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FERS/SSDI Offsets: Major Precedent-setting Case

Posted on January 19, 2013 by Federal Disability Retirement Attorney

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

Filed under: Federal Disability Judge-Made Decisions Quoted, FERS Disability, OPM Disability & SSA Social Security Disability Benefits, OPM Disability Process - 5th Stage: Federal Circuit Court of Appeals | Tagged: accepting opm disability clients all across america, attorney representing federal employees, beware of opm's policies before appealing ssdi denial, CSRS disability retirement federal attorney, disability retirement for federal employees, disabled federal employees applying for ssdi, fdr and ssdi offset or interaction, federal disability law blog, federal disability retirement, federal offset disability annuitant, fers disability and social security disability insurance ssdi, FERS disability retirement, fers disability retirement usps attorney, fers retirement social security, law blog by top usps disability attorney, law firm representing clients in opm disability law all across america, legal counseling by leading usps disability lawyer, legal representation for injured federal workers, offset, offset between social security and opm disability, opm disability benefits offsets with other benefits, OPM disability retirement, opm disability retirement offsets, OPM First Stage Disability Application, opm social security, opm ssdi offset, opm's strange policies with former ssdi recipients, opm's unfair handling of former ssdi recipients, owcp opm fers disability lawyer, postal and social security disability, Postal disability, postal service disability retirement, representing federal employees from any us government agency, the latest information on the ssdi and opm disability offset, the opm's refusal to reinstate full opm disability retirement, the upsetting opm/ssdi offset, top fers disability lawyer for federal and usps employees, USPS disability retirement, what happens when you are you are no longer ssdi recipient | 13 Comments »

Federal Employee Medical Retirement: FERS & SSDI Offset

Posted on December 16, 2011 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits | Tagged: applying for federal disability, beware of opm's policies before appealing ssdi denial, civil service disability retirement, disability retirement for federal employees, disabled federal employees applying for ssdi, fdr and ssdi offset or interaction, Federal Disability, federal disability law blog, federal disability retirement, federal offset disability annuitant, fers disability and social security disability insurance ssdi, FERS disability retirement, fers retirement social security, if you can use social security disability in your opm disability claim, law firm representing clients in opm disability law all across america, legal representation for injured federal workers, offset between social security and opm disability, opm disability benefits offsets with other benefits, OPM disability retirement, opm disability retirement offsets, OPM First Stage Disability Application, opm social security, opm ssdi offset, opm's strange policies with former ssdi recipients, opm's unfair handling of former ssdi recipients, postal and social security disability, Postal disability, postal service disability retirement, the latest information on the ssdi and opm disability offset, the opm's refusal to reinstate full opm disability retirement, the upsetting opm/ssdi offset, USPS disability retirement, what happens when you are you are no longer ssdi recipient, what's the offset between opm disability and ssa disability?, what's the social security offset in federal disability retirement? | Leave a comment »

Medical Retirement for Federal Workers: SSDI Considerations

Posted on June 15, 2011 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits | Tagged: can federal workers file for disability?, discerning what medical documentation to submit to the opm, documentation you can used from your ssdi claim, fdr and ssdi offset or interaction, federal employees considering ssdi and ssi, fers disability and social security disability insurance ssdi, filing for ssdi and opm disability retirement, if you can use social security disability in your opm disability claim, is there any rules under fers that also apply for ssdi?, medical documentation from your ssdi claim to the office of personnel management, offset between social security and opm disability, opm denied your claim but social security, opm disability case-law rule about social security disability, opm social security, opm ssdi offset, postal and social security disability, social security disability approvals and their impact fers disability claims, social security disability award and fers, social security disability compensation for opm disability retirees, social security disability owcp, ssdi and fers disability, ssdi benefits and its implications in earning capacity, ssdi fdr offset, the ssdi requirement for disabled postal employee, using ssdi and va ratings to get your fers disability application approved, usps worker & social security disability | Leave a comment »

Early Disability Retirement for FERS Federal Workers: Social Security

Posted on July 13, 2010 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits | Tagged: accepting opm disability clients all across america, attorney representing federal workers for disability throughout the united states, can I get disability if I'm a federal employee?, CSRS disability retirement federal attorney, department of labor disability retirement, do I have to "qualify" for social security before getting any opm disability benefits?, federal disability law blog, federal disability lawyers, federal employees considering ssdi and ssi, federal employees disability retirement and ssd, federal medical retirement benefits, fers disability and social security disability insurance ssdi, FERS disability attorney, FERS medical retirement, fers retirement social security, how federal employees and postal workers are eligible for medical retirement, if I apply for csrs disability retirement do I also need to file for social security?, if the opm disability annuitant does really want ssdi, if there is any ssi or ssd insurance requirement in opm disabiliy law, is there a requirement to apply for social security disability in csrs disability?, light duty federal employees and the social security, nationwide representation of federal employees, opm disability and social security disability, OPM Disability Application, OPM disability retirement, OPM medical retirement, opm requires to file for ssdi benefits but not to get approved, opm social security, owcp disability retirement, postal and social security disability, postal employee disability retirement, postal retirement through usps ssa opm?, questions about the about the fers and social security disability ssi process, representing federal employees from any us government agency, should I apply for social security disability before even applying for opm disability?, Social Security and OPM disability relationship, social security disability compensation for opm disability retirees, social security disability for postal workers, social security disability owcp, social security filing requirement for fers not for csrs, social security issues for fers disability annuitants, ssd and opm disability, ssdi and fers disability, USPS Disability, usps disability benefits, USPS disability retirement, usps permanent limitations disability retirement, usps worker & social security disability | Leave a comment »

