Social Security Disability and Total Disability due to Individual Unemployability (TDIU)

Clients often inform us that they have applied for or are receiving Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI), but have no idea that they may also be eligible for a 100 percent VA disability rating based on total disability due to individual unemployability (TDIU). Other times, we have Clients who have been granted TDIU, but have no idea that they are also entitled to SSDI. Therefore, let’s address some of the key questions that frequently arise concerning these programs, and some of the similarities and differences between them.

1. What is Social Security Disability Insurance (SSDI)? What is Supplemental Security Income (SSI)?

The Social Security Administration (SSA) administers two programs that provide benefits due to disability: (1) the Social Security Disability Insurance (SSDI) program (title II of the Social Security Act) and (2) the Supplemental Security Income (SSI) program (title XVI of the Social Security Act).

Although President Franklin D. Roosevelt signed the Social Security Act on August 14, 1935, Social Security Disability Insurance (SSDI) did not become law until July 1956. Supplemental Security Income (SSI) arose as part of welfare reform that President Richard Nixon initiated in 1969.  

Title II of the Social Security Act provides for payment of disability benefits to disabled individuals who are “insured” by virtue of their Social Security tax contributions, as well as to certain disabled dependents. Therefore, the amount you receive in SSDI is a reflection of your earnings, and how much you paid in Social Security taxes throughout your career.

Title XVI provides SSI payments to disabled individuals (including children under age 18) who have limited income and resources. Thus, a disabled individual who has never worked, and has never paid any Social Security tax, can still receive SSI. SSI payments will be reduced if you receive income or support from any other sources. For example, if you live in an apartment, but have a brother who pays the rent, SSA considers that “in-kind” support, and would reduce your SSI. SSA may likewise reduce your SSI due to your living arrangement. For example, if you live in a parent’s home and they pay all the expenses, including for food, SSA will reduce your SSI. It is unsurprising, therefore, that the receipt of VA disability compensation offsets any SSI that you receive.  

2. How does the Social Security Administration define disability?

Whether applying for Social Security disability insurance or for SSI, the definition of “disability” is the same. The Social Security Act defines disability as the inability to engage in any substantial gainful activity (SGA) by reason of any medically determinable physical or mental impairment(s) which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. Furthermore, the impairment or combination of impairments must be of such severity that the applicant “is not only unable to do his or her previous work, but cannot, considering his or her age, education, and work experience, engage in any other kind of” substantially gainful work that exists in the national economy.

3. How does the Social Security Administration determine if someone is disabled?

According to the Social Security Administration, “most disability claims are initially processed through a network of local Social Security field offices and State agencies (usually called Disability Determination Services, or DDSs). Subsequent appeals of unfavorable determinations may be decided in the DDSs,” through an intermediate step generally known as a “reconsideration,” or by administrative law judges in SSA’s Office of Hearing Operations (OHO).

The Social Security Administration uses a five-step sequential evaluation process to decide whether you are disabled. If SSA can find that you are disabled or not disabled at a step, Social Security will make its decision and not move on to the next step.

1. At step one, SSA will consider your work activity, if any. If you are doing substantial gainful activity, SSA will find that you are not disabled.

   A person is considered to be involved in substantial gainful activity if he or she earns more than a certain amount. At the present time, in 2019, if a non-blind individual earns more than $1,220, he or she is considered to be engaged in SGA, and thus is not eligible for benefits. That amount is adjusted each year to keep up with average wages. The substantial gainful activity level for blind individuals in 2019 is $2,040 a month.

2. At step two, SSA considers the medical severity of your impairment or impairments. To meet this threshold, your impairment or impairments must interfere with basic work-related activities for your claim to be considered. As this threshold is relatively low, it is rare to see a claim denied on this basis.

   More commonly, however, SSA will deny a claim at step two because the claimed impairment or impairments did not last for a continuous period of 12 months or more. As such, the impairment is not “severe” because it did not meet the durational criteria of SSA’s definition of disability. For example, let’s say an individual stops in January 2019 working and files an application for SSDI that same month due to Hodgkin’s lymphoma. If, after 6-months of treatment, that individual’s cancer is in remission, and there are no significant residual effects, then it’s possible that the Hodgkin’s lymphoma was not “severe” because it did not last 12 months or more, and thus did not meet SSA’s definition of disability.

3. At the third step, SSA considers if the impairment(s) meet or medically equal a listing. SSA maintains a list of medical conditions that are so severe, that an individual will automatically qualify for disability if his or her claimed impairment(s) meet the criteria of that listing. If the claimed condition that is not on the list, SSA has to decide if the impairment(s) meets or equals the requirements of one of its listings.

4. If the impairment(s) is severe, but does not meet or equal a listing, the SSA must determine if the impairment(s) interfere with your ability to perform your past relevant work. At this step, SSA must consider your residual functional capacity, which is an assessment of the abilities you retain despite your disabling condition. If SSA determines that you can still perform your past relevant work, it will find that you are not disabled.

   In determining whether you can perform your past relevant work, SSA will only review the jobs you have held in the past 15 years. Moreover, for a previous job to be considered “relevant,” it must have met SSA’s earnings threshold for what is considered to be substantial gainful activity. Moreover, the job must have lasted long enough for the individual to learn the basic tasks associated with the position, generally three months for unskilled work.

