AR 00-5(6): Rescinded

AR 00-5(6) (Rescinded 6/10/2002 — 67 FR 39781)

EFFECTIVE/PUBLICATION DATE: 11/15/2000

Acquiescence Ruling 00-5 (6)

Issue:

Whether a claimant's return to substantial gainful activity (SGA) within

12 months of the alleged onset date of his or her disability, and prior to

an award of benefits, precludes an award of benefits and entitlement to a

trial work period.

Statute/Regulation/Ruling Citation:

Sections 222(c), 223, 1614(a)(3) and (4) and 1619 of the Social Security

Act (42 U.S.C. 422(c), 423, 1382c(a)(3) and (4) and 1382h); 20 CFR

404.1505, 404.1520, 404.1592, 416.905, 416.906, 416.920; Social Security Ruling (SSR)

82-52 .

Circuit:

Sixth (Kentucky, Michigan, Ohio, Tennessee).

Salamalekis v. Apfel , 221 F.3d 828 (6th Cir. 2000).

Applicability of Ruling:

This Ruling applies to determinations or decisions at all administrative

levels (i.e., initial, reconsideration, Administrative Law Judge (ALJ)

hearing and Appeals Council).

Description of Case:

Manuel G. Salamalekis applied for Social Security disability insurance

benefits on October 1, 1991, alleging disability since April 24, 1991, due

to a heart condition and Parkinson's Disease. On March 2, 1992, less than

a year after the alleged onset of disability, Mr. Salamalekis returned to

work and promptly notified the Agency of his return. On the same day that

Mr. Salamalekis returned to work, we "determined he was entitled to

receive disability insurance benefits" and an award notice was sent to Mr.

Salamalekis on March 8, 1992. It was not disputed that we were unaware

that Mr. Salamalekis had returned to work when we determined his

eligibility for benefits. We subsequently learned of his return to work.

In May of 1992, we notified Mr. Salamalekis that his claim would be

reviewed when his "9th month of trial work" ended. He continued to work

and received benefits for approximately the next 2 years.

arch 8, 1992. It was not disputed that we were unaware

that Mr. Salamalekis had returned to work when we determined his

eligibility for benefits. We subsequently learned of his return to work.

In May of 1992, we notified Mr. Salamalekis that his claim would be

reviewed when his "9th month of trial work" ended. He continued to work

and received benefits for approximately the next 2 years.

On March 25, 1994, we notified Mr. Salamalekis that we intended to revise

our initial award determination finding him disabled to a determination

that he was never disabled because he returned to work on March 2, 1992,

prior to the Agency's award of benefits and less than 12 months after the

onset of his impairment. We revised our initial award determination,

ceased payment of Mr. Salamalekis' benefits and assessed him with a

$30,080.20 overpayment. An ALJ affirmed the revised determination and the

Appeals Council denied review. Mr. Salamalekis sought judicial review in

the Federal district court where a United States Magistrate Judge affirmed

SSA's final decision.

On his appeal to the United States Court of Appeals for the Sixth Circuit,

Mr. Salamalekis argued that he was disabled and was entitled to a 9-month

trial work period beginning with his return to work in March 1992, plus a

3-month reentitlement period. For this reason, Mr. Salamalekis contended

that the Agency should not have considered his work during this period as

evidence of substantial gainful activity demonstrating that he was not

disabled.

Holding

it,

Mr. Salamalekis argued that he was disabled and was entitled to a 9-month

trial work period beginning with his return to work in March 1992, plus a

3-month reentitlement period. For this reason, Mr. Salamalekis contended

that the Agency should not have considered his work during this period as

evidence of substantial gainful activity demonstrating that he was not

disabled.

Holding

The Sixth Circuit held that Mr. Salamalekis was entitled to a trial work

period regardless of whether he returned to work before or after SSA's

award of benefits. Consequently, it reversed and remanded the case to the

district court with instructions to return the case to SSA for a

recalculation of the overpayments owed by Mr. Salamalekis. The court found

that according to the plain language of the Social Security Act (the Act),

an individual may take advantage of a trial work period once he becomes

entitled to disability insurance benefits.

According to the court, Mr. Salamalekis had satisfied all five

prerequisites for entitlement to benefits under section 223(a) of the Act

when he returned to his job. He was insured for disability insurance

benefits; he was below retirement age; he filed an application for

benefits; the 5-month waiting period had expired; and he was under a

disability. The court rejected the Agency's argument that it should apply SSR 82-52 and find that Mr.

Salamalekis was never disabled in view of his return to work within 12

months of his alleged disability onset date. In so doing, the court noted

that at the time Mr. Salamalekis returned to work his impairment was

ongoing and was expected to last for 12 months.

xpired; and he was under a

disability. The court rejected the Agency's argument that it should apply SSR 82-52 and find that Mr.

