Issue topics

• Author: Sarah H. Bohr/Kimberly V. Cheiken
• Pages: 429-698

ISSUE TOPICS

SEQUENTIAL EVALUATION PROCESS

§ 1102.5 Return to Work as Part of a “Trial Work Period”

§ 1103 The Definition of a “Severe Impairment”

§ 1104.5 Medical Equivalence to a Listing: The ALJ’s Responsibility to Obtain Medical Expert Opinion

§ 1105.1 Cases Citing SSR 96-8p, Governing the Assessment of RFC in Initial Claims

§ 1105.2 Social Security Ruling 96-9p and the Erosion of the Unskilled Sedentary Occupational Work Base

§ 1105.10 Lack of an Updated or Any Residual Functional Capacity Assessment in the Record

§ 1106.4 Past Relevant Work: Work Performed for Less Than Three Months

§ 1106.6 Past Relevant Work: Work Performed More Than Fifteen Years Prior to the Date of Adjudication

§ 1107.4 Effect of Borderline Age on the Application of the Medical-Vocational Guidelines (“Grids”)

§ 1107.5 Effect of the Claimant’s Illiteracy on the Application of the Medical-Vocational Guidelines (“Grids”)

§ 1107.7 Effect of Inability to Speak English on the Application of Medical-Vocational Guidelines (“Grids”)

§ 1107.11 Effect of Borderline Mental Capacity (IQ of 71-79) on the Application of the Medical-Vocational

Guidelines (“Grids”)

§ 1107.14 Manipulative Limitations and their Effect on the Ability to Perform the Full Range of Sedentary Work

§ 1107.15 Inability to Stoop and its Effect on the Ability to Perform the Full Range of Sedentary Work

§ 1107.18 Effect of Americans with Disabilities Act Accommodation on the Ability to Perform Other Work

§ 1107.19 Significant Number of Jobs in The National Economy

§ 1107.22 Application of the “Worn-Out Worker” Regulation

ASSESSMENT OF DISABILITY ISSUES

§ 1202.6 The ALJ’s Duty to Recontact the Treating Physician Pursuant to § 404.1512(e)

§ 1203.6 Weight of Non-Examining Reviewing Consultant

§ 1203.14 Weight of Evidence from a Chiropractor

§ 1203.15 Weight of Evidence from a Nurse Practitioner

§ 1203.24 Weight of Other Medical Sources Pursuant to SSR 06-03p

§ 1205 Significant Reported Circuit Court Decisions Governing the Analysis of Subjective Complaints of Pain

§ 1207.1 Effect of Disability Determinations of Other Agencies

§ 1208.5 Inability to Afford Treatment

§ 1209.3 Onset Date: The Need for a Medical Expert if the Onset Date is Unclear

§ 1210.8 Limitations Contained on the Psychiatric Review Technique Form (“PRTF”) and Their Impact on

Vocational Expert Testimony

§ 1210.12 Vocational Expert Testimony Which Conflicts with the Dictionary of Occupational Titles (“DOT”)

SPECIFIC IMPAIRMENTS

§ 1301.1 Alcohol and Drug Addiction — Effective Date of the 1996 Legislation

§ 1301.2 Establishing Disability Based on Alcohol or Drug Addiction Under New Law

§ 1303 Specific Impairments: Chemical Sensitivity and Environmental Illness and/or Limitation Cases

§ 1304 Specific Impairments: Chronic Fatigue Syndrome (CFS)

§ 1307 Specific Impairments: Fibromyalgia

§ 1311.2 Specific Impairments: Disseminated (Systemic) Lupus Erythematosus

§ 1312.5 Mental Impairments: Impact of the ALJ’s Failure to Complete the Psychiatric Review Technique Form

§ 1312.9 The Required Severity of the “Other Impairment(s)” Under Listing 12.05 (C)

§ 1316.7 Specific Impairments: Reflex Sympathetic Dystrophy, also known as Complex Regional Pain Syndrome

§ 1317 Specific Impairments: Meeting the Deleted Obesity Listing

§ 1317.1 Specific Impairments: the Effect of the Deletion of the Obesity Listing on Claimants Suffering from

Obesity

ADMINISTRATIVE REVIEW ISSUES

§ 1505 Claimant’s Right to Cross-Examine Post Hearing Evidence — Consultant’s Report

