A common practice among many a Social Security Administrative Law Judge ("ALJ") is to deny disability benefits for any period of time during which the claimant received unemployment benefits. The traditional argument is that when a claimant goes to the unemployment office to receive a benefit check he or she signs a written statement certifying that he or she is ready, willing and able to work. That argument fails as both a factual and legal matter.
I just received a fully favorable decision today even though the claimant testified that he had received unemployment benefits after the date when he alleged he became disabled. Upon hearing that testimony that ALJ stated that she assumed I would amend the onset date to reflect the receipt of unemployment benefits. I contended that there was no reason to do so because the claimant testified that he applied over the telephone for the unemployment benefits, and was not advised, nor was aware, that he was certifying that he was ready, willing and able to work. I also told the ALJ that I would submit a post-hearing memorandum to address the legal merits of my position.
The memorandum explained that under the Social Security laws a claimant is disabled when unable to work on a “regular and continuing” basis, which means 8 hours a day, 5 days a week. However, under New York State law, a claimant can receive unemployment benefits even if capable of working only part-time. Therefore, even if my client were ready, willing and able to work on a part time basis, his impairment would not allow him to work full-time. In other words, a claimant can look for part-time work and receive unemployment compensation benefits while still retaining eligibility for Social Security benefits.
Rather than being pressured to relinquish the right to receive disability benefits during the time when unemployment benefits were received, a claimant should appeal the late onset date. There are countless Appeals Council decisions remanding this issue to the ALJ for reconsideration.