Unemployment Benefits and Social Security Disability Claims

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Unemployment Benefits And Social Security Disability Claims

Melissa Kenney, Esq., KP Law, P.C.

May 27, 2014

Your client believes she is too disabled to work and hasnt worked since her last job. You

verified that fact on her last social security earnings statement. At the hearing, the ALJ raises her

eyebrow. Your earnings record shows you received unemployment. Did you attest to

unemployment that you could work?

Are you prepared for this question? If you felt your heart dropping while reading this,

you are one of many attorneys who face this issue.

ALJs often decide against claimants because many ALJs believe that in order to qualify

for unemployment, a claimant must attest that she or he is physically capable of working. ALJs

reason that if a claimant receives unemployment, then the claimant is not credible. Claimantsdescribe many legitimate reasons why they apply for unemployment at the same time they file

for disability. Reasons typically involve the urgent need for income, wishful thinking (Maybe I

can find the perfect job that will let me take random rest breaks.), or being unaware of the effect

receiving unemployment can have for a disability application.

So did this client sabotage her case? Not necessarily.

RESEARCH YOUR STATES UNEMPLOYMENT RULES.

Your clients ALJ may not be aware that many states unemployment programs require

claimants to seek both part-time and full-time work - the claimant must be ready to work in any

capacity, not just full-time jobs.

Each state sets its own unemployment rules. The first step you need to do is contact the

states Unemployment Insurance division and look at the statutes governing work requirements.

For example, many states reference the Code of Federal Regulations, Department of Labor

which provides (emphasis added):

An individual with a permanent or long-term physical or mental impairment (as

defined at 29 CFR 1630.2(h)) which prevents the individual from working full-time or during

particular shifts shall not be deemed unable to work solely on that basis so long as the individualremains available for some work.

Social Security regulations themselves describe that the criteria for a disabling condition

is the inability to work full-time. Under Social Security Ruling 96-8p, a claimant is considered

disabled if that person is unable to perform regular and sustained full-time work, 8 hours a day, 5

days per week, or an equivalent schedule. In evaluating whether your claimant satisfies the


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disability criteria, the Commissioner must evaluate the claimants ability to work on a sustained

basis. 20 C.F.R. 404.1512(a).

For example, in Oregon, the Administrative rules 471-30-036(2)(b) define how:

an individual shall be considered available for work if, at a minimum, he or she is:

(b) Capable of accepting and reporting for any suitable work opportunities within the

labor market in which work is being sought, including temporary and part-time opportunities

Oregon Administrative Rules 471.30-036(3) (emphasis added).

So if your clients state requires unemployment applicants to accept and report for any

work, including part-time or temporary work, then your clients claim for social security

disability is not in conflict if your client has a basis for being able to work only part-time. Only if

your client was completely and totally unable to work would your client be barred from

receiving unemployment benefits (and if she had been receiving them, may be required to payback the monies received).

For purposes of unemployment insurance benefit eligibility, your client needs to certify

that she is able to work only sporadically or on a part-time basis. At the hearing, your client will

need to testify her state of mind in applying for unemployment, and should provide

documentation or testimony describing to the ALJ her understanding that she was only required

to search for part-time or temporary work.

UNDERSTAND SSA REQUIRES CLAIMANTS TO APPLY FOR ALL ELIGIBLE

BENEFITS.

Indeed, if your claimant doesnt apply for unemployment, it can be used against her.

Look at 20 C.F.R. 416.210(a), which explains that claimants must apply for all other benefits

for which the claimant may be eligible. Other benefits include unemployment insurance

benefits. 20 C.F.R. 416.210(b). In fact, SSI benefits may be suspended for failure to apply for

all benefits. 20 C.F.R. 416.1330.

At the hearing, your client will find it beneficial if you include in a closing statement (or

interject somewhere) on the record informing the ALJ of SSAs regulation requiring claimants to

apply for all eligible benefits which is the basis of your clients application for unemployment.

KNOW YOUR REGIONS CASE LAW

In Carmickle v. Commissioner, the ALJ found the claimant less credible because he

received unemployment while alleging disability. The 9th

Circuit reversed the decision on the

grounds that the claimants record didnt establish whether the claimant held himself out as

available for only part-time work, and as such, the ALJ didnt have a substantial basis to find the

claimant less credible. Carmickle v. Commissioner, 533 F3d 1155 (9th Cir. 2008), citing


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Copeland v. Bowen, 861 F.2d 536, 542 (9th Cir.1988); accord Schmidt v. Barnhart, 395 F.3d

737, 745-46 (7th Cir.2005) (recognizing receipt of unemployment benefits could impact a

claimant's disability claim). Furthermore, even the sporadic ability to work is not inconsistent

with disability. See Leider v. Sullivan, 885 F.2d 291, 292 n.3 (5th Cir. 1989); Poulin v. Bowen,

817 F.2d 865, 875 (D.C. Cir. 1987).

To support your clients claim, your client must submit evidence demonstrating that she

can only perform part-time work. Submit to Social Security a copy of her unemployment

application, any letter or email to her unemployment case manager describing her limitations,

and/or a doctors opinion letter describing that your client is able only to perform part-time work

and is unable to physically perform full-time work due to her medically documented limitations.

If you are in a state which permits searching for part-time work, breathe easier, knowing

you helped your client by having evidence to show her circumstances met both unemployment

and Social Security standards. Otherwise, discuss with your client whether she wants to refund

her unemployment, change her onset date of disability, or proceed anyway knowing the risk.

Documents

Unemployment Benefits and Social Security Disability Claims