(a) Definition of the trial work period. The trial work period is a period during which you may test your ability to work and still be considered disabled. It begins and ends as described in paragraph (e) of this section. During this period, you may perform services (see paragraph (b) of this section) in as many as 9 months, but these months do not have to be consecutive. We will not consider those services as showing that your disability has ended until you have performed services in at least 9 months. However, after the trial work period has ended we will consider the work you did during the trial work period in determining whether your disability ended at any time after the trial work period.
(b) What we mean by services. When used in this section, services means any activity (whether legal or illegal), even though it is not substantial gainful activity, which is done in employment or self-employment for pay or profit, or is the kind normally done for pay or profit. We generally do not consider work done without remuneration to be services if it is done merely as therapy or training or if it is work usually done in a daily routine around the house or in self-care. We will not consider work you have done as a volunteer in the federal programs described in section 404.1574(d) in determining whether you have performed services in the trial work period.
(1) If you are an employee. We will consider your work as an employee to be services if:
(i) Before January 1, 2002, your earnings in a month were more than the amount(s) indicated in Table 1 for the year(s) in which you worked.
(ii) Beginning January 1, 2002, your earnings in a month are more than an amount determined for each calendar year to be the larger of:
(A) Such amount for the previous year, or
(B) An amount adjusted for national wage growth, calculated by multiplying $530 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for 1999. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case.
(2) If you are self-employed. We will consider your activities as a self-employed person to be services if:
(i) Before January 1, 2002, your net earnings in a month were more than the amount(s) indicated in Table 2 of this section for the year(s) in which you worked, or the hours you worked in the business in a month are more than the number of hours per month indicated in Table 2 for the years in which you worked.
(ii) Beginning January 1, 2002, you work more than 80 hours a month in the business, or your net earnings in a month are more than an amount determined for each calendar year to be the larger of:
(A) Such amount for the previous year, or
(B) An amount adjusted for national wage growth, calculated by multiplying $530 by the ratio of the national average wage index for the year 2 calendar years before the year for which the amount is being calculated to the national average wage index for 1999. We will then round the resulting amount to the next higher multiple of $10 where such amount is a multiple of $5 but not of $10 and to the nearest multiple of $10 in any other case.
Table 1--For Employees------------------------------------------------------------------------
You earn
For months more than------------------------------------------------------------------------In calendar years before 1979.............................. $50In calendar years 1979-1989................................ 75In calendar years 1990-2000................................ 200In calendar year 2001...................................... 530------------------------------------------------------------------------
Table 2--For the Self-Employed------------------------------------------------------------------------
Your net
earnings Or you work in the
For months are more business more than
than------------------------------------------------------------------------In calendar years before 1979.... $50 15 hours.In calendar years 1979-1989...... 75 15 hours.In calendar years 1990-2000...... 200 40 hours.In calendar year 2001............ 530 80 hours.------------------------------------------------------------------------
(c) Limitations on the number of trial work periods. You may have only one trial work period during a period of entitlement to cash benefits.
(d) Who is and is not entitled to a trial work period. (1) You are generally entitled to a trial work period if you are entitled to disability insurance benefits, child's benefits based on disability, or widow's or widower's or surviving divorced spouse's benefits based on disability.
(1) You are generally entitled to a trial work period if you are entitled to disability insurance benefits, child's benefits based on disability, or widow's or widower's or surviving divorced spouse's benefits based on disability.
(2) You are not entitled to a trial work period--
(i) If you are entitled to a period of disability but not to disability insurance benefits, and you are not entitled to any other type of disability benefit under title II of the Social Security Act (i.e., child's benefits based on disability, or widow's or widower's benefits or surviving divorced spouse's benefits based on disability);
(ii) If you perform work demonstrating the ability to engage in substantial gainful activity during any required waiting period for benefits;
(iii) If you perform work demonstrating the ability to engage in substantial gainful activity within 12 months of the onset of the impairment(s) that prevented you from performing substantial gainful activity and before the date of any notice of determination or decision finding that you are disabled; or
(iv) For any month prior to the month of your application for disability benefits (see paragraph (e) of this section).
