6Mar

How do unemployment benefits affect a Social Security disability claim?

By Tomasz Stasiuk, March 6th, 2009 | Building a Case | 75 Comments

Getting unemployment benefits and Social Security at the same time can cause a few problems.

How do unemployment insurance benefits affect a claim for Social Security disability benefits?

Receiving unemployment benefits can be a problem if you have a claim for Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) because you are making two inconsistent statements:

To get unemployment benefits, you are claiming that you are able to work, but you cannot find a job.
But, to get Social Security disability benefits, you are claiming that you cannot perform any type of work at a substantial gainful activity level (generally full time work).

So, you are saying that you are ABLE and UNABLE to work at the same time.

In my experience, Judges do not like this and you are less likely to be found disabled under these circumstances.

I even recommend that my clients amend the Alleged Onset Date to some time after the unemployment benefits end. I do this by writing a short letter to the Judge noting that I wish to amend the alleged onset date to date “x.” Then, at the hearing, I mention the change to the alleged onset date again.

However, strictly speaking, Social Security does permit you to receive disability benefits and unemployment insurance.

The November 15, 2006 Memorandum from Chief Judge Frank Cristaudo states:

… the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether a claimant is disabled.

….

Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence.

A second memo was issued on August 9, 2010 on how Social Security should treat applications for individuals receiving unemployment benefits.

This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).

In considering claims of individuals who have applied for unemployment benefits, Administrative Law Judges (ALJs) should be mindful of the principles discussed in Social Security Ruling 00-1c, which incorporates Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under the ADA. 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 benefits.

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

However, application for unemployment 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 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 ALl 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.

So, applying for, or receiving, unemployment benefits does not prevent you from getting Social Security, BUT it is a factor Social Security considers in deciding your case.

I have seen Judges react badly when an individual is claiming unemployment benefits and Social Security disability at the same time. Personally, I caution against it. However, if unemployment benefits are the only way you have to make ends meet, it is not (necessarily) the end of your Social Security case.

My thanks to Maine Social Security attorney Gordon Gates for bringing the first memorandum to my attention.

Updated 02/14/11.

Tomasz Stasiuk is the founding attorney of the Stasiuk Firm - a law firm devoted to exclusively handling Social Security disability cases in Colorado. Contingent fees available.

http://www.Planet10Tech.com TomaszStasiuk

Hi Betty. Good luck on the application! I will keep my fingers crossed for you.
Telly

How do you find out how many work credits you have? I’m at the 10 year mark. So, it is close and I don’t know if I was earning enough 10 years ago to be getting credits at that time. I called the SSA, and they said I have enough credits. But didn’t tell me how many credits I have. Just afraid of relying on this info and later find out I don’t have enough credits.
Telly

Actually, I’m not sure how the work credits work. I had read you need 40 credits. And have had to have worked 5 out of the past 10 years to qualify for SSDI. Then I read the credits go by how old you are at the time you couldn’t work anymore. So for me it would be:

•Age 24 to 31–You may qualify if you have credit for working half the time between age 21 and the time you become disabled. For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27).
Telly

Forgot one other thing. Can you recommend a Disability Representative? I was going to look for an attorney. But I do know they charge 1/3 of your back pay. Which is alot. And you also wonder how much they help you in applying for disability. As I’ve been told most attorneys won’t touch your case until you’ve been denied once or twice. So, I kinda wondered how helpful they would be at the start of your case if you found one to take it. As they make their money with your claim dragging out by getting denied. I’d like to present the best case possible at the time of filing so I can hopefully get approved the first time.

Then I read about Disability Representatives. Who help you file your case and talk to the SSDI to keep you from saying the wrong thing, and I believe they don’t charge anything. So, I figured that would be better than getting an attorney and hoping they do something instead of after you’ve been denied. But I’m not sure which Disability Representative group to use. As I don’t want to get scammed or get a bad Representative who drops the ball.
http://www.Planet10Tech.com TomaszStasiuk

If the agency says you have enough credits, what more do you want?

Sure you can get a form from SSA the spells out your credits. And the annual Social Security Statement also says if you are eligible for SSA disability benefits. However, if SSA says you’re good on credits…
http://www.Planet10Tech.com TomaszStasiuk

I understand not wanting to overpay: http://www.socialsecurityinsider.com/2008/08/i-need-help-but-i-dont-want-to-be-ripped-off/

However, no one charges 33%. See http://www.socialsecurityinsider.com/2008/07/how-much-can-a-lawyer-charge-for-fees-on-a-social-security-case/

Anyone who wants to charge for services on a Social Security case has to get approval from Social Secuirty. A-N-Y-O-N-E. That is from charging you $50 to fill out a form for you, to working up your entire Social security case under a contingent fee agreement.

