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Can I collect disability and unemployment?

Flushing, NY |

Hi all, I have a question. I work for a restaurant and am currently pregnant.

I will be filling for disabilit benefits next week due to my pregnancy but also found out that the restaurant will be closing down. Will I be able to apply for social security if I am already on disability when they close the restaurant down? What is the actual process here?

Thanks so much


sorry I meant will I be able to collect unemployment(not social security) if I am already on disability

Attorney Answers 4

  1. When your doctor clears you to return to work, if the restaurant is closed, you can then apply for unemployment. But the number of weeks you were disabled will be subtracted from the total number of weeks you can collect unemployment.

  2. Unfortunately, one of the criteria to qualify for UI is that you are "ready, willing and able" to work; however, a criteria for receipt of disability benefits is that you are unable to work, so there is an unresolvable conflict and I do not think there is any exception that would allow you to have both benefits. I'm sorry.

    Ms. Brown may be reached at 718-878-6886 during regular business hours, or anytime by email at: All of Ms. Brown’s responses to questions posted on AVVO are intended as general information based upon the facts stated in the question, and are provided for educational purposes of the public, not any specific individual, and her response to the question above is not legal advice and it does not create an attorney-client relationship. Ms. Brown is licensed to practice law in New York. If you would like to obtain specific legal advice about this issue, you must contact an attorney who is licensed to practice law in your state.

  3. To simultaneously receive both unemployment and disability benefits can be construed as a form of fraud and can carry stiff penalties with it.

  4. 1) There may be a state program under which one may receive disability benefits while pregnant, but there is no federal Social Security Disability (SSD) for conditions lasting less than 12 months or not expected to result in death.

    2) If we were speaking about SSD and unemployment insurance benefits, then I respectfully must disagree with my colleagues. Social Security has an official policy that collecting both types of benefits is not necessarily contradictory, but merely one factor to consider in the totality of circumstances of a disability determination.

    Date: August 9, 2010 Refer To: 10-1258
    To: All Administrative Law Judges
    From: Frank A. Cristaudo, Chief Administrative Law Judge
    Subject: Receipt of Unemployment Insurance Benefits by Claimant Applying for Disability Benefits - REMINDER

    This is a reminder of the policy concerning receipt of unemployment insurance benefits. Receipt of unemployment benefits does not preclude the receipt of Social Security disability benefits. The receipt of unemployment benefits is only one of many factors that must be considered in determining whether the claimant is disabled. See 20 CFR 404.1512(b) and 416.912(b).
    In considering claims of individuals who have applied for unemployment benefits, Administrative Law Judges (ALJs) should be mindful of the principles discussed in Social Security Ruling 00-1c, which incorporates Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999). In that case, the Supreme Court held, in a unanimous decision, that a claim for Social Security disability benefits is often consistent with a claim for relief under the Americans with Disabilities Act (ADA) even though there must be an ability to work in order to obtain relief under the ADA. The Court noted that, under the presumptions embodied in our five-step sequential evaluation process, 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.
    In addition, it is often uncertain whether we will find a person who applies for unemployment benefits ultimately to be disabled under our rules, and our decision making process can be quite lengthy. Therefore, it is SSA’s position that individuals need not choose between applying for unemployment insurance and Social Security disability benefits.
    However, application for unemployment benefits is evidence that the ALJ must consider together with all of the medical and other evidence. Often, the underlying circumstances will be of greater relevance than the mere application for and receipt of the benefits. For instance, the fact that a person has, during his or her alleged period of disability, sought employment at jobs with physical demands in excess of the person’s alleged limitations would be a relevant factor that an ALl should take into account, particularly if the ALJ inquired about an explanation for this apparent inconsistency.
    Accordingly, ALJs should look at the totality of the circumstances in determining the significance of the application for unemployment benefits and related efforts to obtain employment.

    So, applying for, or receiving, unemployment benefits does not prevent one from getting Social Security, but it is a factor Social Security considers in deciding one's case. In some states, claimants risk future recovery efforts by the state if they claim unemployment benefits during a period where they are later adjudicated to be disabled, however this does not rise to the level of fraud but is more properly characterized as an overpayment.

    Disclaimer Information on this site is provided by Brian Scott Wayson as general information, not legal advice, and use of this information does not establish an attorney-client relationship. If you have questions about your specific situation, please call an attorney.

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