UNEMPLOYMENT INSURANCE AND SOCIAL SECURITY DISABILITY

It happens with some frequency, a client will come into the office having lost on his or her initial claim or reconsideration and (1) has applied for and is receiving unemployment insurance benefits or (2) ask, “Can I apply for unemployment while the appeal is pending?”

This is a issue that continues to cause problems. If you are filing for Social Security disability, you are stating that you have been unable to work for at least twelve months, or that you anticipate that you'll be unable to perform substantial work activity for at least twelve months, due to a mental and/or physical impairment. When you file for unemployment, you are stating you are ready and available to perform work should you be able to find a job that fits your work skills. Based on the foregoing, the application for unemployment benefits with a pending application for social security disability benefits suggests an apparent inconsistency: a claim that you are able, available, and actively seeking work while concurrently claiming an inability to work as a result of disability.

I have spoken to other attorneys who practice in this area of the law. From these discussions, it is clear that there is no consensus of opinion on what advise should or should not be given. Some of the attorneys I talk with advise their clients against collecting unemployment benefits when applying for Social Security disability, because Administrative Law Judge have been known to have difficulty with the issue for people applying for both benefits at the same time.

Other attorneys point out that some client have no funds left to make ends meet and desperately need the unemployment benefits, and that that is the only reason they apply. They attempt to deal with the issue at the hearing. Others point out that there are situations where an older person could be legitimately entitled to disability benefits even with receipt of unemployment, e.g. if a person is in a social security case is limited to sedentary work ( a very light type of work activity), but because of his age, past job skills, and education level, isn't expected to learn how to do a sedentary job, he should be approved for disability benefits. In that case, there is the possibility that he could find a sedentary job he could work, even though under the social security law, he is disabled. In that case, both application are correct.

The position of the Social Security Administration. While it frowns upon applicants receiving unemployment benefits, it will not always prevent a claimant from being found disabled.

This situation was addressed by the Social Security Administration’s Chief Administrative Law Judge Frank A. Cristaudo in his memoranda of November 16, 2006 and August 9, 2010. Chief Judge Cristaudo noted it is often uncertain whether the Social Security Administration will find a person disabled, and the decision making process and waiting for disability benefits is quite lengthy. The Chief Judge stressed that receipt of unemployment benefits is only one of many factors that must be considered in determining disability.

The United States Supreme Court addressed a similar situation in the 1999 case of Cleveland v. Policy Management Systems Corp, 119 S.Ct. 1597 (1999) (This has been incorporated in SSR 00-1c). Justice Breyer, in evaluating a concurrent Americans with Disabilities Act claim along with an application for Social Security Disability benefits ruled that the application for Social Security Disability benefits would not prevent recovery under the ADA. The Court further noted that being found disabled by the Social Security Administration involves a five-step process with a number of factors considered. The Court also noted that the Social Security Administration can grant benefits to individuals who are not only able to work, but are working.

Is this confusing—Yes???

What do I advise? I inform all disability claimants who were receiving unemployment benefits, that the decision to file for disability is their choice however, they needed to consider the potential pitfalls of taking unemployment benefits while they wait for a disability decision. I give the same advise to a client who has filed and now wants to apply for unemployment. There are judges who take the issue very seriously. I have had judges offer a new on-set date which happen to be the date the unemployment ran out. I have had judges question the client on the apparent contradiction exists in applying for or receiving both unemployment benefits and SSDI benefits.

There is an appearance that the claimant has trouble with the truth, when he files both applications, i.e. were you telling the truth on the unemployment application or on the application for disability?

My experience has been that judges understand the economics of the system delays. They realize that there are people applying who could not support themselves for the time it took to obtain a hearing without applying for unemployment. The Judges (most) focus on the alleged impairments and spend time determining if they fit the requirements for an award of benefits, and very little time on the collateral issue.

I do not feel that I have ever lost a case based upon this issue. Still, it brings into a case another obstacle to obtain benefits. If it is not absolutely necessary to apply for unemployment, it is probably a good idea not to make the application.

If you do get unemployment benefits pending an award from social security, especially if the award period infringes on the term of the unemployment benefits, there may be a repayment issue for the period of double payment.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.