5. At the fifth and final step, SSA will decide if you are able to adjust to other work. SSA will consider your medical impairment(s), along with your age, education, past work experience, and any transferable skills you may have. If you cannot adjust to other work, SSA will find you disabled, and your claim will be approved.

4. Does the Social Security Administration give any preferential treatment to Veterans?

Yes, Social Security provides expedited processing of disability benefit claims for wounded warriors and veterans with a VA compensation rating of 100 percent Permanent & Total (P&T).

5. What is Total Disability Based on Individual Unemployability (TDIU))?

TDIU is a VA disability benefit available to veterans whose service-connected disability or disabilities prevent them from securing and following a substantially gainful occupation. Being awarded TDIU will usually result in a substantial financial gain. If VA determines that a veteran is entitled to TDIU, he or she will receive a 100 percent rating, which, effective 12/1/2018, would equate to monthly compensation of over $3,000. In contrast, a veteran living alone who has an overall rating of 90 percent receives only $1,833.62 a month.

To be eligible for TDIU, you must meet certain requirements:

• You must be unable to secure and follow a substantially gainful occupation due to your service-connected disability or disabilities; and
• You must have a single, service-connected disability rated at least 60 percent; or
• You must have more than one service-connected disability, with at least one disability rated 40 percent and a combined rating of at least 70 percent.

Note, however, that you may still be entitled to TDIU if you do not meet the percentage criteria, but the process differs and is usually more difficult.

6. What are the key similarities and differences between the Social Security Disability process and the TDIU process?

Akin to Social Security Disability, a veteran is entitled to TDIU from the VA if he or she is “unable to secure and follow a substantially gainful occupation.” 38 C.F.R. § 4.16.

However, the most noteworthy difference between SSD/SSI and TDIU is that, in order to be entitled to TDIU, the individual must be unable to secure or follow a substantially gainful occupation solely due to service-connected conditions. Thus, if a veteran is unable to work as a result of a non-service-connected back condition, he or she may be eligible for Social Security Disability benefits, but would not be entitled to TDIU.

However, that does not mean that an individual cannot have both service-connected and non-service-connected conditions that are prohibiting him or her from working. Often, a veteran will ultimately stop working due to a non-service-connected condition, such as back pain. However, it is not uncommon for that veteran to also have a service-connected mental health condition, such as PTSD or depression, that was similarly causing issues at work, such as tardiness, absenteeism, insubordination, or reduced productivity. The veteran’s employer may have tolerated these issues for a variety of reasons. However, generally such issues would not be tolerated in the workforce. Therefore, it’s possible that the service-connected mental health condition may preclude substantially gainful employment even though that was not the primary reason the veteran stopped working.

The other major difference between entitlement to Social Security Disability benefits and entitlement to TDIU is that while the Social Security Administration considers the age of the individual, the Department of Veterans Affairs will not. The Social Security Administration has set up rules, commonly known as the “grid rules,” which generally make it easier for an individual to win his or her disability claim as they age. For example, an individual who is 50 years or older, has a limited education, has no transferable skills, and is limited to sedentary work is disabled under Social Security’s system. However, an individual under 40 with the same level of education and a similar vocational background would need to prove he or she is incapable of performing any substantially gainful employment, including sedentary work – jobs where a person is generally sitting and lifting/carrying less than 10 pounds.

The Department of Veterans Affairs has no such rules and does not consider age to be a factor. Therefore, no matter the veteran’s age, the veteran must always prove that he or she cannot secure or follow a substantially gainful occupation, including sedentary jobs.

7. Thus, how does the VA determine if a veteran is “unable to secure and follow a substantially gainful occupation?”

In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U.S. Court of Appeals for Veteran’s Claims interpreted the phrase, “unable to secure and follow a substantially gainful occupation” to have two components: one economic and one noneconomic. The economic component simply means that an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Note: The poverty threshold for one person in 2018 was $13,064.00.

Thus, generally speaking, if a Veteran earns more than the poverty threshold, he or she is engaged in substantially gainful employment, and is not entitled to TDIU.

As for the noneconomic component, in determining whether a veteran can secure and follow a substantially gainful occupation, the Court noted that attention must be paid to numerous individualized factors, including:

• the veteran’s history, education, skill, and training;
• whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that must be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and
• whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Evaluation of these factors are akin to determining the veteran’s residual functional capacity in the Social Security process, and then determining if there is a substantially gainful occupation available given the physical and mental limitations imposed by service-connected disabilities.

8. Will the receipt of Social Security Disability benefits automatically qualify a veteran for TDIU?

No. However, so long as you make VA aware of your Social Security application, VA is required to consider SSA’s findings if they are related to your service-connected disabilities. Once VA is aware of your SSA records, it must attempt to get them. Those records could include medical opinions or vocational reports that could help your claim, but could also contain information that could hurt your claim.

9. Can I receive Social Security Disability benefits and TDIU at the same time?

Yes, you may qualify for and receive the full benefit of both Social Security Disability Insurance benefits and Individual Unemployability. However, because SSI is a welfare-type benefit, your VA disability compensation would offset SSI, if that is what you receive.