SSR 76-4a: SECTIONS 216(i) and 223(d) (42 U.S.C. 416(i) and 423(d)) -- DISABILITY INSURANCE BENEFITS -- SUBSTANTIAL GAINFUL ACTIVITY -- REBUTTAL OF PRESUMPTION OF ABILITY TO ENGAGE IN SUBSTANTIAL GAINFUL ACTIVITY

20 CFR 404.1501 and 404.1532-404.1534

SSR 76-4a

D, the claimant, filed an application for disability benefits on April

25, 1972, alleging inability to work from August 11, 1970, because of

injuries to his knees. The evidence establishes that the claimant injured

both knees on August 11, 1970 and, as a result, stopped working.

The diagnosis was chondromalacia of the patella of both knees. A long leg

cast was applied on the left leg and it was removed by November 17, 1970.

D continued to improve and was able to return to light duty on November

24, 1970, working about 20 hours a week for about $3.30 an hour for 14

weeks. Sometime after December 1, 1970, D started to complain of knee pain

again. On February 24, 1971, he entered the hospital and a patellectomy of

the right knee was performed. His postoperative course was uneventful and

he was discharged from the hospital on March 1, 1971. On June 21, 1971, he

returned to work on a regular 40-hour basis. However, a strain was placed

on his left knee while the right knee was healing. He reentered the

hospital on September 14, 1971, for a patellectomy of the left knee. His

postoperative course was uneventful and he was discharged on September 21,

1971. D returned to full-time work on January 17, 1972, and worked until

March 11, 1972, when he resigned. On April 3, 1972, he went to work

selling advertising and quit after 3 weeks. When the claimant was examined

in April 1972, a slight looseness of one of the ligaments of the right

knee was noted as well as a lump which appeared with pain on flexion and

extension of the left knee. As recommended by the examining physician, the

claimant underwent surgery for the removal of the mass from the left knee

in July 1972. Following surgery, the doctor expressed the opinion that the

claimant would not be able to return to work before October 1, 1972

he ligaments of the right

knee was noted as well as a lump which appeared with pain on flexion and

extension of the left knee. As recommended by the examining physician, the

claimant underwent surgery for the removal of the mass from the left knee

in July 1972. Following surgery, the doctor expressed the opinion that the

claimant would not be able to return to work before October 1, 1972. When

D was reexamined on September 28, 1972, the only restriction placed on his

work activity was that he should not engage in any work requiring

prolonged standing or heavy lifting.

The claimant has stated that in the fall of 1972, he became a full-time

college student. The X State Employment office has tried to obtain a

telephone solicitors job for him at $1.40 an hour, which he felt was not

very substantial. In addition thereto, he has been looking for part-time

work that would not interfere with college. So far he has been

unsuccessful.

When the claimant was examined on February 14, 1973, it was noted that he

had a good range of motion in both knees. There was some weakness of both

quadriceps; however, the only restriction placed on the claimant's

activities was that he could not do a lot of stooping and bending.

Section 216(i) of the Social Security Act provides for the establishment

of a period of disability, and section 223 provides for the payment of

disability insurance benefits. As amended in 1965, both sections define

"disability" (except for certain cases of blindness) as an inability to

engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months

ility insurance benefits. As amended in 1965, both sections define

"disability" (except for certain cases of blindness) as an inability to

engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result

in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months. A "physical or mental impairment" is

defined in section 223 as an impairment that results from anatomical,

physiological or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.

Section 223(d)(1)(A) provides in pertinent part, that:

In evaluating D's work activities from November 24, 1970, to February 23,

1971; June 21, 1971 to September 4, 1971; and January 17, 1972, to

approximately the middle of April 1972, the criteria set forth in Social

Security Administration Regulations No. 4 is applicable. In this regard

section 404.1532(a) of such regulations (20 CFR 404.1532(a)) states:

Further, section 404.1534(a) (20 CFR 404.1534(a)) of this regulation

states, in pertinent part:

Subparagraph (b) of this section of the regulations then in effect,

pointed out that:

The evidence establishes that during each of the three work attempts, the

claimant's earnings were in excess of $140 per month, with the exception

perhaps of April 1972. However, each work attempt resulted in

hospitalization and surgery. Each return to work lasted approximately 3

months, but in light of the chronology of the claimant's impairments as

demonstrated by the medically acceptable evidence, with due regard to the

amount of earnings, it appears that those 3-month periods were not of

significant length as to lead to a conclusion that the claimant

demonstrated an ability thereby to engage in substantial gainful activity

eturn to work lasted approximately 3

months, but in light of the chronology of the claimant's impairments as

demonstrated by the medically acceptable evidence, with due regard to the

amount of earnings, it appears that those 3-month periods were not of

significant length as to lead to a conclusion that the claimant

demonstrated an ability thereby to engage in substantial gainful activity.

Thus, the presumption that the claimant was engaging in substantial

gainful activity during each of his three brief abortive work attempts

because his earnings were in excess of $140 a month has been rebutted by

"affirmative evidence" showing that his impairments precluded sustained

occupational activity. Moreover, the nature of the claimant's impairments,

his age, education and vocational attainment, and the efforts by his

employer to accommodate the work situation to his impairments, are

persuasive to a conclusion that such work activities themselves

established that the claimant did not have the functional capability to

engage in substantial gainful activity. Of somewhat less relevance to the

resolution of the ultimate issue, but certainly appropriate for concern,

is the belief that the claimant should not be penalized for his strong

motivation for work.

However, the evidence conclusively shows that by October 1, 1972, the

claimant had regained sufficient functional ability to engage in his

previous occupation of keeping automotive shop records and in a wide

variety of similarly related light and sedentary work commensurate with

his age, education, and vocational experience.

Accordingly, the Appeals Council held the claimant was under a

"disability" which began on August 11, 1970, and continued through

September 30, 1972, but not thereafter.

tional ability to engage in his

previous occupation of keeping automotive shop records and in a wide

variety of similarly related light and sedentary work commensurate with

his age, education, and vocational experience.

Accordingly, the Appeals Council held the claimant was under a

"disability" which began on August 11, 1970, and continued through

September 30, 1972, but not thereafter.

[1] The amount of monthly

earnings which creates a presumption of substantial gainful activity has,

since January 1, 1974, been $200.00. See 39 FR 32757, September 11, 1974,

and 40 FR 31778, July 29, 1975. This amount may change because of

increases in earnings levels.