Most Texans with a social security disability claim are in a world of financial hurt.  Many had been the primary if not sole family income source, or at the least a vital income for the family unit.  Many turn to unemployment benefits, but how does drawing unemployment benefits effect  a claim for Social Security disability benefits in Texas?

To qualify for unemployment benefits in the state of Texas one must make the following sworn statements:

  • You able to work
  • You are available for work
  • You will search for work
  • You will register for a work search

Yet when you file for social security disability you are swearing that you are unable to do full-time work of any kind.  So the Texas resident who files a claim for both unemployment benefits and social security disability benefits has made two contradictory statemements.  She has told the social security administration that she is unable to work, yet told the State of Texas she is in fact able to work.  So is the unemployment benefit and disability benefit application going to lose their disability case?  Will they have to pay the government back if they are found collecting both disability and unemployment?  In fact,  will they prosecuted for “lying “to the government?

Let’s take the most troubling implications.  No, filing for disability and unemployment will not result in any legal action for “lying” to the government.  Moreover, the fact that a disability claimant is drawing unemployment will not automatically result in a disability denial.

A memorandum by Chief Administrative Law Judge Frank Cristuadswas issued on May 19, 2010, to direct Administrative Law Judges on this issue:

… the receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether a claimant is disabled.

….

Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence.

A second memo was issued on August 9, 2010 on how Social Security should treat applications for individuals receiving unemployment benefits.

This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).

In considering claims of individuals who have applied for unemployment benefits, Administrative Law Judges (ALJs) should be mindful of the principles discussed in Social Security Ruling 00-1c, which incorporates Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under the ADA. The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work. Similar logic applies to applications for unemployment benefits.

In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.

However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the benefits. For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALl should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.

Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment.

In my 25 years of expeirence handling only social security disability cases in Dallas Fort Worth and Texas, I have seen the following:

  • Every judge will ask the claimant about the inconsistency, some in sympathetic tones other a bit accusatory.  Be prepared to answer the question.
  • I have seen Judges react badly when an individual is claiming unemployment benefits and Social Security disability at the same time  In some cases I have felt the ALJ may have decided to deny the claimant based upon that fact.
  • In unfavorable decisions ALJ will never say that drawing or seekiing unemployment is the reason they are denying the claim, but this fact may be cited as one of several reasons the ALJ does not find the claimant “credible”.
  • Many ALJs seem unconcerned about the unemployment benefits and make no mention of them in their decision.
  • Some  ALJs will issue a favorable decision but only for the period of time after the unemployment benefits stopped.