Federal Disability Retirement: Doctors and the Peculiarities of Treatment

Efficacy of treatment is the goal for a doctor; and upon information that such efficacy has failed to render improvement or incremental signs of progress, many doctors lose interest, or become suspicious.

Social Security Disability, of course, requires a higher standard of proof — one of essentially “total disability”, where one is no longer able to engage in “substantially gainful activity” — and, as such, is an implicit admission of medical failure.

FERS & CSRS Disability Retirement, however, is merely an acknowledgement that there are certain medical conditions which, limited in their scope and impact, prevent a person from performing one or more of the essential elements of a particular kind of job.  Such a person who goes out on Federal Disability Retirement benefits can still remain productive in the work-world, by pursuing another, different kind of vocation.

As such, from a medical point of view, conveying the distinction between the two is like the difference between identifying a hill as opposed to a mountain:  both may have some elevation, but the extent and scope between the two goes well beyond a linguistic peculiarity.

Sincerely,

Robert R. McGill, Esquire

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

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

Disability Retirement for Federal Government Employees: FERS & SSDI Filing

At some point in the process of filing for Federal Disability Retirement benefits under FERS (CSRS is exempted from this particular aspect), the Federal or Postal employee must file for Social Security Disability Insurance (SSDI) benefits.  FERS employees are under the Social Security System, and the reason behind the requirement of filing is to see whether or not the Federal or Postal employee will concurrently be eligible for Social Security Disability benefits.  

Most Federal and Postal employees are not eligible for Social Security Disability benefits, because the higher standard of “total disability” does not apply to the Federal or Postal employee who is filing under FERS, which has a lower standard of being unable to, because of a medical condition, perform one or more of the essential elements of one’s job.  

The requirement to file for SSDI under FERS is one which must be satisfied at or prior to the time of an approval by the Office of Personnel Management.  It is not, as many Human Resources Departments of various agencies will erroneously inform you, a precondition to filing for FERS Disability Retirement benefits. The only requirement which must be satisfied is that, at or prior to the time of an approval of a Federal Disability Retirement application issued by the Office of Personnel Management, a receipt showing that one has filed for SSDI benefits must be presented to OPM before OPM will process the approved Federal Disability Retirement benefits under FERS.  This is to ensure that, prior to payments being issued, it has been determined that no offsets with SSDI will be necessary.  

Again, at or time of the approval of a Federal Disability Retirement claim, is the requirement of presenting a receipt showing that a Federal or Postal employee has filed for Social Security Disability benefits.  It is NOT a precondition of filing for Federal Disability Retirement benefits with the Office of Personnel Management.  It does NOT have to be done sequentially — and this is where Agencies misinform Federal and Postal employees.  One does not have to file for, let alone get approved for, Social Security Disability benefits prior to filing for FERS disability retirement.  I don’t know how much clearer I can state this fact.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: The Entirety of the Process

There is a common understanding, based upon comments and statements made by people over several years, that when an individual files for Social Security Disability benefits, most such cases are denied at the initial stage.  It is almost understood as an “automatic” denial at the first stage of the process. 

Whether this is true or not or, more importantly, whether or not there are some who get it approved at the initial application stage and therefore betray the truth of such a belief, is besides the point.  What is important is the perception that it is so, and therefore, the approach which individuals take in filing for Social Security Disability benefits is altered and adapted accordingly. 

Similarly, in preparing, formulating and filing for Federal Disability Retirement benefits under FERS or CSRS, whether or not most cases get approved at the Initial Stage of the Process, or at the Second, Reconsideration Stage of the process, is ultimately besides the point.  It is important to understand and approach the entirety of the administrative process with a proper frame of mind:  a denial at the Initial Stage of the process of filing for Federal Disability Retirement benefits under FERS or CSRS is not the end of the process; rather, it is just the beginning. 

By approaching the entirety of the process with a correct frame of mind — and reference — one can maintain one’s sanity while waiting for the conclusion of the long and arduous process to unfold.

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