OPM Disability Retirement and SSDI

Welcome to Empowering Workers, Federal Employees Disability and Employment Rights and Social Security Disability for All. Hello and welcome to Empowering Workers, Federal Employees Disability and Employment Rights and Social Security Disability for All with Eric L. Pines. Eric is a nationally recognized federal employment lawyer, mediator, and attorney business coach. He represents federal employees and acts as in-house counsel for over 50,000 federal employees through his work as a federal employee labor union representative. I am your host, Kevin Rosenquist, and today's episode is about OPM Disability Retirement and SSDI. Eric, great to see you. Welcome back. Oh, it's great to see you as well, Kevin. All right. So I listed a lot of letters there. So let's start here. What exactly is OPM Disability Retirement and who qualifies for it? I have no idea. No, I'm just teasing you. I was like, oh no. Do I have the wrong questions in front of me? No, you're doing great. I just was having fun with the fact that the government loves to use letters. So let's jump into those letters immediately. OPM stands for the Office of Personal Management, which in English means the HR department for the federal government. They are the group of people who analyze whether or not you qualify for disability retirement if you're a federal employee. You have your own special disability retirement different than Social Security, which were those SSDI letters, which stand for Social Security Disability Insurance. So if you're a federal employee who was under the FERS retirement system, which stands for, a few more initials, stands for Federal Employee Retirement System. And that's most people today because the old system was CSRS and that was years and years ago, only a few stragglers in that. So if you're a FERS employee, you qualify for both the potential for both FERS disability or OPM disability or disability retirement for federal employees. Those are all the same thing. You'll see the bandied about, but they mean the same thing or for Social Security. Those are two separate programs. We're going to talk about that today, how they interplay with each other. But the main thing, the point we want to get across is that they're two separate programs and they both give you different benefits and they're both beneficial to you if you're disabled and they both have different requirements. So with that background, I'm going to spend a little time taking you through what it takes to qualify for disability retirement in the federal system. You have to have at least 18 months of federal service, meaning you have to have been employed as a full-time employee for at least 18 months. If you are not full-time, that's something that you would want to call an attorney to talk about. It's a gray area. The disability itself must be expected to last at least at last one year. And the term that the federal government uses is you must not be able to provide useful and efficient service in your position of record, which is a lighter standard. We talked about this in the last podcast. It's a lighter standard than Social Security, where you just can't really work at all, can't do gainful employment at all. But here you just can't do the position you were assigned to. And then finally, the agency must be unable to accommodate your medical conditions. You must have either requested a medical accommodation, reasonable accommodation, and the agency couldn't provide it to you because it's an undue hardship or they just wouldn't provide it. Or your doctor writes a letter or someone proves that you just can't work at all because there's obviously no need to request an accommodation if you can't get out of bed because you're not coming to work. So to make a long story short, that's how people apply for disability retirement in the federal system separate from Social Security, which interestingly, they also by law have to apply for Social Security at the same time that they're applying for disability retirement, but they do not need to get it. They just need to apply for it. And it's harder to get. So that's a good thing. Why do they need to apply for both? Just out of curiosity. Great question. Because they paid into the FERS retirement system, which means a long time ago, there was something called a civil service retirement. And they basically, it was double the pension that people have today. So you could make almost two-thirds of your salary in retirement. A while back, they pulled that back and they switched to the FERS system and cut it in half. So basically, the most you can make is around 30%, 33%. But they made that up. The government made that up when they switched to this full pension to this partial pension. They made it up with two separate things. Number one, they pay into something which is like a 401k called a TSP, and they'll match part of what you put in there. So part of that is you control the money in the TSP, which you can choose to put in or not. And then the third part is what we're going to get into, what you asked me, is Social Security. So you actually get a benefit from Social Security if you get Social Security and you're a federal employee and applying for disability retirement. So you can get both. The first year, I'll just tell you really quickly, the first year, you wouldn't make any money, interestingly, under Social Security because you're getting 60% of your pay in disability retirement. But from the second year until you turn age 62, and if you're 62 already, you don't want to apply at all because you're not eligible. But if you're under 62, let's say you're 40 years old, for the first year, they pay you 60% of your salary, your high three salary, it's called. And then after that, from the second year onward, instead of the normal 40%, which they pay you in disability, you make around an extra 20%. So you kind of keep getting that if you get Social