SSR 69-46: SECTIONS 216(i) and 222(c). -- DISABILITY -- CHARGING TRIAL WORK MONTHS -- ACTIVITY THAT DOES NOT CONSTITUTE "SERVICES"

20 CFR 404.1536 and 404.1539

SSR 69-46

The claimant, a patient in the X Hospital, was entitled to disability

insurance benefits because of a mental impairment. While being treated for

his neuropsychiatric condition, he had a severe heart attack. Because

anginal pain is precipitated on very little exertion he can do only

sedentary work.

Upon discharge a bed patient, the claimant participated int eh

rehabilitation project of the hospital for 1 year. during this period, he

lived in a rented room outside of the hospital and received outpatient

care and medication. He worked at the hospital in a room especially set up

for the project averaging 6 hours a day, 27 hours a week, and received

about $20 a week for his work. No special skills, knowledge, training,

mental, or physical demands were required. At first the calmant's work

consisted of placing pieces of metal in a machine; later, he assisted the

head therapist in preparing work for about 30 to 40 other patients and

instructing them.

The hospital furnished the following information concerning the

project:

Cooperating companies in the community send work to the hospital which is

performed by patients participating in the project. The work is carried on

in the hospital and is under medical supervision. The primary purpose of

the activity is treatment rather than employment. The company has not part

for choice in the assignment of patients to the shop. The patient may be

medically assigned for a few hours a week or for as many as 25 hours a

week. The persons engaged in the activity vary from day, depending upon

the mentality of the patient. Many patients have committed to the hospital

and do not have the mental competence to make an employment contract on

their own responsibility. The patient never comes in contact with a

company, receives no instructions or directions from a company as to what

is to be done or how it is to be accomplished

s engaged in the activity vary from day, depending upon

the mentality of the patient. Many patients have committed to the hospital

and do not have the mental competence to make an employment contract on

their own responsibility. The patient never comes in contact with a

company, receives no instructions or directions from a company as to what

is to be done or how it is to be accomplished. Most of the work that is

performed is low level repetitive type of activity and is given to the

hospital by cooperating firms primarily for the purpose of aiding in the

rehabilitation by cooperating firms primarily for the purpose of aiding in

the rehabilitation of patient.s It is not part of their normal workload

and is work which might of patients. It is not part of their normal

workload and is work which might not be otherwise carried on.

As a matter policy, it has been established that they shall be paid for

work at approximately what would be the national minimum wage. These

patients are not equal in ability to perform, but nevertheless, each

patient will receive his proportionate share for the time spent on the

project. The companies recognize certain patients will perform well below

the average, However, the total output will be comparable to the average

for any normal group of workers.

The companies make the hospital's estimate of the amount of time spent on

a project and furnish it with an amount of money equal to the number of

hours worked by all patients at the national minimum wages rate The money

is sent in a lump sum, and the hospital apportions it to the patients in

such a way as to achieve motivation and other psychological goals.

or any normal group of workers.

The companies make the hospital's estimate of the amount of time spent on

a project and furnish it with an amount of money equal to the number of

hours worked by all patients at the national minimum wages rate The money

is sent in a lump sum, and the hospital apportions it to the patients in

such a way as to achieve motivation and other psychological goals.

The work is performed within the hospital, under the supervision of the

medical and administrative staff of the hospital, under supervision of the

medical and administrative staff of the hospital, in quarters that are

furnished by the hospital, and using utilities which are furnished by the

hospital as an aid in physically and emotionally conditioning the patients

for posthospitalization employment.

Sections 404.1536 and 404.1539 of Social Security Regulations No. 4 (20

CFR 404.1536 and 404.1539) are pertinent in this case.

Section 404.1536 provides, in pertinent part, regarding a period of trial

work that:

* * * * * * *

* * * * * * *

Section 404.1539 provides, in pertinent part, regarding cessation of

disability that:

A question has been raised as to whether the claimant's activity in the

project constitutes "services" in period of trial work within the meaning

of section 404.1536 of Regulations No. 4 (20 CFR 404.1536) so as to

require consideration in determining whether his disability period.

* * * *

* * * * * * *

Section 404.1539 provides, in pertinent part, regarding cessation of

disability that:

A question has been raised as to whether the claimant's activity in the

project constitutes "services" in period of trial work within the meaning

of section 404.1536 of Regulations No. 4 (20 CFR 404.1536) so as to

require consideration in determining whether his disability period.

In applying the criteria of "services" set forth in section

404.1536( d ) supra, to the services of the claimant in the project,

it appears that his work activity does not fall under the exempted areas

of "daily routine around the home" or "self-care." the work activity was

not "training" in a true sense because the type of work performed was

essentially of a very simple and repetitive nature. The work activity

merely "a therapeutic measure" if no remuneration were involved. The

remuneration was an incentive to sustain patients' work activities and to

reward them in proportion to individual productivity.

It also appears that there was no employer-employee relationship with

respect to the services performed as the companies furnishing the work had

no right to control and direct the individuals performing the services.

These companies had no contact whatsoever with the individuals performing

the services or their amounts of remuneration. In view of these factors,

it is concluded the "services" of the claimant were not performed in an

employment relationship.

Further, it is apparent this work activity was not "of a type normally performed for remuneration or gain." The claimant was not

free to select his work activity; it was selected for him by his doctor.

The physical and mental conditions of the claimant and other participants

were constantly being checked. patients could rest whenever they wanted

to. These working conditions cannot be considered as normal working

conditions.

ivity was not "of a type normally performed for remuneration or gain." The claimant was not

free to select his work activity; it was selected for him by his doctor.

The physical and mental conditions of the claimant and other participants

were constantly being checked. patients could rest whenever they wanted

to. These working conditions cannot be considered as normal working

conditions.

Based on the foregoing it is determined that the work activities under

the rehabilitation project do not constitute "services" in a period of

trial work, within the meaning of section 404.1536 of Regulations No. 4

(20 CFR 404.1536).