Policymakers bickering over how to “save SocialSecurity” often turn to remedies like costly tax hikesor painful cuts in retirement benefits. While SocialSecurity in its present form will go bankrupt longbefore today’s young workers retire, policymakers areignoring one way in which the system spends morethan it should. The Social Security Administration iscurrently handing out a flood of benefits under theSocial Security Disability Insurance program to per-sons who are not disabled and thus have no legiti-mate reason to receive those benefits.

SSDI was established as a source of income forpersons who are so severely disabled that they cannotperform any meaningful work that exists in thenational economy. The program, which allocatesfunds directly from Social Security general revenues,was never intended to be as broad and expensive as itis today. Yet current SSDI payments account for 14percent of all Social Security distributions. In 1999alone, SSDI handed out a staggering $57 billion indisability benefits. Further, the federal governmentmaintains dozens of programs that raise the amounthanded to persons with various degrees of disabilityto an annual grand total of $110 billion.

A review of SSDI cases and a look at SSDI sta-tistics show a clear pattern of SSA officials’ turninga blind eye to all standards and common sense

when passing out benefits. For example, SSA offi-cials frequently award full SSDI benefits to per-sons who pursue disability discrimination claimsunder the Americans with Disabilities Act.However, to assert an ADA claim, a plaintiff mustargue that he is fully capable of performing adesired job. How can a person be simultaneouslyable and unable to work? Worse yet, in many casesSSA awards SSDI benefits to persons whose ADAclaims were dismissed precisely because the per-sons were not disabled, even under the ADA’s morelenient definition of “disability.”

Despite very strict SSDI eligibility standards, SSAhas opened the floodgates to innumerable, profli-gate benefit awards. For example, SSA is currentlypaying a medical doctor to remain at home simplybecause he prefers administrative work, which he canperform with very minor difficulty, to treatingpatients, which he can perform with no difficulty atall. This and numerous other cases documented inthis study demonstrate how persons who have veryminor impairments and who would have little or nodifficulty remaining in the workforce are neverthe-less collecting billions of dollars in SSDI benefitseach year. To slow the drain of Social Security funds,policymakers must stop abuses of SSDI that arefacilitated by SSA itself.

Facilitating FraudHow SSDI Gives Benefits to the Able Bodied

by James M. Taylor

_____________________________________________________________________________________________________

James M. Taylor is managing editor of Accommodating Disabilities Business Management Guide,published by CCH Incorporated. The views expressed here are those of the author and do not necessarilyreflect the position of CCH Incorporated.

Executive Summary

No. 377 August 15, 2000

Language and Purposeof SSDI

In 1999 persons with disabilities, includ-ing those with only minor impairments, col-lected some $110 billion in benefits that thefederal government disbursed through a vari-ety of programs.1 Recognizing that some per-sons have disabilities that are more severethan those of others, the federal governmentreserves the Social Security DisabilityInsurance program exclusively for those per-sons with handicaps so severe that they aretotally incapable of performing any type ofmeaningful work. SSDI benefits are fundedsolely through Social Security taxes and dis-tributed directly from Social Security generalfunds.2 The Social Security Administrationestimates that in 1999 alone it paid out $57billion in direct benefits, 14 percent of allSSA annual disbursements, to persons claim-ing to have such severe disabilities.3 Yet anexamination of the facts surroundingnumerous individual SSDI awards clearlydemonstrates that the system is riddled withfraud, waste, and abuse. The most disturbingaspect of this abuse is the willingness of SSAitself to permit persons to tap into SSDIdespite their undeniable ability to work.

The Social Security Act of 1935 estab-lished more than just a retirement programfor American workers. It also set up the SSDIprogram to provide benefits for persons withthe most severe disabilities.4 To qualify forSSDI benefits, a person must have a medicalcondition of such objective and unvaryingseverity that it is expected to result either indeath or in severe functional limitations thatlast for a period of years and preclude the per-son from performing his previous work or“any other kind of substantial gainful workwhich exists in the national economy, regard-less of whether such work exists in the imme-diate area in which he lives or whether a spe-cific job vacancy exists for him.”5

The meaningful-work standard is meantto reserve SSDI benefits for those who arecompletely incapable of working in virtually

any full-time job. A mere difficulty in obtain-ing work does not entitle a person to SSDIbenefits. In addition, persons who are simplyunable to perform their previous or preferredwork because of a disability, but are still ableto perform work in other professions, are noteligible for SSDI benefits. As stated in SSAguidelines, “Some programs may pay for par-tial disability or for short-term disability.Social Security does not. Disability underSocial Security is based on your inability towork. You will be considered disabled if youare unable to do any kind of work for whichyou are suited. . . .”6 The strict SSDI qualifi-cation standards are understandable.Although the federal government distributes$110 billion annually through a plethora ofdisability programs, SSDI benefits arereserved for only those individuals with themost severe disabilities.7

Applicant and AgencyProcedures

When applying for SSDI benefits, eachclaimant must present contact informationand medical records from his doctors, thera-pists, hospitals, clinics, and caseworkers.8

These entities are required to provide all rele-vant information, including information thatcasts doubt on the claimant’s SSDI eligibility.9

The claimant is also required to provide thenames of all employers and job duties duringthe previous 15 years.1 0 Each claimant isrequired to document his work history, specif-ically in relation to his asserted disability.

From the above information, SSA deter-mines if there is sufficient medical evidenceto award SSDI benefits. SSA retains thepower to request further medical or nonmed-ical information relevant to the claim to sup-plement insufficient medical information,resolve conflicting medical opinions, or veri-fy questionable assertions. Moreover, SSAmay require the claimant to undergo an inde-pendent medical examination.1 1

SSA has access to all relevant medical andwork information through the above proce-

2

The meaningful-work standard ismeant to reserve

SSDI benefits forthose who are

completely inca-pable of working

in virtually anyfull-time job.

dures, as well as the means to contact physi-cians and employers to verify each claimant’sactual medical condition and the true reasonthe claimant is no longer employed. Accord-ingly, SSA has had actual or constructiveknowledge of all the facts in the cases docu-mented below.

SSA has developed a five-step evaluationprocess to determine whether an individualqualifies for SSDI benefits.12 At step one SSAdetermines whether the individual is engagedin “substantial gainful activity.” If he is, bene-fits are denied. If he is not, at step two SSAdetermines whether the individual has a med-ically severe impairment. According to theSSDI guidelines, “If you do not have anyimpairment . . . which significantly limitsyour physical or mental ability to do basicwork activities, we will find you . . . are,therefore, not disabled.”13 If the individual canstill be classed as disabled, at step three SSAdetermines whether the impairment is equiva-lent to one on a list of disabilities considered sosevere that they define the individual as dis-abled and qualified for SSDI. If the impairmentis not one of those listed or an equivalent, atstep four SSA determines whether the individ-ual can perform his past work. If he can, he isnot disabled under SSDI. If he cannot performhis past work, at step five SSA asks if he can per-form any other work in the economy, in view ofhis age, education, and work experience. If hecan, he is not disabled under SSDI. If he cannot,then he is granted SSDI.

Evidence of Rampant Abuse

Despite the clear language and the com-pelling purpose behind the strict SSDI eligi-bility standards, SSA has been allowing per-sons with minor or nonexistent disabilities tocollect SSDI benefits. Whether motivated bymisguided altruism, political expediency, orbureaucratic indifference, SSA flagrantly dis-regards both the language and the spirit ofthe SSDI program. SSA has effectively evadedany meaningful third-party supervision andhas become the fox guarding the hen house of

Social Security funds. As a result, SocialSecurity resources, intended to provide forthe most severely disabled Americans whogenuinely cannot work, are limited and dwin-dling. Moreover, the payment of billions ofSocial Security dollars annually to personswith only minor impairments wastes moneymeant for retirement and pushes the systemmore quickly toward bankruptcy.

The ADA PerspectiveA principle reason that the abuses of SSDI

have heretofore not come to light is that SSAdoes not release information on individualawards, and few SSDI recipients have anyincentive to release the information them-selves. Those few SSDI cases that come topublic attention usually involve claimantswho also file lawsuits under the Americanswith Disabilities Act or other disability dis-crimination laws. Accordingly, the cases dis-cussed below, which were brought to lightthrough disability discrimination suits, rep-resent an extremely small sampling of theabuse that occurs in the system.

In most of the cases, a federal judge wascharged with determining whether theclaimant had a qualifying “disability” underthe ADA. The tests for determining whethera person is “disabled” under the ADA are farmore lenient than those used to determine ifa person is qualified for SSDI benefits. A per-son is “disabled” under the ADA if he is sub-stantially limited in any major life activity. Aperson claiming to be substantially limited inthe major life activity of working need showonly that he is precluded from a “broadrange” of jobs. But a person may be preclud-ed from a broad range of jobs and still be per-fectly capable of performing his current jobor many other jobs available to him. To qual-ify for SSDI benefits, however, a person mustbe so severely disabled as to be completelyunable to perform any substantial gainfulwork that is reasonably available anywhere inthe national economy.

Accordingly, a person may be disabledunder the ADA but still fall well short ofqualifying for SSDI benefits. Moreover, if a

3

Despite the clearlanguage and thecompelling pur-pose behind thestrict SSDI eligi-bility standards,SSA has beenallowing personswith minor ornonexistent dis-abilities to collectSSDI benefits.

person is not disabled even under the lenientADA standard, then, by any definition meantto reflect the actual situation, that personcannot be so severely disabled as to qualifyfor benefits under the stricter SSDI standard.Nevertheless, in a majority of the followingcases, SSA granted the claimant full SSDIbenefits even after a federal court ruled thatthe claimant did not meet even the ADA’smore lenient disability definition.