Security in addition to this first disability retirement, opium disability retirement. It ends up making up that difference, and you end up getting that 60% ish all the way until you reach retirement. Nat Malkus Are there any common mistakes that you see applicants make that you would help them to avoid? Andrew Walker There are many common mistakes. The biggest and most obvious is missing a deadline. There's no leeway unless you're truly disabled and can prove you were incapacitated. And we do take cases like that on occasion where a doctor has to certify you were mentally incapacitated or physically incapacitated and could not apply. But let's say you do apply timely, then it's not getting proper medical evidence. One thing our firm does, which sets us apart from other people who assist with disability retirement for the most part is we actually draft a letter for your doctor. Now, we get permission from the doctor first, and we make sure we give it to them to make any changes. But they get the gist of what opium disability, I should say, the opium disability clerk is looking for. The doctor's not guessing. Plus, you don't have to pay the doctor. Doctors charge a lot of money for writing letters, and they don't know exactly what the government is looking for. There's a different standard, as we've talked about for social security, as for opium disability. So we write that letter for you. And so that's something that's really wonderful to have an attorney assist you with and make sure that opium is getting a letter that talks about all of the things we're talking about today as requirements and specifically goes to your position description and says that you cannot provide useful and efficient service based on the duties you're assigned, which is the requirement. So that's one thing, having a great physician statement or having, and let's say you can't afford an attorney and you're doing it yourself, you should try to follow my advice and put together the best letter possible that talks about Google, what is opium looking for and make sure that your physician talks to those things. Finally, I would say not requesting reasonable accommodation and just assuming that it doesn't matter. That's something that I would have to say is really, it's kind of unfixable unless you can get a doctor to say that you are truly unable to do your job at all and there's no reason for an accommodation process. Okay. It's best to first apply for an accommodation before you apply for the disability is what you're saying. Yes, it for sure is. Unless you're so disabled that accommodation won't help exactly. That it won't matter. Okay. Gotcha. Gotcha. And if an application is denied, what does the appeals process look like? So for opium disability, the appeals process is a written reconsideration, which you have to, once you get the denial, you have 30 days to send in a form that you're going to appeal. And then they give you another 30 days to actually apply. A tip is to wait to near the end of the 30 days and you get extra time because it's 30 days from the day they receive it. So then you apply with a written reconsideration. That's something my firm does as well. And if you're denied there, that also goes back to another layer of opium clerks, like a higher level. If you're denied there, then there's actual hearing in front of the Merit Assistance Protection Board, which is an administrative court. And that's a time when you really want an attorney to assist you generally. If not, you can just go to the website mspb.gov and apply yourself and appeal yourself. And then you actually have a hearing where you have to prove you're disabled to opium in front of a judge, or you really have to prove it to the judge, I should say, with opium fighting you saying that you're not disabled. So let's move on to social security disability insurance, the SSDI. Can you kind of explain that process and how it's different from opium? Of course. Social security disability is much harder to get. I've talked about it a few times in the past. But just to reiterate, opium disability is you can't do your job or your occupation, own occupation. Social security is you can't do any job pretty much. And they call that any occupation. But basically, you can't provide substantial gainful employment. You can't do substantial gainful employment. You can't make over a certain amount of money per month, which is a very low amount of money. And so it's harder to get. And you have less of an ability to put together to work with like with opium. When we apply, we have the ability to really put together a nice package with social security. You're just really generally just applying online or meeting with the people and they're, they're asking you for the information you're giving it to them. Can applicants have received both benefits at the same time? Great question. Yes. And I don't know if I talked about this in this podcast, but I know I did in the previous one, but basically you can get both. You should, you have to apply for both. If you're applying for one, I should say. And what the quick, the quick answer is yes. The first year you don't get any extra money because you're already getting 60% with federal employee disability retirement. But from that second year until you turn age 62, you'll get the next 20% to make up that difference. And you'll be making a lot more money. But like I said, it's much harder to get. At what point do you feel that federal employees should stop seeking reasonable accommodations and consider applying for disability retirement instead? That is a wonderful question. And it's really what my, my firm specializes in because many firms will assist with disability retirement. And then there's firms that do EEO cases and help with reasonable accommodation. I think one of the unique niches we found is that we'll do both. We'll help you try to get accommodation. My passion is to assist disabled employees