(e) When the trial work period begins and ends. The trial work period begins with the month in which you become entitled to disability insurance benefits, to child's benefits based on disability or to widow's, widower's, or surviving divorced spouse's benefits based on disability. It cannot begin before the month in which you file your application for benefits, and for widows, widowers, and surviving divorced spouses, it cannot begin before December 1, 1980. It ends with the close of whichever of the following calendar months is the earliest:
(1) The 9th month (whether or not the months have been consecutive) in which you have performed services if that 9th month is prior to January 1992;
(2) The 9th month (whether or not the months have been consecutive and whether or not the previous 8 months of services were prior to January 1992) in which you have performed services within a period of 60 consecutive months if that 9th month is after December 1991; or
(3) The month in which new evidence, other than evidence relating to any work you did during the trial work period, shows that you are not disabled, even though you have not worked a full 9 months. We may find that your disability has ended at any time during the trial work period if the medical or other evidence shows that you are no longer disabled. See Sec. 404.1594 for information on how we decide whether your disability continues or ends.
(f) Nonpayment of benefits for trial work period service months. See Sec. 404.471 for an explanation of when benefits for trial work period service months are not payable if you are convicted by a Federal court of fraudulently concealing your work activity. [45 FR 55584, Aug. 20, 1980, as amended at 49 FR 22273, May 29, 1984; 50 FR 50130, Dec. 6, 1985; 54 FR 53605, Dec. 29, 1989; 65 FR 42787, July 11, 2000; 65 FR 82910, Dec. 29, 2000; 71 FR 66866, Nov. 17, 2006] Sec. 404.1592a The reentitlement period.
(a) General. The reentitlement period is an additional period after 9 months of trial work during which you may continue to test your ability to work if you have a disabling impairment, as defined in Sec. 404.1511. If you work during the reentitlement period, we may decide that your disability has ceased because your work is substantial gainful activity and stop your benefits. However, if, after the month for which we found that your disability ceased because you performed substantial gainful activity, you stop engaging in substantial gainful activity, we will start paying you benefits again; you will not have to file a new application. The following rules apply if you complete a trial work period and continue to have a disabling impairment:
(1) The first time you work after the end of your trial work period and engage in substantial gainful activity, we will find that your disability ceased. When we decide whether this work is substantial gainful activity, we will apply all of the relevant provisions of Secs. 404.1571-404.1576 including, but not limited to, the provisions for averaging earnings, unsuccessful work attempts, and deducting impairment-related work expenses, as well as the special rules for evaluating the work you do after you have received disability benefits for at least 24 months. We will find that your disability ceased in the first month after the end of your trial work period in which you do substantial gainful activity, applying all the relevant provisions in Secs. 404.1571-404.1576.
(2)(i) If we determine under paragraph (a)(1) of this section that your disability ceased during the reentitlement period because you perform substantial gainful activity, you will be paid benefits for the first month after the trial work period in which you do substantial gainful activity (i.e., the month your disability ceased) and the two succeeding months, whether or not you do substantial gainful activity in those succeeding months. After those three months, we will stop your benefits for any month in which you do substantial gainful activity. (See Secs. 404.316, 404.337, 404.352 and 404.401a.) If your benefits are stopped because you do substantial gainful activity, they may be started again without a new application and a new determination of disability if you stop doing substantial gainful activity in a month during the reentitlement period. In determining whether you do substantial gainful activity in a month for purposes of stopping or starting benefits during the reentitlement period, we will consider only your work in, or earnings for, that month. Once we have determined that your disability has ceased during the reentitlement period because of the performance of substantial gainful activity as explained in paragraph (a)(1) of this section, we will not apply the provisions of Secs. 404.1574(c) and 404.1575(d) regarding unsuccessful work attempts, the provisions of Sec. 404.1574a regarding averaging of earnings, or the special rules in Secs. 404.1574(b)(3)(iii) and 404.1575(e) for evaluating the work you do after you have received disability benefits for at least 24 months, to determine whether benefits should be paid for any particular month in the reentitlement period that occurs after the month your disability ceased.