Of further importance, any person whofiles an employment discrimination claimunder the ADA is by definition arguing thathe can perform a particular job, though oftenwith the stipulation that the employer makesome “reasonable accommodation” for theperson’s condition. If a person has assertedunder oath that he is capable of performingone or more jobs that he desires, then logictells us that that person cannot at the sametime claim under oath that in reality he can-not perform any type of work that exists inthe national economy. Nevertheless, in eachof the cases discussed, the SSDI claimant didjust that, and SSA conveniently ignored suchsworn assertions in its zeal to hand out scarceSocial Security funds.

In an attempt to get around sworn disabil-ity assertions, SSA has recently instructed itsdeterminations personnel and its administra-tive law judges that persons who are fullycapable of working can nevertheless be con-sidered completely unable to work and thuscan be awarded full disability benefits if theyrequire simple workplace accommodations.14

This policy position totally ignores the factthat the ADA requires all employers to pro-vide reasonable accommodations wheneverand wherever disabled persons need them.15

Nevertheless, SSA has explicitly stated that itwill make all benefits determinations in amake-believe world in which the ADA theo-retically does not exist. Such a position clearlyand completely undermines the statutory lan-guage, the intent, and the compelling goals ofthe SSDI program.

Court RulingsThe failure of SSA to accept the clear con-

flict of simultaneously claiming benefitsunder SSDI and the ADA is not merely a mat-ter of negligence; it is a matter of policy thatSSA has openly fought for all the way to theU.S. Supreme Court. In the 1999 case ofCarolyn C. Cleveland v. Policy ManagementSystems Corporation, an individual applied forand received SSDI benefits on the basis of hertotal inability to work but then sued her for-mer employer under the ADA, claiming that,at the time she was fired, she would have beenfully qualified to perform her previous job ifher employer had provided her with reason-able accommodation.1 6 The U.S. Court ofAppeals for the Fifth Circuit, in keeping with amajority of its sister circuits, ruled that therewas at least a rebuttable presumption that anSSDI recipient cannot be a “qualified individ-ual with a disability” under the ADA andissued a summary judgment for the defen-dant. Cleveland appealed that summary judg-ment. She maintained that she was entitled toa trial on the particulars of her case.17

The SSA general counsel and variousClinton administration officials coauthoredand submitted to the Supreme Court anamici curiae brief supporting the SSDI recip-ient. According to the general counsel andthe Clinton administration, the term “unableto work” does not mean that a claimant isactually unable to work. It instead is merely a“term of art,” the meaning of which dependson the circumstances of the assertion. Inother words, a person who unequivocallyasserts a “100 percent disability,” a “total dis-ability,” or a “complete inability to work”claim for the purpose of obtaining SSDI ben-efits cannot later be held to the common-sense meaning of those statements whenasserting an ADA claim. The general counselproceeded to parse disability definitions toargue that step three of SSA’s five-step dis-ability determining process, which presumesthat certain conditions are disabling withoutany further individualized inquiry, can beexpanded into wider assumptions about whocan and cannot work.18

In making that argument, the SSA generalcounsel purposefully ignored the premise

4

If a person is notdisabled even

under the lenientADA standard,

then that personcannot be so

severely disabledas to qualify for

benefits under thestricter SSDI

standard.

underlying SSA’s limited disability presump-tions. SSA justified its presumption that a lim-ited number of impairments such as quadri-plegia entitle a claimant to SSDI benefits onthe rationale that those particular impair-ments are so uniformly severe that they con-sistently render any person unable to performsubstantial gainful work. To require an indi-vidualized inquiry into cases in which it is aforegone conclusion that the person cannotwork would merely waste administrativeresources.19 Those presumptions were notincluded in the Social Security Act; indeed,they were only developed by SSA for its ownadministrative convenience. Moreover, thosepresumptions were never authorized orintended to emasculate the underlying prereq-uisite that a claimant cannot obtain SSDI ben-efits unless he is precluded from both his pre-vious job and any substantial gainful workthat exists in the national economy. Asexplained by the Supreme Court in its 1987decision in Bowen v. Yuckert:

If the impairment is severe, the (SSA)evaluation proceeds to the third step,which determines whether the impair-ment is equivalent to one of a numberof listed impairments that theSecretary acknowledges are so severeas to preclude substantial gainful activity.20

In its amicus brief the government alsomaintained that, in any given case, SSA needsto make no assumptions about whether aperson might have been able to perform a jobhad reasonable accommodations been made.In other words, SSDI need take no account ofan SSDI claimant’s or recipient’s effortsunder the ADA.

The Supreme Court ruled on May 24,1999, that SSA had indeed turned “unable towork” into a “term of art” under which a per-son can simultaneously be disabled andnondisabled: a person can both collectmoney from the federal government underSSDI and secure, on the basis of an ability towork with reasonable accommodations pur-suant to the ADA, a job or compensation for

a job lost from a private employer.2 1 By pur-posefully distorting the context and meaningof its disability “presumptions,” SSA hasdemonstrated its purposeful intent underthe present administration to open thefloodgates for billions of dollars in unin-tended benefits awards rather than enforcethe strict eligibility standards explicitly estab-lished by the Social Security Act itself.

But the Court also stated that the ADAplaintiff cannot ignore the facts that he or shehas made an SSDI claim not to be able to per-form any work and that, in order to survive adefense motion for summary dismissal basedon such a claim, the plaintiff must provide asufficient explanation of the ADA assertion.

Further, the Court was addressing the ques-tion of under what circumstances a summaryjudgment could be made. In this particularcase, the plaintiff maintained that at the time ofher firing she was a qualified individual underADA but that her condition later worsened,making her disabled under SSDI regulations.She therefore maintained that she was due afull trial and that it could not be presumed inher particular case that her ADA and SSDIclaims were mutually exclusive.

It is also important to understand that theCourt was addressing the question of whenan ADA claim could be thrown out of courtbecause an individual had applied for or wasreceiving SSDI; the Court did not directlyaddress the question of when an SSDI claimmight not accord with the law because theindividual was attempting to return to a jobfrom which he or she was dismissed, claimingthat he or she could do the job were reason-able accommodation made. The Courtacknowledged only that the two claims mightbe consistent but that that was, indeed, thematter to be determined in the courts.

Part-Time WorkAnother problem with the SSDI system is

that its officials frequently take libertiesregarding the definition of “substantial gain-ful work” in the national economy. Personswho are able to work only sporadically or forjust a few hours per week are generally not

5

The SupremeCourt ruled thatSSA had indeedturned “unable towork” into a“term of art”under which aperson can simul-taneously be dis-abled andnondisabled.

capable of performing substantial gainfulwork. However, many SSDI applicants areclearly capable of full-time work but requestthat their employers schedule them for just afew hours short of a full-time schedule inorder to argue to SSA that they are limited to“part-time” work. In judging such cases, assome of the examples below illustrate, SSAofficials often allow persons to work virtuallyfull-time hours yet still collect benefits basedon a “total disability,” precluding them fromperforming any substantial gainful work.

Claimant or Agency to Blame?Finally, it is important to note that the fol-

lowing examples are not intended to criticizeor pass judgment on the individualclaimants. When a federal agency chargedwith disbursing federal dollars is derelict inenforcing its qualification standards, andinstead seems extremely eager to hand outfree money, the fault for the ensuing abuselies more with the federal agency than withthe individual claimants.

Case-by-Case IllustrationsThe appalling pervasiveness of SSDI abuse

becomes evident in an examination of someof the actual cases in which SSA has grantedbenefits to persons who are clearly capable ofworking. It is important to remember thatSSA is authorized to grant benefits only whena person shows that he is so severely disabledthat he is completely unable to engage in anykind of substantial gainful work. The follow-ing cases, numerous as they are, representonly a small fraction of SSDI abuses.

Doctor Refuses to Treat Patients. In 1992 aphysician accepted an administrative oversightposition with Kemper Life InsuranceCompany. His duties included reviewing med-ical files, discussing cases with underwriters,and writing medical opinions on pendingcases. He spent six to eight hours each dayusing a computer keyboard.

A year after he began his job, the physicianwas diagnosed with carpal tunnel syndrome.He took a leave of absence before undergoingsurgery for the ailment, but he never returned

to work after his surgery was completed. Later,he claimed Kemper would not let him returnto his old job and would not meet his accom-modation demands. He then filed an ADA dis-crimination suit, claiming that with reason-able accommodation he would be able to dohis old job. Simultaneously, he filed for SSDIbenefits, which are supposed to be reserved forthose who are physically incapable of doingany work.

Presented with the physician’s ADA claim,a federal judge questioned whether the physi-cian was actually disabled, even under theADA’s more lenient standard. The judgenoted that the physician faced restrictions ininsurance work only to the extent that herequired a modified workstation (which theinsurance company or any other employercould easily provide) to allow him to performextensive computer work. Moreover, theinsurance company pointed out that thephysician’s impairment did not preclude himfrom a broader range of jobs within the med-ical field. For example, he could still teachmedicine, conduct medical research, andadminister health plans. Further, the physi-cian was not precluded from doing what mostdoctors do—examining and treating patients.

