The Social Security Factor on the FERS Disability Retirement Claim

For the FERS employee, whether as a Federal, non-Postal employee, or as a Postal worker, who intends to file for Federal Disability Retirements benefits through the U.S. Office of Personnel Management, the administrative process of filing for Social Security Disability benefits (SSDI) is a bureaucratic involvement and, by some accounts from Human Resource Offices of various Federal agencies, there is the view that the Federal Retirement application cannot be process by OPM unless and until SSDI is also filed.  This is not true.

While SSDI must be filed, and a receipt of such filing shown to the U.S. Office of Personnel Management, the purpose of such filing from the standpoint of OPM is not to compare or evaluate the enhanced eligibility status of a FERS disability retirement applicant by seeing whether or not the Social Security Administration will approve or disapprove one’s claim (that would be too logical, inasmuch as there is a higher legal standard of essentially “total disability” under SSDI, and so an approval by Social Security Disability standards should then automatically invite approval by OPM) — although, under Trevan v. OPM, there is certainly a basis to invite such a legal analysis.

No; the only reason why OPM wants to see a receipt of an SSDI filing, is merely for purposes of cross-checking whether or not a monetary offset should be applied if both SSDI and FERS Disability Retirement annuities are concurrently paid.  And, even then, it is often the case that the 100% offset in the concurrent receipt of payments from an OPM Disability annuity and SSDI in the first year, and the subsequent years of 60% offset of payments, will not be applied, and OPM will come back years later demanding the refund of the overpayments resulting from the failure of OPM applying the offset.

Most Federal employees and Postal workers who file for Federal Disability Retirement benefits will continue to either work to a limited extent, or at least remain on the rolls of their Federal agency or the U.S. Postal Service during the long waiting time during the process of filing for Federal Retirement benefits from the U.S. Office of Personnel Management and, as such, there will be an automatic denial from the Social Security Administration because of income considerations for the year in question, etc.

The simplest solution to Human Resource Offices demanding and insisting that SSDI must be filed for before an OPM Disability Retirement application is processed and forwarded to Boyers, PA, is to file online, get a receipt, and be done with it. Then, if OPM requests that the applicant file again at a later date to determine if a denial from SSDI was truly based upon one’s disability (or lack thereof), or because of income considerations, then that can be done with greater effort after one has received a Medical Disability approval from OPM.

This is a world of bureaucracies, and the rules, however lacking of a rational foundation, needs to be adhered to and complied with.

Sincerely,

Robert R. McGill, Esquire

Postal and Federal Disability Retirement: The SSDI Filing Requirement

As part of the filing for Federal Disability Retirement from the U.S. Office of Personnel Management, the Federal or Postal employee who is under FERS (CSRS is exempted from this procedural requirement) must file for Social Security Disability Insurance (SSDI) benefits.

How aggressively should one file for SSDI, and when should it be filed?  The latter question will be taken up first: as a practical matter, the U.S. Office of Personnel Management does not need to see a receipt showing that one has filed for SSDI until the date of an approval of a Federal Disability Retirement application.

However, most agencies are under the mis-impression that, procedurally, it must be accomplished prior to submission of a Federal Disability Retirement application, and some agencies actually misinform Federal and Postal employees by insisting that one must receive a “decision” from the Social Security Administration prior to submitting a Federal Disability Retirement application under FERS, with OPM.  That is simply untrue.  All that OPM requires is a mere receipt showing that you filed.  This can be completed and a receipt printed out, by filing online.

As for the extent of one’s efforts in filing for SSDI?  In order to answer that, multiple questions should be asked of one’s self:  Will I be working at another job in the private sector while on FERS disability annuity?  Do I plan to make more than the low threshold ceiling of allowable earned income which Social Security allows for?  How likely will it be to qualify for the higher standard of being unable to engage in “substantial gainful activity” under SSDI rules?

These are all questions which should be asked in the course of filing for SSDI under the FERS program of applying for Federal Disability Retirement benefits.  Remember, it is the question which narrowly focuses the answer; without the former, it is unlikely that one will arrive with accuracy unto the latter.

Sincerely,

Robert R. McGill, Esquire

FERS Medical Retirement Benefits for US Government Employees: The Long-term Plan

Federal Disability Retirement is best anticipated and implemented within the larger context of a long term plan.  For, with the reduction of immediate income, replaced by an annuity which is fixed, but with a future potential to earn additional earned income in another (or even similar) vocation, it is best seen not just for the present circumstances, but as a base from which to build a greater future.

Future considerations may need to be entertained.  For example, how aggressively should Social Security Disability (SSDI) be pursued? If the Federal or Postal employee attempting to become eligible for Federal Disability Retirement benefits will not be immediately seeking to work at another, private-sector job, and there is a good chance for qualifying for SSDI, then you may want to consider seriously attempting to qualify for SSDI.

For most people, the FERS requirement of filing for SSDI is a mere formality. For those who intend upon using the immediacy of the annuity for a recuperative period in order to attend to medical needs, then perhaps a minimal effort in applying for SSDI would be appropriate.

With the recent case of Stephenson v. OPM now firmly in the “win” column, any issue about future recalculation once a Federal or Postal employee loses his or her entitlement to SSDI benefits, has now been resolved, and the Federal or Postal annuitant need not worry about the issue.  Of course, there is a wide chasm between what “the law” says, and how quickly OPM will do what they are now mandated to do.  But in the end, OPM will have to recalculate and reinstate any amounts which were offset, once a Federal or Postal employee loses his or her SSDI benefits.

Sincerely,

Robert R. McGill, Esquire

FERS/SSDI Offsets: Major Precedent-setting Case

For those FERS Disability Retirement annuitants who are/were concurrently receiving SSDI benefits, and have gone out to earn more income — there is good news.