Thoughts on a Hearing

Over the many years in which I have handled social security cases, they all seem to have a common theme. I have never had so large of a practice that I could not personally handle each and every one of my cases.

If the claim is turned down on the initial application and than on reconsideration. A hearing is than requested and it takes over a year to wait for a hearing. During that time, the client is advised to keep the office appraised of his/her status, the clinic, hospitals, etc. that has provided treatment.

After case has been in the office for over a year an notice of a hearing arrives. It indicates one of the most important days in your client immediate future is close at hand. It literally means a chance for a homeless person to obtain funds which will allow him/her to get a residence.

The client's file is pulled. A check is made to assure that the medical records for all treatments have been obtained or if not, written for and awaiting receipt. The file is reviewed and questions for the client arranged. A call is made to the client to get answers to questions that the review has kicked up, and to remind him/her of the date and time.

Many times, the client is told of weaknesses in his/her case and what is needed to help. In many cases, it will be the client's testimony at the hearing that will determine the outcome of the case. The client needs to understand the case.

The case is never simply appear, show a lack of work and obtain benefits. It is not an unemployment program, it is a program to provide disability benefits to those people that have a condition that makes them so disabled that there is no employment available to them. It is something that not all people appreciate. The fact they worked for years and years and paid and paid for benefits, they believe should give them a right to benefits simply because they can not do the work they had been doing.

Gathering everything together, a memorandum is written expressing our argument on why disability should be awarded.

The hearing is not what most people picture. There is no jury. You are not required to prove to a group of your peers that you are disabled. You deal with someone who is an expert in the area, an ALJ. This person adjudicates disability claims day after day, hour after hour.

At the hearing the Administrative Law Judge asks the majority of questions concerning the case. The questioning is to be an unbiased search for the truth. It must be remembered that everyone, judges included, has a different idea of what the burden encompasses.

Questions that are felt the ALJ missed are than addressed to the client. In some cases a medical expert is called and asked to explain the medical impairments that the file discloses. Many times the expert is asked upon reasonable restrictions that the expert feels the impairments would cause. Unfortunately, in my experience, I see medical experts less often than in past cases.

Finally a vocational expert is brought into the fray. The ALJ will usually ask the expert several hypothetical questions concerning the claimant, the impairments, and limitations. It is then the vocational experts area to express to the ALJ if there are past jobs the claimant could do in the past 15 years that he/she could return to doing with the impairments as described by the ALJ.

If the vocational expert believes that the claimant could not return to do any prior work, the question than becomes is there any work in the national economy that the claimant could do.

It is at this part of the hearing that the attorney for the claimant needs to address the testimony of the vocational expert if it is believed that it does not properly express the claimant's situation.

The hearing ends with the Judge indicating that a decision will be issued in the near future. It is a custom, to spend time with the client post hearing to go over his/her testimony, answer any questions, and tell him/her to keep their fingers crossed, it appears that the hearing was favorable, but it is up to the ALJ.

The hearing is stressful for the client and believe it or not the attorney. In many cases, I deeply believe in my client's inability to work. During the course of the hearing, it appears that the ALJ does not see the case the same way that I do. ( What strikes me is that the ALJs receive uniform training and are 'learned' in the law, yet in my jurisdiction the approval percentages for the judges vary from a 28% approval to over 60%.  It appears to me, that the vocational testimony changes depending upon judge for whom the expert is appearing.  Unfortunately the well being of a family, desperately in need of disability benefits, may rest more on the ALJ drawn then the facts of the case.  I guess I would not spend so much time pondering this situation except, most of my clients are in bad physical or mental health and except for a matter of degree of judgment, some gain benefits and some don't.)

There is the waiting period post trial that hurts. In almost all of my cases the client needs an award of benefits, so that he/she can gain at least a minimal safety net, get off the street, get help for the impairment.

A loss at this level is significant, because the percentage of cases resulting in an an award on appeal after a denial at the ALJ level is small.  A loss at the hearing level results in review by the Appeals Council. It is a paper review of the hearing and a necessary step if there is a desire to have the case reviewed in the federal court system. ( The Appeals Council has the ability to self review favorable cases and reverse what an ALJ has decided which can be devastating for a client who thought he and garnered benefits only to have them taken away.)

