An Overview of Social Security’s Policy on Receiving Unemployment and Disability Benefits for the Same Period
Tips to Get Unemployment and Social Security Disability Together
Scared.
Concerned.
Desperate.
You may feel these emotions if you lose your job while battling a mental or physical illness or dealing with the aftermath of a bodily injury.
It’s natural.
You have bills to pay. And no money to pay them.
Applying for unemployment compensation is one option.
And seeking Social Security disability insurance (SSDI) or Supplemental Security Income (SSI) benefits is another.
Fortunately, you can pursue unemployment and Social Security disability together.
But unfortunately, due to the distinct requirements of these programs, receiving unemployment can hurt your likelihood of success with Social Security.
This article explains why that is – and what evidence you can present and arguments you can make to get unemployment and Social Security disability benefits for the same period.
Keep reading to learn more.
Then call me for a free consultation: (804) 251-1620 or (757) 810-5614.
You will see why other lawyers voted me one of Virginia’s best disability attorneys. And what my firm can do for you.
What is Unemployment Insurance?
Unemployment insurance benefits, also called unemployment compensation, provide temporary financial assistance to individuals who become unemployed through no fault of their own.
Taxes on employers fund these unemployment benefits.
Each state has requirements you must meet to get unemployment insurance benefits.
For example, to get unemployment compensation in Virginia, you must:
- Have lost your job or had your hours reduced,
- Have earned at least $3,000 in two quarters of your base period while in covered employment,
- Show that you did not voluntarily quit or resign or get fired or discharged for cause,
- Certify that you are able and available to work, and
- Make at least two job contacts each week.
If I Apply for Social Security Disability, Will the Social Security Administration (SSA) Find Out that I Received (or Continue to Receive) Unemployment?
Yes, the Social Security Administration will search to see if you have received unemployment benefits since the date you allege you became disabled.
And the SSA makes the results of its search into unemployment a part of your disability application.
Here is how the Social Security Administration gets this data:
The SSA has Memorandums of Agreement (MOA) with various agencies that allow the SSA to access databases compiled by those agencies.
And some of these agencies have information on unemployment compensation benefits.
For example, Program Operations Manual System (POMS) DI 13010.700 says, in part:
The Office of Child Support Enforcement (OCSE) and SSA have a Memorandum of Agreement (MOA) that allows authorized SSA employees query-only access to the National Directory of New Hires (NDNH). This database contains quarterly new hire, wage, and unemployment information reported by the States and the District of Columbia to OCSE. Employees utilize the database when investigating potential earnings.
In addition, POMS SI CHI00830.230 (MI) says:
The Social Security Administration (SSA) and the U.S. Department of Labor (DOL) signed a memorandum of understanding in March 2004 that allows SSA employees to obtain online queries of wage and unemployment compensation data for all States that have entered into data sharing agreements with SSA. The information is stored in the Interstate Benefit InQuiry (IBIQ) system, which was developed by DOL and State unemployment insurance (UI) agencies as a tool for sharing wage and unemployment data between States. Authorized SSA employees may obtain IBIQs for both Title II and Title XVI cases, as needed to conduct SSA business (e.g. for individuals with established MBRs or SSRs).
Receipt of unemployment insurance benefits is one of the first things I review when preparing for a disability hearing before an administrative law judge (ALJ).
Can I Receive Unemployment and Social Security Disability Benefits at the Same Time?
Yes, you can get unemployment and Social Security disability benefits simultaneously.
No federal statute, Social Security Ruling (SSR), or internal agency regulation says you cannot receive unemployment benefits and Social Security disability for the same period.
But the case law and attitudes of some ALJs make it challenging to receive unemployment and Social Security disability benefits together.
The following section explains why.
If the Law Allows Me to Collect Unemployment and Social Security Disability Together, then Why is the Receipt of Unemployment Compensation a Problem?
Three reasons explain why receiving unemployment compensation during the period you allege disability can hurt your Social Security claim.
First, applying for unemployment compensation is inconsistent with seeking Social Security disability.
You must certify that you are available, willing, and able to work to get unemployment.
On the contrary, applying for Social Security disability indicates you cannot work full-time.
