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

Where claimant in April 1972 filed application for a period of disability and Disability Insurance Benefits alleging inability to work from August 1970 because of knee injuries but thereafter engaged in sporadic work activities for 3 month periods earning in excess of $140 per month and evidence established that each work attempt aggravated the knee impairments and necessitated discontinuance of work, hospitalization and surgery, held, the presumption that claimant was engaging in substantial gainful activity during his work attempts because of earnings in excess of $140 a month (the amount of monthly earnings which then created a presumption of substantial gainful activity) is rebutted by "affirmative evidence" showing that his impairments precluded sustained occupational activity in that such activity took place during three brief intervals over approximately a two-year period and was interrupted by aggravation of impairment following each period of work activity; therefore, claimant is entitled to a period of disability commencing in August 1970 and continuing through September 1972.

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. 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. 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:

. . . an individual . . .shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), 'work which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

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:

If an individual performed work during any period in which he alleges that he was under a disability . . . the work performed may demonstrate that such individual has ability to engage in substantial gainful activity. . . .

Further, section 404.1534(a) (20 CFR 404.1534(a)) of this regulation states, in pertinent part:

Where an individual who claims to be disabled engages in work activities, the amount of his earnings from such activities may establish that the individual has the ability to engage in substantial gainful activity. Generally, activities which result in substantial earnings would establish ability to engage in substantial gainful activity ***. Where an individual is forced to discontinue his work activities after a short time because his impairment precludes continuing such activities, his earnings would not demonstrate ability to engage in substantial gainful activity.***

Subparagraph (b) of this section of the regulations then in effect, pointed out that:

An individual's earnings from work activities averaging in excess of $140 a month shall be deemed to demonstrate his ability to engage in substantial gainful activity unless there is affirmative evidence that such work activities themselves establish that the individual does not have the ability to engage in substantial gainful activity under the criteria in ยงยง 404.1532 and 404.1533 and paragraph (a) of this section. (Emphasis supplied)[1]

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. 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.


[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.


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