The whole orientation of the case shifts upon an appeal. In a system heavily weighed to support the decision of the ALJ, errors must be found, articulated and argued. Muses on post hearing matters, could take up pages and pages, and best left to another day.

Given the number of cases that are heard before an ALJ, time restraints, proof and evidence issues the system works, with some improvements it could be better, for example why not allow one strike against an assigned ALJ.  Civil trials allow such a strike, and the system hasn't collapsed.

Happy day, good day!!

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it. This blog is only the opinion of the author and are not expressed authority on any of the subjects discussed

POST TRAUMATIC STRESS, THE WAR VETERAN AND SOCIAL SECURITY

You have served your country fighting in a foreign war. You have returned home and you notice something is wrong. You are having nightmares. You have trouble concentrating. Sudden loud noises make you duck for cover. You have trouble functioning on a day-to-day basis. You very likely suffer from Post Traumatic Stress Disorder (PTSD).

Many people suffering a traumatic injury due to such things as assault, murder, rape, death of a friend or other traumatic event have been found to suffer the effects of PTSD. One of the worst inflicters of traumatic injury is war. A soldier can be exposed to seeing first hand horrendous death or mutilation caused by today's weapons of war. Battles and IUD's can take a close friend's life, and the soldier can be exposed to the relentless fear of death on each mission.

The statistics are alarming. Over 40 percent of the 1.6 million veterans from the wars in Iraq and Afghanistan are now seeking compensation for injuries. Most, if not all, claim the injuries to be service-related . Further, for the first time in modern history Reserves and National Guard have been called up and carried a large burden of the war.

Women also served in greater numbers in these wars, and are accounting for a larger percentage of claims.
The new munitions used in the war, body armor and very improved battlefield and immediately associated care have allowed more service members to survive from wounds that would have been fatal in prior wars. This has resulted in higher numbers of service members suffering new injuries.

The Social Security Administration has a program that gives service members an ability to receive expedited processing of disability claims. If you are a veteran or active duty service member and you become disabled while on active duty (anytime after September 2001), you are eligible to get an expedited decision in your Social Security disability case. It does not matter where or how you became disabled. In processing your claim, Social Security will not consider where or how the disability happened. Your disability does not need to be related to your military duty, it just needs to have occurred while you were on active duty.

What to do to apply?

First, you must let the Social Security Administration know that your medical condition began while you were on active duty. Secondly, you must identify the location where your military records are kept. Do not rely upon the Department of Defense which will routinely send the names of ill or injured service members. Many times these reports may be incomplete. Remember when you file for disability with Social Security you must make sure that you provide the proof that you are, or were, a service member.

If reported correctly, your application will be marked as a Military Casualty/Wounded Warrior (MC/WW) file and expedited through all stages of the disability decision process as a critical case. (If you have filed for benefits with the VA, that will not automatically be an application for Social Security disability benefits. Social Security will require a separate application).

Evidence that will help in your application include:

Original or certified copy of your birth certificate or proof of U.S. citizenship or legal residency if foreign born;

Form DD 214, if discharged from military service;

Proof of military pay;

Medical records that you have or that you can easily obtain from all military and civilian sources

The fact that your case will receive expedited treatment does not lesson your burden to prove that your disability or disabilities are so severe that they prevent you from working competitively employed in any job within your functional capacity. There are no provisions in the law that make a wounded warrior's burden of proof less then anyone else applying for disability benefits. Further, by the way the system is structured, if you are under 50 years of age, your burden to obtain benefits is just that much more difficult. If you have read my blog entry on how Social Security treats a disability rating from the VA, you can see that being disabled for VA does not automatically qualify you for social security disability benefits. Social Security requires additional proof of inability to be competitively employed.

If you are in this situation and believe that you are unable to work because of a disability, you need an attorney on your side to advocate your position.

Disclaimer: Blogs posted herein are intended neither as legal advice, nor do they create nor attempt to create an attorney-client relationship. The person viewing my blogs is admonished that an attorney-client relationship may only be created with the express consent to the parties to it.