disability status on the receipt of an award, but rather conditions receipt of an award on disability status, see 42 U.S.C. § 423(a)(1), work done after entitlement to a disability insurance award but before actual granting of the award cannot be used to show that there was no disability in the first place. Rather, this work should be regarded as work done after the onset of disability. If this work is done after the five month waiting period, the work should be regarded as a trial work period regardless of whether or not an award was granted.
In support of SSR 82-52, defendant cites authorities that have held that claimants are not entitled to a trial work period before applying for disability insurance benefits. See Mullis v. Bowen, 861 F.2d 991 (6th Cir. 1988); Cieutat v. Bowen, 824 F.2d 348; (5th Cir. 1987); Nappa v. Secretary of Health and Human Services, 731 F. Supp. 579 (E.D.N.Y. 1990). However, these authorities are readily distinguishable from the present case because claimant in this case did not engage in work activity until after she applied for benefits. Indeed, this Court has not found a single reported case following SSR 82-52.
Defendant's reliance on 20 C.F.R. 404.303 is also misplaced. Under 20 C.F.R. 404.303, " entitled means that a person has applied and has proven his or her right to benefits for a period of time." 20 C.F.R. 404.303 (emphasis in original). Defendant has argued that this section indicates that the defendant be adjudged disabled by the Secretary in order to be considered "entitled" to benefits. However, as explained earlier, § 423(a)(1) plainly states that an individual becomes "entitled" to benefits five months after her disability onset date and not when the SSA makes its formal disability determination. The regulations cannot be read to change the plain meaning of the statute.
Furthermore, 20 C.F.R. 404.1592(e) states that the trial work period cannot begin until after the claimant has filed her application for disability insurance benefits. § 423(a)(1)(C) similarly states that a claimant is not "entitled" to benefits until the claimant makes application for benefits. Therefore, a claimant who has not yet filed an application is not "entitled" to benefits, and cannot begin a trial work period. However, if the Act also required that a claimant receive a formal SSA disability award before beginning a trial work period, 20 C.F.R. 404.1592(e) would be superfluous. A claimant cannot receive an award until after she has made an application. Therefore, if the regulations truly required a claimant to receive an award before beginning a trial work period, there would be no need for a regulation stating that a trial work period cannot begin before the filing of the application.
Furthermore, while the facts surrounding claimant's disability do not govern the Court's interpretation of the law, we find that they do support our conclusion. Claimant's multiple sclerosis is a degenerative disability that may eventually leave her irreversibly incapacitated. While an individual suffering from multiple sclerosis may experience periods of brief remission after the onset of her disability, periods during which the individual may be able to engage in work activity, these periods of remission may become shorter and less frequent as the disease progresses. For this reason, the Sixth Circuit has held that "special consideration [must be given] to the temporary nature of work periods of persons with degenerative diseases such as multiple sclerosis," Mullis v. Bowen, 861 F.2d 991, 993 (6th Cir. 1988) (construing Parish v. Califano, 642 F.2d 188, 193 (6th Cir. 1981), and that "the concept of a trial work period may be applied [in cases where the claimant is a victim of a degenerative disease even] to the time before there is an application for benefits." Id. at 993. While we do not hold that work activity should be designated as a trial work period before the claimant applies for benefits when the claimant is a victim of a degenerative disease, the Sixth Circuit's rationale provides additional support for our reading of the Social Security Act.
The Secretary's conclusion was premised upon SSR 82-52, which the Court finds runs contrary to the plain language of the Act. Furthermore, because the case presents no additional contested issues of fact, the Secretary's decision will be reversed and its original determination of a December 25, 1990, disability date will be reinstated. See Baber v. Sullivan, 1990 U.S. Dist. LEXIS 2522, No. 85-3980, 1990 WL 24932, at *4 (D.N.J. 1990).
An appropriate Order will be entered on even date herewith.
Date: July 3, 1995.
JOSEPH E. IRENAS