Medical Retirement for Federal Workers: SSDI Considerations

In preparing, formulating and filing a Federal Disability Retirement application under FERS (CSRS is exempted), one must at some point — at the time of approval or anytime prior to — file for Social Security Disability Insurance benefits.  This is because, under the laws governing FERS Disability Retirement and Social Security, there is an offset of 100% between the two benefits in the first year, then a 60% offset between the two benefits every year thereafter.  

Most Federal and Postal employees who are filing for Federal Disability Retirement benefits under FERS will not qualify for Social Security Disability benefits, precisely because Social Security has a higher standard of proof in order to qualify for such benefits.  However, one must nevertheless satisfy the requirement of filing for SSDI.  

For Social Security, one must essentially prove that one is “totally disabled” from performing any and all types of employment, whereas under FERS Disability Retirement eligibility criteria, one must merely show by a preponderance of the evidence that one is no longer able to perform one or more of the essential elements of one’s particular kind of job.  

Despite the difference in eligibility criteria, there are times when a Federal or Postal employee applicant will be deemed to qualify for Social Security Disability benefits, but not for FERS Disability Retirement.  While this may seem odd, this occurs because of the independent nature of each agency.  The Office of Personnel Management makes its determination independent of the Social Security Administration. There is case-law, however, which requires the Office of Personnel Management to take into consideration a Social Security Disability approval, and thus an SSDI approval can have some persuasive impact upon a FERS Disability Retirement application.  

Further, often an SSDI denial letter will specifically state a finding that while they have determined that the Federal or Postal employee fails to qualify for SSDI benefits, they acknowledge that he or she is unable to perform the particular kind of job in which they are currently employed.  Such statements can be used for further persuasive argumentation, but should be used with discretion and care.

As with most agency statements, an argument for its use can “cut both ways”, and one must have the discretionary wisdom to use them as a shield or sword wisely.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Social Security Disability

Under the rules concerning FERS disability retirement applications, one must file for Social Security Disability.  As most people already know, there is an interaction/offset between Social Security Disability benefits and FERS disability benefits, if both are approved (100% offset in the first year of annuity, 60% offset every year thereafter).  One would assume (dangerously, as it turns out), that if an application for Social Security disability is approved, that it would automatically render an approval under FERS disability retirement a “sure” thing.  Nothing could be further from the truth. 

The fact that Social Security has a higher standard of proof — where one must be considered “totally disable” as opposed to (under the legal standards for FERS) “disabled from performing one or more of the essential elements of one’s job”) — one would think that, legally and logically, if you have met the higher legal standard of proof, then the lesser standard would have been automatically met.  Unfortunately, because the two standards are applied in different, independent agencies, the fact that Social Security Disability benefits are awarded is not a guarantee that the FERS disability retirement application will automatically be granted.  However, there is clear case-law stating that OPM must consider the approval by SSD as one factor among many in the consideration of FERS disability retirement applications.  It is important to cite such cases in support of your application for FERS disability retirement.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: OPM’s Specific Denial I

On those occasions when an OPM denial specifically (and correctly) identifies and asserts deficiencies in a disability retirement application, it is important to have a targeted response in addressing the denial.  The reason for such a targeted approach is for two primary reasons:  (1)  One should always address the alleged specific basis of OPM’s denial of a Federal disability retirement application, and (2) By specifically addressing and answering OPM’s specific basis for the denial, if the Office of Personnel Management denies the application a second time, and it is therefore appealed to the Merit Systems Protection Board, it is important to view the entire case of OPM as “unreasonable”.  In other words, it is important at the outset to “prejudice” the Administrative Judge as to the unreasonableness of the Office of Personnel Management. And there is absolutely nothing wrong with this — because the “prejudice” which the Judge may perceive is in fact based upon the truth of the matter:  OPM is indeed being unreasonable, and it is important for the Administrative Judge to see such unreasonableness.  It is important to be able to say to the Judge, Your Honor, do you see how we answered the basis of the denial — and yet, even after specifically addressing the basis of the denial, OPM still denied it?  What else can we do?  It is always important to prepare each step of the case not only for the “present” case, but also for the potential “next” case.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: SSA Approval, Part I

Of interest is what to do when a Social Security filing for disability benefits has been approved prior to the FERS/CSRS disability retirement application being approved.  This is a rarity, and indeed, it should logically be that way:  for Social Security disability requires a higher standard of (essentially) “total disability”; while the criteria for approval under FERS/CSRS is that of an “inability to perform the essential elements” of a particular job — meaning, in essence, that an individual is no longer a good fit for a particular type of job, but could certainly be productive in some other capacity of employment.

The cases at the Merit System Protection Board which have addressed this issue have been fairly consistent.  An approval in and of itself will not necessarily help a FERS/CSRS application; as with the application process itself, the applicant has the preponderance of the evidence of proving the relevance of the approved Social Security filing.  I am often asked whether, in a denial of an SSA disability application, where the decision by the Social Security Administration states that, while SSA acknowledges that the applicant is unable to perform his or her current employment because of the medical condition, yet the applicant for SSA disability benefits is denied because he or she may engage in other productive employment — whether such a statement in the denial (that SSA acknowledges the applicant’s inability to perform his or her current job) should be forwarded to OPM.  My answer is that it should not be, because it is not relevant to OPM’s criteria for making a determination.

As to the two most important questions:  1.  If a Social Security Disability application is approved, what needs to be sent to OPM, and 2. If Social Security’s determination doesn’t provide the necessary language to be relevant for forwarding to OPM, what can take its place?  As to these two questions, I will be addressing each in a blog to be written in the very near future.

Sincerely,

Robert R. McGill, Esquire

Approval of Disability by the Social Security Administration

Approval of Disability by the Social Security Administration: In Trevan v. Office of Personnel Management, 69 F.3d 520, 526-27 (Fed. Cir. 1995), the Federal Circuit Court found that in making a determination of eligibility for disability retirement under FERS, the Board must consider an award of SSA disability benefits together with medical evidence provided by the appellant to OPM, and other evidence of disability. This is because the Federal Circuit Court wanted a consistency of determinations concerning disabilities, by all governmental agencies and departments. Social Security obviously has a stricter standard, and requires that an applicant be “totally disabled” in order to award benefits. I have effectively argued that similar determinations by other governmental agencies (such as the Veterans Administration) should also be required to be considered by the Office of Personnel Management.

Sincerely, Robert R. McGill, Attorney