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.
ALJ s often decide against claimants because many ALJ s believe that in order to qualify
for unemployment, a claimant must attest that she or he is physically capable of working. ALJ s
reason that if a claimant receives unemployment, then the claimant is not credible. Claimants
describe 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 individual
remains 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
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 pay
back 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 9
th
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
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.