Social Security Rulings should not only be quoted and utilized by representatives when navigating disability cases, they should be employed by Claimants who choose to self represent. Though one can debate the advisability of self-representation, it is clear that if one is to succeed in procuring disability benefits, then one must speak the language. Including citations and explanations of Social Security Rulings (SSRs) can help Claimant’s navigate challenging aspects of their cases, and hold Social Security accountable when analyzing the Claimant’s particular circumstances. This piece below is the first in a series of discussions discussing Social Security Rulings. Today’s discussion centers upon SSR 05-02, which applies to both Titles 2 and 16, and explains the Unsuccessful Work Attempt (UWA).
The very first step in the sequential evaluation of a Social Security case is to determine whether or not the Claimant is performing “Substantial Gainful Activity (SGA)”. In 2010 and now 2011, a non-blind Claimant must earn below $1000 in order for their work to be considered less than SGA (this is desirable in disability cases). As they develop, however, in part due to the lengthy adjudication process, many disability cases are punctuated by work attempts. Such work attempts might affect the ability of the Claimant to be considered disabled during this time period, and might even cause a Claimant to adjust his or her Alleged Onset Date (AOD) to a time after the work attempt. This can be dangerous, especially if a Title 2 Claimant is near the end of their insured status.
SSR 05-02 attempts to build some clarity around what length of work should be considered SGA. Their policy statement is as follows: “For SGA determination purposes, your substantial work may, under certain conditions, be disregarded if it is discontinued or reduced to the non-SGA level after a short time because of your impairment, or the removal of special conditions related to your impairment that were essential to your further performance of the work. The UWA criteria differ depending on whether your work effort was for “3 months or less” or for “between 3 and 6 months.” If your work attempt was “unsuccessful,” Social Security will not be precluded from finding a Claimant to be disabled during the time that they performed that work.
There are a specific set of conditions that must apply when arguing in favor of a UWA. Before the UWA begins, there must have been a “significant” break in the continuity of the Claimant’s work. A Claimant’s work is “discontinued” if (1) there is a 30 day continuous gap in employment, or (2) the Claimant was forced to another type of work or employer. To anyone who has become ill while on the job, this may sound familiar. It is interesting to note that after such a break, future work attempts may also be considered UWAs if they are preceded by the same breaks in continuity.
At this step in the analysis, it must be determined into which category the Claimant’s work falls. I drew up the following chart for easy reference.
One item that bears extra explanation is an exploration of what constitutes a Special Condition which could be considered essential to work performance.
Social Security explains them as being one of the following:
*May have required and received special assistance from other employees in performing the job; or
*Were allowed to work irregular hours or take frequent rest periods; or
*Were provided special equipment or were assigned work especially suited to your impairment; or
*Were able to work only within a framework of especially arranged circumstances, such as where other persons helped you prepare for or get to and from work; or
*Were permitted to perform at a lower standard of productivity or efficiency than other employees; or
*Were granted the opportunity to work, despite your medical condition, because of family relationship, past association with the firm, or other altruistic reason.
With this in mind, when navigating the issue of how to classify a Claimant’s work when making Application for Social Security Disability or SSI, or analyzing work that was done while under disability, it is important to address this issue using the framework set forth in this ruling. Judges will analyze a case as such, and if the Claimant or their representative can produce such an analysis, they can work to not only explain the attempt to work, but they can even strengthen their arguments.
The full text of SSR 05-02 can be found here.
For information about your Georgia Disability Case, contact Thomas O’Brien.