By Robert J. Osborne Esq.

The receipt of unemployment insurance benefits does not preclude the receipt of Social Security disability benefits.  The receipt of unemployment benefits is only one of many factors that the Social Security Administration must consider in determining whether a claimant is disabled.

Typically, when an individual applies for unemployment insurance, that person must certify that the person is “ready, willing and able” to work.  Additionally, an individual collecting unemployment insurance must make this certification each time he or she recertifies for unemployment insurance benefits.  The statement that one is “ready, willing and able” to work seems inconsistent with a claim that one is disabled, when applying for Social Security disability benefits.  However, this is not necessarily the case.

To qualify for Social Security disability benefits, an individual must lack the ability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.  In an earlier blog, I discussed the concept of substantial gainful activity.  Substantial gainful activity is work activity that is both substantial and gainful.  Substantial work activity involves doing significant physical or mental activities.

Significant activities are useful in the accomplishment of a job, and have economic value.  Substantial work can be part-time or full-time.  Your work may be substantial even if you do less, get paid less, or have less responsibility than when you worked before.  Gainful work activity involves work activity that you do for pay or profit – the kind of work a person usually does for pay or profit, even if you do not get paid or make a profit.  If your duties require use of your experience, skills, supervision and responsibilities, or contribute substantially to the operation of a business, this tends to show that you have the ability to work at the substantial gainful activity level.  Supervisory, managerial, advisory or other significant personal services that you perform as a self-employed individual may show that you are able to do substantial gainful activity.  A person who is earning more than a certain monthly amount (net of impairment-related work expenses) is ordinarily considered to be engaging in substantial gainful activity.  The monthly substantial gainful activity amount for statutorily blind individuals for 2014 is $1800.  For non-blind individuals, the monthly substantial gainful activity amount for 2014 is $1070.  This means that an individual could still work, yet not have the ability to engage in substantial gainful activity.

The Social Security Administration’s Chief Judge issued a memorandum that reinforced this concept, stating in connection with the Americans with Disabilities Act, “a person can qualify for Social Security disability benefits even though he or she remains capable of performing some work.  Similar logic applies to applications for unemployment benefits.”  Additionally, the memorandum of the Chief Judge recognized that the decision-making process for disability benefits can be lengthy, and it is often uncertain whether a person will succeed in his or her claim.  “Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.”

However, an Administrative Law Judge must consider the application for, and the collection of, unemployment benefits together with all of the medical and other evidence.  The circumstances surrounding an application for unemployment benefits may prove more revealing than the application itself.  For example, a person seeking Social Security disability benefits may still look for jobs with physical demands that are less than their alleged limitations.  A person may have done work as a construction worker and cannot do that work because of a severe medically determinable impairment.  The same person may have been “ready, willing and able” to do work less strenuous than construction, and still meet the Social Security Act’s definition of disability.  Thus, the person might still qualify for Social Security disability benefits, even if they collected unemployment benefits.