The physician countered that he had nottreated patients for many years and had becomeaccustomed to performing insurance work. Hefurther argued that he should not have to lookfor work outside his immediate job market andthat he had a large mortgage on his expensivehouse that would make it difficult for him torelocate to take a job elsewhere in the country. Afederal judge deadpanned that the physician“certainly has not overwhelmed the Court withevidence of his unemployability.”

Nevertheless, SSA ruled that the physicianwas completely incapable of working andentitled to full disability benefits. In so rul-ing, SSA apparently determined that (1) noinsurance company would ever agree to pro-vide the physician with a modified worksta-tion, (2) the physician should not be expectedto actually examine and treat patients, and(3) the physician should not have to sell hisexpensive house in order to work for insur-

6

The appalling per-vasiveness of

SSDI abusebecomes evident

in an examinationof some of theactual cases in

which SSA hasgranted benefits

to persons whoare clearly capable

of working.

ance companies outside his immediate jobmarket. Accordingly, SSA awarded the physi-cian SSDI benefits.2 2

“Claimant Held Forms Close to His Eyes.” Thecase of an automobile glass installer at SafeliteGlass Corporation, who was laid off as part ofhis company’s reduction in force, shows asloppy SSA passing out benefits without ade-quate investigation. Shortly after the installer’stermination, he applied for SSDI benefits,claiming that he had poor vision that preclud-ed him from any meaningful work. He alsoclaimed that his March 31, 1993, dismissalwas based on age discrimination.

An eye examination concluded that theinstaller had corrected vision of 20/100 in hisright eye and near-perfect 20/30 vision in hisleft eye. According to a medical doctor, theinstaller had only a “[s]light visual impair-ment,” which affected his performance of “finevisual tasks.” The doctor concluded that the“impairment does not meet or equal the list” ofstandards by which someone can be declareddisabled and eligible for SSDI benefits.

Although the installer’s vision impairmentwas extremely minor and clearly did not pre-clude him from working, SSA neverthelessgranted him full disability benefits. The SSAinterviewer who decided to award benefits jus-tified her conclusion, despite the treatingphysician’s medical findings to the contrary,by noting merely that “claimant held formsclose to his eyes to read before signing.”23

Bus Driver Caught Sleeping on the Job. In 1985 abus driver for the Kansas City TransportationAuthority was diagnosed with hypertension.Following her diagnosis, she easily controlled hercondition by taking medication, and she wasable to continue performing her job.

Ten years after her hypertension diagnosis,the bus driver was caught sleeping on the job.Her supervisor informed her that she wouldbe fired if she was caught sleeping again. Twomonths later, the supervisor again caught thedriver sleeping in her bus and subsequentlyfired her.

The bus driver filed an ADA discrimina-tion suit and simultaneously applied forSSDI benefits. In her ADA suit, she argued

that she was disabled because (1) she hadhypertension, (2) she had recently banged herknee on a fare box, and (3) her hypertensionmedication made her drowsy when mixedwith pain medication for her knee.

A federal court soundly rejected the busdriver’s assertion that she was disabled, evenunder the lenient ADA standard. The courtpointed out that the bus driver had success-fully controlled her hypertension for morethan 10 years, and the hypertension did notimpair her ability to work or engage in anyother major life activities. Moreover, herbruised knee was only a temporary injurythat fell far short of a disability. Finally, shehad combined her hypertension and painmedications for only a short time, and shecould have easily avoided any drowsiness bysimply taking a different pain medication.

Despite the clear findings of the federalcourt, and despite the fact that the bus driverhad worked for 10 years without any medicalrestrictions, SSA awarded the driver full dis-ability benefits. Incredibly, SSA concludedthat the bus driver’s temporary knee bruiseand her easily controlled hypertension per-manently and completely prevented her fromdriving a bus or engaging in any other kindof substantial gainful work.24

Waiter Had Trouble Watching TV, Broke Anti-Theft Rules. The Hyatt Regency Hotel atChicago’s O’Hare Airport was experiencing arash of thefts, and management suspectedthat employees were involved in many of thecrimes. To counter the thefts, the hotel dis-tributed multiple memoranda reiterating itsemployee entrance and exit policy. Accordingto the policy, any employee caught enteringor exiting the hotel from any door other thanthe employee entrance would be terminated.

Shortly after issuing its memoranda, thehotel learned that a banquet waiter hadexited the hotel through a public doorwhile ostensibly taking a cigarette break.Pursuant to the entrance and exit policy, inSeptember 1994 the waiter was fired. Thewaiter then filed an ADA disability discrim-ination suit and applied for SSDI benefits.The waiter claimed that he was disabled

7

A federal courtsoundly rejectedthe bus driver’sassertion that shewas disabled,even under thelenient ADA standard.

simply because he had poor vision. In hisright eye, he had 20/400 uncorrected vision,though he had near-perfect 20/25 vision inhis left eye.

In addressing the waiter’s ADA claims, afederal judge pointed out that the waiter’svision did not at all restrict his performanceof any of his job duties. The waiter’s job per-formance had been quite satisfactory beforehis termination, and he had never requestedany assistance in performing his job.Moreover, his vision was sufficient for him todrive to and from work each day. Althoughhe claimed to have difficulty reading andwatching television, he could clearly performall his job duties. And, of course, with theADA suit the waiter was clearly admittingthat he could do his job.

Even though the waiter had proven thathe could see well enough to drive a car, per-form his job, and freely engage in all othermajor life activities, SSA determined that hewas incapable of performing any work andentitled to full benefits. On the basis of aminor vision impairment and documentedjob misconduct, SSA is giving the waiter life-time disability payments from cash-strappedSocial Security funds.25

“Depends” Undergarments Totally Disabling?A special police officer for the WashingtonMetropolitan Area Transit Authority experi-enced frequent urinary infections and incon-tinence. While unpleasant for him, the offi-cer’s problems did not prevent him fromreporting to work and successfully perform-ing his duties.

As a job prerequisite, the officer was requiredto maintain Special Police Certification.However, he inadvertently let his certificationlapse. When a supervisor subsequently askedhim to produce his certification, the officerlied about his certification status. Ultimately,the supervisor discovered the lie and the factthat the officer was no longer certified. As aresult, in October 1992 the officer was fired.

Although the officer clearly was capable ofworking, and indeed had been successfully per-forming his job duties up to the very day he wasfired, he applied for SSDI benefits. SSA granted

the officer full benefits, apparently finding thatthe officer’s urinary incontinence suddenly andcoincidentally precluded him from leaving hishome and holding any job from the momenthe was fired for his misconduct.2 6

Cook Experienced Hurt Feelings. An appli-cant for a cook’s position at a Wendy’srestaurant in Tulsa, Oklahoma, requested afew hours less than a full-time work scheduleso that he could continue to receive SSDIbenefits related to a kidney impairment. Therestaurant met his request by allowing himto leave work early three days per week. Thissituation in itself points to a major problemwith SSDI. While SSDI is supposed to be forthose who, because of a disability, can findno meaningful employment in the economy,SSA frequently exercises its discretion toallow individuals to work virtually full-timehours and still receive benefits.

Several months after starting his job, thecook began working under a new supervisorwho did not initially know that the cook hadbeen granted a special work schedule. Thesupervisor one day refused to let him leavework early. In response, in April 1997 thecook quit his job.

When the restaurant’s president of humanresources learned of the misunderstanding, hecontacted the cook, apologized for the misun-derstanding, offered the cook his previouswork schedule, and offered him back wagesfor the time that he had refused to report towork. The cook refused to accept the presi-dent’s apology, offer of reinstatement, andoffer of back pay and instead took a job atanother restaurant. Some time later hebrought a complaint against his formeremployer under the ADA. A U.S. appeals courtrejected his claim.

Despite the unmistakable proof that thecook was indeed medically qualified to holdnumerous restaurant jobs, and despite theempirical evidence strongly suggesting thathe was playing games with his requestedworking hours so that he could receive dis-ability benefits, SSA continued to grant himSSDI benefits. Apparently, SSA felt that itshould overlook the cook’s employability

8

Even though thewaiter had proven

that he couldfreely engage inall other major

life activities, SSAdetermined that

he was incapableof performing anywork and entitled

to full benefits.

and his apparent cheating of the systembecause he had experienced hurt feelings dueto his employer’s innocent mistake.27

Male Care Provider Refused to Perform“Women’s Work.” An employee at the ShieldInstitute of David, a care center for personswith disabilities, was responsible for assistingpeople into and out of wheelchairs. He pre-sented his supervisor with a note from a chi-ropractor stating that he had injured his back.To accommodate the chiropractor’s suggestedwork restrictions, the supervisor removed theemployee’s lifting responsibilities andassigned him to a position in which he wouldhelp feed people with severe disabilities.

Soon after beginning his new assignment,the employee complained because his newposition did not allow him to eat lunch dur-ing his normal lunch hour. The supervisordeferred to the employee’s preferred lunchschedule by assigning him to a dining roomposition in which he would not have toengage in any lifting and could also eat lunchat his preferred time.

The employee, however, refused to acceptthe dining room position because it was“women’s work.” When he refused to reportto his new assignment, in August 1992, hewas fired. He then applied for SSDI benefits.