Salamalekis was never disabled in view of his return to work within 12

months of his alleged disability onset date. In so doing, the court noted

that at the time Mr. Salamalekis returned to work his impairment was

ongoing and was expected to last for 12 months.

The court found that the relevant language from SSR 82-52 was inconsistent

with the plain language of the Act. In addition, the court noted "the

Seventh, Eighth and Tenth Circuits have also held that a claimant is

entitled to a trial work period if the waiting period has expired and the

claimant's impairment is expected to last for 12 months, regardless of

whether the Agency has made an award determination and regardless of

whether the impairment has actually lasted 12

months." [1]

Statement as to How Salamalekis Differs From SSA's

Interpretation of the Social Security Act

Under the Act, an individual who is entitled to disability insurance

benefits is generally entitled to a trial work period. The individual can

test his or her ability to work for up to 9 months without that work

activity affecting his or her entitlement to benefits. However, to be

entitled to a trial work period, the individual must be entitled to

disability insurance benefits. In order to be entitled to disability

insurance benefits, the individual must be disabled, i.e., he or she must

have an impairment that has prevented, or can be expected to prevent him

or her from performing substantial gainful activity for at least 12

months. See Sections 223(a)(1)(D) and (d)(1)(A) of the Act.

SSR 82-52 contains a clear

statement of SSA policy on this

issue [2] as follows:

When the [individual's] return to work demonstrating ability to engage in

SGA occurs before approval of the award and prior to the lapse of the

12-month period after onset, the claim must be denied.

ing substantial gainful activity for at least 12

months. See Sections 223(a)(1)(D) and (d)(1)(A) of the Act.

SSR 82-52 contains a clear

statement of SSA policy on this

issue [2] as follows:

When the [individual's] return to work demonstrating ability to engage in

SGA occurs before approval of the award and prior to the lapse of the

12-month period after onset, the claim must be denied.

The Sixth Circuit held, however, that SSR 82-52 is inconsistent

with the plain language of section 222(c) of the

Act. [3] The holding in Salamalekis is inconsistent with our policy because it

permits a claimant to be found to be under a disability, and entitled to

benefits and a trial work period even if he or she engages in work

activity demonstrating the ability to engage in substantial gainful

activity before the lapse of the 12-month period after the alleged

disability onset date and before a decision by SSA to award

benefits. [4] Our interpretation

is that a claimant cannot be found to have been under a disability if, at

the time we are adjudicating the claim, the evidence shows that his or her

impairment no longer prevents the performance of substantial gainful

activity and that it had not done so for at least 12 continuous months. In

the preamble to our August 10, 2000, final rules, we explain why we

believe that this interpretation is consistent with the relevant statutory

language and with the legislative history of the 12-month duration

requirement. That legislative history indicates that Congress intended

that the disability program not "result in the payment of disability

benefits in cases of short-term, temporary

disability." [5]

Explanation of How SSA Will Apply The Salamalekis Decision Within the Circuit

on is consistent with the relevant statutory

language and with the legislative history of the 12-month duration

requirement. That legislative history indicates that Congress intended

that the disability program not "result in the payment of disability

benefits in cases of short-term, temporary

disability." [5]

Explanation of How SSA Will Apply The Salamalekis Decision Within the Circuit

This Ruling applies only to cases in which the claimant resides or resided

in Kentucky, Michigan, Ohio or Tennessee at the time of the determination

or decision at any level of administrative review, i.e., initial,

reconsideration, ALJ hearing or Appeals Council review.

This Ruling applies to claims for title II benefits based on disability.

It also applies to claims for title XVI benefits based on disability as

explained below.

A claim for title II disability insurance benefits, widow(er)'s insurance

benefits based on disability or child's insurance benefits based on

disability in which the claimant returns to work within 12 months of the

established onset date of an impairment which could otherwise be the basis

for a finding of disability should be allowed and the claimant granted a

trial work period if the following conditions are met: (1) the claimant

establishes that, at the time he or she returned to work and thereafter,

the impairment was still expected to last for at least 12 consecutive

months from the date of onset; (2) the claimant returns to work after the

waiting period (if a waiting period is applicable) but within the 12-month

period following the established onset date; and (3) the return to work

demonstrating an ability to engage in substantial gainful activity occurs

either before or after approval of the award.

till expected to last for at least 12 consecutive

months from the date of onset; (2) the claimant returns to work after the

waiting period (if a waiting period is applicable) but within the 12-month

period following the established onset date; and (3) the return to work

demonstrating an ability to engage in substantial gainful activity occurs

either before or after approval of the award.