(i) If we determine under paragraph (a)(1) of this section that your disability ceased during the reentitlement period because you perform substantial gainful activity, you will be paid benefits for the first month after the trial work period in which you do substantial gainful activity (i.e., the month your disability ceased) and the two succeeding months, whether or not you do substantial gainful activity in those succeeding months. After those three months, we will stop your benefits for any month in which you do substantial gainful activity. (See Secs. 404.316, 404.337, 404.352 and 404.401a.) If your benefits are stopped because you do substantial gainful activity, they may be started again without a new application and a new determination of disability if you stop doing substantial gainful activity in a month during the reentitlement period. In determining whether you do substantial gainful activity in a month for purposes of stopping or starting benefits during the reentitlement period, we will consider only your work in, or earnings for, that month. Once we have determined that your disability has ceased during the reentitlement period because of the performance of substantial gainful activity as explained in paragraph (a)(1) of this section, we will not apply the provisions of Secs. 404.1574(c) and 404.1575(d) regarding unsuccessful work attempts, the provisions of Sec. 404.1574a regarding averaging of earnings, or the special rules in Secs. 404.1574(b)(3)(iii) and 404.1575(e) for evaluating the work you do after you have received disability benefits for at least 24 months, to determine whether benefits should be paid for any particular month in the reentitlement period that occurs after the month your disability ceased.
(ii) If anyone else is receiving monthly benefits based on your earnings record, that individual will not be paid benefits for any month for which you cannot be paid benefits during the reentitlement period.
(3) The way we will consider your work activity after your reentitlement period ends (see paragraph (b)(2) of this section) will depend on whether you worked during the reentitlement period and if you did substantial gainful activity.
(i) If you worked during the reentitlement period and we decided that your disability ceased during the reentitlement period because of your work under paragraph (a)(1) of this section, we will find that your entitlement to disability benefits terminates in the first month in which you engaged in substantial gainful activity after the end of the reentitlement period (see Sec. 404.325). (See Sec. 404.321 for when entitlement to a period of disability ends.) When we make this determination, we will consider only your work in, or earnings for, that month; we will not apply the provisions of Secs. 404.1574(c) and 404.1575(d) regarding unsuccessful work attempts, the provisions of Sec. 404.1574a regarding averaging of earnings, or the special rules in Secs. 404.1574(b)(3)(iii) and 404.1575(e) for evaluating the work you do after you have received disability benefits for at least 24 months.
(ii) If we did not find that your disability ceased because of work activity during the reentitlement period, we will apply all of the relevant provisions of Secs. 404.1571-404.1576 including, but not limited to, the provisions for averaging earnings, unsuccessful work attempts, and deducting impairment-related work expenses, as well as the special rules for evaluating the work you do after you have received disability benefits for at least 24 months, to determine whether your disability ceased because you performed substantial gainful activity after the reentitlement period. If we find that your disability ceased because you performed substantial gainful activity in a month after your reentitlement period ended, you will be paid benefits for the month in which your disability ceased and the two succeeding months. After those three months, your entitlement to a period of disability or to disability benefits terminates (see Secs. 404.321 and 404.325).
(b) When the reentitlement period begins and ends. The reentitlement period begins with the first month following completion of 9 months of trial work but cannot begin earlier than December 1, 1980. It ends with whichever is earlier--
(1) The month before the first month in which your impairment no longer exists or is not medically disabling; or
(2)(i) The last day of the 15th month following the end of your trial work period if you were not entitled to benefits after December 1987; or
(i) The last day of the 15th month following the end of your trial work period if you were not entitled to benefits after December 1987; or
(ii) The last day of the 36th month following the end of your trial work period if you were entitled to benefits after December 1987 or if the 15-month period described in paragraph (b)(2)(i) of this section had not ended as of January 1988. (See Secs. 404.316, 404.337, and 404.352 for when your benefits end.)
(c) When you are not entitled to a reentitlement period. You are not entitled to a reentitlement period if:
(1) You are entitled to a period of disability, but not to disability insurance cash benefits;
(2) You are not entitled to a trial work period;
(3) Your entitlement to disability insurance benefits ended before you completed 9 months of trial work in that period of disability. [49 FR 22273, May 29, 1984, as amended at 58 FR 64883, Dec. 10, 1993; 65 FR 42787, July 11, 2000; 71 FR 66856, Nov. 17, 2006] Sec. 404.1592b What is expedited reinstatement?
