SSA Proposes More Liberal UWA and EXR Rules

Empire Justice June 30, 2016

SSA seeks comment on regulatory amendments regarding two related, but disparate, work incentives, unsuccessful work attempts (UWA) and Expedited Reinstatement (EXR). 81 Fed. Reg. 29212 (May 11, 2016). https://www.gpo.gov/fdsys/pkg/FR-2016-05-11/pdf/2016-10932.pdf.  Deadline for comments is July 11, 2016.

When it comes to an unsuccessful work attempt evaluation, SSA recognizes in this announcement that “Disability evaluation is generally concerned with the ability to work over an extended period rather than in short, isolated periods. . . . For SGA determination purposes, we may disregard work in employment or self-employment if a claimant or beneficiary, after working for a period of 6 months or less, stops working or reduces the amount of work so that the earnings fall below the SGA level because of the original impairment or the removal of special conditions that were essential to the performance of his or her work, and if there was a significant break in the continuity of work before this work attempt. ..”

Currently, SSA applies a stricter standard in evaluating work efforts that last between three and six months, than to shorter work efforts. The proposed amendments to 20 C.F.R. §§ 404.1574(c), 404.1575(d), 416.974(c), and 416.975(d) would make the standard the same for all work efforts up to six months, removing the additional criteria for work efforts lasting three to six months.  The criteria in question are that the “claimant or beneficiary must also have: (1) been frequently absent from work because of his or her impairment, (2) performed the work unsatisfactorily because of his or her impairment, (3) worked during a period of temporary remission of his or her impairment, or (4) worked under special conditions essential to his or her performance and those conditions were removed.”

The other proposed work incentive change is a simplification of the Expedited Reinstatement (EXR) starting date rule. “Previously entitled individuals may request EXR within 60 months of their prior termination of benefits if their medical condition no longer permits them to perform SGA.  To qualify for EXR, a previously entitled individual [whose benefits were stopped due to work activity] must be unable to perform SGA due to an impairment that is the same as or related to an impairment that was the basis for the previous entitlement.  The standard for evaluating disability on an EXR claim may be more advantageous to the claimant than the standard for evaluating disability on a completely new claim for benefits.”

“Currently, our regulations state that individuals are not eligible for EXR if they perform SGA during the month in which they apply for EXR.  In many cases, a previously entitled individual will request EXR in the same month that he or she stopped working.  However, since earnings already exceeded SGA for that month, the individual is not eligible to file for EXR until the following month.  In such cases, we are required to deny the EXR request, and the individual can request EXR in the following month.”

“We propose to revise 20 C.F.R. §§ 404.1592c and 416.999a to allow previously entitled individuals to request EXR in the same month they stop performing SGA. This change would apply to SSDI and SSI claimants and beneficiaries.  This change would make requesting EXR easier as we will be able to accept the request at first contact.  It would also allow us to forward the individual’s file immediately for a medical determination, reducing wait time and the possibility of a gap in benefit payments. . . .”

Both of these proposed regulatory revisions seem to benefit our clients. Please let us know if you submit comments.