Disability Representatives don’t charge a thing? Really? There are agencies, like Legal Aid, that assist people for no charge. However, many disability reps are offering the same services lawyers offer for the same price. If you think that’s a good deal, consider this: http://www.socialsecurityinsider.com/2009/02/home-study-social-security-advocates-representatives/
Telly

Because when I talked to them about my credits. I asked if I had enough time in. And they said I had to have worked 5 out of the past 10 years. So, I told her the last date I worked. And she said I had 5 years from that date to file if I become disabled after my last day I worked. Then I found out it is different from what I can tell. I figure if they gave me wrong info on when I needed to file by and what kind of time I needed. Then they may have told me wrong on my work credits.

This is what I’ve read on the time I need:

•Age 24 to 31–You may qualify if you have credit for working half the time between age 21 and the time you become disabled. For example, if you become disabled at age 27, you would need credit for 3 years of work (12 credits) out of the past 6 years (between ages 21 and 27).

Ok, I just looked at that paper the SSA gives you every year. And it does say I have earned enough credits to quality for benefits. So, I guess all I have to do is make sure I have enough recent work to qualify. I tried figuring it up. And I believe I’m good for a couple more years if my date of onset was moved to a few years from now and I didn’t work in that time.

I just got worried after learning that 5 out of 10 I was going by doesn’t apply to me. But I think I’m still good as if the judge moved my date of onset to after my unemployment runs out. I should still be able to qualify if that happens.
Telly

Yeah, I later read about Disability Reps charging you like an attorney. There was a page I was on that helped people file for disability. And they talked about using volunteers.

The Disability Rep I’ve read about that seems to be 100% invested in SSDI claims is Allsup.

I saw your blog and it seems you prefer using attorneys vs. Disability Reps. Which I can understand. The one problem is alot of them don’t help you till after you have been denied once or twice. So, I’m not sure how many lawyers would help you actually file your claim and gather your medical documentation and explain your impairments to the SSA when you file. Where as the Disability Reps advertise they help you file and gather your medical records. I would need help filing my claim vs. doing it myself.

I think the Disability Rep helping you file, gather your medical records to review, and help presenting your case to the SSA at the start would help get your case approved quicker than doing it yourself and messing up. Though, there may be lawyer groups out there who do that from the start. But someone I talked to in a clinic who has delt with people filing for disability say the lawyers usually don’t touch cases till after you’ve been denied twice.
http://www.Planet10Tech.com TomaszStasiuk

Ah, so you are thinking of waiting to apply for benefits until your UI runs out.

Any individual thinking of waiting to apply for benefits, should keep this in mind: http://www.socialsecurityinsider.com/2008/06/applying-for-social-security-benefits-is-it-better-to-wait/
http://www.Planet10Tech.com TomaszStasiuk

Some attorneys (like my office) help file claims, some others do not. As with any kind of shopping around, you have to ask.

You mention volunteers helping people apply. I am not sure if you are suggesting Allsup is free. However, according to their own website, they are not: http://www.allsup.com/allsup-representation/fees.aspx As far as I can tell, it is the same 25% up to $6k fee structure many attorneys use.

I’ll tell you, they have a pretty website and a slick sales pitch. Personally, as a practitioner in this area, I am not wild about national practices. Take a look at this post and particularly Nate Craig’s comment at the bottom. http://www.socialsecurityinsider.com/2008/10/national-law-firms-vs-local-lawyers/

Ultimately, you have to go with your gut, and I can tell you are leaning toward using a non-attorney rep. I wish you the very best and hope you win your case.
Telly

I was referring to a different place that is free. It was just the first website I came across that mentioned using volunteers to help you file your claim. I later found out the reps like Allsup charge. But I’m looking at either attorneys or something like Allsup to help file my claim.

Do you have any recommendation for a non-attorney Disability Rep that helps you from the beginning? I haven’t even come across attorneys who help you file your case.
Telly

I’m not waiting to apply when my UI runs out. I was looking for full time work for a long while. But realized I can’t find anything as I have multiple disabilities. So, I started looking for part time work and have been working on my case. As I have to try and recall what doctors I’ve seen for 10+ years regarding my disabilities. And I have to try and write up how each of my disabilities prevents me from working. Which will be kinda hard. Plus, I’m looking for a Dis. Rep. or attorney to sign up with to help me file and tell the SSA how my disabilities keep me from gainful work.