On May 19, 1995, an SSA administrativelaw judge determined that the employee wastotally disabled and entitled to full disabilitybenefits from the date that he refused towork in the dining room. Apparently, SSAbelieves that America cannot expect a man todo “women’s work.”2 8

Conductor Could Hike, Hunt, Camp, and ScubaDive. A conductor for the Norfolk SouthernRailroad injured his knee and back whileworking on the job. After successful surgery,the conductor nevertheless applied for a leaveof absence and filed for SSDI benefits.

After surgery, the conductor engaged in awide spectrum of recreational activities. Hefrequently hiked, fished, camped, hunted,and went scuba diving. Nevertheless, heclaimed that he had difficulty putting on hisshoes and that, when bathing, he neededhelp washing his back. His own physician

concluded, “I must admit that this manseems to be physically qualified to do almostany type of work. . . .”

In 1993 the conductor applied to get hisold job back, admitting, in effect, that he con-sidered himself fit to work. The railroadturned down his request, and the conductorfiled an ADA complaint. In fact, the conduc-tor was unable to return to his previous jobonly because that particular job requiredextreme physical exertion, including strenu-ous heavy lifting and extensive, prolongedwalking. Nevertheless, medical and empiricalevidence demonstrated that the conductorcould perform almost any other kind of job.

Despite the conductor’s successful partic-ipation in the above-listed rigorous sportingactivities, SSA granted him full benefits. SSAthus implies that a person who can frequent-ly hike, fish, camp, hunt, and scuba dive isphysically incapable of performing any work,sedentary or nonsedentary, that exists in thenational economy.2 9

Federal Judge Calls Disability Claim “Frivolous,Unreasonable.” In another case of simultane-ous ADA and SSDI claims, a factory workerfor Freightline Corporation, after less than amonth on a new job and having alreadyreceived a poor job evaluation, claimed hehad a sore shoulder. Doctors at first placedsome restrictions on what he could lift butlater certified him for work without restric-tions. Nevertheless, the worker failed toreturn to his job, despite the doctors’ agree-ment that he had no medical restrictions,and he was therefore terminated. Amazingly,he then filed an ADA suit and applied forSSDI benefits.

A federal judge ruled that the workerclearly could not sustain his ADA claimbecause he was not disabled, even under thelenient ADA standard. The judge noted thatdoctors who examined him unanimouslyconcluded that he was capable of working.

The judge went a step further and chas-tised the worker for bringing a disabilityclaim that was “frivolous,” “unreasonable,”“without foundation,” and “utterly lackingin merit.” The judge noted that the worker’s

9

Apparently, SSAbelieves thatAmerica cannotexpect a man todo “women’swork.”

entire medical and employment history,including his previous jobs with otheremployers, was riddled with episodes of mis-conduct and false medical representations.The judge also took the unusual step of mak-ing the worker responsible for the employer’scourt costs “to provide a modicum of ‘justice’to an innocent employer so improvidentlyand unfairly required to defend itself againstfrivolous and baseless allegations.”

Despite the unusually stern federal courtruling and the supporting conclusion of theworker’s multiple examining physicians, anSSA administrative law judge on February 23,1995, decided to grant the worker full SSDIbenefits. Accordingly, the worker is no longerrequired to hold a job and apparently has nofurther need to present “frivolous” disabilityassertions “utterly lacking in merit.”30

Manager Fired for Theft—An AmazingDisability Coincidence? When a person is termi-nated for misconduct for reasons wholly unre-lated to a medical condition, SSA often rulesthat the person’s previously nondisablingmedical condition suddenly and magicallyrendered the person incapable of working atthe very moment that the person was termi-nated for misconduct. This is the case evenwhen the person was completely capable,without any difficulty whatsoever, of perform-ing all aspects of his job up until the verymoment of his termination. A typical example:

A district manager for the Disney Storebegan hearing rumors that an assistant storemanager had tested positive for HIV. The dis-trict manager summoned the assistant man-ager to her office and informed him of therumors. She explained that she was informinghim of the rumors so that, should he want to,he could address them. She explained thatshe would offer him any help or support heneeded to address the rumors, should hechoose to do so. The assistant manager toldher that he did not have HIV but thanked herfor her support.

On November 16, 1993, one week laterand in knowing violation of company policy,the assistant manager took money from thestore’s cash register and asked a coworker to

use the money to purchase some cigarettesfor him. The assistant manager then discard-ed the transaction record, also a violation ofcompany policy. After receiving the ciga-rettes, he did not reimburse the cash register.

The coworker informed management ofthe assistant manager’s theft and his viola-tion of company transaction policies. Whenthe district manager confronted him, theassistant manager admitted his theft, brokedown in tears, and stated that he had HIV.The district manager fired him.

The assistant manager filed an ADA claimand, a week after his dismissal, also filed forSSDI benefits on the basis of his HIV status.Despite the empirical evidence and the assis-tant manager’s own admission that he wasfully capable of working, and typical of itsSSDI determinations, SSA ruled that theassistant manager’s physical condition hadbecome too severe for him to perform anykind of meaningful work, suddenly and mag-ically, at the exact moment he was fired fortheft. Now receiving full SSDI benefits, he nolonger has any need to steal money to pay forhis cigarettes.3 1

Worker Lost His “Sexual Prowess.” A bankworker alleged that a particular supervisorwas harassing and persecuting him. As aresult, he claimed to suffer “panic attacks,”which, according to the worker’s treatingphysician, were solely and directly caused bythe particular work environment. As the doc-tor stated, “Causation is related to employ-ment difficulties at Chemical Bank [theworker’s employer].”

When the worker sued the bank for disabil-ity discrimination under the ADA, a federaldistrict court threw out the case because theworker could not demonstrate that he was dis-abled, even under the lenient ADA standard.As the judge observed, “[P]laintiff has persis-tently spoken of Mr. Mills [his supervisor] andfeels himself persecuted.” In addition to thefact that the alleged panic attacks were nar-rowly related to a single work environment,the court pointed out that the alleged effectsof the attacks were minimal. The workeralleged simply that he sometimes felt dizzy in

10

The judge chas-tised the worker

for bringing a dis-ability claim thatwas “frivolous,”“unreasonable,”

“without founda-tion,” and “utterlylacking in merit.”

his particular work environment and that heexperienced a decline in his “sexual prowess”because of his hostile work environment.

Although the worker’s alleged panicattacks were related to only a single work envi-ronment, and although the worker’s allegeddecline in “sexual prowess” would hardly seemto remove him from the national workforce, inSeptember 1995 SSA granted the worker fulldisability benefits. In so ruling, SSA ignoredthe findings of the federal court that the work-er remained fully capable of performing a vari-ety of (presumably nonsexual) jobs.32

Rude Employee Awarded Lifetime Benefits. Anairline reservations agent worked for U.S. Airfor nine years. The agent generally performedhis job well and frequently received positivejob performance evaluations. However, theagent was also occasionally rude to cowork-ers and insubordinate to supervisors. Forexample, on one occasion he transferred acustomer to a supervisor while sarcasticallytelling the customer, “Let’s all of us share thismisery.” On another occasion, the agentbecame loud and accusatory during a dis-agreement with his supervisor. On otheroccasions, coworkers complained about theagent’s insulting them or calling themnames. Finally, the agent wrote an article in alocal newspaper criticizing his employer. As aresult of those incidents, in November 1994,the agent was fired.

The agent filed for SSDI benefits, allegingthat he had a history of bipolar depression.Despite the agent’s nine-year employmenthistory, his generally positive work perfor-mance, and his failure to even look for a sub-sequent job, SSA granted him full disabilitybenefits. SSA apparently decided that theagent’s bipolar depression somehow forcedhim to be sarcastic and rude, that his nineyears of positive work performance weremeaningless, and that society should notrequire people who are rude to ever look foror hold jobs.

One interesting aspect of this case is that itreinforces the very stereotypes about individ-uals with behavioral problems that disabilityadvocates are trying to counter. Advocates

argue that merely being diagnosed with a par-ticular impairment, for example bipolar syn-drome, does not disqualify an individualfrom performing productive work in theeconomy. Indeed, the intent of the ADA is tokeep such individuals in the workforce bymandating that employers not discriminateagainst them and provide reasonable accom-modations where necessary. In this case, how-ever, SSA seems to have assumed that a merediagnosis of bipolar depression proves that aperson is completely incapable of being a con-tributing member of society.3 3

Professional Golfer Did Not Have to Work aNormal Job. In one of several celebrated cases,in 1999 professional golfer Ford Olinger hada dispute with the U.S. Golf Association overhis disability, specifically his inability to walkthe course for an entire round of golf.Olinger maintained that reasonable accom-modation under the ADA required the GolfAssociation to allow him to use a golf cartwhen he played in tournaments.

However, even the Equal EmploymentOpportunity Commission recognizes thefolly of granting disability benefits on thebasis of a person’s inability to be successful inprofessional sports. In the context of profes-sional baseball, EEOC regulations state, “Norwould a professional baseball pitcher whodevelops a bad elbow and can no longerthrow a baseball be considered substantiallylimited in the major life activity of work-ing.”34 The ability to walk several miles dur-ing a round of championship golf is no morea prerequisite to all jobs in the national econ-omy than is the ability to throw a 90-mile-per-hour fastball.