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

Posted on June 30, 2010 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits | Tagged: a hypothetical fers disability retirement example, am I allowed to work with fers disability retirement?, can I work after opm disability retirement?, disability retirement at the USPS, disabled federal employees: deciding to pursue social security disability, does federal disability retirement makes sense from a financial perspective?, federal disability and social security disability retirement, federal disability law blog, federal employee disability, fers and ssi, fers disability and social security disability insurance ssdi, fers disability and ssi disability, FERS disability attorney, fers disability blog, FERS disability lawyer, fers disability pension rules, fers retirement social security, financial matters in federal employee disability retirement, How much money I can make working under FERS Disability Retirement?, important financial considerations in opm disability retirement, incentive to work under fers disability retirement, medical fers retirement, money considerations for injured/disabled federal employees, money is also a concern for fers disability retirees, nationwide representation of federal employees, opm disability and social security disability, opm disability and social security eligibility, opm disability and social security income considerations, OPM disability lawyer, opm disability retirement with ssdi and employment considerations, opm social security, postal and social security disability, Social Security and OPM disability relationship, social security disability for postal workers, ss and fers disability, ssdi and fers disability, the ssa requirement in fers disability retirement, USPS disability retirement, usps worker & social security disability, what fers disability annuitants should consider before pushing for ssdi, whether it makes sense to get both opm and social security disability retirement | Leave a comment »

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

Posted on June 29, 2010 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits, Pre-Application Considerations | Tagged: a requirement a fers disability retirement applicant can't ignore, an additional danger of getting both fers and ssa disability retirement, attorney representing federal workers for disability throughout the united states, CSRS disability retirement federal attorney, danger in restoring full opm disability benefits, differences between fers and csrs disability retirement systems, disability retirement at the USPS, disabled federal employees: deciding to pursue social security disability, federal disability and social security disability retirement, federal disability law blog, federal employee disability, fers and ssi, fers and the social security income cap, FERS Disability, fers disability and social security disability insurance ssdi, fers disability and ssi disability, fers disability blog, FERS disability lawyer, fers disability pension rules, FERS disability retirement, fers disability retirement not being fully restored after giving up ssdi, fers retirement social security, how much to fight for social security disability, medical fers retirement, nationwide representation of federal employees, offset between social security and opm disability, opm disability and social security disability, opm disability and social security eligibility, opm disability and social security income considerations, OPM disability lawyer, OPM disability retirement, opm disability retirement with ssdi and employment considerations, opm not restoring full disability benefits after ssdi, opm social security, opm ssdi offset, postal and social security disability, questions about the about the fers and social security disability ssi process, reinstating full fers disability benefits after social security disability, Social Security and OPM disability relationship, social security disability for postal workers, social security issues for fers disability annuitants, ssdi and fers disability, the ssa requirement in fers disability retirement, USPS disability retirement, USPS disability retirement benefits, what fers disability annuitants should consider before pushing for ssdi, when the opm refuses to reinstate full fers disability annuity payments, whether it makes sense to get both opm and social security disability retirement | Leave a comment »

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

Posted on June 28, 2010 by Federal Disability Retirement Attorney

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

Filed under: OPM Disability & SSA Social Security Disability Benefits, Pre-Application Considerations | Tagged: accepting opm disability clients all across america, an additional danger of getting both fers and ssa disability retirement, danger in restoring full opm disability benefits, disability fers, disability retirement fers, federal disability and social security disability retirement, federal employee disability, fers, fers and the social security income cap, FERS Disability, fers disability and social security disability insurance ssdi, fers disability and substantial gainful employment 2010, FERS disability attorney, fers disability blog, fers disability pension rules, FERS disability retirement, fers disability retirement not being fully restored after giving up ssdi, FERS medical retirement, fers retirement social security, how much to fight for social security disability, law firm representing clients in opm disability law all across america, medical fers retirement, offset, offset between social security and opm disability, opm disability and social security disability, opm disability and social security eligibility, opm disability and social security income considerations, opm disability retirement and the sga limit, opm disability retirement with ssdi and employment considerations, opm not restoring full disability benefits after ssdi, opm social security, opm ssdi offset, postal and social security disability, Postal Service disability, postal service disability retirement, questions about the about the fers and social security disability ssi process, Social Security and OPM disability relationship, social security disability compensation for opm disability retirees, social security disability for postal workers, social security issues for fers disability annuitants, ssdi and fers disability, ssdi fdr offset, what fers disability annuitants should consider before pushing for ssdi, whether it makes sense to get both opm and social security disability retirement | 3 Comments »

FERS Disability Retirement: SSDI & FERS Offset

Posted on June 26, 2010 by Federal Disability Retirement Attorney

Federal and Postal Disability Retirement annuitants under FERS were required to file for SSDI as part of the process.  Most Federal and Postal employees who filed for Federal Disability Retirement benefits under FERS, never obtain an approval for SSDI.  This is natural, of course, and is part of the overall “framework” of the interaction between FERS Disability Retirement benefits and SSDI.  FERS Disability Retirement (as well as CSRS Disability Retirement) encourages Federal and Postal Workers to become employed in the private sector, and to become “productive” (translation:  continue to pay more taxes) in some other area of employment. 

