The application process for Social Security disability benefits can take years. During that time period the claimant is – by definition – not working. (See 3 Reasons Your Claim Was Denied). How does the claimant pay for food and shelter during that long wait? Some claimants are fortunate enough to have spouses or family members who can help them until they ultimately receive benefits. But many claimants have no such support. There are state and local assistance programs that can help with some amount of cash assistance and food stamps. In Maryland you can contact the Department of Human Resources. In addition to these benefits, many claimants also want to file for unemployment benefits while their disability claim is pending.
In the application for Social Security disability benefits the claimant will be asked for the date that that he or she became “unable to work” (the alleged onset date). In the application for unemployment benefits the claimant will be asked whether he or she is “ready, willing and able to work.” If you answer that you are not “ready, willing and able to work,” then you will be denied unemployment benefits. Unemployment benefits are for people who have lost their job and are still capable (and looking for) other employment. Thus, in order to receive unemployment benefits you have to complete the application indicating that you are “ready, willing and able to work” and to apply for Social Security disability benefits you have to claim that you are unable to work. These two applications appear to be inconsistent with each other.
The agencies administering the unemployment benefit programs will provide benefits if you are otherwise eligible and indicate that you are “ready, willing and able to work.” They will not terminate or refuse to grant benefits based upon a claim for Social Security disability benefits.
Many administrative law judges (ALJs), however, do consider your claim for unemployment benefits when evaluating your Social Security disability case. In recent years, the Social Security Administration (SSA) indicated that the receipt of unemployment benefits should not be considered, by itself, as evidence that the claimant is not entitled to Social Security disability benefits. In my practice, the receipt of unemployment benefits has been handled one of three different ways by ALJs at hearings.
1. The Claim for Unemployment Benefits is Ignored
Many ALJs simply do not inquire about unemployment benefits. They apparently do not think it is relevant to the claim for Social Security disability benefits. This could be for a couple of reasons. First, the ALJ may just be cognizant of the fact that the claimant has been attempting to survive during the lengthy period in which the SSA was making a decision about their claim. Second, it could be that the ALJ understands that the claimant may believe they can still work but that in reality, and under SSA rules, they will be determined unable to work. For instance, a 55-year-old construction worker suffers a serious back injury and now can only lift 10 lbs. The worker is theoretically able to work with a 10 pound lifting restriction (e.g., like in an office). The SSA rules recognize that such a claimant, at age 55, with only construction experience is not going to be able to make the transition (or be hired for) a desk job. Thus the Claimant is legally considered to be “unable to work.” The claims for unemployment benefits and Social Security benefits are, therefore, not inconsistent with each other.
2. The Claim for Unemployment Benefits Destroys the Claimant’s Credibility
Some ALJs always ask about the claim for and receipt of unemployment benefits. It is their position that the claimant told one government agency (unemployment) that they were “able to work” and at the same time told another government agency (SSA) that they were “unable to work.” These are inconsistent statements. These ALJs are of the opinion that these inconsistent statements seriously damage the claimant’s credibility. At the hearing the ALJ may disregard some of the claimant’s testimony as a result of this damage to their credibility. This, in turn, can lead to a denial of disability benefits.
3. The Claim Is Not the Problem but the Receipt of Benefits Is
Some ALJs take a hybrid approach. They do not consider the claim for unemployment benefits to be an inconsistent statement and, therefore, will, not let that influence their determination of the claimant’s credibility. However, these ALJs believe that a claimant should not be receiving unemployment benefits at the same time that they are receiving disability benefits. Thus, the ALJ will often request that the claimant amend their onset of disability to a date after unemployment benefits had ceased. Perhaps these ALJs believe that the claimant should not receive disability benefits while they were still actively looking for work – a requirement while receiving unemployment benefits.
I have had hearings in which unemployment benefits were treated in each of these three very different ways. As the claimant has no control over the choice of judge, the choice to apply for unemployment benefits is indeed risky.
Managing Partner – Estates and Social Security Practice
Berman, Sobin, Gross, Feldman & Darby, LLP
481 N Frederick Avenue, Suite 300
Gaithersburg, MD 20877