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 disability retirement annuity be recalculated — in your favor.

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

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

Early Disability Retirement for FERS Federal Workers: Social Security

Just another reminder to all who are contemplating filing for Federal Disability Retirement benefits under FERS (CSRS employees are excluded from this notification, because you do not have to file for SSDI) — that filing for SSDI is not a “sequential” precondition to filing for Federal Disability Retirement benefits under FERS.  

Many Human Resources personnel are apparently telling people that SSDI must be filed prior to sending in the Federal Disability Retirement application; or that a determination must be received by the Social Security Administration prior to filing for FERS Disability Retirement benefits; or, in some cases, some have been told that an individual must actually have to qualify for SSDI benefits prior to filing for FERS Disability retirement benefits. Misinformation is both perilous and pervasive in this society.  While it is logical to file for SSDI some time during the process of preparing a Federal Disability Retirement application, the only time that the Office of Personnel Management requires the receipt from SSDI confirming that one has filed, is when the FERS Disability Retirement application is approved by OPM. And, remember, all that is required is a receipt that you filed with SSDI; no determinations are necessary.

Sincerely,

Robert R. McGill, Esquire

Federal Employees Retirement System (FERS) Disability Retirement: Further SSDI Considerations

In filing for Federal or Postal Disability Retirement under FERS, one must, of course, file for SSDI.  Whether you want to pursue SSDI aggressively or not, depends upon what one’s future plans will be.  Remember that you can make (in addition to the disability annuity paid) up to 80% of what one’s former Federal or Postal job currently pays. 

Thus, take the following hypothetical:  An individual makes $60,000.00 per year, and files for Disability Retirement under FERS.  In the first year, the individual’s annuity would be $36,000; and every year thereafter, it would be $24,000.00.  On top of that annuity amount, however, the former Federal or Postal employee could go out and become employed, and make up to $48,000.00 per year at another job, on top of the $24,000.00 in disability annuity, for a combined income of $72,000.00. 

Now, some might be critical of the fact that under the rules governing OPM Disability Retirement, one can actually make more total income — 120% — than before becoming qualified for FERS Disability Retirement.  Some have called this a “windfall”.  Instead, one should look at it this way:  it is a thoughtful paradigm, because the system encourages a person to become productive in some other capacity.  Moreover, that person further contributes to the system which he or she left, by paying Federal taxes through the “other” employment.  Incentives work, and in this case, it makes economic sense for both the Federal government and for the disabled former federal or postal employee.

Sincerely, Robert R. McGill, Esquire

FERS & CSRS Disability Retirement: Considerations Prior to Pursuing SSDI Aggressively

In filing for Federal Disability Retirement benefits under FERS, one must file for SSDI and submit proof of such filing with the Office of Personnel Management at the time of approval of the Federal Disability Retirement application.  For CSRS individuals who file for Federal Disability Retirement, no such filing is required, precisely because the framework of a CSRS retirement/disability retirement is not tied into the Social Security system. 

Remember that, under FERS, when a Federal or Postal Worker files for Federal Disability Retirement benefits, all that is necessary is to fulfill the requirement of “filing” — meaning, that a receipt must be submitted evidencing the filing of an SSDI application.  One does not need an approval or a denial — merely a receipt showing that one has fulfilled the statutory requirement of filing.  Ultimately, of course, the Office of Personnel Management is seeking to discover whether or not the Federal or Postal worker is eligible for SSDI, and if so, that an offset will be triggered.  Because of the possible offset (and the potential repercussions of OPM refusing to reinstate the full FERS Disability Retirement benefits in the event of an SSDI/FERS disability retirement annuitant having reached a status of gainful employment — see my previous blog post), one needs to take into consideration all of the factors, circumstances, future goals and future plans, before one decides to “aggressively” pursue SSDI benefits.  

Sincerely,

Robert R. McGill, Esquire

Federal Employees Retirement System (FERS) Disability Retirement: SSDI & FERS Offset (Continued…)

If a former Federal or Postal employee receives both FERS Disability Retirement annuity, as well as SSDI (with the proper offset), and finds a job, makes sufficient income to exceed the cap for SSDI — to the extent that Social Security finds that he or she is no longer “entitled” to SSDI benefits and suspends SSDI payments:  will the Office of Personnel Management recalculate the FERS Disability Retirement and reinstate the amount which was previously offset, to restore the full FERS Disability Retirement annuity?  The answer:  A number of recent cases have resulted in a “No”.  Petitions and Appeals are in the works. 

The reasoning and rationale of the Office of Personnel Management is that, because the individual is still “entitled” to SSDI benefits, but the benefits have merely been “suspended”, therefore the FERS Disability Retirement annuity is still offset by the “entitled” amount, not by what is actually received.  Pending the outcome of any Petitions for Review and Appeals to the U.S. Federal Circuit Court of Appeals, Federal and Postal Disability Retirement annuitants must be careful in deciding whether or not to actually pursue SSDI.  If one is planning to work at another job, with a reasonable expectation of exceeding Social Security’s cap for employment income, the fact that if one is restored to earning capacity, one’s FERS Disability Retirement may not be allowed to be recalculated to make up for the lost offset, should be taken into consideration.

Sincerely, Robert R. McGill, Esquire