Was the last job an unsuccessful work attempt or not substantial gainful activity?

By Thomas E. Bush

Excerpted from Social Security Disability Practice

As you are interviewing the claimant, think through the case following the sequential evaluation process, looking for problems and opportunities. Begin with an analysis of issues surrounding the “onset date,” the date the claimant became disabled.

§176.1  Onset Date

Ask the claimant how the onset date was selected. Was it the claimant’s idea or was it the idea of someone at the social security office? Now that you have explained what it means to be disabled, does the claimant have any second thoughts about the onset date? What you want to do, of course, is push the onset date back as far as possible. An onset 18 months before the date of application will pick up 12 full months of retroactive social security disability benefits—which are all the months of back benefits available unless you can reopen an earlier application. As a rule, if you can have your client found disabled based on an onset date earlier than 18 months before the date of application, it is beneficial because it usually increases the amount of monthly benefits. Some caution is appropriate, though, because every once in a while you will see a case where an earlier onset date actually decreases the monthly benefit amount. This tends to happen with younger workers whose earnings after the earlier onset date are relatively high compared to their earnings in prior years. See 20 C.F.R. §§404.211 and 404.212. (To check this, you will need to ask someone at a local Social Security office or use a computer program available from SSA called the PIA Calculator.)

Always consider the possibility that the claimant’s last job was not “substantial gainful activity” or was an “unsuccessful work attempt.” As a rule, you will need to show that any work after onset of disability:

  • was not substantial work activity (20 C.F.R. §404.1572(a));
  • was not gainful work activity (20 C.F.R. §404.1572(b)) after deducting impairment related work expenses (20 C.F.R. §404.1576) and averaging earnings (20 C.F.R. §404.1574a);
  • was done under special conditions (20 C.F.R. §404.1573(c));
  • was subsidized (20 C.F.R. §404.1574(a)(2)); or
  • was an unsuccessful work attempt (20 C.F.R. §404.1574(c)).

If work was not substantial gainful activity or was an unsuccessful work attempt (see §176.2), you may be able to push the onset date back to the time before the claimant did such work.

§176.2  Unsuccessful Work Attempts

Work lasting up to six months, which the claimant had to stop because of an impairment, may qualify as an unsuccessful work attempt. Even a series of unsuccessful work attempts may occur after the onset date. Earnings during unsuccessful work attempts will not be considered in determining whether or not work is substantial gainful activity (SGA). See 20 C.F.R. §§404.1574(a)(1) and 404.1574(c). See also Social Security Ruling 05-02. Where your client’s last employment meets this description, the onset date may be moved back to a point before the unsuccessful work effort.

20 C.F.R. §404.1574(c), which applies to employees, provides specific requirements for a work effort to qualify as an unsuccessful work attempt. 20 C.F.R. §404.1575(d) provides the requirements for finding that a self-employed claimant’s work is an unsuccessful work attempt. The two regulations are similar.

An unsuccessful work attempt must be preceded by a break in the claimant’s previous work. 20 C.F.R. §§404.1574(c)(2) and 404.1575(d)(2). This requirement may be met if, because of the impairment:

  • Claimant is out of work for 30 consecutive days (or perhaps a few days less if the subsequent work attempt is brief “and clearly not successful because of [the] impairment”—SSR 05-02); or
  • Claimant was forced to change to another type of work or another employer; or
  • Work was reduced so much that it no longer constituted substantial gainful activity (SGA).

SSR 05-02 makes it clear that a claimant does not have to be working before an unsuccessful work attempt in order to qualify. SSR 05-02 provides that an interruption in work activity “could also occur when, before the onset of your impairment, you discontinued (or limited) your work for other reasons, such as retirement, or never engaged in work activity.”

Once this threshold requirement is met, different rules apply for unsuccessful work attempts lasting up to three months (20 C.F.R. §§404.1574(c)(3) and 404.1575(d)(3)) and those lasting from three to six months. 20 C.F.R. §§404.1574(c)(4) and 404.1575(d)(4).

For work attempts of three months or less, the work must end (or be reduced to the non-SGA level) in either of two ways. First, work may end directly because of the impairment. For example, the claimant explains, “Because of my back problem, I just couldn’t do the job anymore.” Second, work cessation may occur indirectly because of the impairment if there is “removal of special conditions related to the impairment that are essential to the further performance of work.”

Special conditions exist, for example, where a claimant receives assistance from other employees in order to do a job. If, for one reason or another, other employees no longer are available to help the claimant do the job, the special conditions related to the impairment (help from other employees) would be removed. Thus, the claimant must quit work. 20 C.F.R. §§404.1574(c)(3), 404.1575(d)(3) and 404.1573(c), and SSR 05-02.

To qualify, work attempts between three and six months must end the same way the shorter ones do, either directly or indirectly because of the impairment, as described above. But, in addition, one of the following requirements must also be present:

  • There must have been frequent absences due to the impairment;
  • Work must have been unsatisfactory due to the impairment;
  • Work must have been done during a period of temporary remission of the impairment; or
  • Work must have been done under special conditions.

20 C.F.R. §§404.1574(c)(4) and 404.1575(d)(4).

SSR 05-02 and 20 C.F.R. §404.1573(c) contain specific examples of “special conditions,” which may be any accommodation of the impairment, or an unusual job opportunity such as a sheltered workshop or job made available for an altruistic reason, whether by a family member or anyone else.

According to 20 C.F.R. §§404.1574(c)(5),  404.1575(d)(5) and Social Security Ruling 05-02, work that constitutes substantial gainful activity lasting more than six months cannot qualify as an unsuccessful work attempt no matter why it ended. Nevertheless, there can be a string of unsuccessful work attempts spread over a period of time much longer than six months. Whenever a claimant is off work for 30 days, changes to an easier job (either with the same employer or a different employer), or has a period of time where work is at less than SGA level, examine the work efforts after this time to determine if they can be characterized as unsuccessful work attempts.

Note that SSA expects a very precise application of the three and six-month time limits. Approximation will not do. SSR 05-02 provides the following example of how unsuccessful work attempt time periods are calculated: “[W]ork from November 5, 2003, through a date no later than February 4, 2004, is for ‘3 months or less.’ Work from November 3, 2003, through at least February 5, 2004, but through a date no later than May 4, 2004, is for ‘between 3 and 6 months.’” Thus, you are going to need the exact dates of your client’s work attempts. It may be necessary to contact your client’s employers for this information, as well as for the reasons any work attempt ended. SSR 05-02 says that SSA does not rely solely on information from the claimant, but instead seeks confirmation from the employer or even from a doctor “or other medical source” who could state “whether, in his or her opinion or according to the records, your work discontinuance or reduction was due to your impairment.”

A form for gathering information from an employer appears at §216.1. This form may be used to show that your client’s work of more than three months, but less than six months, qualifies as an unsuccessful work attempt.

Thomas E. Bush has devoted his practice to Social Security disability issues since 1977.  He was elected to NOSSCR’s Board of Directors in 1988, and was President of NOSSCR for the 1997-98 term.  He is the author of Social Security Disability Practice, from which this article is excerpted.