SSR 64-32: SECTION 223(a). -- DISABILITY -- POSSIBLE CESSATION -- SELF-EMPLOYMENT
20 CFR 404.1534 and 404.1539
SSR 64-32
- A 51-year-old former U.S. Air Force flight officer was found entitled to disability insurance benefits because of advanced, chronic, and progressive multiple sclerosis. Subsequently he received training and was able to earn limited amounts as a self-employed commission representative for an investment firm selling securities on commission and advising potential investors about securities. Even with the aid of his wife, he has been able to earn not over $800 per year after deducting business expenses of about $300. His physical condition is continuing to grow worse, limiting his activity to not more than 20 hours per week and seriously affecting his ability to deal effectively with business contacts. Held, his work activity does not demonstrate that he has regained the ability to engage in substantial gainful activity; therefore, his disability has not ceased and his entitlement to disability insurance benefits is not terminated.
P, a former U.S. Air Force training flight officer, has been receiving disability insurance benefits. He was found to be under a disability beginning July 1960, when at age 51, he was medically discharged from military service because of advanced, chronic, and progressive multiple sclerosis.
During the 5 years before his discharge, P's physical condition had continuously grown worse so that by July 1960 he had ataxia (failure of muscular coordination) and partial paralysis of all four limbs which was more severe in his lower limbs. He became considerably fatigued after walking about a block. He suffered partial urinary and bowel incontinence; diminution of hearing bilaterally; diplopia (seeing a single object as two); some difficulty in thinking and formulating sentences as well as occasional slurring of words; and scattered sensory defects.
Subsequently, P took a 6-week training course in investment counseling through the auspices of a State vocational rehabilitation agency. In March 1961, he became self-employed as a commission representative, selling mutual fund securities on commission for an investment brokerage firm and advising potential investors about securities. He works not more than 20 hours a week, at greatly reduced efficiency, and is able to adjust his working arrangements to his functional limitations. He is never able to work longer than about 4 hours a day, because he tires easily, his impairments seriously impede and restrict his work, and he must undergo daily physical therapy as part of his medical management. His net income, after deducting telephone, travel, and miscellaneous business expenses of about $300 a year, has not exceeded $800 annually. Work activity consists of making contacts by telephone and seeing two or three securities investment prospects or clients per day. Whenever possible, he has them come to his home. Occasionally, his wife drives him short distances to meet business contacts. She also does certain required clerical work, e.g., writing or typing, which he cannot do himself. She receives no pay for her services. P's condition has been slowly deteriorating, and his doctor has advised him not to overexert himself. He is expending maximum effort to continue his work activity and maintain a feeling of usefulness.
The issue in this case is whether P's disability has ceased, thereby requiring termination of his disability insurance benefits under section 223(a) of the Act.
Social Security Administration Regulations No. 4, § 404.1539 provides, as pertinent in this case, that a person's disability shall be found to have ceased if "the impairment, as established by the medical or other evidence, is no longer of such severity as to prevent him from engaging in any substantial gainful activity;" or if he "has regained his ability to engage in substantial gainful activity as demonstrated by work activity."
P's multiple sclerosis continues to be severe and is growing worse. There is, therefore, no medical basis for finding that his impairment is no longer of such severity as to prevent him from engaging in substantial gainful activity.
The remaining question is whether P's work activity nevertheless demonstrates an actual ability to engage in substantial gainful activity. In deciding this question, the amount of his earnings as well as all other factors pertaining to the extent and performance of his work activity must be considered.
Social Security Administration Regulations No. 4, § 404.1534 states, in pertinent part, as follows:
-
(c) Earnings at a rate of $50 to $100 a month. -- Where an
individual's earnings from work activities average between $50 and $100 a
month, consideration of the amount of his earnings together with the other
circumstances relating to his work activities (see § 404.1532 and §
404.1533), the medical evidence relating to his impairment or impairments
(see §§ 404.1510-404.1519), and other factors (see §
404.1502) shall determine whether such individual is able to engage in
substantial gainful activity. * * *
* * * * *
- (e) * * * The earnings or losses of a self-employed individual often reflect factors other than the individual's work activities in carrying on his trade or business. * * * such factors as the extent of his activities and the supervisory, managerial, or advisory services rendered by him * * *
P's self-employment activity does not involve managerial or supervisory services, but consists of giving advice and selling securities to potential purchasers. His earnings inure from commissions on the sale of the securities. Despite work effort to the limit of his ability, his net earnings have not exceeded $800 per year, and would be much less if he were required to pay for the necessary assistance his wife gives him in the performance of his services.
P's impairments severely limit the amount of services he can perform and seriously hinder his general effectiveness in the rendition of such services. His limited endurance permits him to work not more than half time. In addition, his inability to walk any appreciable distance and his partial loss of elimination control primarily confine his business endeavors to the phone and his home. His loss of hearing, poor motor control, diminution of mental faculties, and impaired verbal communication further restrict his ability to deal effectively with potential investors. His impairments are of such severity as to render him incapable of doing more work or earning more money.
Accordingly, it is held that P's impairments continue to be severe; his work activity, considering the amount of his earnings and other pertinent factors, does not demonstrate that he has regained the ability to engage in substantial gainful activity; his disability has not ceased; and his entitlement to disability insurance benefits is not terminated.