In recent months, the country has seen historic job loss amid a raging pandemic, threatening the economic security of working-class Americans in ways not seen since the Great Depression. For some, losing a job is just the beginning — and calling a Social Security Disability attorney may be higher on the to-do list than expected.
Most Have It Bad; Some Have It Worse
Americans who already live with chronic, progressive conditions — lupus, multiple sclerosis, and diabetic neuropathy, to name a few — may find themselves out of a job today and worse off medically tomorrow, without steady access to health insurance, check-ups, and prescriptions. So it's not uncommon to lose a job and eventually apply for both Unemployment Insurance and Social Security Disability.
Receiving Unemployment Insurance does not reduce Social Security retirement or disability benefits. But what are the pitfalls of having received unemployment before the Social Security Administration decides whether you're eligible for disability?
SSDI and Its Relationship With Unemployment
For context, the Social Security Disability process is a long, winding road. With few exceptions, most claimants don't get a favorable decision without waiting roughly two years for a hearing before a U.S. Administrative Law Judge (ALJ). Even then, according to Social Security's own statistics, only about 45% of claimants succeed — a number that is considerably higher with a skilled attorney at your side.
At a hearing, an experienced attorney knows how to shape the presentation of hundreds or thousands of pages of medical evidence alongside sworn testimony about how the claimant's conditions interfere with daily life and prevent "substantial gainful activity" — a legal term of art under the Social Security Act. At bottom, "substantial gainful activity" means work, and a judge will want to weigh all the evidence before deciding whether a claimant can sustain an eight-hour day, five days a week, in a competitive workplace.
Any income earned while a disability claim is pending is carefully scrutinized by the ALJ. For that reason, a quarterly itemization of all taxed income during the claim — W-2 employment, self-employment, third-party insurance proceeds, or unemployment benefits — is automatically associated with your Social Security "exhibit file."
The Apparent Conflict — and Why It's Reconcilable
With unemployment in particular, an apparent conflict arises: the person with a pending disability application has told Social Security they cannot work, but has told their state Department of Labor they can work and are conducting a diligent job search. On its face, that seems irreconcilable — but Unemployment Insurance and Social Security Disability define "work" quite differently and serve distinct functions.
To remind ALJs that the ability to perform "accommodated work" is not a proper basis to deny benefits, the agency's former Chief ALJ issued a 2006 Memorandum making clear that a person can obtain Social Security Disability while also obtaining relief under the Americans with Disabilities Act (ADA) — which, like unemployment, presumes the ability to perform some type of work. That memorandum reinforced Social Security's longstanding policy on "substantial gainful activity" and affirmed Supreme Court precedent (SSR 00-1c; Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999)).
Even so, it's easy to see how an individual ALJ might view receipt of both benefits as a contradictory "double dip." And even where an ALJ assesses the issue fairly, it can legitimately damage a claim as part of a larger credibility analysis (Roberts v. Astrue, D. Mass. 2011). This is exactly the kind of issue that needs careful navigation.