A claim for title XVI benefits based on disability in which the claimant

returns to work within 12 months of the established onset date of an

impairment which could otherwise be the basis for a finding of disability

should be allowed and the claimant granted section 1619

status [6] if the following

conditions are met: (1) the claimant establishes that, at the time he or

she returned to work and thereafter, the impairment was still expected to

last for at least 12 consecutive months from the date of onset; (2) the

claimant returns to work in a month subsequent to the month of established

onset but within the 12-month period following the established onset date;

(3) the claimant is eligible to receive "regular" SSI benefits under

section 1611 of the Act (or a federally administered State supplementary

payment) based on the impairment (disregarding the effect the claimant's

return to work within 12 months after the date of onset would otherwise

have on eligibility for such benefits or payment) for at least 1 month in

the period preceding the month in which he or she returns to work; (4) the

claimant meets all other nondisability requirements for section 1619

status; and (5) the return to work demonstrating an ability to engage in

substantial gainful activity occurs either before or after approval of the

award.

would otherwise

have on eligibility for such benefits or payment) for at least 1 month in

the period preceding the month in which he or she returns to work; (4) the

claimant meets all other nondisability requirements for section 1619

status; and (5) the return to work demonstrating an ability to engage in

substantial gainful activity occurs either before or after approval of the

award.

[1] The courts in Newton

v. Chater , 92 F.3d 688 (8th Cir. 1996); Walker v. Secretary of

Health and Human Services, 943 F.2d 1257 (10th Cir. 1991); McDonald v.

Bowen, 818 F.2d 559 (7th Cir. 1986) found that the pertinent provision of SSR 82-52 was inconsistent

with the Social Security Act.

[2] SSR 91-7c superseded SSR 82-52 , but only to the

extent that SSR 82-52 discussed former procedures used to determine disability in children. The

issue in this AR does not relate to those former procedures and the cited

policy statement in SSR

82-52 remains in effect.

[3] Section 222(c)(2) of the Act

provides that "any services rendered by an individual during a period of

trial work shall be deemed not to have been rendered by such individual in

determining whether disability has ceased in a month during such period."

Section 222(c)(3) of the Act provides, in pertinent part, that "[a] period

of trial work for any individual shall begin with the month in which he

becomes entitled to disability insurance benefits." Under section

222(c)(4) of the Act, a trial work period ends with the ninth month, in

any period of 60 consecutive months, in which the individual renders

services (whether or not the 9 months are consecutive), or, if earlier,

with the month in which disability ceases.

trial work for any individual shall begin with the month in which he

becomes entitled to disability insurance benefits." Under section

222(c)(4) of the Act, a trial work period ends with the ninth month, in

any period of 60 consecutive months, in which the individual renders

services (whether or not the 9 months are consecutive), or, if earlier,

with the month in which disability ceases.

[4] While the court in Salamalekis addressed SSR 82-52 in its opinion

issued July 20, 2000, it should be noted that final rules that reflect,

clarify, and provide a more detailed explanation and justification for the SSR 82-52 policy at issue

were published in the Federal Register on July 11, 2000 (65

FR 42772) with an effective date of August 10. The court in Salamalekis,

apparently unaware of the July 11th publication, simply noted that the

proposed rules to incorporate SSA's position in SSR 82-52 had been

published, but had not been finalized; the court did not discuss the more

detailed explanation and justification for our policy provided in the

preamble to the final rules.

[5] That legislative history is

found at S. Rep. No. 404, 89th Cong. 1st Sess. 98-99, reprinted in 1965 U.S. Code Cong. & Ad. News, 1943, 2038-39.

[6] Pursuant to statutory

amendments made by Public Law 99-643, effective July 1, 1987, the trial

work period provisions no longer apply to title XVI disability claims.

Beginning July 1, 1987, a disabled individual, who was eligible to receive

"regular" SSI benefits under section 1611 of the Act (or a federally

administered State supplementary payment) for a month and subsequently has

earnings ordinarily considered to represent substantial gainful activity,

will move directly to section 1619 status rather than be accorded a trial

work period

y claims.

Beginning July 1, 1987, a disabled individual, who was eligible to receive

"regular" SSI benefits under section 1611 of the Act (or a federally

administered State supplementary payment) for a month and subsequently has

earnings ordinarily considered to represent substantial gainful activity,

will move directly to section 1619 status rather than be accorded a trial

work period. This Ruling extends to such individuals, i.e., a claim for

title XVI benefits based on disability should be allowed and the claimant

granted section 1619 status if the claimant would otherwise be eligible

for section 1619 status and the same conditions set out above for title II

claims based on disability are met.