§ 1508 ALJ Bias

SOCIAL SECURITY ISSUES ANNOTATED

FEDERAL COURT ISSUES

§ 1601.1 Waiver: Raising Issues Before the District Court that Were not Raised by the Claimant Before the

Administrative Law Judge

§ 1601.2 Waiver: Raising Issues Before the District Court that Were not Raised by the Claimant Before the

Appeals Council

§ 1603.5 Post Hoc Justification: No Monday Morning Quarterbacking Allowed

§ 1604.11 Appeals Council Evidence: How Is Evidence Submitted to the Appeals Council Considered on Judicial

Review

ATTORNEYS’ FEES

§ 1701.7 Time Limit for Seeking 42 U.S.C. § 406(b) Fees

§ 1701.12 Cumulative Cap: Whether the 25% Cap on Attorney Fees Under 42 U.S.C. § 406(b) Is a Cumulative

Cap on 42 U.S.C. § 406(b) and 42 U.S.C. § 406(a) Fees

§ 1701.20 Payee for EAJA Fees

§ 1702.7 Equal Access to Justice Act: Reasonableness of Number of Hours Claimed By Attorney

SOURCE OF LAW

§ 1803.1 Legal Authority: Authority of HALLEX and POMS

ISSUE TOPICS §1102.5

§1102.5 Return to Work as Part of a “Trial Work Period”

The Social Security Act and regulations establish that an SSDI recipient need not avoid attempting to work for

fear of losing benefit eligibility. Individuals may test their ability to wor k under the provisions applicable to trial work

periods. Regardless of the potential logical connection between working and the lack of disability, the SSA is not

permitted to factor in work performed during a trial work period when determining whether a disability has ceased.

CROSS-REFERENCE: Case Survey § 102.5

APPLICABLE STATUTES

42 U.S.C. § 422(c)

The Social Security Act provides for a single period of trial work, during which a person’s work activity is

ignored when determining whether his or her disabil ity has ceased. The period ordinarily starts the month that the

individual becomes entitled to disability insurance benefits. Id. at § 422(c)(3). A period of trial work ends when

disability ceases (as determined without reference to the trial work activ ity) or a total of nine months of services are

rendered in any five-year span. Id. at § 422(c)(4).

42 U.S.C. § 423(e)(1)

This provision specifies that benefits are not payable “to an individual for any month, after the third month, in

which he engages in substantial gainful activity during the 36-month period following the end of his trial work period

determined by application of section 222(c)(4)(A).”

APPLICABLE REGULATIONS

20 C.F.R. § 404.1592

The regulations clarify that once the trial work period has ended the SSA will consider the services performed

during that period in determining whether the disability ceased after the end of the trial work period. Id. at §

404.1592(a). Services are defined expansively to include any activity, whether or not substantial gainful activity, which

is either done for pay or profit or is of the type normally do ne for pay or profit. Id. at § 404.1592(b). Certain activities

are accepted, however, including unremunerated work performed solely for therapy or training, and certain volunteer

work. Id. The regulations contain tables for determining whether work involves enough earnings or hours to be

considered services. The regulations further provide that a claimant’s return to “work demonstrating the ability to

engage in substantial gainful activity” prior to the lapse of a 12-month period after the impairment’s onset, and prior

to adjudication of disability, precludes entitlement to a trial work p eriod. Id. at § 404.1592(d)(2). It should be

noted that the regulations also provide for a reentitlement period, which is a further opportunity for claimants to test

their ability to work. See id. at § 404.1592a. The reentitlement period is beyond the scope of this issue topic.

OTHER RESOURCES

POMS DI 13010.035

The POMS characterizes the trial work period as an initial determination that carries appeal rights. It reminds

adjudicators that individuals receiving only SSI benefits, as well as those in certain other categories, are not entitled to

such a period. The guidance sets out multiple examples illustrating such matters as when a period begins and ends,

when a rolling period does not apply, and when a month is not payable due to fraud or concealment of work.

HALLEX II-5-3-4, The Definition of the Term “Services” for Purposes of the Trial Work Period (TWP)

Provisions of the Social Security Act (the Act) (July 1993)

The Appeals Council interprets the regulations to classify as “services” work that is done for remuneration or

gain, even where that work is performed as therapy or training. Where remuneration is received, the work is not

done solely or “merely” as therapy or training, and thus it does not fall under the exception to what counts as

services. To qualify as services, such work must still, of course, exceed the monthly amount specified in the

regulations.