Second, under stare decisis (a legal doctrine), federal court decisions have binding authority over Social Security judges.
And some federal courts have held that an application for unemployment compensation benefits adversely affects a claimant’s credibility.
Third, some ALJs may have a strong bias against paying disability benefits for the same period where a claimant receives unemployment insurance benefits, viewing it as “double dipping.”
What is the Social Security Administration’s Official Policy on the Receipt of Unemployment Insurance Benefits by Claimants Applying for Disability Benefits?
In 2010, Chief Administrative Law Judge Frank A. Cristaudo sent a memo to all ALJs discussing the receipt of unemployment by claimants seeking disability benefits.
This letter, entitled Receipt of Unemployment Insurance Benefits by Claimant Applying for Disability Benefits – REMINDER,” says, in part:
This is a reminder of the policy concerning receipt of unemployment insurance 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, [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 Cleveland, the U.S. Supreme Court held that Social Security disability insurance and Americans with Disabilities Act (ADA) claims do not conflict in such a way as to automatically bar anyone from raising them jointly.].
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.
…. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the [unemployment] 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 ALJ should take into account, particularly if the ALJ inquired about an explanation for this apparent consistency.
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.
How Can I Turn the Receipt of Unemployment Benefits from a Weakness to a Strength in My Social Security Disability Claim?
Now that you know why receiving unemployment insurance benefits can lower your chances of winning a Social Security claim, let’s look at ways to strengthen your position.
- Age: Under the SSA’s five-step sequential evaluation process, a person over age 50 can qualify for Social Security disability benefits even though they can perform some work. For example, there would be no conflict between receipt of unemployment and an application for Social Security disability if you are age 55 or older, worked a physically demanding job in construction, and underwent a spinal fusion for a work-related back injury, limiting you to sedentary work only. On these facts, the SSA would find you disabled under the Medical-Vocational Guidelines (the “Grid Rules”).
- Amend the Alleged Onset Date: The ALJ may be more likely to allow benefits if you amend the alleged onset date of disability to when the unemployment benefits stopped. This eliminates some ALJs’ perception that you are “double dipping.”
- Offer Details About the Jobs You Applied for When Receiving Unemployment: Certifying that you are ready, able, and willing to work to receive unemployment will cause fewer problems with your disability case if you were looking for less mentally or physically demanding jobs than the jobs you had before stopped working. Therefore, I recommend testifying about the jobs you applied to if these jobs were within your limitations.
- Point to a Worsening in Your Condition: Maybe you could work when you started getting unemployment, but your health deteriorated (for example, a herniated disc causing radiating leg pain or further tearing of the rotator cuff). If so, tell the ALJ how your condition worsened and which medical records support this argument.
- Show that You and Your Family Needed Income to Survive: The SSA denies most initial applications for disability benefits, meaning you will have to file multiple appeals before the SSA makes a final administrative decision. This process can take years – all without income. If applicable, I recommend testifying about a lack of alternative means to pay for shelter, clothing, and food. Many ALJs will understand that you applied for unemployment and looked for work to survive.
- Testify that Your Desire to Work and Ability to Work are Separate: I have successfully argued that saying you are ready and willing to work is not the same as being able to work. Indeed, I recommend testifying about any jobs you tried while on unemployment and the struggles you had doing the job. The SSA should not punish you for trying to work through the pain.
- Use Lay Witness Testimony to Boost Your Credibility: One federal court held that when “there is no other evidence to detract from the claimant’s credibility, the negative inference [from receiving unemployment] is not sufficient, of itself, to negate the claimant’s credibility.” Therefore, I recommend getting testimony (including letters) from your doctors, family members, and friends describing your limitations and honesty. You want to dispute any allegation that you are malingering. Strong work history (years of consistent earnings) can also help with this.
Get Help Collecting Income from All Available Sources When a Disability Puts You Out of Work
A workplace injury, the diagnosis or worsening of a medical impairment, a motor vehicle crash, or an employer’s decision to stop accommodating light-duty employment can strip you of the income needed to survive.
Our law firm understands this is a challenging time.
And we want to help you pursue all income and medical care options.
Call now to get started.
We can explain the advantages and disadvantages of seeking benefits through multiple sources when you are disabled.
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