The expedited reinstatement provision provides you another option for regaining entitlement to benefits when we previously terminated your entitlement to disability benefits due to your work activity. The expedited reinstatement provision provides you the option of requesting that your prior entitlement to disability benefits be reinstated, rather than filing a new application for a new period of entitlement. Since January 1, 2001, you can request to be reinstated to benefits if you stop doing substantial gainful activity within 60 months of your prior termination. You must not be able to do substantial gainful activity because of your medical condition. Your current impairment must be the same as or related to your prior impairment and you must be disabled. To determine if you are disabled, we will use our medical improvement review standard that we use in our continuing disability review process. The advantage of using the medical improvement review standard is that we will generally find that you are disabled unless your impairment has improved so that you are able to work or unless an exception under the medical improvement review standard process applies. We explain the rules for expedited reinstatement in Secs. 404.1592c through 404.1592f. [70 FR 57142, Sept. 30, 2005] Sec. 404.1592c Who is entitled to expedited reinstatement?
(a) You can have your entitlement to benefits reinstated under expedited reinstatement if--
(1) You were previously entitled to a disability benefit on your own record of earnings as indicated in Sec. 404.315, or as a disabled widow or widower as indicated in Sec. 404.335, or as a disabled child as indicated in Sec. 404.350, or to Medicare entitlement based on disability and Medicare qualified government employment as indicated in 42 CFR 406.15;
(2) Your disability entitlement referred to in paragraph (a)(1) of this section was terminated because you did substantial gainful activity;
(3) You file your request for reinstatement timely under Sec. 404.1592d; and
(4) In the month you file your request for reinstatement--
(i) You are not able to do substantial gainful activity because of your medical condition as determined under paragraph (c) of this section;
(ii) Your current impairment is the same as or related to the impairment that we used as the basis for your previous entitlement referred to in paragraph (a)(2) of this section; and
(iii) You are disabled, as determined under the medical improvement review standard in Secs. 404.1594(a) through (e).
(b) You are entitled to reinstatement on the record of an insured person who is or has been reinstated if--
(1) You were previously entitled to one of the following benefits on the record of the insured person--
(i) A spouse or divorced spouse benefit under Secs. 404.330 and 404.331;
(ii) A child's benefit under Sec. 404.350; or
(iii) A parent's benefit under Sec. 404.370;
(2) You were entitled to benefits on the record when we terminated the insured person's entitlement;
(3) You meet the requirements for entitlement to the benefit described in the applicable paragraph (b)(1)(i) through (b)(1)(iii) of this section; and
(4) You request to be reinstated.
(c) We will determine that you are not able to do substantial gainful activity because of your medical condition, under paragraph (a)(4)(i) of this section, when:
(1) You certify under Sec. 404.1592d(d)(2) that you are unable to do substantial gainful activity because of your medical condition;
(2) You do not do substantial gainful activity in the month you file your request for reinstatement; and
(3) We determine that you are disabled under paragraph (a)(4)(iii) of this section. [70 FR 57142, Sept. 30, 2005] Sec. 404.1592d How do I request reinstatement?
(a) You must make your request for reinstatement in writing.
(b) You must have filed your request on or after January 1, 2001.
(c) You must provide the information we request so that we can determine whether you meet the requirements for reinstatement as indicated in Sec. 404.1592c.
(d) If you request reinstatement under Sec. 404.1592c(a)--
(1) We must receive your request within the consecutive 60-month period that begins with the month in which your entitlement terminated due to doing substantial gainful activity. If we receive your request after the 60-month period we can grant you an extension if we determine you had good cause under the standards explained in Sec. 404.911 for not filing the request timely; and
(2) You must certify that you are disabled, that your current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the benefit you are requesting to be reinstated, and that you are unable to do substantial gainful activity because of your medical condition. [70 FR 57142, Sept. 30, 2005] Sec. 404.1592e How do we determine provisional benefits?
