NASHVILLE TENNESSEE SOCIAL SECURITY DISABILITY LAWYER

Will I qualify for Social Security disability benefits if I am receiving unemployment?

I am often asked whether a Nashville Social Security disability applicant will be awarded benefits if receiving unemployment compensation benefits. The answer depends on various circumstances, including the onset date of your disability and what types of work you are capable of performing.

Onset date is significant

The onset date is the date a Social Security claimant becomes disabled. If the onset date that is alleged in your original application for Social Security disability is the date that you were laid off from work, this may also be the date you started getting unemployment compensation benefits. By collecting unemployment compensation benefits, you are telling the unemployment compensation people that you are ready, willing and able to work. Because of the apparent conflict between alleging that you are entitled to disability benefits from one program and telling another government program that you can work, it is hard, though not necessarily impossible, to claim benefits from both programs.

If you are in this situation, I may want to discuss with you whether a later onset date would be appropriate. But before amending the alleged onset date, I will want to be sure that I understand the situation surrounding your layoff and your limitations. I will ask you how the alleged onset date was determined. Was it your idea or did a Social Security Administration claims representative suggest using the last day of work?

Different judges have different views

Administrative law judges who hear Social Security disability cases have widely divergent views about the receipt of unemployment compensation benefits during months that a claimant claims to be disabled under the Social Security disability program. Therefore, I find it useful to try to learn each judge’s position on this issue.

There are cases where there is no conflict between receipt of unemployment compensation and an application for Social Security disability benefits. For example, a claimant who is available only for light work may legitimately receive unemployment compensation benefits, and if the claimant is age 55 or older, the claimant could be found disabled using rules from the Medical-Vocational Guidelines.

In most situations there is an inconsistency between receipt of unemployment compensation and a claim for Social Security disability benefits that covers the same period. Nonetheless, it is sometimes possible to argue that even though you would have attempted work during the time you were receiving unemployment compensation benefits (which makes receipt of unemployment compensation benefits legitimate), in retrospect it appears that you would not have been able to sustain work (which provides the basis for the disability claim).

For many judges, the fact that a claimant was laid off because of lack of work, a plant closing, or similar reason (rather than being terminated because of inability to do the job) is a bigger problem than receipt of unemployment compensation itself. Some judges shrug at receipt of unemployment compensation, viewing it from a “person’s got to live” perspective. These judges do not even ask about receipt of unemployment benefits at the hearing, though they are likely aware of it because the Social Security Administration has access to unemployment payment information, which usually appears in a claimant’s hearing exhibit file. Other judges will ask you to amend the alleged onset date to the day after you last received unemployment compensation benefits.

Although there is no statute, regulation or ruling that says a claimant cannot receive unemployment and Social Security disability benefits for the same period, some judges regard receipt of both benefits for the same period as double dipping. Those judges will not find a claimant disabled during the time a claimant received unemployment benefits, even if the claimant’s argument for receiving both benefits is logical. But those same judges will find a claimant disabled the month after unemployment stops. Other judges, who may regard receipt of unemployment benefits as proof the claimant could work during the time the claimant was receiving unemployment benefits, expect an amended alleged onset date to be based on medical worsening, not on when unemployment stopped.

Receipt of unemployment compensation is not decisive, but is a factor the judge will consider

Courts generally view receipt of unemployment compensation as inconsistent with a claim for disability benefits but they do not regard it as conclusive proof that a claimant is not disabled. A U.S. Magistrate Judge addressed the unemployment issue in Roberts v. Callahan, 971 F. Supp. 498, 501-502 (D.N.M. 1997), as follows:

Receipt of unemployment benefits, however, does not mean that a claimant is able to work. See, e.g., Alverio v. Chater, 902 F. Supp. 909, 928 (N.D. Iowa 1995); Riley v. Heckler, 585 F. Supp. 278, 285 (S.D. Ohio 1984). A desire to work likewise does not mean that a claimant can actually work. See, e.g., Talbot v. Heckler, 814 F.2d 1456, 1461 (10th Cir. Okla. 1987); Morales v. Bowen, 664 F. Supp. 75, 79 (S.D.N.Y. 1987); Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. N.Y. 1983).

In a memorandum dated November 15, 2006, the Chief Administrative Law Judge reminded judges that “the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment insurance benefits is only one of many factors that must be considered in determining whether the claimant is disabled.” The Chief Judge drew an analogy with Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999), in which the U.S. Supreme Court held that receipt of Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act. “The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment insurance benefits.” The Chief Judge continued:

In addition, it is often uncertain whether we will find a person who applies for unemployment insurance benefits ultimately to be disabled under our rules, and our decision-making process can be quite lengthy. Therefore . . . individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment insurance benefits is evidence that the ALJ must consider together with all of the medical and other evidence. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the benefits. For instance, the fact that the 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 the ALJ should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.

Expert help available from a Nashville Social Security disability attorney

If you are receiving unemployment compensation benefits and are applying for Social Security disability benefits, the assistance of a knowledgeable Nashville Social Security disability attorney may be crucial. If you want my evaluation of your situation, briefly describe your claim using the form to the right.