with accommodations. But at a certain point, like you just asked, sometimes just an accommodation is just not going to cut it. So it's not an easy answer to your question because it's a case by case analysis. It depends on what your disability is. But if you were to take it as with a legal answer, you would say, it's either that you request an accommodation that the agency cannot do because it's an undue hardship on them. And that's a term of art, but it basically means it's either too expensive or it's too, like you want to work at home five days a week and the agency needs you there at least one day a week to meet with a supervisor, something that just can't be done. So the courts have, they're the ones who make that decision. But like I said, the best way to answer that question is that it's a case by case basis, but sort of, you know it when you see it, when you just ran out of options or you've asked for an accommodation and it's just either not working, it's not effective, which is a term that's also used, or it's an undue hardship on the agency. Okay. When it's an undue hardship on the agency, is that pretty much like, I don't want to say guarantee because there are no guarantees, but if you try to make a reasonable request and they're like, yeah, we just cannot do this. Will they try to move you into a different place, into a different role, into a different department where they might work? Or will they just, do you just start the process of disability at that time? That, I'm sorry, I keep complimenting, but I have to, that really is a good question because that's the essence. Eric, I will take compliments all day. All right. Well, I'll dish them out then. That's the essence of really what is done because there's something called the accommodation of last resort. So if you can't be accommodated in your position, the government is supposed to look for another position within your commuting area that you can qualify for and can do. Now, rarely do they find something, but technically they're supposed to and they should do the search. The point is that when sometimes it becomes a battle where you really want to, it really, it's, I think the best way to take this as an attorney who's helping someone is I always ask the client, we charge for our case reviews actually, because we really do an intense review. We want to spend an hour reviewing documents, an hour giving you advice. And many times we tell people not to hire us. We just say, let us just give you advice to do this yourself so you can save money. But sometimes we do tell them to hire us. And that's in a case where we're saying that like, look, someone needs to really help you with your accommodation request because someone really needs to know the nuances of whether or not it's an undue hardship based on previous cases, based on the facts and based on dealing with your specific situation. So your question earlier was whether they should, they're required to look for a reasonable accommodation of another position. So the government calls that, or I should say, the law calls that the accommodation of last resort. The answer is yes. They're supposed to look for that. Unless you're so disabled, like I said, you can't get out of bed or something like that. That's obviously a waste of everybody's time. So the answer is yes. They do need to look, but I've practically, they rarely find it. So you have two choices at that point. And that's why I was pulling everything back together. Why it's helpful to have a firm is at that point, you should tell the attorney either I want to keep working. Can you help me fight it? And I want to file accommodation. I want you to be there. I want you to file a discrimination case for failure to accommodate if they don't, or you should tell the attorney, you know what? I give up. Let me just try to get disability. And then there are certain things an attorney can do to try and increase your chances. There's certain ways that OPM, if you're removed for medical reasons or something like that, or having an attorney advise you to set up your case for the perfect disability retirement situation and increase your chances of getting disability. You said that they're supposed to, and they do try to find other accommodations or another position within a commute, but rarely happens. Is it because they don't try very hard or because if you can't do one job, the chances are you can't do another? It's kind of a case by case answer. And I have mixed feelings. Let me give you a negative take and a positive take. The negative take is that people who request accommodations and keep asking for things become a hassle for agencies. And while it shouldn't be that way, and this is what the people get paid to do, this is their job. Sometimes they just want to get rid of the person because it's just a hassle to deal with their requests. Now let's hope that's not the case, but I do feel that is the case many times. On a more positive take, I would say it could just be that there is no position available. And actually right now, there are not that many positions, if any, available because as we know, I don't know when you're going to be watching this video, but we are in the time period right now where President Trump and Elon Musk are cutting positions right and left, firing probationary employees, and really trying to winnow down the federal government workforce. So they have legitimate arguments now that there are no positions to put you in. Yeah, it's definitely interesting times right now for that stuff, for sure. All right, well, thanks for tuning in to Empowering Workers, Federal Employees, Disability and Employment Rights, and Social Security Disability for All with Eric L. Pines. To connect with Eric, head to pinesfederal.com. And please like and subscribe to our channel and leave us a review. Eric, always great seeing you. Thanks so much for all the insight. Thanks so much, Kevin. Take care.