81 FR 71367 - Unsuccessful Work Attempts and Expedited Reinstatement Eligibility

SOCIAL SECURITY ADMINISTRATION

Federal Register Volume 81, Issue 200 (October 17, 2016)

These rules finalize the rules we proposed in our notice of proposed rulemaking (NPRM), published on May 11, 2016. In these rules, we remove some of the requirements for evaluation of an unsuccessful work attempt (UWA) that lasts between 3 and 6 months, allow previously entitled beneficiaries to apply for expedited reinstatement (EXR) in the same month they stop performing substantial gainful activity (SGA), and provide that provisional benefits will begin the month after the request for EXR if the beneficiary stops performing SGA in the month of the EXR request. These changes will simplify our policies and make them easier for the public to understand.

[Federal Register Volume 81, Number 200 (Monday, October 17, 2016)]
[Rules and Regulations]
[Pages 71367-71370]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-24873]


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SOCIAL SECURITY ADMINISTRATION

20 CFR Parts 404 and 416

[Docket No. SSA-2014-0016]
RIN 0960-AH66


Unsuccessful Work Attempts and Expedited Reinstatement 
Eligibility

AGENCY: Social Security Administration.

ACTION: Final rules.

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SUMMARY: These rules finalize the rules we proposed in our notice of 
proposed rulemaking (NPRM), published on May 11, 2016. In these rules, 
we remove some of the requirements for evaluation of an unsuccessful 
work attempt (UWA) that lasts between 3 and 6 months, allow previously 
entitled beneficiaries to apply for expedited reinstatement (EXR) in 
the same month they stop performing substantial gainful activity (SGA), 
and provide that provisional benefits will begin the month after the 
request for EXR if the beneficiary stops performing SGA in the month of 
the EXR request. These changes will simplify our policies and make them 
easier for the public to understand.

DATES: These final rules will be effective November 16, 2016, except 
for the amendments to Sec. Sec.  404.1592c and 416.999a, which will be 
effective April 17, 2017.

FOR FURTHER INFORMATION CONTACT: Kristine Erwin-Tribbitt, Office of 
Retirement and Disability Policy, Office of Research, Demonstration, 
and Employment Support, Social Security Administration, 6401 Security 
Boulevard, Robert Ball Building 3-A-26, Baltimore, MD 21235-6401, (410) 
965-3353. For information on eligibility or filing for benefits, call 
our national toll-free number, 1-800-772-1213 or TTY 1-800-325-0778, or 
visit our Internet site, Social Security Online, at http://www.socialsecurity.gov.

SUPPLEMENTARY INFORMATION: On May 11, 2016, we published an NPRM in the 
Federal Register at 81 FR 29212 in which we proposed to revise our 
rules to simplify certain aspects of our UWA and EXR policies and make 
them easier for the public to understand. We are adopting the proposed 
rules as final rules.
    The final rules at 20 CFR 404.1574(c), 404.1575(d), 416.974(c), and 
416.975(d) remove the additional conditions that we used when we 
evaluated a work attempt in employment or self-employment that lasted 
between 3 and 6 months and use the current 3-month standard for all 
work attempts that are 6 months or less. Under these rules, ordinarily, 
work you have done will not

[[Page 71368]]

show that you are able to do substantial gainful activity if, after you 
worked for a period of 6 months or less, your impairment forced you to 
stop working or to reduce the amount of work you do so that your 
earnings from such work fall below the substantial gainful activity 
earnings level. The new rules at 20 CFR 404.1592c and 416.999a allow a 
previously entitled individual to request EXR in the same month they 
stop performing SGA. These new rules apply to Social Security 
Disability Insurance (SSDI) and Supplemental Security Income (SSI) 
claimants and beneficiaries. We expect these changes will result in 
simplified case processing and faster and better determinations and 
decisions.
    You can find additional information and discussion regarding these 
changes in the preamble to our proposed rule.