In the past, if you exceeded the allowable income-ceiling, you would lose your SSDI benefits because you engaged in substantial gainful activity.  With no longer receiving SSDI benefits, the FERS annuitant would go to OPM and request that the Disability Retirement annuity be “recalculated”, because he/she is no longer receiving the SSDI offset amount.

In the past, OPM has consistently (and now, wrongly, it turns out) argued that, because such an individual continues to remain “entitled” to SSDI benefits (even though he/she is not receiving any such benefits), that therefore OPM is not required to recalculate the FERS disability retirement annuity upwards for the benefit of the FERS individual.

No longer.

The U.S. Court of Appeals for the Federal Circuit just issued the opinion in Stephenson v. OPM, Case #2012-3074, in which they have clearly and unequivocally stated that OPM’s interpretation of the law has been in error.  When a FERS disability retirement annuitant loses his or her SSDI benefits for engaging in substantial gainful activity, OPM must recalculate the FERS disability retirement benefit.

I argued the case in early December; the Court issued its precedent-setting opinion in just over a month.  This is indeed a major victory for FERS annuitants.  You can now take this case and wave it at OPM and demand that your Federal Disability Retirement annuity be recalculated — in your favor.

Sincerely,

Robert R. McGill, Esquire
Attorney Robert R. McGill Reviews from former clients

OPM Medical Retirement and the Interplay with SSDI

Some stream of consciousness thoughts:  First, there is still the prevailing problem of Federal or Postal workers being lead to believe that there is some sort of sequential requirement in filing for Social Security Disability benefits (SSDI) and filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management.

While the sequence of filing for SSDI would be logically coherent — i.e., since at the time of an approval of a FERS Disability Retirement Application, the Office of Personnel Management requests to see a receipt of filing from the Social Security Administration — many people in fact go this route.  But the problem arises when Federal and Postal employees somehow get the misinformation that they must wait until they receive an approval from SSDI, which can take years.

During the wait, the 1-year statute of limitations may come and go.

The solution:  Go ahead and file for SSDI, get a receipt, etc.  But never allow the 1-year Statute of Limitations to pass in filing for Federal Disability Retirement benefits with the U.S. Office of Personnel Management.  Again, for OPM purposes, all that is required is a mere showing of a receipt that you filed; no determination needs to be made and, moreover, OPM only requests to see the receipt at the time of an approval.

Second, if SSDI approves your Social Security Disability Case at any time during the process of filing for OPM disability retirement benefits, it can have a persuasive impact, but not a determinative one.  This merely means that OPM will consider it in the totality of the medical evidence you submit.  But to have a persuasive impact, you need to make the “legal” argument — i.e., you need to try and persuade.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: SSDI and the Pursuance Thereof

How aggressively one should pursue SSDI concurrently as one is preparing, formulating and filing for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, is a question which one is often confronted with during the process of filing for Federal Disability Retirement benefits.

If one is under CSRS, then the question is a moot point, because CSRS employees do not have a requirement of filing for SSDI benefits.

For FERS employees, however, who make up the vast majority of Federal and Postal employees who file for Federal Disability Retirement benefits from the U.S. Office of Personnel Management, there is a requirement of filing concurrently for Social Security Disability Insurance (SSDI) benefits.  For purposes of satisfying the requirement of OPM, one needs to only show a receipt that one has filed.  Further, while many Human Resources personnel offices, both for Federal agencies and the U.S. Postal Service (the latter being comprised of the central office known as the H.R. Shared Services Center located in Greensboro, N.C.), misinform and misinterpret the statutory requirement of filing for SSDI, by telling people either that one must file and get a decision from the Social Security Administration prior to filing for FERS Disability Retirement benefits (wrong), or that you cannot file for FERS Disability Retirement unless and until you file for SSDI (also wrong) — the fact is, the only time OPM requires a showing of having filed for SSDI is at the time of an approval of a FERS Disability Retirement application.

As for how actively or aggressively one should pursue SSDI?  That depends, in most cases, on whether you will be attempting to work in a private sector job while on Federal Disability Retirement.  Because SSDI has stringent limits on what you can make in earned income, while OPM Disability Retirement allows for you to make up to 80% of what your former position currently pays, on top of the disability retirement annuity one receives, it becomes a pragmatic calculation.

Pragmatism is the guiding light to determine one’s self-interest, and that which is in the best interest of one’s future.

Sincerely,

Robert R. McGill, Esquire

Federal Employee Medical Retirement: FERS & SSDI Offset

In preparing, formulating and filing for Federal Disability Retirement benefits under FERS, an additional component must be satisfied (CSRS is exempted):  filing for Social Security Disability benefits.  

In doing so, various factors need to be taken into account:  Whether the Federal or Postal employee intends to work at another job while receiving FERS Disability Retirement annuity; the chances of actually succeeding in applying for SSDI; and further, a future consideration — if one gets approved for SSDI and FERS Disability Retirement, but later is dropped from the Social Security annuity, will the Office of Personnel Management recalculate the FERS Disability Annuity?  

This is a question which has been appeal to the Full Board of the Merit Systems Protection Board, and thus far, the Full Board has ruled in favor of OPM, that OPM’s interpretation of the statutes, rules and laws governing SSDI/FERS Disability Retirement offset is “reasonable”, where loss of entitlement to the former does not require recalculation despite the fact that the former Federal or Postal employee no longer receives Social Security Disability benefits.  

An appeal is likely to the Federal Circuit Court of Appeals.  The bright spot is that there was a dissenting opinion by one of the Board Members.

Fortunately, most people do not qualify for SSDI, anyway, and so it does not widely impact most Federal or Postal employees who file for Federal Disability Retirement benefits under FERS.  Information and updates to follow.

Sincerely,

Robert R. McGill, Esquire