Should I Apply for Unemployment Benefits if I am Applying or Have Applied for SSDI Benefits, Part I

What can be one of the most difficult questions we can be asked is whether one should apply for unemployment benefits, both in the context of when one has already applied for Social Security Disability Insurance (SSDI) benefits or when one is considering an application for SSDI benefits.  The answer is very fact specific and we’ll attempt to provide you with some guidance that will hopefully allow you to answer such a questions.  

When one is applying for SSDI benefits, it’s important to recognize that one is saying that they remain totally disabled from all forms of gainful employment and either have been so disabled or are likely to remain so disabled for a year or longer.  Applying for unemployment benefits requires one to fill out an application with the Department of Labor that states one is “available for gainful employment,” and such application for continuing benefits requires continued assertion of this statement.  At the point in time an individual states to the Department of Labor that they remain “disabled” from gainful employment then the Department of Labor will discontinue benefits.

First and foremost, it’s important to remember that SSDI benefits do not pay for the first five (5) full months one is disabled from working.  Thus, applying shortly after going out of work is ordinarily not recommended unless there is the need and potential entitlement to SSI (Supplemental Security Income) benefits, as these benefits are payable the month after one files their SSI application assuming, again, they will remain disabled for what has been or is likely to be a year or longer.  The question many times then becomes: should I be applying for unemployment benefits in the meantime, as otherwise, what am I going to do for an income?

Ultimately, an application for both SSDI and unemployment benefits can result down the road with a Social Security Administrative Law Judge (ALJ) looking at a record of your unemployment benefits with the question to you as to how you could come to the Social Security Administration (SSA) and argue that they could remain totally disabled from gainful employment and yet say each month to another agency that you are “available for gainful employment.” I’ve had the circumstance where the chief ALJ at the time at the Boston, MA Office of Disability Adjudication and Review spent a good 15 minutes asking my client how they could be making both, seemingly contradictory, statements to two different agencies.  I can tell you that the answer, “well, I didn’t know what I would do for an income.”   The response one can expect in return is for the ALJ to respond: if you’re willing to be dishonest with one agency in order to get a check for benefits, how do I do know you’re not being dishonest with this agency in order to get a check?     Thus, one must take a hard look at this issue before considering an application for SSDI benefits.  In part II, we’ll delve further into how the two statements may not be considered contradictory depending on one’s particular set of circumstances.