I plan to put my date of onset shortly after I last worked. Which was a couple of years ago.
http://www.Planet10Tech.com TomaszStasiuk

I don’t know anyone that I can recommend. I have a number of articles about picking a lawyer. These include some suggestions on the questions to ask and which to avoid.

http://www.socialsecurityinsider.com/category/basics/legal-help/

All my best!
http://www.Planet10Tech.com TomaszStasiuk

Ok. Sorry for the misunderstanding.
Telly

Is there different compensation arrangements attorneys or DA’s do if you win your case on your first try? i.e. I know they can get up to 25%/$6k max fee of your back pay if you win your case. But I’ve read some people reporting there are some agreements where an attorney will charge you X amount if you win on your first try. And then if it goes beyond that, you get charged the standard 25%/$6k max fee.

I’d be filing my date of onset around a couple of years ago. And I’ve got pretty good documentation on my disabilities and impairments that have been going on for some time before and after that date. And I’ve got paperwork from before and after that date that shows that my activities of daily living are low, my impairments are severe and expected to last longer than one year, etc. So, I feel I have a pretty good case to win on the first try with my documentation. But I’d just hate to get approved the first try after a few months and the attorney or DA gets $6k for simply filing my SSDI application with the SSA.
http://www.Planet10Tech.com TomaszStasiuk

Social Security only permits 2 fee structures: 1) 25% up to 6k contingent, or 2) fee petition
http://www.socialsecurityinsider.com/2008/07/how-much-can-a-lawyer-charge-for-fees-on-a-social-security-case/

You can check it out directly on the SSA website: http://www.socialsecurity.gov/representation/overview.htm

Theoretically, a representative can ask for a “33%.” However, that means they would have to file a fee petition which SSA has to approve before they take any money as fees.
Telly

Ok. Whoever I sign up with. I’ll see if they will do two payment structures. The first would be a structure if I get approved the first time. As I’ve read places like Allsup have something like this. I’ve read of them just charging $750 if you get approved the first time.
As that means they wouldn’t have done much work compared to going all the way through one or two appeals before a judge.

And the other would be a structure if I have to go through appeals. Which usually is the 25% of you back payment.

I’ve got good documentation that I think I have a good chance getting approved the first time around and would hate to have paid someone $6k just for filing my application with SSDI.
Tlwilkerson

if you are over 56 and can’t do the work you have always done , you can receive unemployment payments. Unemployment standard is that you are able to do something, anything. Social security if you are over 56 standard is that if you can not do what you have been doing and have no other traing you are eligible for disability
http://www.Planet10Tech.com TomaszStasiuk

Take a look at

1) http://www.socialsecurityinsider.com/2009/03/how-social-security-reviews-cases-the-5-step-sequential-evaluation-process/

2) Cased below 50: http://www.socialsecurityinsider.com/2009/09/getting-social-security-disability-benefits-before-you-turn-50/

3) Cases above 50: http://www.socialsecurityinsider.com/2009/10/guest-post-on-bob-krafts-p-i-s-s-d-website/
Terri

Allsup is great to work with.
Paula Berube

I have been receiving unemployment benefits since February 2011 and had an appointment with Disability two days after I was laid off. The woman I spoke with at the disability office told me to keep filing for unemployment while waiting for a response from disability office. Will I have to repay my unemployment benefits back. I live in Connecticut. I’m not too happy about this situation I’m in and I’m an honest person I will pay back what I owe if necessary. I don’t want to contact the unemployment office in fear of going to court. Please help if you can.
BRM

i started receiving unemployment the middle of 08 and it ended the end of 10 i filed a disability claim in the middle of 10.I have a date with a judge in 6 days,do you think this will affect the outcome of my case????????????!!!!!!!!!!!!
Bob

If you were on unemployment and filed for SSDI. You then get approved for SSDI. Can you still draw on the unemployment, or should you stop calling? It is my understanding you can be on SSDI and earn below $720 without affecting your benefits. So I assume you could still draw unemployment since you can still work while on SSDI. Though my unemployment would be more than $720, so unsure if that would affect anything?
http://twitter.com/SSD_Attorney Declan Gourley

Allsup are not attorneys and because of this they do not have an attorney-client privilege. I had a client recently who had a long term disability carrier require that he file for SSD benefits. They then steered him towards Allsup, making it sound like they were the only firm willing to do these types of cases on contingency. Throughout the process the Allsup reps would be providing all of his medical records to the LTD carrier. The LTD carrier then used these med records to deny him LTD benefits. Absolutely ridiculous. Just another reason why I recommend using an attorney rather than non-attorney rep.
danielshelley_

hi, im curious to know what happened for you..what did alj say?