In my Social Security disability practice I frequently see clients who have filed for unemployment at the same time they have filed for disability. On the surface, this seems to be a contradiction – how can you be “ready, able and willing to work” while at the same time be “unable to engage in substantial activity?”
Years ago, Social Security judges regularly asked claimants about unemployment applications at hearings, but I rarely hear these questions anymore. I advise my clients that if a judge does ask if they have filed for unemployment, an appropriate answer would be to state that he/she would like to work and would be willing to try any type of job even though his/her medical or mental health condition is likely to create performance or attendance issues.
Further, I tell my clients that, in my opinion, one or more “unsuccessful job attempts” serves as compelling evidence that one is motivated to work but simply does not have the capacity to do so. Interestingly it has been my experience that an unsuccessful work attempt of 3 months or less can help your case, whereas a work attempt over 3 months can create problems – take a look at my YouTube video about work attempts and trial work periods for more about this topic.
Recently, this issue of unemployment applications came up – this time in an unfavorable decision I received in a case I tried before a judge who is normally more likely than average to approve claims. My client in this case had some significant mental health and physical medical issues but he came across as arrogant and lazy to the judge who clearly did not want to give him any benefit of the doubt.
One of the issues that the judge discussed in this case was the unemployment issue – here’s how the judge addressed it in the decision:
Pursuant to a November 15, 2006 memo from then Chief Administrative Law Judge Frank A. Cristaudo, “receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits.” Judge Cristaudo further discusses the issue:
…application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence…For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALJ should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.
Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment…
In this case, my client did not have a good explanation for why he was unable to remain employed. Not only were his post-application work attempts at jobs with significant physical demands but he testified that he quit those jobs because they were “dead end jobs” and “boring.” At no point did he testify that he quit because the physical or mental requirements of those jobs was beyond his capacity.
Here are the conclusions that I am taking from this decision and other experience:
- if you file for unemployment benefits while you are also filing for Social Security disability, you should be prepared to explain yourself (this is where you would discuss your desire to try to work despite your issues)
- if your record shows work attempts at jobs which have physical requirements in excess of the limited physical capacity you are claiming for Social Security purposes, these work attempts could be used against you
- if you try to work and quit, you should focus on problems you had performing the tasks of your job or with reliability, not because you were bored or not making enough money
- work attempts after applying for benefits can function as helpful evidence but if you work too long (i.e., more than 3 months) or if your reasons for leaving are not directly related to your alleged impairment, those work attempts will be used against you.
Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 23 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.
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