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.

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