Public Comments and Discussion

    We received eight timely submitted comments that addressed issues 
within the scope of our proposed rules. Below, we present the views we 
received and address all of the relevant and significant issues raised 
by the commenters. We carefully considered their concerns, but did not 
make any changes to our rules because of the comments.
    Of these eight comments, six were from disability advocacy 
organizations, all of whom supported our proposed rules. The 
organizations expressed that the proposed changes will have a positive 
impact on beneficiaries by supporting their attempts to work and 
helping them understand and use the rules. They asserted that this, in 
turn, would provide greater assurance to beneficiaries who want to 
attempt a return to work and would result in increased program 
participation.
    Comment: One commenter asked if it would be easier for an 
individual to temporarily and voluntarily suspend benefits when trying 
to rejoin the work force instead of terminating his or her benefits and 
then requesting EXR following an UWA.
    Response: Under the Social Security Act, we are required to 
terminate an individual's disability benefits if he or she no longer 
meets the eligibility requirements and are therefore prohibited from 
simply suspending benefits.\1\
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    \1\ 42 U.S.C. 416(i)(2)(D)(ii)(II).
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    To be entitled to disability benefits, an individual must be unable 
to engage in any SGA by reason of any medically determinable physical 
or mental impairment that can be expected to result in death, or has 
lasted or can be expected to last for a continuous period of not less 
than 12 months.\2\ An individual may be determined not to be entitled 
to benefits if there is substantial evidence demonstrating that the 
individual is able to engage in SGA.\3\ Generally, a period of 
disability ends and benefits cease following a finding that the 
physical or mental impairment on the basis of which the benefits are 
provided has not been disabling for 36 months, as demonstrated by 
SGA.\4\
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    \2\ 42 U.S.C. 423(d)(1)(A), 42 U.S.C. 1382c(a)(3)(A).
    \3\ 42 U.S.C. 423(f)(2)(A)(ii), 42 U.S.C. 1382c(a)(4)(A)(i)(II).
    \4\ 42 U.S.C. 416(i)(2)(D)(ii)(II).
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    Because we are required to terminate benefits, we established EXR 
in order to facilitate benefit reinstatement to individuals whose 
benefits terminated as a result of SGA. 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 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.\5\
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    \5\ 20 CFR 404.1592c and 416.999a.
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    Comment: One commenter indicated that the proposed rules were 
unclear, stating that ``the rules for UWA, as proposed are in direct 
conflict with the definition of disability, which requires, in part, 
the inability to engage in SGA for 12 consecutive months.'' He went on 
to ask if our proposed rule changed the definition of disability or if 
it ``merely appl[ies] after the initial 12 month period?''
    Response: The new rules do not conflict with the definition of 
disability nor do they change our policy or definition of disability. 
By applying the current 3-month conditions to all work attempts that 
are 6 months or less, the new rules simply remove the additional 
documentation previously required of an individual with a work attempt 
lasting between 3 and 6 months.
    To be eligible for disability benefits, an individual must be 
unable to engage in any SGA 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.\6\ As we explained in our NPRM, disability 
evaluation is generally concerned with the ability to work over an 
extended period rather than in short, isolated periods.
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    \6\ 42 U.S.C. 423(d)(1)(A); 42 U.S.C. 1382c(a)(3)(A).
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    Disability claimants and beneficiaries may attempt to return to 
work and engage in SGA following a break in the continuity of their 
work. 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.\7\
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    \7\ 20 CFR 404.1574(c) and 416.974(c).
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Regulatory Procedures

Executive Order 12866, as Supplemented by Executive Order 13563

    We consulted with the Office of Management and Budget (OMB) and 
determined that these rules do not meet the criteria for a significant 
regulatory action under Executive Order 12866, as supplemented by 
Executive Order 13563. Therefore, OMB has not reviewed them.

Regulatory Flexibility Act

    We certify that these rules will not have a significant economic 
impact on a substantial number of small entities because they affect 
individuals only. Therefore, a regulatory flexibility analysis is not 
required under the Regulatory Flexibility Act, as amended.

Paperwork Reduction Act

    These rules do not create any new or affect any existing 
collections and, therefore, do not require Office of Management and 
Budget approval under the Paperwork Reduction Act.

(Catalog of Federal Domestic Assistance Program Nos. 9601, Social 
Security--Disability Insurance; 96.006, Supplemental Security 
Income; 96.008, Social Security--Work Incentives Planning and 
Assistance Program.)

List of Subjects

20 CFR Part 404

    Administrative practice and procedure, Blind, Disability benefits, 
Reporting and recordkeeping requirements, Social security, Vocational 
rehabilitation.

20 CFR Part 416

    Administrative practice and procedure, Medicaid, Reporting and 
recordkeeping requirements,

[[Page 71369]]

Supplemental Security Income (SSI), Vocational rehabilitation.

Carolyn W. Colvin,
Acting Commissioner of Social Security.
    For the reasons set out in the preamble, we amend 20 CFR part 404 
subpart P and 20 CFR part 416 subpart I as set forth below:

PART 404--FEDERAL OLD-AGE, SURVIVORS AND DISABILITY INSURANCE

Subpart P--Determining Disability and Blindness

0
1. The authority citation for subpart P of part 404 continues to read 
as follows:

    Authority: Secs. 202, 205(a)-(b) and (d)-(h), 216(i), 221(a), 
(i), and (j), 222(c), 223, 225, and 702(a)(5) of the Social Security 
Act (42 U.S.C. 402, 405(a)-(b) and (d)-(h), 416(i), 421(a), (i), and 
(j), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 
110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 
U.S.C. 902 note).


0
2. Amend Sec.  404.1574 by revising the first sentence of paragraph 
(c)(1), revising paragraph (c)(3), removing paragraph (c)(4), and 
redesignating paragraph (c)(5) as (c)(4) to read as follows:


Sec.  404.1574  Evaluation guides if you are an employee.

