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.

In 1990, Husseini suffered a work-related injury and applied for and received Social Security disability payments, court documents said. Of course, as is always the case when one is approved for benefits, Husseini had to agree to notify the SSA if he again obtained employment at a later date. However, when Husseini got a job in 1999 working for Catholic Charities, he decided he’d take another route.

Instead of using his own Social Security number, he simply gave the charity organization his brother’s Social Security number. This way, his earnings would not be reported to the government, and he could thus continue receiving the Social Security Disability payments despite his work status. Husseini didn’t report his change of work status until April of 2006, after he had already fraudulently collected approximately $111,000 in disability payments.

When Husseini’s case was brought to court, prosecutors sought a swift and severe penalty for his fraudulent actions. The Judge overseeing the case apparently sided with the prosecutors, and Husseini was thus sentenced to jail time and ordered to pay back the money.

Let this be a lesson to anyone who is on disability and then returns to work. Always be sure to report your back to work status if you end up gaining employment while on Social Security Disability!