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

As we were discussing previously in Part I of this blog , one must be very careful about applying for unemployment benefits as it can be construed as inconsistent with an application for Social Security disability insurance (SSDI) benefits.  This assumption, as we will discuss, does not apply in every case.  

First and foremost, it’s important to remember that the Social Security Rules call for a sequential evaluation process as to whether one remains disabled from all forms of gainful employment.  Assuming an individual does not meet a Social Security Listing of Impairment, which would call for an automatic determination that one is medically eligible for benefits, one needs to undertake an analysis as to first (in step 4 of the process) they are capable of returning to any jobs they’ve performed in the 15 years prior to becoming disable and, if not, whether they remain capable of performing jobs that exist in significant numbers in the regional or national economy.  As part of that analysis, it’s important to understand that the Social Security rules include what are called Medical Vocational Grid Rules which provide that for those who are of more advanced age (and, more specifically, 50 and older), the ability to transfer to other positions when one has performed labor-intensive positions all of their life becomes much more difficult (and specifically in cases where one has not acquired skills that would allow them to transfer to a position that involves less exertion.  Thus, for example, an individual who is 50 years old or older, with a high school education, and who has become disabled from a physical impairment that does not allow them to work anymore as a pipe fitter or construction worker, and is now limited to sedentary types of work (sit down, primarily), the Grid rules would call for them to be found “disabled” under Social Security’s disability rules.    This does not mean the individual could not be looking for a sedentary type of position, such as a parking garage attendant even though the Social Security rules would call for a finding that he is “disabled” from working as he would not be expected to find such a job.  In this type of circumstance, we would advise our clients that there is nothing inconsistent with receiving both an SSDI benefit along with an unemployment check.

Likewise, there are circumstances where an individual may be looking for a particular type of job that they believe that they could do, with accommodations that would allow them to perform the job at a substantial gainful level.  For example, they might be looking for a job that allows them ready access to a bathroom that would accommodate bowel issues associated with their Crohn’s or Colitis condition or they might be looking for a job that would allow them the ability to shift positions at will from sitting, standing and walking or might be sufficiently accommodating so as to allow the individual to leave early or call out because of their condition.  At some point in time, however, if one is claiming in their disability application that their schedule is so inconsistent that they could not be counted on to show up on any regular basis, it becomes obvious that the claimant remains incapable of showing up for gainful employment (and becomes “unavailable for gainful employment”).  At such a point, we advise our clients to call a spade a spade as, if you do need make a claim for long term disability benefits in the form of SSDI, the failure to be upfront with either the Department of Labor or the Social Security Administration can prove fatal for your claim.

If you or a loved one is faced with making such important decisions as to whether to file for SSDI benefits and/or unemployment benefits, you would be well advised to get such advice prior to initiating a claim for either.  We are happy to speak with you and welcome you to call the Law Offices of Russell J. Goldsmith at 1-800-773-8622 or to contact us on line.


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