Because Disability Retirement benefits under FERS or CSRS does not pay a great amount (60% of the average of one’s highest three consecutive years the first year under FERS, and 40% thereafter; a different computation methodology for CSRS employees, who are becoming rarer each year), the paradigm and plan of the Federal payment system for Disability Retirement annuitants had an implicit public policy approach of “encouraging” all such annuitants to find other employment.  Unless, of course, in addition to the FERS Disability Retirement annuity, one became entitled to SSDI payments, in which case the “cap” for income from other employment becomes much, much lower.  Many considerations should be thoughtfully approached when filing for SSDI, including plans for future employment.  Otherwise, some problems may be encountered if the annuitant receives both FERS Disability Retirement benefits, SSDI, and exceeds the cap from other employment.  More to Follow.

Sincerely,

Robert R. McGill, Esquire

Filed under: OPM Disability & SSA Social Security Disability Benefits, Pre-Application Considerations | Tagged: accepting opm disability clients all across america, are there "strings attached" on social security disability retirement?, are us postal workers entitled to ssd?, attorney representing federal workers for disability throughout the united states, disability fers, disability retirement fers, federal disability and social security disability retirement, federal employee disability, federal medical retirement, fers, FERS Disability, fers disability and social security disability insurance ssdi, FERS disability attorney, fers disability blog, FERS disability lawyer, fers disability pension rules, FERS disability retirement, FERS disability retirement SF3112-2, FERS medical retirement, fers retirement social security, how much to fight for social security disability, law firm representing clients in opm disability law all across america, medical fers retirement, nationwide representation of federal employees, offset, offset between social security and opm disability, opm disability and social security disability, opm disability and social security eligibility, opm disability and social security income considerations, opm disability retirement with ssdi and employment considerations, opm social security, opm ssdi offset, owcp disability retirement, Post Office disability, postal and social security disability, Postal Service disability, postal service disability retirement, questions about the about the fers and social security disability ssi process, salary average of one's highest three consecutive years, Social Security and OPM disability relationship, social security disability compensation for opm disability retirees, social security issues for fers disability annuitants, ssdi fdr offset, the high-3 computation for medical retirement for ill federal workers, usps disability benefits, usps fers retirement | Leave a comment »

  • More on CSRS & FERS Disability Retirement

    • eZineArticles.com Article: The 1 Year Statute of Limitations
    • Federal Disability Retirement Laws, Medical Conditions, and the Intersecting Complications with OWCP, Social Security and FERS & CSRS
    • Federal Disability Retirement: The Full Arsenal of Weapons
    • FedSmith.com Article: Revisiting "Accommodation"
    • FedSmith.com Article: Sometimes the Process is just as important as the Substance of an Argument
    • Latest PostalReporter.com Article: Causation in a Federal Disability Retirement Case
    • Understanding the Complexities of the Law
    • USPS Disability Blog: The National Reassessment Program, the Agency and the Worker
  • Other Resources for Federal and Postal Employees

    • Articles Published in the Postal Reporter
    • FAQs on OPM Disability Retirement
    • FERS Disability Attorney Profile at Lawyers.com
    • Main Website on Federal Disability Retirement
    • OPM Disability Blog
    • The Postal Service Disability Retirement Blog
  • Seven False Myths about OPM Disability Retirement

    1) I have to be totally disabled to get Postal or Federal disability retirement.
    False: You are eligible for disability retirement so long as you are unable to perform one or more of the essential elements of your job.  Thus, it is a much lower standard of disability. 

    2) My injury or illness has to be job-related.
    False: You can get disability even if your condition is not work related.  If your medical condition impacts your ability to perform any of the core elements of your job, you are eligible, regardless of how or where your condition occurred.

    3) I have to quit my federal job first to get disability.
    False: In most cases, you can apply while continuing to work at your present job, to the extent you are able.  

    4) I can't get disability if I suffer from a mental or nervous condition.
    False: If your condition affects your job performance, you can still qualify. Psychiatric conditions are treated no differently from physical conditions.

    5) Disability retirement is approved by DOL Workers Comp.
    False: It's the Office of Personnel Management (OPM) the federal agency that administers and approves disability for employees at the US Postal Service or other federal agencies.

    6) I can wait for OPM disability retirement for many years after separation.
    False: You only have one year from the date of separation from service - otherwise, you lose your right forever.

    7) If I get disability retirement, I won't be able to apply for Scheduled Award (SA).
    False: You can get a Scheduled Award under the rules of OWCP even after you get approved for OPM disability retirement.
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