Sometimes a Social Security Administrative Law Judge ("ALJ"), especially any one of the five from the Queens ODAR who apparently are currently in Washington DC for retraining in connection with the bias class action law suit, likes to deny disability benefits for any period of time during which a claimant received unemployment benefits. The ALJs argue 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, which shows they are not entitled to Social Security Disability (“SSD”) Benefits. That argument fails as both a factual and legal matter.
I represent a 53 year old former business operation manager with lymphangioleiomyomatosis who retained me after her application for SSD benefits was denied. Her application was approved today based on the favorable on the record decision request that I filed. The decision writer said that it would not hold the receipt of unemployment benefits against the claimant because of the benevolent nature of the Social Security laws and their policy of encouraging people to try to work despite their impairments. Hopefully, the Queens Five will be reminded about that rationale during their retraining.
While the decision writer explained why the receipt of unemployment benefits should not be held against an SSD claimant, there is another reason why the receipt cannot be held against a claimant. The Social Security laws provide that 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, a claimant could be ready, willing and able to work on a part time basis, but the impairment may preclude full time substantial gainful activity. In other words, a claimant can look for part-time work and receive unemployment compensation benefits while still retaining eligibility for Social Security benefits.