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SSD and Unemployment Compensation

Osterhout Berger Disability Law > Social Security Disability > SSD and Unemployment Compensation

By: Karl Osterhout, Esq., Senior Partner, Osterhout Berger Disability Law

As mostly everyone knows, Social Security disability (SSD) is a benefit for people who are “disabled” because of medical and/or mental health impairments, and Unemployment Compensation (UC) is paid when a person “can work” but cannot find a job despite trying to. Most of the so-called “wisdom” online, including sometimes from Social Security attorneys or representatives, and from SSA itself, promotes the idea that you “cannot receive both SSD and UC at the same time.” Or another way this is sometimes put is that “if you are receiving UC, you cannot get SSD because for UC you are saying you are ‘ready, willing and able to work.’” Like most deceptive information, there is a germ of truth in the above but, ultimately, they are misleading categorical statements that do not always (or even often) apply.

To explain why these assertions are deceptive, we must first understand a little bit about how SSA defines “disability.” SSA’s definition of disability is more nuanced than most people know, particularly for people who are age 50 and older. If the claimant is a “younger individual” (younger than 50), the rule for disability is relatively straightforward without a lot of nuance: When a person is under 50 factors such as education and work background do not matter much. To put it another way, a claimant younger than 50 does not get any benefit from the fact that their medical and/or mental problems prevent them from doing jobs they have done in the past. If a less than 50 claimant can perform any job, even jobs very unlike jobs they have done in the past, they are not disabled if they can do some job on a sustained full-time basis. (SSA defines the ability to work as the ability to do so “8 hours a day, 5 days a week…on a regular and continuous basis). We will come back to this definition of the ability to work momentarily.

Turning to folks who are over age 50, SSA’s rules start to take account for the fact that it is usually not reasonable to assume that someone who has done a certain type of work for a long time can easily find work doing entirely different things in entirely different work settings. It’s kind of a “You can’t teach an old dog new tricks” rule that is very sensible when you stop and think about it. For instance, if a 53-year-old has doing unskilled work, but now can only do a “sitdown job,” SSA’s rules almost always direct that they are disabled. Between ages 50 and 54 there is just some allowance for the fact of being able to perform past jobs, but once a person becomes 55 (and especially 60) the inability to perform past jobs is more critical and in most cases results in a finding that the claimant is “disabled.” Please note that these people are “disabled” even though, technically speaking, there are lots of jobs they can still perform. But, again, SSA finds these people disabled and awards monthly benefits.

Let’s turn to the question of UC. UC is a state law creation (although there are federal UC laws for people who work for the government, etc. – we can leave that aside for the purposes of this discussion). It is therefore not be possible in a short article to set forth all the rules in all the states applicable to UC, but it is possible to begin with what is mentioned in the first paragraph: that UC is generally only available to people who can work, but who cannot find a job. And, of course, filing such a claim begins with a statement by the person seeking the benefit along the lines of “I can work…” The fun begins when we start looking at the interplay between the requirements of SSA and UC; to begin, it is almost 100% true to say that if a younger person is receiving UC, or has filed a claim for UC in which they stated that they are “ready, willing and able to work,” SSA can use this fact to find that person not disabled (again because the standard is pretty much inability to perform any job at all). But, even here there are a few snags in the argument that you cannot receive both SSD and UC at the same time.

If the job a person was doing before being let go was part-time, receipt of SSD and UC at the same time may still be appropriate. If the job a person was doing prior to being laid off was a part-time job, the application for UC may technically be statement by the claimant that “I can still do the part-time job I was doing before I had to file this application.” Since, as above, SSA defines the ability to work as the ability to do so on a sustained full-time basis, it is not necessarily true that this UC claimant/recipient is barred from filing for SSD.

If the job a person was doing before being let go was a job that accommodated their disability so that they could work despite disability, receipt of SSD and UC at the same time may be appropriate. A lot of these evaluations are very fact specific (which has been my point all along), so it is not possible to be very detailed here, but SSA does not consider all work, where a disability is being accommodated to actually be “working,” which may mean that this work may not “count against” that claimant. It stands to reason, then, that a statement by a person filing for UC that “I can still do the job that accommodated my disability that I was doing before I had to file this application” is not always inconsistent with also claiming SSD.

UC benefits are almost always (maybe even always) time-limited, whereas SSD benefits are usually not. There is a huge difference between saying that a claimant cannot be found disabled by SSA if they are receiving/applying for UC, on one hand, and implying or outright saying that such a person cannot even file a claim for benefits, on the other. UC benefits usually are only paid for a certain period (during COVID these time frames have been extended repeatedly, but the point is that they always run out at some point). On the other hand, SSD will continue to pay a claimant until they reach retirement age assuming they continue to be disabled. Because of this, the insinuation (sometimes by SSA, or in other discussions of this issue) that a person cannot even apply for SSD while they are receiving UC is false. Although it may seem strange to say, an SSD claimant does not have to prove that they are going to win their case before the file it; and, because UC will run out, not only is it allowed to file the SSD claim while still receiving UC benefits, but it is also often the best decision for a claimant to file the SSD claim even if they know for certain it will be denied.

Why? Because SSD cases take a long time. Almost always at least a year, and sometimes longer. If a person waits until their UC runs out to file the SSD claim, the clock on that claim doesn’t even begin to run until they are out of money. It literally makes no sense (usually) to wait to file a legitimate SSD claim just because some UC benefits are still being paid. Instead, file the SSD claim based on your medical inability to work; if in the end a concession must be made to having received UC benefits, it is far better to do it with a Social Security judge at a hearing, who can negotiate that concession and issue a decision awarding monthly benefits.

If the claimant is older than 50 it’s rarely the case that receipt of UC is inconsistent with being found disabled by SSA. Remember the “old dog, new tricks rule”; what this means is that a person older than 50 might be able to do lots of different jobs, but still be found disabled because of the way SSD evaluates disability. Under these circumstances, there is almost never any inconsistency at all between a claimant older than 50 saying that they are “ready, willing and able to work” for the purposes of UC, but also claiming that they are “disabled” as SSA defines that term.

Again, a lot of these issues are very fact dependent, so it’s just not possible to make categorical statements; but, also again, this has been precisely my point. Do not necessarily accept the simple answer on the question of applying for UC and SSD because a significant amount of the time there is no inconsistency at all in claiming entitlement to both.

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