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If I receive unemployment, can I still file for disability?

I was denied social security disability because the judge said that I received unemployment. I didn’t have any choice other than to starve or live on the street if I didn’t get unemployment, but I was disabled with two herniated discs in my back and I am on oxygen for COPD. How can the Judge do that?

Although Social Security officially says that receiving unemployment benefits does not preclude disability benefits, most Administrative Law Judges tend to consider filing for unemployment as an admission that you can work.

Think of it this way: some Social Security Judges will say that you told the State of Alabama that you were ready, willing and able to work in order to receive unemployment compensation, and at the same time, you told the Federal Government that you were unable to work due to your physical disability. The Judges will ask the question to a claimant, “Which time were you telling the truth?” I think this is a totally unfair question but judges ask it. Many people honestly believe they will be able to return to work but soon discover they are just not able to do so. I can appreciate and understand that many Social Security Disability claimants have to turn to any resources available during the 12 to 18 month wait for a hearing.

Obviously, a person who makes the representation that they are ready, willing and able to work to get unemployment compensation creates a problem for their disability claim. Social Security Judges will consider receipt of unemployment benefits as evidence but some judges will not consider this an automatic denial because under Social Security Ruling 00-1c, the application for unemployment benefits does not automatically mean that a claimant loses their case.

Consider the Risk

At Nelson, Bryan & Jones, we advise against clients against collecting unemployment benefits when applying for Social Security disability. I inform all disability claimants who are considering accepting unemployment benefits that they need to consider the potential pitfalls of taking unemployment benefits while waiting through the disability process.

In any case, if you are approved for disability benefits, a person must call the unemployment department and ask them to stop unemployment benefits.  To protect yourself and make the best decision for your situation, it makes sense to talk to a disability lawyer about whether to file for both disability and unemployment benefits, and how to manage the timing of both filings.

At Nelson, Bryan & Jones, we have represented over 6000 clients at Social Security hearings.  Please give us a call if you would like to talk to an attorney about Social Security or other legal issues.

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