Amazingly, SSA granted Olinger full SSDIbenefits, apparently believing that all jobs inthe national economy require workers towalk several miles per day.3 5

Clerk Quit When Denied Her Preferred Position.A service-desk clerk for Shaw’s Supermarketstook a medical leave because of carpal tunnelsyndrome. After providing treatment, herphysician released her to return to work withonly minor restrictions. She was precludedonly from significant lifting, overhead reach-

11

The workeralleged that heexperienced adecline in his“sexual prowess”because of hishostile work environment.

ing, and working overtime.When the clerk prepared to return to work,

she asked to be reinstated to her previous posi-tion. However, her employer told her that ithad pared back its staff in her department andthat the position was no longer open at herstore. However, the store offered her otherpositions at various other stores. The clerkrejected the alternate job offers and filed a dis-ability discrimination suit under the ADA.

In September 1998 a federal district courtrejected the clerk’s ADA claim. The courtnoted that the employer had offered her mul-tiple job assignments but that she seemedunwilling to accept anything other than herpreferred job assignment at her preferred joblocation. “Defendant reasonably concludedbased on evidence in the record that Plaintiffonly wanted to return to her service-desk clerkposition, which did not involve moving to thecheckout department when necessary.”During the course of her ADA litigation, how-ever, the clerk admitted that she could per-form other job assignments. “Plaintiff arguesthat she would have accepted work involvingother duties,” observed the court.

Despite her admission that she couldwork her previous job and other jobs, anddespite the evidence that her employer hadoffered her various other positions, the clerkapplied for SSDI benefits. Amazingly, SSAdetermined that, despite all the evidence andher own admissions, the clerk was totallyunable to perform any meaningful work andentitled to full SSDI benefits.3 6

Obesity, Profuse Sweating Entitled Analyst toFull Benefits. A contracts analyst for LockheedMartin Corporation was terminated in 1993during a reduction in force. In the course ofits workforce reduction, Lockheed Martinterminated or relocated roughly 25 percentof the workforce, retaining only thoseemployees with the highest evaluation scores.

When the analyst was terminated, shefiled an ADA discrimination suit as well as anage discrimination complaint. In her ADAsuit, she claimed that she suffered from vari-ous conditions such as obesity, profusesweating, and minor pains. A federal district

judge rejected her ADA suit.Nevertheless, SSA determined that the

analyst’s minor physical ailments precludedher from performing any meaningful work.Although she was clearly able to perform herjob up to the very moment of LockheedMartin’s reduction in force, SSA determinedthat the ailments suddenly and coincidental-ly rendered her unable to work just after shewas terminated for nonmedical reasons.3 7

Bank Teller Knew More about Medicine ThanPhysician? A teller at a Northside SavingsBank branch complained that she had vari-ous back, hand, and shoulder pains. As aresult, over the years and at various branchesof the bank, the bank allowed her to sit whileperforming her duties. However, after theteller took a medical leave of several months(while receiving disability benefits), an exam-ining physician concluded that she was notdisabled and was fully capable of immediate-ly returning to work. Nevertheless, the tellerrefused to return to work and in October1994 was terminated.

The teller filed an ADA claim chargingdiscrimination and maintaining, “I can per-form the essential functions of my job withan accommodation,” even as she filed a claimfor SSDI benefits based on her total inabilityto work.

Although her treating physician haddetermined that she was fully capable of per-forming her job, and although she herselfhad admitted that she could perform her job,an SSA administrative law judge deferred tothe teller’s subsequent self-diagnosis that shecould not work. The SSA administrative lawjudge concluded that the teller was “unableto perform more than sedentary work.”

Although the evidence clearly contradict-ed the SSA judge’s ruling, even this rulingthat the teller was limited to sedentary workdid not justify an award of SSDI benefits.Bank teller positions as well as numerousother jobs that exist in the national economyare sedentary in nature. Moreover, the SocialSecurity Act clearly excludes benefits for per-sons who are qualified to perform sedentarywork. Nevertheless, the teller is collecting

12

In her ADA suit,the analyst

claimed that shesuffered from var-

ious conditionssuch as obesity,

profuse sweating,and minor pains.

SSDI benefits.3 8

Sales Representative Did Not Get Along withNew Coworkers. After working for her employ-er, Zilog, Inc., for six years, a secretary waspromoted to a sales representative position.Soon after assuming her new position, how-ever, she began having conflicts with certaincoworkers. After she was twice counseledabout those conflicts and given a poor per-formance review, she took two separate leavesof absence. Her treating physician recom-mended the leaves on the basis of the “stress”of being reprimanded for clashing with hernew coworkers.

The secretary never returned from hermonth-long second leave of absence in 1993and was terminated by her company per itsabsenteeism policy. The company did inviteher to reapply after her physician certifiedthat she was able to return to work andpromised her that it would notify her if asuitable job became available. Instead ofreapplying, however, she filed an ADA suitand applied for SSDI benefits.

In conjunction with the ADA suit, a federaljudge noted that the secretary’s job difficultieswere related to a single, particular set ofcoworkers. She had bipolar disorder, but hercondition had remained stable through sever-al years of employment and became aggravat-ed only after she began interacting with par-ticular coworkers. Indeed, her own physicianstated that her workplace stress was “unrelat-ed to her actual job description” and could bealleviated in a different office environment.

Despite the clear evidence that the secre-tary was restricted from working in only a sin-gle, particular work environment, SSA grantedher full SSDI benefits. In reaching its decision,SSA ignored the opinion of her own treatingphysician, as well as her six-year history of sat-isfactory job performance before beingassigned to work with a new set of coworkers.3 9

SSA Discredits Physician, Accepts ForgedDoctor’s Note. A delivery driver for SoundDistributing Corporation claimed in May1993 that he injured his back while removing acase of beer from his truck. After taking a leaveof absence, he presented his employer with a

doctor’s note clearing him to work without anyphysical restrictions. Nevertheless, he main-tained that he could no longer drive a truck,and he subsequently requested reassignmentto a packaging position. His supervisor grant-ed the request.

Soon thereafter, the driver claimed that hecould no longer work in the packaging posi-tion. He asked whether there were any jobsavailable in the light-duty can-countingdepartment. The supervisor confirmed thatvacant can-counting positions existed andoffered him one. The driver, however, saidthat he was just inquiring and that he did notreally want a can-counting position. Lessthan a week later, he again claimed that hecould not work in the packaging departmentand he produced a workers’ compensationinjury report.

The supervisor was suspicious of inconsis-tencies between the workers’ compensationreport and the physician’s earlier medicalrelease. Accordingly, she asked the driver toprovide an updated physician’s report. Thedriver then produced a note that he claimedwas written by his physician. After producingthe note, he began swearing at the supervisor,who had to ask security to escort him fromcompany premises.

Immediately after the incident, the super-visor telephoned the driver’s physician to ver-ify the authenticity of the medical note. Thesupervisor was informed that the note was afake. The supervisor decided to fire the driverfor his profane, insubordinate behavior andhis forgery of the doctor’s note. The driverthen filed for SSDI benefits.

Disregarding the professional opinion ofthe driver’s own treating physician, an SSAadministrative law judge decided that the driversuddenly and coincidentally became totallydisabled and completely unable to work theday after he was fired for misconduct. Eventhough the driver’s treating physician hadreleased him to work without limitation, SSAdetermined that the driver should not have tolook for a new job and should instead receivelifetime SSDI payments after having beenfired for swearing at his supervisor and forg-

13

A federal judgenoted that thesecretary’s jobdifficulties wererelated to a single,particular set ofcoworkers.

ing a doctor’s note.40

Insurance Employee Didn’t Like DeliveringBad News. An employee of Blue Cross BlueShield of Kansas worked for the company fortwo years before being promoted to a corre-spondent position. Her correspondent workrequired her to contact policyholders andexplain to them why the company was deny-ing their benefits claims.

Soon after beginning her new position, sheinformed her supervisor that she found itstressful to deliver bad news to policyholders.Accordingly, she asked to be transferred to adifferent position. The company granted herrequest by transferring her to a clerk expe-diter–prescreening position. However, soonafter she began her new job, a supervisor askedher to help with a backlog of correspondentwork. The employee refused to perform thecorrespondent work, stating that it wouldprobably involve stressful phone calls. Afterallegedly suffering a panic attack caused by theincident, she took a medical leave. After twomonths of leave, in January 1993, her employ-er filled her job with another employee.

Although the employee’s alleged stressaffected only her ability to perform the singlejob of delivering bad news to policyholders,and although she had proven perfectly capa-ble of performing less stressful jobs, SSAgranted her full SSDI benefits. SSA apparent-ly believes that all work in the national econo-my requires employees to call members of thegeneral public and deliver bad news to them.41

All Workers Must Shoot to Kill? In May 1992a special police officer for the Georgia PortsAuthority failed to pass a mandatory, two-day firearms proficiency test that was period-ically given to all patrol officers. After failingthe first day of the test, the officer was offeredextra instruction and extra time to practicefor the second day. He rejected the offers andsubsequently failed the second day of thetest. The Ports Authority once again offeredthe officer another opportunity to pass thetest, as well as additional time to practice hisshooting. Once again, the officer chose not topractice, and again he failed the test.

The officer took two weeks’ vacation and

provided a note from his doctor saying heshould perform only sedentary duties. Uponhis return he asserted that he had an impair-ment called “benign essential tremor” thatcaused him to have difficulty firing hisweapon accurately. He requested that thePorts Authority waive its firearms proficiencyrequirement for him. The Ports Authority,however, refused to waive its requirementand removed the officer from his position.The officer then filed an ADA suit andapplied for SSDI benefits.

