AR 92-6(10): Walker v. Secretary of Health and Human Services, 943 F.2d 1257 (10th Cir 1991) — Entitlement to Trial Work Period Before Approval of an Award for Benefits and Before Twelve Months Have Elapsed Since Onset of Disability — Titles II and XVI of the Social Security Act.

ISSUE:

Does a person's return to substantial gainful activity (SGA) within 12 months of the onset date of his or her disability, and prior to an award of benefits, preclude an award of benefits and entitlement to a trial work period?

STATUTE/REGULATION/RULING CITATION:

Sections 222(c), 223, and 1614(a)(3) and (4) of the Social Security Act (42 U.S.C. 422(c), 423, and 1382c(a)(3) and (4); 20 CFR 404.1505, 404.1520(b), 404.1592, 416.905, 416.920(b), 416.992; SSR 82-52

CIRCUIT

Tenth (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming);

Walker v. Secretary Of Health and Human Services, 943 F.2d 1257 (10th Cir. 1991)

APPLICABILITY OF RULING:

: This Ruling applies to determinations or decisions at all administrative levels (i.e., initial reconsideration, Administrative Law Judge hearing and Appeals Council).

DESCRIPTION OF CASE:

Billy Walker applied for disability insurance benefits and supplemental security income (SSI) on October 2, 1987, alleging disability due to degenerative disc disease and ulcers. His claim was denied initially and upon reconsideration Mr. Walker then requested a hearing before an Administrative Law Judge (ALJ). while he was awaiting his hearing, Mr. Walker returned, in April 1988, to his work as a truck driver. He was still performing this job at the time of his hearing in September 1988.

The ALJ, in determining that Mr. Walker was not disabled, denied benefits at step one of the five-step sequential evaluation process. Specifically, the ALJ found that Mr. Walker had engaged in substantial gainful activity since April 1988, within twelve months of the date he claimed disability, by virtue of his work as a truck driver. The Appeals Council denied Mr. Walker's request for review and the U.S. District Court for the District of New Mexico affirmed the ALJ's decision.

On his appeal to the U.S. Court of Appeals for the Tenth Circuit, Mr. Walker argued that, despite his return to work in April 1988, he was still disabled as defined by the Social Security Act ("the Act"). He maintained that his work as a truck driver constituted a trial work period, which the ALJ should not have considered in determining his eligibility for benefits.

HOLDING:

In vacating the district court's judgement and remanding the case to the Secretary, the U.S. Court of Appeals for the Tenth Circuit held that:

: . . . a fair reading of the Act indicates that an individual who suffers from an impairment that has lasted, or is expected to last, twelve months is entitled to disability benefits, as well as a trial work period, after five months.^[1]

In reaching this conclusion, the court relied upon the Seventh Circuit's reasoning and decision in McDonald v. Bowen,818 F.2d 559 (7th Cir. 1987), which held that a person could return to work after the five month waiting period, yet before an award of benefits, and still be eligible for an award, since the return to work represents a trial work period and is not evidence of the person's work capabilities.^[2]

The court directed the Secretary, on remand, to determine whether Mr. Walker was disabled for five consecutive months before he began work in April 1988, and, if so, to assess whether such work constituted a trial work period.

STATEMENT AS TO HOW WALKER DIFFERS FROM SOCIAL SECURITY POLICY:

Social Security Ruling (SSR) 82-52 contains a clear statement of Social Security policy on this subject.^[3] The pertinent provision is as follows:

: When the [individual's] return to work demonstrating ability to engage in SGA occurs before approval of the award and prior to the lapse of the 12-month period after onset, the claim must be denied. When an individual returns to SGA during the waiting period and such work continues, the claim for benefits must be denied if the award has not been approved. If the award was previously approved, the claim must be reopened and revised to a denial.

The holding in Walker is inconsistent with this policy in that it directs the Secretary, on remand, to grant Mr. Walker a trial work period provided only that he establishes a consecutive five-month period of disability prior to his return to work in April 1988. This raises the possibility that Mr. Walker may receive a benefit award and a trial work period even if he returned to work within 12 months of the onset of his disability and before an award of benefits could be made.

EXPLANATION OF HOW SSA WILL APPLY THE DECISION WITHIN THE CIRCUIT:

This ruling applies only to cases in which the claimant resides in Colorado, Kansas, New Mexico, Oklahoma, Utah or Wyoming at the time of the determination or decision at any administrative level, i.e., initial, reconsideration, Administrative Law Judge hearing or Appeals Council review.

A claim for title II disability insurance benefits, widow(er)'s insurance benefits based on disability, or child's insurance benefits based on disability in which the claimant returns to work within 12 months of the established onset date should be all allowed and the claimant granted a trial work period if the following conditions are met:

The claimant establishes that, at the time he/she returned to work and thereafter, the impairment was still expected to last for at least 12 consecutive months from the date of onset;
the person returns to work after any necessary waiting period after the established onset date (but within the 12-month period following such onset date); and
the return to work demonstrating ability to engage in substantial gainful activity occurs either before or after approval of the award.

A claim for title XVI benefits based on disability in which the claimant returns to work within 12 months of the established onset dated should be allowed and the claimant granted section 1619 status^[4] if the following conditions are met:

The claimant establishes that, at the time he/she returned to work and thereafter, the impairment was still expected to last at least 12 consecutive months from the date of onset;
the person returns to work in a month subsequent to the month of established onset (but within the 12-month period following such onset date); and
the return to work demonstrating ability to engage in substantial gainful activity occurs either before or after approval of the award.

^[1] The Act provides that "[a] period of trial work...shall begin with the month in which [the individual] becomes entitled to disability insurance benefits." 42 U.S.C. 422(c)(3). A trial work period ends with the ninth month in any period of 60 consecutive months in which the individual renders services (although the nine months need not be consecutive), or, if earlier, with the month in which disability ceases. 42 U.S.C. 422(c)(4)(A), (B).

^[2] Under the Act, "any services rendered by an individual during a period of trial work shall be deemed not to have been rendered by such individual in determining whether his disability has ceased in a month during such period such period." 42 U.S.C. 422(c)(2).

^[3] The Social Security Administration has since issued SSR 91-7c, which supersedes SSR 82-52 only to the extent that SSR 82-52 discusses the former procedures used to determine disability in children. The issue in the AR does not relate to those former procedures and the cited policy statement remains in effect

^[4] Pursuant to statutory amendments made by Public Law 99-643, effective July 1, 1987, the trial work provisions are no longer applicable to title XVI disability claims. Beginning July 1, 1987, a disabled individual, who was eligible to receive "regular" SSI benefits (section 1611) for a month and subsequently has earning ordinarily considered to represent substantial gainful activity, will move directly to section 1619 status rather than be accorded a trial work period. The Ruling extends to such individuals, i.e., claimants for title XVI benefits based on disability should be allowed and granted section 1619 status if the return to work is on or after July 1, 1987, and the same conditions are met.

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