Can you apply for disability while on unemployment

As the jobs picture in many parts of Louisiana continues to be depressed due to COVID-19 closures and stay-at-home orders, many of my clients are filing for disability but have also applied for unemployment benefits.

In many of my hearings, my SSDI clients are being asked by judges if they have filed for unemployment benefits.

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.

Can you Collect Unemployment Benefits While Waiting for Disability? Is This a Conflict?

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 and 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.

Can you apply for Social Security disability while collecting unemployment? The Key Is Consistency

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. Call the law offices of Loyd J. Bourgeois at 985-240-9773 if you have questions about your claim.

Para ver este artículo en español por favor visite aquí. (To view this article in Spanish, visit here.)

A person is allowed to receive unemployment benefits and federal disability benefits at the same time, but as discussed below, receiving unemployment benefits could affect a person’s disability benefits in negative ways. 

If you receive Supplemental Security Income (SSI) benefits, any unemployment benefits you receive (other than the first $20) will reduce your SSI payment dollar-for-dollar. You have a duty to report income to the Social Security Administration if you are an SSI recipient. If the money received in a month is not spent before the first day of the next month, then it will count toward the $2,000 SSI resource limit ($3,000 for eligible couples).

If you receive Social Security Disability Insurance (SSDI), unemployment benefits will not affect the amount of the SSDI payment.

It is important to remember that for both SSI and SSDI, the Social Security Administration is allowed to consider a person’s unemployment benefits when deciding whether or not that person is disabled. When a person receives unemployment benefits, the person is certifying he or she is “ready, willing, and able to work.” This certification could be considered as evidence that a person is not disabled. On the other hand, a person can qualify for disability benefits even though he or she is capable of performing a certain amount of part-time work, so receiving unemployment benefits would not automatically disqualify a person from receiving disability benefits.  Because receiving unemployment benefits may negatively impact your eligibility for disability benefits, it is wise to speak to an attorney if you plan on receiving both.

When you are receiving disability benefits, the Social Security Administration will periodically conduct a review of your condition to make sure you still qualify for disability benefits. If you received unemployment benefits since the last review, that may be considered in a continuing disability review.

Finally, people living in New York who received unemployment between March 2020 and September 6, 2021 will not have that money count as income or a resource for SSI purposes. However, if you received unemployment during that time period, it could still be considered in deciding whether you are disabled. Any unemployment received after September 6, 2021 is subject to the regular pre-pandemic income and resource rules. 

Click here for our article on unemployment benefits during the Covid-19 pandemic.

(c) Legal Assistance of Western New York, Inc. ®

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

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