I have a hearing today with one of the new judges in Manchester, New Hampshire for a claim involving work under special conditions. 

Social Security’s regulations discuss work activity in 20 C.F.R. 404.1573, and work under “special conditions” is covered in 404.1573(c):

If your work is done under special conditions, we may find that it does not show that you have the ability to do substantial gainful activity. Also, if you are forced to stop or reduce your work because of the removal of special conditions that were related to your impairment and essential to your work, we may find that your work does not show that you are able to do substantial gainful activity. However, work done under special conditions may show that you have the necessary skills and ability to work at the substantial gainful activity level. Examples of the special conditions that may relate to your impairment include, but are not limited to, situations in which—

(1) You required and received special assistance from other employees in performing your work;

(2) You were allowed to work irregular hours or take frequent rest periods;

(3) You were provided with special equipment or were assigned work especially suited to your impairment;

(4) You were able to work only because of specially arranged circumstances, for example, other persons helped you prepare for or get to and from your work;

(5) You were permitted to work at a lower standard of productivity or efficiency than other employees; or

(6) You were given the opportunity to work despite your impairment because of family relationship, past association with your employer, or your employer’s concern for your welfare.

My hearing today involves section 404.1573(c)(4). In this particular claim, a 20-year old young man with Asberger’s syndrome is working as a dishwasher in a local hospital kitchen. However, this work is possible because his mother is making sure he gets to and from work each day. The claimant lives at home. To maintain even a part-time work schedule, the mother must remind the claimant to go to bed at a reasonable hour on the night before a work day, she wakes him up on work days, and drives him to and from work. Without the mother keeping track of the schedule and making sure that he gets to work each day on time, he would not be able to sustain the employment.

Now, in this case the work is part-time and not substantial gainful activity (SGA) based on the wages. However, even the wages were above the SGA level, I would argue that it would not be SGA due to the special conditions.

At the hearing I will try to persuade the judge that these special conditions enable the part-time employment, and that the claimant could not sustain any employment in the absence of the special conditions. As a result, a finding a “disabled” at step 5 of the sequential evaluation is appropriate.

{update: the judge agreed. The claim was granted.}