A federal judge found that the officer wasclearly not disabled, even under the lenientADA standard. The judge noted that the offi-cer’s own treating physician explicitly statedthat the officer’s condition did not at allinterfere with performance of any of his jobduties. The judge also noted that even if thealleged medical condition affected his abilityto fire a gun accurately, such inaccuracy didnot preclude him from performing a broadrange of other jobs. In fact, the PortsAuthority itself invited him to apply fornumerous other positions that did notrequire the use of a firearm, but the officerrefused to consider those positions.

Despite the clear evidence that the officerwas limited only in his ability to perform jobsrequiring him to accurately shoot a firearm,and despite the federal judge’s ruling that hewas not disabled even under the lenient ADAstandard, SSA determined that the officerwas totally disabled and unable to performany meaningful work that exists in thenational economy. In this ruling SSA impliesthat all American workers must be able toshoot to kill before entering the workforce.4 2

Worker Refused to Perform “Entry - Level”Work. In November 1991 a home securityinstaller for ADT Security Systems fell off aladder and sustained serious injuries. Fivemonths later he applied for SSDI benefits,workers’ compensation benefits, and privateinsurer disability benefits, claiming he couldno longer perform the functions of a securitysystem installer.

While medical evidence suggested that theinstaller indeed could not return to his old

14

SSA determinedthat the driver

should receivelifetime SSDI pay-

ments after hav-ing been fired for

swearing at hissupervisor and

forging a doctor’snote.

job, a physician concluded that he was stillqualified for several other positions with thesecurity company. The employer then invitedthe installer to explore a number of jobs,including those of emergency dispatch oper-ator, field operator, field support specialist,customer service representative, and safetytrainer. The installer refused, claiming thathe would not fill what he considered to be“entry-level” positions.

The installer later filed an ADA com-plaint, claiming that he was being discrimi-nated against because of his disabilities,despite the fact that his company had offeredhim several positions for which he was quali-fied. He subsequently worked as a part-timetruck driver for another employer, clearlydemonstrating his ability to work.

The SSA initially turned down his requestfor SSDI benefits but, remarkably, later agreedto classify him as disabled. Thus, despite med-ical evidence that the installer could still per-form any number of jobs, despite the employ-er’s offer to give him his choice of several posi-tions, and despite the installer’s subsequentwork as a truck driver, SSA determined that hewas completely unable to work and grantedhim full SSDI benefits.4 3

Worker Fired after Exposing Herself in theWorkplace. A textile worker for Stowe-PharrMills worked in a plant that had woodenfloors. She requested and, in February 1994,received a transfer to a different plant thathappened to have concrete floors. Eventually,she was fired for misconduct and absen-teeism. She then filed a discrimination suitunder the ADA and applied for SSDI benefits.

In her ADA suit, the worker alleged thatshe had a number of minor ailments thatcumulatively made it difficult for her to workon concrete floors. She claimed, however,that she had no difficulty working on wood-en floors. Accordingly, she asserted that heremployer should have accommodated herminor ailments by transferring her back toher initial work site before firing her.

However, a federal judge ruled that theemployer was not required to transfer theworker back to her old job because she had

engaged in misconduct with other coworkersthere, as well. Specifically, the worker hadrevealed her bare buttocks to other employ-ees to show off one of her tattoos. “The ADAdoes not require an employer to ignoreemployees misconduct and/or poor perfor-mance when making job assignments,”noted the court.

Despite the evidence that the worker wasfully capable of working any job that did notrequire prolonged standing on a concretefloor, despite the fact that she might haveobtained just such a position if not for herown misconduct, and despite the fact thatshe admitted to being qualified to work, SSAgranted the worker full disability benefits.4 4

Accused Sexual Harasser Ruled SociallyDisabled. After receiving two separate warn-ings about sexual harassment complaints, anemployee at IBM told his superiors that hehad depression and that the employer’swarnings had aggravated his condition. Theemployee claimed that he could still performhis job but said that his employer should becareful about issuing future reprimands andthe employer should ensure that he wasassigned to only eight-hour shifts. Followingthis, he successfully performed his job foranother seven years.

The employee eventually claimed thatother employees, who were all required towork 12-hour shifts, came to resent hisabbreviated work schedule and would rarelytalk with him. As a result, he claimed that hisworkplace was too stressful, and in January1995 he stopped showing up for work. Hethen filed for SSDI benefits.

Although he had worked successfully forseven years after being warned about sexualharassment complaints, and although hehad simply alleged that he could not work ina particular environment with particularcoworkers, SSA ruled that the employee wasunable to perform any meaningful work. SSAgranted him full SSDI benefits, ignoring thesexual harassment issue that seemed to bethe real basis of his workplace problems.4 5

Retail Clerk Awarded Benefits after ClaimingHis Car Wouldn’t Start. When applying for a

15

The worker hadrevealed her barebuttocks to otheremployees toshow off one ofher tattoos.

retail sales position at a Wal-Mart store, a clerkindicated that he had undergone back surgeryseveral years before. Nevertheless, he demon-strated that he was fully capable of working,and he was hired and subsequently worked inthe store’s sporting goods and hardwaredepartments. At one point he reinjured hisback, and his employer accommodated himby exempting him from heavy-lifting tasks.

After successfully working in the store fortwo years, the clerk took a scheduled vaca-tion. When he was due to return to work,however, he claimed that he was having cartrouble and couldn’t return that day. Thesame events occurred day after day, with theclerk repeatedly calling in and claiming thathe could not return from his vacation thatday because of car troubles. When the clerkfinally returned from his vacation in October1992, he was fired for his extended absence.

The clerk immediately filed for SSDI ben-efits, claiming that he was totally disabledand unable to work because of his prior backsurgery. At the same time he filed an ADAcomplaint, admitting that he was fully capa-ble of working. Initially, SSA rejected his dis-ability claim. However, an SSA administra-tive law judge chose to overlook the docu-mented reason for the clerk’s terminationand instead concluded that “his work endedat that time due to exacerbation of his backpain and depression.” SSA granted the clerkfull SSDI benefits, despite his empiricalwork history and his own admission that hecould work, and instead required Americanworkers to pick up the tab for yet anotherextended vacation.4 6

Factory Worker Had Minor Hand Irritation.An assembler at Midland Brake, Inc., claimedthat he suffered dermatitis (a skin irritation)on his hands due to his exposure to certainchemical irritants in his workstation. As aresult, he obtained a physician’s recommenda-tion that he cease working at his particular sta-tion. He took a leave of absence and then filedan ADA suit and applied for SSDI benefits.

While litigating his ADA suit, he admittedthat he was fully capable of performing a vari-ety of jobs for his employer. He further assert-

ed that his physician would have approved hisreturn to work in many of those positions.

Despite his admission that he could per-form a variety of jobs, and despite the fact thatfew jobs require close contact with the specificchemicals at his workstation, an SSA adminis-trative law judge determined that the assem-bler was totally disabled and unable to performany meaningful work. Amazingly, in October1992 SSA granted him full disability benefits.4 7

Packer Fired for Abusing Work Leave. A meatpacker at IBP Inc., alleged that he hurt hishand at work. A physician recommendedthat he be placed on temporary light-dutywork and prescribed physical therapy.Accordingly, IBP granted him time off fromwork for his scheduled therapy sessions.

However, in the first two weeks of hisscheduled therapy, the packer missed fiveseparate appointments. Moreover, he did notinform his employer that he was skipping theappointments but continued to take time offfrom work for his scheduled sessions.

Eventually, the employer learned that thepacker was abusing his leave privileges andasked him for an explanation. He provided aquestionable excuse involving alleged car trou-bles, and in March 1993 his employer fired him.

Even though the packer clearly did notconsider his hand very injured, and eventhough he was fired solely for his alleged mis-conduct, an SSA administrative law judgeruled that he was totally disabled and pre-cluded from engaging in any meaningfulwork. The packer’s minor hand impairmentsuddenly and coincidentally became totallydisabling and rendered him completelyunable to work, ruled the SSA judge, imme-diately after the worker was fired for hisalleged misconduct.4 8

Full Benefits for Personality Conflict withParticular Supervisor. The Quantum ChemicalCorporation employed a factory worker forabout nine months before the worker com-plained that his supervisor was harassing him.The worker thereafter visited a psychiatristbecause of the alleged stress of the situationand in September 1992 checked himself into a

16

The employerlearned that the

packer was abus-ing his leave privi-

leges and askedhim for an

explanation.

hospital for depression.The psychiatrist determined that the

worker had “much difficulty with his super-visor” and recommended that the companytransfer the worker to another supervisor.When the company refused, the worker quithis job, sued under the ADA, and filed forSSDI benefits.

The federal judge who heard the worker’sADA suit found that he was clearly not dis-abled, even under the lenient ADA standard.The judge observed that the worker and histreating psychiatrist both stated that hecould work in other environments with othersupervisors. The judge further noted that theworker “can perform all of the activitiesrequired of a plant technician; he just doesn’twant to do them around his supervisor. . . .His inability to work under a particularsupervisor simply is not a substantial limita-tion on working. . . .”

