Issue Topics

• Author: Thomas E. Bush/David A. Morton III/David Traver/Sarah H. Bohr/Curtis J. Fisher/Kimberly V. Cheiken
• Pages: 683-845

III-683

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 on 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

§1105.8 Residual Functional Capacity: Impact of Sit/Stand Option on the Sedentary Work RFC

§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 the 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”)

SOCIAL SECURITY DISABILITY COLLECTION 684

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 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

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 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

§170 1.12 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(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

685 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 work under the pro-

visions 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 disability 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 disabili-

ty ceases (as determined without reference to the trial work activity)

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 in-

dividual 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

done 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 regula-

tions 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 abil-

ity to engage in substantial gainful activity” prior to the lapse of

a 12-month period after the impairment’s onset, and prior to adju-

dication of disability, precludes entitlement to a trial work period.

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 de-

termination 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 So-

cial 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.

APPLICABLE CASE LAW

United States Supreme Court

In Barnhart v. Walton, 535 U.S. 212, 223-225, 122 S.Ct. 1265,

152 L.Ed.2d 330 (2002), the Supreme Court reversed the Fourth

Circuit’s decision in Walton v. Apfel, 235 F.3d 184 (4th Cir. 2000),

and abrogated rulings from the Sixth, Seventh, Eighth, and Tenth

Circuit, holding that the SSA’s interpretation of the statutory defini-

tion of disability as requiring that a claimant’s “inability to engage

in any substantial gainful activity” last, or be expected to last, for

at least 12 months, was based on a lawful construction of the stat-

ute. The Court further held that the regulation set forth in 20 C.F.R.

§404.1592(d)(2), which provides that a return to work prior to the

lapse of a 12-month period after onset of impairment, and prior

to adjudication of disability, precludes a finding that a claimant is

disabled, or is entitled to a trial work period, is a reasonable inter-

pretation of the statute and lawful. Id. at 225.

First Circuit

In Henriquez v. Astrue, 482 F. Supp. 2d 50, 59-60 (D. Mass.

2007), the court held that a claimant’s argument that her job should

have been treated as a trial work period was misguided, because

she had not previously been found disabled and was not receiving

disability insurance benefits at the time the work occurred. In such

circumstances, “the trial work rules simply do not apply.” Id. at 60.

The claimant’s reliance on the out-of-circuit opinion of Newton v.

Chater, 92 F.3d 688 (8th Cir. 1996), was unavailing, as the court

questioned the continued viability of Newton’s approach even in its

own circuit after Walton, and in any event here the ALJ had followed

well-established rules and regulations concerning trial work. Id.

Second Circuit

An ALJ erred by failing to consider work a claimant performed

prior to receiving benefits part of her trial work period. Rosario v.

Sullivan, 875 F. Supp. 142, 147 (E.D.N.Y. 1995).

Third Circuit

In Parker v. Barnhart, 244 F. Supp. 2d 360, 368 (D. Del. 2003),

a district court rejected an argument that the absence of plaintiff’s

prior claim file from the record was relevant since in the event there

was a prior finding disability, his more recent work might qualify

as a trial work period that would not interfere with his continued

receipt of benefits. The court determined that the record indicated

plaintiff’s previous ineligibility for Title II benefits and thus his trial

work contention must fail. Id.

Seventh Circuit

In Tumminaro v. Astrue, 671 F.3d 629, 633-34 (7th Cir. 2011),

the court discussed the basic operation of the nine-month trial work

period as authorized by the regulations. Crucially, an ALJ is not al-

lowed to consider the qualifying work as evidence of nondisability

during the trial work period. Id. at 633. Since the claimant had not

completed nine months of service as indicated by her wages, see 20

C.F.R. §404.1594(b)(1)(ii), the ALJ had improperly considered her