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UWA SSR 05-02 Rescinded

Empire Justice Center July 31, 2018

Advocates will recall that 20 C.F.R. §§ 404.1574(c), 404.1575(d), 416.974(c) and 416.975(d) were amended effective November 2016.  See June and October 2016 Disability Law News.  Prior to that, an Unsuccessful Work Attempt (UWA) could be found for work that lasted no more than three months, and for work that lasted more than three but not over six months if it met additional conditions.  The regulatory amendments removed the additional conditions for the longer-lasting UWA, allowing work efforts to be disregarded in the disability determination process based on the same conditions throughout the full six months period.

 

SSA now has rescinded SSR 05-02 https://www.ssa.gov/OP_Home/rulings/di/03/SSR2005-02-di-03.html , which reiterated and distinguished the conditions applicable to a three-month UWA versus a greater than three-month UWA.  83 Fed. Reg. 22308 (May 14, 2018). https://www.gpo.gov/fdsys/pkg/FR-2018-05-14/pdf/2018-10249.pdf.

 

Interestingly, SSR 05-02 opens up by stating its purpose:  “To clarify the policy stated in Social Security Ruling (SSR) 84-25 for determining whether substantial work activity that is discontinued or reduced below a specified level may be considered an unsuccessful work attempt (UWA) under the disability provisions of the law.”

SSR 84-25 states as its purpose:  “To state the policy for determining whether substantial work activity that is discontinued or reduced below a specified level may be considered an unsuccessful work attempt (UWA) under the disability provisions of the law.” SSR 84-25 includes the three month versus the greater than three month distinction.

 

SSR 05-02 merely “clarifies” but does not rescind, amend, modify, change, or otherwise do anything to 84-25. SSR 84-25 never has been listed by SSA as being rescinded or modified. https://www.ssa.gov/OP_Home/rulings/rulfind2.html .

 

The end result is that we continue to have SSR 84-25, still touting a distinction between a three-month and a greater than three-month UWA.  Curious result.  Please let us know if you have run into issues with this Ruling or the newer regulations.

 

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