Nevertheless, SSA determined that theworker was totally disabled and unable to per-form any meaningful work that exists in thenational economy. On the basis of a single per-sonality conflict with one particular supervi-sor, SSA handed out full SSDI benefits.4 9

Employee Could Refuse “Demeaning” CashRegister Job. A deli employee at a Hy-Vee gro-cery store fell down at work and injured hisback. After receiving back treatment, histreating physician released him to work with-out any restrictions. The employee, however,visited another physician and obtained anote stating that he should not lift morethan 20 pounds or stand for more than 15minutes at a time. The grocery store offeredto accommodate those restrictions by pro-viding him with a stool and having him workat the cash register. However, the employeedid not want to work a “demeaning” cashregister job. He quit his job, filed an ADA dis-crimination suit, and filed for total disabilitybenefits under SSDI.

The federal district judge who heard theADA case in April 1997 ruled that the employ-ee was not significantly limited in his ability towork, even under the lenient ADA standard.Indeed, his own treating physician had con-

cluded that he could work without restrictions.Moreover, even if the employee could discreditthe conclusions of his treating physician, hissubsequent work restrictions precluded himfrom only a narrow range of jobs.

Despite the conclusions of the employee’streating physician, the conclusions of thefederal district judge, the fact that the gro-cery store offered him employment consis-tent with his alleged restrictions, and theinescapable truth that not all jobs requireemployees to lift more than 20 pounds orstand for long periods of time, SSA ruled thatthe employee was totally disabled and inca-pable of performing any meaningful workand granted him benefits.5 0

Employee Precluded Merely from WorkingOvertime. An employee of the City of PrairiesVillage, Kansas, became embroiled in person-ality conflicts and job-performance disputeswith his supervisors after he testified againstthe city in an arbitration hearing. Subsequentto his testimony, the city documented that theemployee was occasionally insubordinate andthat he frequently did not complete hisassigned work. The employee countered thatthe city was simply out to get him because ofhis adverse arbitration testimony.

While relations between the employee andhis supervisors were breaking down, theemployee presented a note from his doctorstating that he should “generally limit him-self to a forty hour workload” because he“becomes overstressed and consequently lessproductive” when working overtime.

Eventually, in January 1994, the city elimi-nated the employee’s position during a reduc-tion in force. He promptly filed for SSDI ben-efits, claiming that his overtime restrictionsrendered him disabled. Incredibly, SSA grant-ed him full disability benefits, suggestingwith that decision that the worker’s aversionto working overtime rendered him totally dis-abled and unable to perform any meaningfulwork that exists in the national economy.5 1

SSA Rejects Medical Evidence, Rules All Jobs“Unduly Stressful.” A telecommunicationstechnician worked for AT&T for 10 years,during which time he occasionally suffered

17

The employee didnot want to worka “demeaning”cash register job.

from depression and stress disorders.Eventually he took a medical leave of absencebut returned to work when a supervisorpromised that he could provide the techni-cian with a supportive work environment.

The technician had performed his job suc-cessfully after returning to work. However, heand his supervisor were both eventually reas-signed to other company positions. After hehad a personality conflict with a new cowork-er, the technician left his job, filed an ADAsuit, and applied for SSDI benefits.

A federal judge ruled that the technicianwas not disabled, even under the lenient ADAstandard. Although he could not perform“unduly stressful” jobs, he was still capable ofperforming a broad range of jobs in a widevariety of work environments. Indeed, he hadworked successfully over an extended periodof time before he opted out of his particularwork assignment.

Despite the technician’s extensive workhistory, and despite the clear finding of thefederal court, in September 1992 SSA grant-ed him full disability benefits. Although hedid have a history of depression, his depres-sion manifested itself only in “unduly stress-ful” work environments with particularcoworkers. Further, disability advocates uni-formly and reasonably urge that employers,government officials, and others not stereo-type or speculate about a person’s abilities orinabilities on the basis of that person’s pastmedical history. Rather, disability advocates,and the applicable federal statutes, demandan individual inquiry into each person’s par-ticular circumstances. Where, as here, theavailable medical evidence and the claimant’sown testimony demonstrate that theclaimant is fully capable of performingmeaningful work, it is entirely improper forSSA to assume that the person is incapable ofworking simply because he suffers from agiven impairment.5 2

Manager Knew Axe Was About to Fall. In1979 a manufacturing engineer managerwith a history of phlebitis at HartmannLuggage Company was diagnosed with anabnormal vein condition. His condition mar-

ginally affected his ability to work, typicallycausing him to miss only a day or two ofwork per year. After his diagnosis, he success-fully worked for 15 years with a singleemployer, with only rare and brief absencesfrom work.

In 1995 the manager and the employer’svice president of manufacturing began dis-agreeing about a number of work productionissues. The vice president called a meetingwith the manager to discuss his “negativismin regard to interpersonal relations with bothsupervisors and subordinates.” The vice pres-ident prepared a concurrent memorandumstating that the manager was not supportingthe employer’s manufacturing mission, wasundermining the vice president, and wouldbe removed from his position if his negativeattitude continued.

Soon thereafter, the manager and the vicepresident had another serious disagreementafter the vice president decided to increase thesalary offer to an applicant for an engineerposition. On the night of the disagreement,the manager told his wife that he might befired because of the dispute. His intuition wascorrect because the next morning the vicepresident prepared a memorandum recom-mending the manager’s termination.

Knowing that he was about to be fired,the manager did not go to work the day afterthe argument. Instead, he went to see hisdoctor. For the first time in roughly 15 yearsof employment, he obtained a doctor’s noterecommending a one-week medical leave.

After his one-week leave expired, the man-ager returned to work. When he arrived atwork, however, he was advised that the vicepresident wanted to see him. Before the vicepresident could meet with him, he requestedadditional medical leave. Thereafter, herepeatedly renewed his medical leave andeventually applied for SSDI benefits. He alsofiled a discrimination suit under the ADA.

In the context of his ADA claim, the manag-er alleged that his vein impairment made it dif-ficult for him to stand and walk. Nevertheless,a federal judge firmly rejected the manager’sassertion that he was disabled, even under the

18

A federal judgeruled that the

technician wasnot disabled, evenunder the lenient

ADA standard.

lenient ADA standard. “The plaintiff’s condi-tion clearly does not prevent him from work-ing, as he held the position as an engineer forseveral years after being diagnosed with hisimpairment,” stated the court.

Moreover, the judge noted that the man-ager accepted an offer to manage a conve-nience store shortly after filing his discrimi-nation claim. In this new position, he spentapproximately 30 percent of his time walkingaround the workplace. Therefore, he had “nobasis for arguing that his condition substan-tially limits his major life activity of work-ing,” ruled the court.

Despite the manager’s impressive preter-mination job attendance and his ease inobtaining subsequent managerial work, SSAruled that he was totally disabled and com-pletely unable to perform any meaningfulwork. SSA granted him full SSDI benefits,even as he proved that he could still work.5 3

Insurance Agent Could Not Talk on the PhoneAll Day. A claims specialist for State FarmMutual Insurance Company, who hadworked for her company for 24 years, in 1994was diagnosed with a respiratory ailmentthat prevented her from prolonged speaking.Her treating physician stated that she couldcontinue working but recommended thatshe not talk on the phone for more thanthree hours per day.

The claims specialist could not continuein her position because it required her to talkon the phone for about 90 percent of herworkday. However, she did not inquire aboutother jobs within her company, in partbecause she refused to take a salary cut.When she refused to consider other companyjobs, she was terminated.

She applied for long-term disability bene-fits through CIGNA, a private insurer. Notsurprisingly, the insurer and her treatingphysician concluded that she was qualifiedto perform numerous other jobs. Accordingly,the insurer denied her benefits application.

The claims specialist then filed for SSDIbenefits. Even though the private insurer andher own treating physician had concludedthat she was employable, SSA ruled that she

was totally disabled and unable to performany meaningful work.5 4

All Jobs Require Exposure to Extreme Heat? Afactory machinist for Asarco Inc., had a heartattack but soon thereafter was cleared towork with only a few restrictions. Themachinist’s doctor stated that he could notclimb stairs, lift more than 50 pounds, workin excessively hot temperatures, or beexposed to noxious gases.

Unfortunately, the machinist worked at asmelter, a piece of heavy equipment used forthe high-temperature melting of heavy met-als. Therefore he could not continue to per-form his particular job under his medicalrestrictions. His employer did not have alight-duty position available for him.

Clearly, most jobs do not require workers tolift 50 pounds, work in excessively hot tempera-tures, or be exposed to noxious gases. Never-theless, in 1992 SSA determined that themachinist’s minor restrictions rendered himtotally disabled and unable to perform anymeaningful work in the national economy. SSAgranted the machinist full SSDI benefits.5 5

Station Manager Works Seven Years WhileDrawing Benefits. A man had a medical condi-tion that required replacement of both of hiships. After successful surgery, a doctor gavehis approval for the patient to engage inmost daily activities. His only restrictionswere that he could not carry heavy objects orclimb stairs.

Despite those very minor physical restric-tions, the man filed for and was granted SSDIbenefits. SSA apparently found that all jobs inthe national economy require employees tocarry heavy objects or climb stairs.