(a) You may receive up to 6 consecutive months of provisional cash benefits and Medicare during the provisional benefit period, while we determine whether we can reinstate your disability benefit entitlement under Sec. 404.1592c--
(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).
(2) We will pay you a monthly provisional benefit amount equal to the last monthly benefit payable to you during your prior entitlement, increased by any cost of living increases that would have been applicable to the prior benefit amount under Sec. 404.270. The last monthly benefit payable is the amount of the monthly insurance benefit we determined that was actually paid to you for the month before the month in which your entitlement was terminated, after we applied the reduction, deduction and nonpayment provisions in Sec. 404.401 through Sec. 404.480.
(3) If you are entitled to another monthly benefit payable under the provisions of title II of the Act for the same month you can be paid a provisional benefit, we will pay you an amount equal to the higher of the benefits payable.
(4) If you request reinstatement for more than one benefit entitlement, we will pay you an amount equal to the higher of the provisional benefits payable.
(5) If you are eligible for Supplemental Security Income payments, including provisional payments, we will reduce your provisional benefits under Sec. 404.408b if applicable.
(6) We will not reduce your provisional benefit, or the payable benefit to other individuals entitled on an earnings record, under Sec. 404.403, when your provisional benefit causes the total benefits payable on the earnings record to exceed the family maximum.
(b) You cannot receive provisional cash benefits or Medicare a second time under this section when--
(1) You request reinstatement under Sec. 404.1592c(a);
(2) You previously received provisional cash benefits or Medicare under this section based upon a prior request for reinstatement filed under Sec. 404.1592c(a); and
(3) Your requests under paragraphs (b)(1) and (b)(2) are for the same previous disability entitlement referred to in Sec. 404.1592c(a)(2).
(4) Examples:
Example 1: Mr. K files a request for reinstatement in April 2004. His disability benefit had previously terminated in January 2003. Since Mr. K meets other factors for possible reinstatement (i.e., his prior entitlement was terminated within the last 60 months because he was engaging in substantial gainful activity), we start paying him provisional benefits beginning April 2004 while we determine whether he is disabled and whether his current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the benefit that was terminated in January 2003. In July 2004 we determine that Mr. K cannot be reinstated because he is not disabled under the medical improvement review standard; therefore we stop his provisional benefits. Mr. K does not request review of that determination. In January 2005 Mr. K again requests reinstatement on the entitlement that terminated in January 2003. Since this request meets all the factors for possible reinstatement, and his request is still within 60 months from January 2003, we will make a new determination on whether he is disabled and whether his current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the benefit that was terminated in January 2003. Since the January 2005 request and the April 2004 request both request reinstatement on the same entitlement that terminated in January 2003, and since we already paid Mr. K provisional benefits based upon the April 2004 request, we will not pay additional provisional benefits on the January 2005 request for reinstatement.
Example 2: Assume the same facts as shown in Example 1 of this section, with the addition of these facts. We approve Mr. K's January 2005 request for reinstatement and start his reinstated benefits beginning January 2005. Mr. K subsequently returns to work and his benefits are again terminated due to engaging in substantial gainful activity in January 2012. Mr. K must again stop work and requests reinstatement in January 2015. Since Mr. K meets other factors for possible reinstatement (i.e., his prior entitlement was terminated within the last 60 months because he was engaging in substantial gainful activity) we start paying him provisional benefits beginning January 2015 while we determine whether he is disabled and whether his current impairment(s) is the same as or related to the impairment(s) that we used as the basis for the benefit that was terminated in January 2012.
(c) We will not pay you a provisional benefit for a month when an applicable nonpayment rule applies. Examples of when we will not pay a benefit include, but are not limited to--
(1) If you are a prisoner under Sec. 404.468;
(2) If you have been removed/deported under Sec. 404.464; or
(3) If you are an alien outside the United States under Sec. 404.460.
(d) We will not pay you a provisional benefit for any month that is after the earliest of the following months--
(1) The month we send you a notice of our determination on your request for reinstatement;
(2) The month you do substantial gainful activity;
(3) The month before the month you attain full retirement age; or
(4) The fifth month following the month you requested expedited reinstatement.
