April 23, 2014

SSDI Claimants Can Expect to be Asked About Unemployment Benefits

tough ALJ questionsOver the past several months, I have noted that my SSDI clients are regularly being asked by judges if they have filed for unemployment benefits.  This question used to come up occasionally in the past, but now my clients are almost always asked if they have filed or are receiving unemployment.

The issue is this: when you file for state unemployment, you must assert that you are ready, willing and able to work.  In the past, I would counsel my client to answer the judge’s question by stating that “I am willing and anxious to try to work and I would put forward my best effort to perform any job.  I don’t know if my medical condition would allow me to perform reliably but I would certainly try.”

Given that Social Security’s stated policy is to encourage people with disabilities to return to work, I do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.

However, as is the case with part time work, Social Security tends to view things in an “either-or” fashion.  You are disabled or you are not, and there seems to be no middle ground.

Some judges take the position that if you say you are “ready, willing and able to work,” then by definition, you are not disabled.  Apparently if you accept unemployment compensation sign your name to a statement that asserts that you can work, then you must not be disabled.  Of course, you don’t automatically receive disability benefits if you do not apply for unemployment and sign a statement that you are not able to work.  And there remains no answer to the question of how you can feed and house yourself and your family during the 2+ years that Social Security takes to decide whether you are disabled.

I think that this renewed focus on unemployment compensation arises from the political realm.  Stories like this one refer to studies by academics which identify a correlation between disability applications and unemployment benefits.  In other words, many unemployed workers are less likely to apply for disability as long as they are receiving unemployment.  When unemployment runs out, they then apply for SSDI.  The conclusion of these academics:

while the Social Security disability insurance program was established to offer financial assistance for people no longer capable of working due to an injury or poor health, these days, an expanding group of applicants with manageable health impairments — or no impairments at all — have added to the already financially-strapped system.

So, at least for the forseeable future, SSDI claimants who have applied for and received unemployment benefits will find that their disability applications will be viewed with increased scrutiny, especially if they waited until their unemployment checks ran out before they applied.

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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.

Comments

  1. Can you offer some information on the virtual screening unit? Cases being sent to them is on the rise, but there is still a lot of confusion about it. What is it and where is it located? Is it a good or bad thing for your case to be sent there. Thanks for this great blog…it has been a lifesaver for me.

  2. It is short sighted for a court to assume that unemployment benefits = a non-disabled claimant. Many clients apply for unemployment because they are no longer able to support themselves and social security disability claims can take a number of months to be processed. A good attorney will organize medical documentation in such a way that the claimant will be successful in proving their disability claim.

  3. It may be short sighted, but that's what I am seeing here. Have you had to deal with this issue, Ed?

  4. Richard E. Donaldson, Esq. says:

    ALJs in Las Vegas used to include the unemployment benefits question as standard fare. Sometimes they would suggest amending the application to a date after their UI benefits expired. They shouldn’t have. State laws may differ, but here, a quadriplegic able to work for two hours every other day from his hospital bed would technically be “ready, able and willing” to work, at least enough to justify an application for unemployment benefits. This claimant’s limitations wouldn’t square with an ability to work on a regular and continuing basis as required by SSR 96-8p.
    In many cases, the number of jobs available to a severely handicapped claimant would be less than the number of similarly situated people deemed disabled under the Medical Vocational Guidelines. This would not be a “significant number” of jobs and, at the fifth step of the sequential analysis; the adjudicator should find the claimant unable to do other work, e.g., disabled.
    The local Field Office personnel routinely advised claimants to apply for UI pending the adjudication of their disability claim. Most ALJs (at that time) empathized with folks faced with a choice between what to them was a disingenuous UI claim and living on the street.

  5. Richard – your points are valid. Unfortunately more and more ALJ’s here in Atlanta are using unemployment applications as evidence of capacity to work. To me, a person’s desire to try to work has little or nothing to do with his capacity to work full time for an on-going period of time.

  6. Hi – I am currently recieving UI and have about 3 months left. Should I stop my UI payments before I apply for SSD? Will that improve my chances of getting my application approved?

    Thanks!

  7. Nicole, I don’t know much about the virtual screening unit (VSU) and I don’t see that SSA has published much. I believe that adjudicators and/or hearing office intake clerks are encouraged to identify cases that fit designated criteria for possible early approval. These electronic files are referred to the VSU for review and if the staff attorney can approve, he will do so. If the case is not approved at the VSU level, it is sent back to the hearing office for regular processing. My sense is that the VSU is another program designed to reduce the backlog and to get deserving cases approved. So, my thought is that it is a good sign if a case is sent to the VSU.

  8. my husband had a heart attack. had 2 stent placement. The doctor release him back to work on light duty. His job does not provide light duty. He retired early due to this. Is he entitled to long term disibility. He applied and was denied.

  9. Jean, long term disability policies are underwritten by private companies, not the Social Security Administration. The definitions they use for "disability" may be different. Are you having trouble with an LTD denial?

  10. Jim Martx says:

    Dear Mr. Ginsberg,

    Will my recent past history of collecting unemployment insurance (UI) for 3 yrs be held against me (apply for SSDI) ?

    I was let go from my job of 25yrs at the age of 55, subsequently I collected UI for 3 yrs while looking for work. During the last 6 months of the 3 yr duration I had a hip surgery which resulted in complications to this day. In addition, just after my UI ended I secured a job that only lasted 2 1/2 months since I was disabled (lumbar rradiculopathy; could only sit for 15 min and had to stand) my employer (dispite giving me accomodations) had to let me go.

    I plan to apply for SSDI (only 3 months after my UI ended). Please advise.

    Thank you. Jim

  11. Jim, my experience has been that many (but not all) Social Security judges are concluding that collecting unemployment is inconsistent with disability and often ask for an amended onset date to a date after UI ended. It really depends on who your judge is, however.

  12. Dear Mr. Ginsberg,

    As a follow-up to my previous question on 11/03/13:
    Beyond the onset date issue, will the judge hold against me (as if I am trying to work the system) the fact that I collected UI for a long time and soon (within 3 months) applied for SSDI (just after UI ended) ?

    Despite the fact that I had a surgery, had medical complications, and had a failed work attempt (with accomodations) ?

    Thank you

  13. Jim, some judges see unemployment as inconsistent with Social Security and will not approve someone for any time during which they are collecting unemployment. Other judges see one’s acceptance of UI as evidence that one would be prepared to try to work. My sense is that most judges understand that people collect UI because they need the money. It would seem unfair for a judge to conclude that a claimant’s acceptance of UI represents a medical determination of ability to work.

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