Substantial Gainful Activity and the Total Permanent Disability Discharge

Submitted by Ed Boltz on Wed, 10/02/2019 - 2:25pm

Substantial Gainful Activity and the Total Permanent Disability Discharge

The TPD Application states that substantial gainful activity means a level of work performed for pay or profit that involves doing significant physical or mental activities, or a combination of both.  This is a rather vague and nebulous definition,  which I suspect leaves doctors without much guidance or confidence in making a certification.

The Social Security Administration,  however,  also uses the phrase  substantial gainful activity   and ties that to a specific level of earning potential.  (See the attached chart.) For 2019  that amount was no more than $1,220 a month of income,  which  works out to $14,460 annually or 38.83 hours a week at a $7.25 minimum wage job.  For blind individuals,  this is $2,040 a month or earning $11.77 an hour at a full time job. (This amount will increase at the end of October.)  The NCLC book indicates at §10.7.3.1 that the Department of Education borrowed this term from the Social Security Act. 

Confounding this,  however,  §10.7.6, states that the Department of Education has taken the position that a physician cannot certify a total and permanent disability if the borrower is currently able or expected to work.  There isn't a citation,  however to where this limitation can be found. The NCLC book does point to the contradiction that borrowers are allowed to work and have minimal income during the the three year potential reinstatement period.

Does the Social Security definition  provide a usable, much clearer and more objective basis for a physician,  psychiatrist or osteopath to base his or her opinion on?  I'm think particularly of senior citizens,  for whom Social Security Disability is no longer available,  with the idea being that a doctor could be asked "Given their current age,  health and existing medical conditions,  can your patient work a full time,  minimum wage job without endangering his or her health?"  They  wouldn't necessarily be working at the time of certification,  but this would give the physician a gauge against which to evaluate them. 

One of the problems I've seen,  which the NCLC Student Loan book again reiterates at §10.7.4.1,  is that these applications get rejected because the form has only a small amount of space and doctors,  with their notoriously illegible handwriting,  only include the diagnosis without descriptions of how that condition prevents the borrower from working and earning an income.  Does anyone have supplemental checklists,  forms or instructions they provide to medical professionals to both educate and assist them in completing these certifications? This seem exactly why and where borrowers benefit from having an attorney as their advocate.
 

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