(e) You are not entitled to provisional benefits if--
(1) Prior to starting your provisional benefits, we determine that you do not meet the requirements for reinstatement under Secs. 404.1592c(a); or
(2) We determine that your statements on your request for reinstatement, made under Sec. 404.1592d(d)(2), are false.
(f) Determinations we make regarding your provisional benefits under paragraphs (a) through (e) of this section are final and are not subject to administrative and judicial review under subpart J of part 404.
(g) If you were previously overpaid benefits under title II or title XVI of the Act, we will not recover the overpayment from your provisional benefits unless you give us permission. We can recover Medicare premiums you owe from your provisional benefits.
(h) If we determine you are not entitled to reinstated benefits, provisional benefits we have already paid you under this section that were made prior to the termination month under paragraph (d) of this section will not be subject to recovery as an overpayment unless we determine that you knew, or should have known, you did not meet the requirements for reinstatement in Sec. 404.1592c. If we inadvertently pay you provisional benefits when you are not entitled to them because we have already made a determination described in paragraph (e) of this section, they will be subject to recover as an overpayment under subpart F of part 404. [70 FR 57142, Sept. 30, 2005] Sec. 404.1592f How do we determine reinstated benefits?
(a) If you meet the requirements for reinstatement under Sec. 404.1592c(a), we will then consider in which month to reinstate your entitlement. We will reinstate your entitlement with the earliest month, in the 12-month period that ends with the month before you filed your request for reinstatement, that you would have met all of the requirements under Sec. 404.1592c(a) if you had filed your request for reinstatement in that month. Otherwise, you will be entitled to reinstated benefits beginning with the month in which you filed your request for such benefits. We cannot reinstate your entitlement for any month prior to January 2001.
(b) When your entitlement is reinstated, you are also entitled to Medicare benefits under the provisions of 42 CFR part 406.
(c) We will compute your reinstated benefit amount and determine benefits payable under the applicable paragraphs of Secs. 404.201 through 404.480 with certain exceptions--
(1) We will reduce your reinstated benefit due in a month by the amount of the provisional benefit we already paid you for that month. If your provisional benefit paid for a month exceeds the reinstated benefit, we will treat the difference as an overpayment under Secs. 404.501 through 404.527.
(2) If you are reinstated on your own earnings record, we will compute your primary insurance amount with the same date of onset we used in your most recent period of disability on your earnings record.
(d) We will not pay you reinstated benefits for any months of substantial gainful activity during your initial reinstatement period. During the initial reinstatement period, the trial work period provisions of Sec. 404.1592 and the reentitlement period provisions of Sec. 404.1592a do not apply. The initial reinstatement period begins with the month your reinstated benefits begin under paragraph (a) of this section and ends when you have had 24 payable months of reinstated benefits. We consider you to have a payable month for the purposes of this paragraph when you do not do substantial gainful activity in that month and when the non-payment provisions in subpart E of part 404 also do not apply. If the amount of the provisional benefit already paid you for a month equals or exceeds the amount of the reinstated benefit payable for that month so that no additional payment is due, we will consider that month a payable month. When we determine if you have done substantial gainful activity in a month during the initial reinstatement period, we will consider only your work in, or earnings for, that month. We will not apply the unsuccessful work attempt provisions of Secs. 404.1574(c) and 404.1575(d) or the averaging of earnings provisions in Sec. 404.1574a.
(e) After you complete the 24-month initial reinstatement period as indicated in paragraph (d) of this section, your subsequent work will be evaluated under the trial work provisions in Sec. 404.1592 and then the reentitlement period in Sec. 404.1592a.
(f) Your entitlement to reinstated benefits ends with the month before the earliest of the following months--
(1) The month an applicable terminating event in Sec. 404.301 through 404.389 occurs;
(2) The month in which you reach retirement age;
(3) The third month following the month in which your disability ceases; or
(4) The month in which you die.
(g) Determinations we make under Secs. 404.1592f are initial determinations under Sec. 404.902 and subject to review under subpart J of part 404.
(h) If we determine you are not entitled to reinstated benefits we will consider your request filed under Sec. 404.1592c(a) your intent to claim benefits under Sec. 404.630. [70 FR 57142, Sept. 30, 2005]