* * * * *
    (c) * * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after you worked for a 
period of 6 months or less, your impairment forced you to stop working 
or to reduce the amount of work you do so that your earnings from such 
work fall below the substantial gainful activity earnings level in 
paragraph (b)(2) of this section, and you meet the conditions described 
in paragraphs (c)(2), (3), and (4) of this section. * * *
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *

0
3. Amend Sec.  404.1575 by revising the first sentence of paragraph 
(d)(1), revising paragraph (d)(3), removing paragraph (d)(4), and 
redesignating paragraph (d)(5) as (d)(4) to read as follows:


Sec.  404.1575  Evaluation guides if you are self-employed.

* * * * *
    (d) * * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after working for a 
period of 6 months or less, you were forced by your impairment to stop 
working or to reduce the amount of work you do so that you are no 
longer performing substantial gainful activity and you meet the 
conditions described in paragraphs (d)(2), (3), and (4) of this 
section. * * *
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *

0
4. Amend Sec.  404.1592c by revising paragraph (a)(4)(i) and (c)(2) to 
read as follows:


Sec.  404.1592c  Who is entitled to expedited reinstatement?

    (a) * * *
    (4) * * *
    (i) You are not able or become unable to do substantial gainful 
activity because of your medical condition as determined under 
paragraph (c) of this section;
* * * * *
    (c) * * *
    (2) You are not able or become unable to do substantial gainful 
activity in the month you file your request for reinstatement; and
* * * * *

0
5. Amend Sec.  404.1592e by revising paragraph (a)(1) to read as 
follows:


Sec.  404.1592e  How do we determine provisional benefits?

    (a) * * *
    (1) We will pay you provisional benefits, and reinstate your 
Medicare if you are not already entitled to Medicare, beginning with 
the month you file your request for reinstatement under Sec.  
404.1592c(a) if you do not perform substantial gainful activity in that 
month. We will pay you provisional benefits, and reinstate your 
Medicare if you are not already entitled to Medicare, beginning with 
the month after you file your request for reinstatement under Sec.  
404.1592c(a) if you perform substantial gainful activity in the month 
in which you file your request for reinstatement.
* * * * *

PART 416--SUPPLEMENTAL SECURITY INCOME FOR THE AGED, BLIND, AND 
DISABLED

Subpart I--Determining Disability and Blindness

0
6. The authority citation for subpart I of part 416 continues to read 
as follows:

    Authority: Secs. 221(m), 702(a)(5), 1611, 1614, 1619, 1631(a), 
(c), (d)(1), and (p), and 1633 of the Social Security Act (42 U.S.C. 
421(m), 902(a)(5), 1382, 1382c, 1382h, 1383(a), (c), (d)(1), and 
(p), and 1383b; secs. 4(c) and 5, 6(c)-(e), 14(a), and 15, Pub. L. 
98-460, 98 Stat. 1794, 1801, 1802, and 1808 (42 U.S.C. 421 note, 423 
note, and 1382h note).


0
7. Amend Sec.  416.974 by revising paragraph (c)(3), removing paragraph 
(c)(4), and redesignating paragraph (c)(5) as (c)(4) to read as 
follows:


Sec.  416.974  Evaluation guides if you are an employee.

* * * * *
    (c) * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings level because of your impairment or because 
of the removal of special conditions that took into account your 
impairment and permitted you to work.
* * * * *

0
8. Amend Sec.  416.975 by revising paragraph (d)(1) and (3), removing 
paragraph (d)(4), and redesignating paragraph (d)(5) as (d)(4) to read 
as follows:


Sec.  416.975  Evaluation guides if you are self-employed.

* * * * *
    (d) * * *
    (1) General. Ordinarily, work you have done will not show that you 
are able to do substantial gainful activity if, after working for a 
period of 6 months or less, you were forced by your impairment to stop 
working or to reduce the amount of work you do so that you are no 
longer performing substantial gainful activity and you meet the 
conditions described in paragraphs (d)(2), (3), and (4) of this 
section.
* * * * *
    (3) If you worked 6 months or less. We will consider work of 6 
months or less to be an unsuccessful work attempt if you stopped 
working or you reduced your work and earnings below the substantial 
gainful activity earnings

[[Page 71370]]

level because of your impairment or because of the removal of special 
conditions that took into account your impairment and permitted you to 
work.
* * * * *

0
9. Amend Sec.  416.999a by revising paragraph (a)(4)(i) and (c)(2) to 
read as follows:


Sec.  416.999a  Who is eligible for expedited reinstatement?

    (a) * * *
    (4) * * *
    (i) You are not able or become unable to do substantial gainful 
activity because of your medical condition as determined under 
paragraph (c) of this section.
* * * * *
    (c) * * *
    (2) You are not able or become unable to do substantial gainful 
activity in the month you file your request for reinstatement; and
* * * * *
[FR Doc. 2016-24873 Filed 10-14-16; 8:45 am]
BILLING CODE 4191-02-P