the activities the individual performed in work during a current period as evidence to evaluate the individual’s functional limitations or abilities regardless of whether increased or decreased ability to function is demonstrated (i.e., the activities may support a finding that disability has ceased or disability continues). Specific activities performed in work during a current period will be considered, along with medical and non-medical evidence, when evaluating how the individual’s impairment(s) affect function. See DI 28030.026F.3.b. in this section for an example.

Follow DI 28030.026F.2. in this section to document the evaluation of activities the individual performed in work.

E. Evaluating inconsistencies in evidence

If the activities the individual performed in work during a current period are considered in the determination, and the activities are inconsistent with other evidence (such as signs or symptoms in medical evidence), consider all the relevant evidence to assess the severity of the individual’s impairments and the individual’s functional limitations or abilities and address the inconsistency. Follow the guidelines in DI 24501.016 for evaluating evidence and addressing inconsistencies.

F. Documentation requirements for the evaluation of activities performed in work when evaluating function

1. Work activities not considered in the determination

If the individual meets the criteria in DI 28030.026C.3. and the activities the individual performed in work during a current period demonstrate increased function, the adjudicator cannot consider the work-related functional evidence in the determination. The adjudicator will not consider this evidence and will make a determination based on the remaining medical and non-medical evidence.

The adjudicator must document that the evidence was not considered due to the beneficiary’s entitlement and work status during a current period. The adjudicator must document this information in the disability determination explanation (DDE), the Case Development Worksheet, or an SSA-5002 (Report of Contact).

2. Work activities considered in the determination

If the individual performed work during a current period and evidence of activities performed in work is considered in the determination, discuss how the activities were considered in the determination. The activities must be discussed in addition to other medical or non-medical evidence. Discuss the activities performed in work in any of the following documents:

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    Medical assessment forms, such as the SSA-4734-BK (Physical Residual Functional Capacity (RFC)), SSA-416 (Medical Evaluation), SSA 4734-F4-SUP (Mental Residual Functional Capacity Assessment (MRFC)), or the SSA-2506-BK (Psychiatric Review Technique (PRT)),

  • •

    The Side-by-Side Comparison page,

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    SSA-5002 (Report of Contact),

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    Case Development Worksheet,

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    Findings of Facts and Analysis of Evidence (FOFAE) screen in the Disability Case Processing System (DCPS), or

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    Case notes in DCPS.

3. Examples of documentation

a. Activities performed in work not considered in the determination

At the time of the adjudicator’s receipt of the CDR case, the individual has received DIB benefits for more than 24 months.

Although the activities the individual performed in work during the current period provide information about the individual’s functional ability, the activities performed in work are not considered when evaluating impairment severity because the individual received DIB benefits for more than 24 months and the activities do not demonstrate that disability continues. The activities the individual performed in work during the current period of entitlement based on disability are not considered in the determination; consistent with the instructions in DI 28030.026C.3.

b. Activities performed in work considered in the determination

The individual is a Title XVI recipient and disability was established at the CPD due to the severity of the individual’s bipolar disorder. The individual currently works 20 hours a week as a cashier at a grocery store.

The available evidence lacked detailed functional information necessary to assess the individual’s bipolar disorder. The DDS adjudicator spoke with the individual and obtained additional information about the activities performed in work and general activities of daily living. This information is documented in the Case Notes section of the DDE. The activities performed in work provided functional information, and the activities performed in work were considered in the determination, supported by the policy established in DI 28030.026D. Please refer to the PRT in the DDE for a discussion of how this information was used to assess function, along with other medical and non-medical evidence used to evaluate impairment severity. The functional information provided by the individual did not conflict with other medical and non-medical evidence evaluated at the time of the CDR.

Example of correspondence about work activities:

The SSA-454-BK indicated that the individual worked since the CPD. The adjudicator contacted the individual and obtained the following information during the call. The individual explained that job duties include scanning and entering items at the cash register, resolving customer disputes, money handling, counting the register till at the end of each shift, assisting customers in locating items in the store, and re-stocking items near the register when time allows. The individual indicates that they have maintained a good working relationship with management, co-workers, and customers. The individual stated that they were recently offered a promotion to work as a shift lead at the customer service desk.

Example of how information is used in PRT (excerpt – does not include full discussion of medical evidence):

The information obtained by the adjudicator regarding activities performed in work are consistent with the available medical evidence and support a finding that MI has occurred. At the CPD, the individual had demonstrated significant problems appropriately interacting with others due to bipolar disorder. At the CPD, the individual left several medical appointments due to frustration and arguments and a third party reported frequent problems interacting, resulting in the individual hanging up on phone calls and leaving home of friends and stores slamming doors and yelling. The activities performed in work since the CPD demonstrate that the individual’s ability to interact with others and adapt and manage oneself have improved, demonstrated by daily successful interactions with customers in a retail setting and positive relationships with management, co-workers, and customers.

