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July 3, 1995



The opinion of the court was delivered by: JOSEPH E. IRENAS

IRENAS, District Judge:

 Claimant Jacqueline Fabel brought this action pursuant to 42 U.S.C. § 405(g) (1991) of the Social Security Act (the "Act") for review of a final determination by the Secretary of Health and Human Services ("the Secretary") denying her application for disability insurance benefits. Because the Court finds that the Social Security Ruling on which the Secretary relied to reach its conclusion is inconsistent with the plain language of the Act, the Secretary's decision is reversed.


 Claimant was born on April 13, 1938. (R. at 28) On July 8, 1991, she applied for disability insurance benefits, alleging that as of December 25, 1990, her multiple sclerosis, (R. at 28), precluded her from engaging in "substantial gainful activity" as that term is used in the Act. (R. at 25). See 20 C.F.R. 404.1572. On July 31, 1991, approximately three weeks after applying for benefits and before her award of benefits was approved, (R. at 17), claimant returned to work. (R. at 146). During the period she was working, she earned over $ 1000 a month. (R. at 30) On March 20, 1992, she stopped working due to difficulties connected with her multiple sclerosis. (R. at 146). On October 10, 1991, the Social Security Administration ("the SSA"), determined that claimant was disabled from the period commencing December 25, 1990. (R. at 14, 28). Claimant was deemed conclusively disabled from the beginning of this period because her multiple sclerosis met the Listing of Impairments, Medical List Number 11.09. *fn1" (R. at 28). See 20 C.F.R. App. i, Subpart P, Regulations No. 4; 20 C.F.R. § 404.1520(d).

 On May 1, 1992, the SSA revised its original determination and changed claimant's disability onset date from December 25, 1990, to March 20, 1992. (R. at 30). The SSA based this determination on the claimant's work activity from July 31, 1991, through March 19, 1992. (R. at 18). The SSA upheld this determination upon reconsideration. (R. at 35).

 On September 9, 1992, claimant requested a hearing before an Administrative Law Judge ("ALJ"), contending that her work activity between July 31, 1991, and March 19, 1992, should have been considered a "trial work period" pursuant to 42 U.S.C. § 422(c), and that the original disability onset date of December 25, 1990, should be reinstated. (R. at 44). The claimant did not contest the SSA's evaluation of the facts, but rather challenged the decision on purely legal grounds. (R. at 146). She therefore waived her right to admit additional testimony and requested a decision based solely on the evidence of record. (R. at 14, 146).

 On May 5, 1993, the ALJ heard argument on the case and denied claimant's request to reinstate the SSA's original determination of a December 25, 1990, disability onset date. (R. at 18). The ALJ, in making his decision, relied on the SSA's interpretation of the Act in Social Security Ruling ("SSR") 82-52 and Social Security Acquiescence Ruling ("AR") 92-6(10). SSR 82-52 held that a claimant is not entitled to a trial work period and must be denied benefits if she engages in work activity either before approval of a disability insurance award or before twelve months have elapsed since her disability onset date. AR 92-6(10) limited certain appellate court cases rejecting SSR 82-52 to their respective Circuits. The ALJ's ruling became the final decision of the Secretary when, on October 22, 1993, the Appeals Council denied plaintiff's request for review. (R. at 4-5 ). Claimant sought review of the Secretary's decision by this Court through a Complaint filed on November 23, 1993. See 5 U.S.C. § 706; 42 U.S.C. § 405(g).


 The Act defines "disability" 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 . . . can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) (1991) (emphasis added). The beginning of this twelve month period is referred to as the disability onset date. See 3 Social Security: Law and Practice, § 44:134 at 112. In order for work activity to be regarded as substantial gainful activity, it must be both substantial and gainful. See 20 C.F.R. 404.1572. "Substantial work activity is work activity that involves doing significant physical or mental activities," 20 C.F.R. 404.1572(a), and "gainful work activity is work activity [that is] . . . usually done for pay or profit, whether or not a profit is realized." 20 C.F.R. 404.1572(b).

 Under § 423(a)(1) an individual is therefore "entitled" to benefits five months after the date that her disability commences, regardless of when the SSA formally awards her a disability insurance benefit. For example, the SSA may not formally approve an award for months or even years after the application is filed, but the claimant is still entitled to benefits starting five months after the disability onset date determined by the SSA regardless of the date of the award. Indeed, after it makes a disability determination, the SSA must pay the claimant a maximum of one year's "pre-filing" retrospective benefits. 20 C.F.R. 404.621(a)(1).

 An individual who is "entitled" to disability insurance benefits may also engage in a trial work period. 42 U.S.C. § 422(c)(3). During this period, the disabled person "may perform services in as many as nine months, but these months do not have to be consecutive." 20 C.F.R. 404.1592(e). The trial work period begins "with the month in which [an individual] . . . becomes entitled to disability insurance benefits," 42 U.S.C. § 422(c)(3), and "ends with the close of . . . the ninth month, beginning on or after the first day of such period, in which the individual renders services (whether or not such services are consecutive)." 42 U.S.C. § 422(c)(3). However, the trial work period cannot begin before the claimant files her application for benefits regardless of the alleged disability onset date. 20 C.F.R. 404.1592(e). The purpose of the trial work period is to give the disabled person an opportunity to test her "ability to work and still be considered disabled." 20 C.F.R. 404.1592(a). Hence, "any services rendered by an individual during a period of trial work [is] . . . deemed not to have been rendered by such individual in determining whether his disability has ceased." 42 U.S.C. § 422(c)(2).

 In short, under the Act, an individual becomes entitled to a trial work period at the same time she becomes entitled to a disability insurance benefit award, five months after her disability onset date. Therefore, while the Act defines a "disability" as an impairment which "can be expected to last for . . . 12 months", 42 U.S.C. § 423(d)(1)(A), the Act also appears to entitle a claimant to a trial work period ...

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