Category Archives: FERS Disability

Federal Employees Retirement System (FERS) & Social Security Disability Insurance (SSDI)

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I have received numerous telephone calls which indicate that there are many people who are confused, misinformed, or ill-informed about the issue of Social Security disability, filing for it, when to file for it, etc., in conjunction with filing for Federal Disability Retirement benefits under FERS (obviously, if you are under CSRS, you do not need to file for it).  For informational purposes, here is the bottom line:  Whether or not you plan to actually qualify for Social Security disability benefits, the only concern with respect to meeting the requirement for the Office of Personnel Management, as part of the FERS disability retirement application, is as follows:  OPM really doesn’t care when you file, so long as you have filed and show a receipt on or before the day they approve your disability retirement application.

Thus, many people will tell me that they were “informed” by their Human Resources personnel that they must file with Social Security first before they can file for OPM disability retirement under FERS (not true); or, that they must have a decision by Social Security before they can file under FERS (even more untrue); or, that OPM will not even look at a federal disability retirement application unless you have first filed with Social Security (again, untrue).  The bottom line:  Yes, you must file for Social Security, but OPM doesn’t need to see a receipt showing that you filed, until the day they approve your OPM disability retirement application.  So, sometime before the Federal Disability Retirement application gets to OPM, or, in those cases where one has procrastinated for too long, even after the application gets to OPM, you need to file for Social Security disability benefits, and have a receipt ready to show OPM.

Sincerely,

Robert R. McGill, Esquire

Federal Disability Retirement: FERS & SSDI

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Of course one must file for SSDI (Social Security Disability benefits) when a Federal or Postal employee under FERS (the Federal Employees Retirement Systems, as opposed to CSRS, the Civil Service Retirement System) files for Federal Disability Retirement benefits.  If approved by Social Security, there is a 100% offset of benefits in the first year, and a 60% offset of benefits every year thereafter until age 62.

The real underlying question for most people, is how aggressively one should, or one wants to, pursue Social Security benefits.  This is often determined by what one plans to do after becoming a Federal Disability Retirement annuitant.  For, if you plan to work part or full time, and think that you will be earning more than the yearly ceiling allowable under SSDI, which is around $12,000.00 per year, then it is probably not worthwhile to pursue it very aggressively.  On the other hand, if you plan on relying exclusively on your disability annuity, it is probably a good idea to pursue it with the intent of obtaining it.

Sincerely,

Robert R. McGill, Esquire

CSRS & FERS Disability Retirement: Agency Interaction

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Federal Agencies often act like little fiefdoms.  This is not necessarily a negative thing; each agency is an independent entity, and each has a province of responsibilities which it must carry out and execute according to the statutory mandate provided by Congress.  As independent entities, each agency acts without coordination or regard to other agencies.

Thus, while approval for disability benefits from the Social Security Administration will mean an offset of monetary payments under FERS, such interaction between the two agencies simply goes to the financial payments — not to the substantive issues of approval or disapproval of a disability retirement claim.

Similarly, while receipt of temporary total disability payments from the Office of Worker’s Compensation Programs means that you cannot concurrently receive payments under CSRS or FERS disability retirement (unless you are receiving a scheduled award from OWCP/DOL), the substantive basis of approval or denial of a claim rarely overlaps.  This is because each agency has its own independent criteria for eligibility — meaning that, for Social Security, the “disability” has a higher standard of “total disability”, whereas under FERS & CSRS, it is a lower standard of “inability to perform one or more of the essential elements of one’s job”.  Similarly, with OWCP/DOL, the issue of “causality” and whether it is “work-related” is often the important component of consideration.

All of this is not to say, however, that an approval of a disability benefit from one agency,or a report from a doctor considered for one benefit, should not be used by the applicant for submission to another agency.  Indeed, this should be done — but carefully, and with thoughtfulness.

Sincerely,

Robert R. McGill, Esquire

OPM Disability Retirement: Social Security Disability

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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

Federal/OPM disability retirement: Filing for SSA

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I keep getting the same feedback that tells me that people are still receiving erroneous information: SSA disability benefits do NOT have to be applied for first before you file for OPM Disability retirement benefits.  In fact, the Office of Personnel Management only needs the receipt showing that a disability retirement annuitant filed for SSA disability benefits at the time of approval.

Further, OPM would actually prefer that the SSA denial was based upon reasons other than the fact that the Applicant is still working, because the coordinating off-set between SSA & FERS disability benefits would come into play; however, if an applicant files for SSA benefits & files for disability retirement benefits while still working (and, for most individuals, it is an economic necessity that one continue to work for as long as possible during the process of obtaining disability retirement benefits), then that individual will summarily be denied by the Social Security Administration based not on the medical disability claimed, but rather, upon the fact that the applicant’s current income exceeds the maximum allowed by the Social Security Administration rules governing income and eligibility for benefits based upon income.

Thus, for the 50th time: a FERS disability retirement applicant does NOT need to file for SSA disability benefits before filing for OPM disability retirement benefits. At some point in the process, prior to, or at the time of approval by OPM, the individual should file, obtain a receipt of filing, and fax it to OPM.

I hope this clarifies the issue.

Sincerely,

Robert R. McGill, Esquire

FERS Disability Retirement & SSA Awards

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When filing for FERS Disability Retirement, one is required to file for SSA Disability at some point in the process.  Some Human Resource offices have declared that it must be filed prior to OPM’s acceptance of a Federal Disability Retirement application; this is not true.  A receipt showing that SSA has been filed can be forwarded to OPM at any time — even after approval.

In the unlikely event that the SSA filing is approved prior to the FERS Disability Retirement being approved, it is important for the applicant to send to OPM a copy of the award notice, because under Trevan v. OPM, the Office of Personnel Management is required to consider the award of SSA Disability, together with other medical documentation, in reviewing a Federal Disability Retirement application.

There are other steps that need to be taken, of course, to ensure that OPM considers such an SSA Award properly and in accordance with the holding in Trevan; and, in most cases, of course, it will not be an issue, because the majority of FERS Disability Retirement applicants will not qualify for SSA Disability; rather, it is a formality that must be satisfied, simply because the law requires it.

Sincerely,

Robert R. McGill
OPM Disability Benefits Attorney

 

Approval of Disability by the Social Security Administration

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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