G. Suspected FSF involving work

FSF may become an issue at any point in the CDR sequential evaluation process. If the FO or DDS suspects FSF, including involving concealed work activity, make a referral to the Office of the Inspector General (OIG) using the Allegation Referral Intake System (ARIS), see GN 03970.016. After approving the potential FSF referral, OIG or a cooperative disability investigations unit (CDIU) may conduct a FSF investigation and submit a report of investigation (ROI) regarding its findings.

Once the OIG or CDIU investigation is complete, depending on the nature of the FSF and when it was suspected to have occurred, FOs and DDS have development and procedural responsibilities to resolve the issue of FSF. For additional information about unreported or discovered work development and procedures, see DI 23025.015B, DI 28005.015A, and GN 04107.109.

The adjudicator may consider any FSF elements of the ROI pertaining to work activities during a current period, following the normal FSF-related policy and procedures in DI 23025.000 and related policy below.

1. Concealment of work activity affecting a prior determination or decision

The ROI or other record evidence may show that an individual fraudulently concealed work activity affecting a prior agency determination or decision. The FO is responsible for evaluating non-medical issues, including work activity in cases that involve FSF. Work activity performed and concealed between the disability onset date and the initial favorable determination or decision may provide a basis to reopen the favorable determination.

If the adjudicator discovers that a prior determination or decision involved unreported or concealed work activity that was not addressed and the FO and the DDS has not yet submitted a potential FSF referral through ARIS based on medical reasons, the adjudicator will follow the referral procedures in DI 23025.015B.3. After FO development is complete, the adjudicator may need to consider whether a prior determination or decision was obtained by FSF (see DI 27505.015 and GN 04020.010), and if the Group II exception applies, see DI 28020.900B.

2. Concealment of work activity in the current CDR

If a ROI indicates fraudulent concealment of work activity, the FO will follow the instructions in DI 11006.025D. If the ROI is relevant to medical issues and the FO does not cease based on SGA or fraudulent work activity, the FO will notify the DDS and transfer the ROI. The DDS will then follow the instructions in DI 28030.026G.3.

3. Evaluating work when no FSF is found

If, after considering the ROI(s), any court documents, and the record as a whole, the evidence does NOT show fraudulent concealment of work activity, or that a prior determination or decision was NOT obtained by FSF, follow our normal rules when making a medical determination or decision, see DI 23025.020C.

If the criteria in DI 28030.026C.3. applies and the CDIU’s or OIG’s ROI contains information about activities performed in work that may have been observed during surveillance or investigation, the adjudicator must not consider any elements of the ROI or investigation pertaining to activities performed in the work environment to evaluate function if the activities demonstrate increased functional abilities that may result in a finding the individual is no longer disabled. The adjudicator will consider other elements of the ROI or FSF investigation but cannot consider any activities performed in work during a current period when evaluating functional abilities if the activities support that disability may cease.

For example, if the ROI reports a Title II beneficiary that has received benefits for 26 months was observed lifting a 30-pound bag while performing unreported work at a restaurant, the adjudicator cannot use this activity to evaluate function in the medical determination if it supports disability may cease.

However, if the ROI reports that the same beneficiary was observed lifting a 30-pound bag at home, the adjudicator can use this activity to evaluate function in the medical determination.

Alternatively, if the individual is a:

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    Title XVI only recipient (DI 28030.026D), or

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    Title II or Title II/XVI concurrent beneficiary that has received benefits for less than 24 months (DI 28030.026C.2.), then:

The adjudicator may consider the ROI pertaining to work activities during a current period.

H. References

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    DI 13010.035 The Trial Work Period (TWP)

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    DI 28005.001 Legal Standard for Determining if Disability Continues

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    DI 28005.009 Evidence and Basis for a Continuing Disability Review (CDR) Decision by a Disability Determination Services (DDS) Adjudicative Team

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    DI 28010.015 Comparison of Symptoms, Signs, and Laboratory Findings When Evaluating Medical Improvement (MI)

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    DI 28030.020 Development of Medical Evidence

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    DI 28050.010 DDS Role in Work Activity Cases

 

To Link to this section - Use this URL:
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DI 28030.026 - Considering Activities Performed in Work During a Current Period of Entitlement or Eligibility Based on Disability as Evidence of the Ability to Function - 10/15/2024
Batch run: 10/30/2024
Rev:10/15/2024