Posted on Tuesday, February 5th, 2013 by Loyd Bourgeois
The issue for your disability case is this: when you file for state unemployment, you are asserting that you are ready, willing and able to work, but when you apply for disability you are stating that your medical condition prevents you from being able to work.
When I asked my clients about the apparent discrepancy, they would tell me that something like: I want to work and am willing to try to work, and if I could get a job I would work hard to perform it. I don’t know if my medical condition would allow me to perform reliably, but I would certainly try.
Social Security’s stated policy is to encourage people with disabilities to return to work, and I personally do not see a huge inconsistency in a claimant who is applying for both unemployment and SSDI.
But, Social Security tends to view things in an “either-or” fashion. You are disabled or you are not, and there seems to be no middle ground.
Some judges take the position that if you say you are “ready, willing and able to work,” then by definition, you are not disabled. Apparently if you accept unemployment compensation sign your name to a statement that asserts that you can work, then you must not be disabled. Of course, you don’t automatically receive disability benefits if you do not apply for unemployment and sign a statement that you are not able to work. And there remains no answer to the question of how you can feed and house yourself and your family during the time that Social Security takes to decide whether you are disabled.
Back in 2006, the Chief ALJ of Social Security issued a memorandum on this specific issue. He noted that the receipt of unemployment benefits does not preclude disability benefits. He further noted that SSA’s position is that it should not force claimants to choose between disability benefits and unemployment benefits. However, he cautioned that judges should be mindful of individuals who are seeking employment in positions that require more functional ability than the person is claiming to have.
A big take away from this memo is that while you can apply for unemployment and disability, your statements to both should be consistent. That is, you should not claim to disability that you cannot do any work, but claim to unemployment that you can.
If you are applying for disability and also have claimed unemployment, it never hurts to talk to or retain an experienced Social Security attorney who can help you properly prepare your case.