The preposterous nature of SSA’s ruling isunderscored by the applicant’s work historyafter he began receiving SSDI benefits. From1988 until 1995 he contracted to operate acity’s public access cable television station,and during that time he continued to receiveSSDI benefits predicated on his inability towork. He described his job responsibilities inoperating the station as “everything” fromperforming physical chores such as takingout the trash to performing administrative

19

Despite the man-ager’s ease inobtaining subse-quent managerialwork, SSA ruledthat he was totallydisabled.

duties such as hiring and firing volunteers.Despite his very minimal medical restric-

tions and his extensive work history involvingall aspects of running his own business, SSAdetermined that he was completely unable toperform any type of work during the sameseven years that he ran all aspects of his ownlabor-intensive business.5 6

Manager Works Two Years While DrawingBenefits. In 1978 an SSDI applicant who hadmultiple sclerosis filed a disability report withSSA, claiming that she was unable to work.SSA granted her full SSDI benefits.

In 1993 the applicant and her husbandbegan working as on-site managers for a self-storage facility of the Dahn Corporation. Thecouple performed their managerial jobs formore than two years before they were fired.The applicant then filed an ADA complaint,which a court ultimately rejected. Despite herproven ability to engage in productive work,she continued to receive uninterrupted SSDIbenefits, even during the two years that sheheld her management position.5 7

Probation Officer Kept Working, Drew BenefitsAnyway. A Delaware probation officer suf-fered two heart attacks in 1990. He recoveredand returned to his job shortly after theattacks. He then worked for two years with-out any medical difficulties.

After participating in a discriminationcomplaint against his employer, however, theprobation officer began experiencing prob-lems with his supervisor. The supervisorobserved that a doctor’s note in the proba-tion officer’s file said he could work onlyfour hours per day, even though he was, infact, working full-time. She asked the officerto have the doctor update the medical evalu-ation, which the officer would not do.During a subsequent sick-leave day, in June1992, the supervisor fired the officer.

In March 1991, after he had returned towork but well before he was fired, the officerapplied for SSDI benefits. He was approvedfor those benefits in December 1991, while hewas still working and before he lost his job. Indetermining that the officer could not per-form any type of meaningful work that exists

in the national economy, SSA apparently dis-missed the fact that the officer was at that verytime performing his job without difficulty.58

Sales Representative Limited to 10 Work Hoursper Day. A sales representative for the Kerr-McGee Corporation traveled frequently andworked extended hours servicing her salesterritory. After performing her job for fiveyears, she was diagnosed with lupus. Becauseof her diagnosis, her doctor restricted her to10-hour workdays.

Soon thereafter, the sales representativewas transferred to a new supervisor. A per-sonality conflict developed between the two,and the sales representative subsequentlyalleged that her supervisor was harassing her.Her supervisor, in turn, alleged that the salesrep was being insubordinate. Ultimately, inOctober 1993, the company fired her for fail-ing to follow her supervisor’s directives.

Immediately upon her termination, thesales representative applied for SSDI bene-fits. Her only medical restrictions were thatshe could not work more than 10 hours perday and that she should have a restful dailylunch break. After turning her down twice,SSA granted full disability benefits, implyingthat all jobs in the national economy requireemployees to work more than 10 hours perday without a meaningful lunch break.5 9

Stockbroker Never Required Vision Treatment.In 1993 a stockbroker was involved in anautomobile accident. He alleged that, as aresult of the accident, he had vision difficul-ties. Nevertheless, he continued to work 12hours per day, five days per week, and henever felt the need to seek medical help.

Two years later, the stockbroker broke hisankle while exiting a train. His ankle healed,but he nevertheless applied for SSDI bene-fits, in addition to filing a civil suit againstthe Long Island Railroad.

In adjudicating the broker’s civil case, afederal judge noted that the broker was notdisabled. Evidence showed that he (1) hadnever sought any rehabilitation for his allegedeye impairment; (2) had continued to workwithout difficulty, despite his alleged eyeimpairment; (3) had substantially recovered

20

The applicantcontracted to

operate a publicaccess cable televi-

sion station, andduring that timehe continued to

receive SSDI benefits.

from his ankle injury; and (4) was able to run,bike, climb ladders, perform householdchores, and perform electrical work and othertasks, in spite of his alleged impairments.

Despite the accumulated medical evi-dence, the stockbroker’s continued work his-tory, and the findings of the federal court,SSA determined that the stockbroker wastotally disabled and unable to perform anymeaningful work in the national economy.Incredibly, a simple broken ankle and a dubi-ous, minor eye impairment entitled him tocease working and draw lifetime paymentsfrom Social Security reserves.6 0

SSA Rejects Whole Team of Doctors. A machineoperator claimed to experience several medicalailments during her 15 years of work at a print-ing and publishing facility of E.I. DuPont.After she was terminated from her job, inFebruary 1994, she contested her employer’sdecision to deny her disability benefits.

A federal judge upheld the employer’s find-ing that the machinist was not disabled. Thejudge noted that three separate doctors explicit-ly concluded that she was fully capable of work-ing, two other doctors explicitly concluded thatshe did not suffer any significant medical prob-lems, and another doctor explicitly stated thatshe suffered from only temporary impairments.

Despite the conclusion of a federal judgeand six doctors that the machinist was not pre-cluded from working, an SSA administrativelaw judge determined that the machinist wastotally disabled and incapable of performingany meaningful work. SSA rejected the find-ings of the entire team of doctors and insteadgranted the machinist full disability benefits.6 1

Inspector Disabled the Moment He Was Fired?The town government of Roselle, Illinois,hired an individual with diabetes as a build-ing inspector. Prior to starting his new posi-tion, and indeed throughout the entire timethat he worked thereafter, the inspector hadno trouble controlling his condition. He con-sistently received good reviews at work.

After being employed for several years, theinspector suffered a heart attack. He missed amonth of work and, upon returning to hisjob, was told that he would be fired for incom-

petence unless he chose to resign because of illhealth. He insisted that his health did not pre-vent him from working, and he refused toresign. Thereafter, he was fired.

Even though he had insisted that he wasfully capable of working after his heartattack, and even though he had always suc-cessfully controlled his diabetes, the inspec-tor applied for SSDI benefits. Because he hadrecovered from his heart attack, he based hisSSDI claim on his diabetic condition. At first,SSA deferred to the inspector’s empiricalwork record and his insistence that he couldstill work and thus denied him benefits.Subsequently, however, SSA reconsideredand, in May 1994, declared him disabled bydiabetes from the date of his heart attack.

In so ruling, SSA ignored the fact that theinspector had always controlled his diabetesand, by his own admission, had recovered fromhis heart attack. While the inspector may havehad a valid ADA claim against his employer forrefusing to let him return to his job, he certain-ly seemed to be precluded from SSDI benefitsby his long-standing ability to control his dia-betes, by his work history, and by his insistencethat he could still continue to work.6 2

Disproven Science Good Enough for SSA. A pro-bation officer for Hennepin County, Minnesota,claimed that she had “chronic fatigue syn-drome” and “multiple chemical sensitivity syn-drome.” After taking various forms of leave, shetook a medical layoff, which would allow her tokeep her salary and seniority if she returned towork within three years, and collected privatedisability benefits during that time. Just beforethe three-year deadline, the probation officerclaimed that she could work again. However, shemaintained that as a result of her “multiplechemical sensitivities” she should be employedin a position in which she would not be exposedto cigarette smoke, building materials, adhe-sives, glues, epoxies, paints, varnishes, carexhaust fumes, room deodorizers, perfumes,hair sprays, cleaning products, copy machines,or computers. Subsequently, her employeroffered her numerous job accommodations andavailable positions. However, she rejected each ofthe employer’s proposals and instead filed an

21

Despite the accu-mulated medicalevidence, and thefindings of thefederal court,SSA determinedthat the stock-broker was totallydisabled.

ADA suit and applied for SSDI benefits.A federal judge threw out the officer’s

ADA claim because she was not disabled,even under the lenient ADA standard. Thejudge noted that the theory of multiplechemical sensitivity has failed to gain accep-tance within the scientific community andhas been repeatedly rejected by the federalcourts. As the judge observed, “[F]ederalcourts do not consider environmental illnessor MCS a scientifically valid diagnosis.”Moreover, the court cited specific federalcourt decisions that “MCS is . . . unsupport-ed by sound scientific reasoning or method-ology”6 3 and “theory underlying MCS isuntested, speculative, and far from generalacceptance in the medical or toxicologicalcommunity.”64 Finally, the court pointed outthat even if the probation officer had pre-sented a valid medical diagnosis, she claimedthat her condition merely prevented herfrom doing computer work. The probationofficer “has failed to show how minimalcomputer usage constitutes a significant bar-rier to employment in the social work andprobation fields,” explained the court.

Nevertheless, the officer succeeded inobtaining SSDI benefits. Apparently consid-ering itself more medically knowledgeablethan the entire scientific and legal communi-ty, SSA ignored the overwhelming scientificand legal consensus that multiple chemicalsensitivity is not a valid medical diagnosisand instead ruled that the officer’s allegedcondition rendered her totally disabled andentitled her to full SSDI benefits.6 5

SSA Again Rejects Scientific Consensus. A pro-fessor at the University of Arizona also claimedthat she suffered from “multiple chemical sensi-tivity.” Like the probation officer, the professorstated that she could not work in the presence ofcopy machines, computers, carpeting, furni-ture, paint, perfumes, toiletries, smoke, shoepolish, disinfectants, cleaning products, andclothes washed in scented detergent or fabricsoftener. University officials offered to transferher office to a different building and provideother accommodations, but to no avail. Theuniversity even allowed her to work at home,

but even so, in October 1995, she stopped per-forming any of the functions of her position.

As noted above, scientific experts haveoverwhelmingly concluded that that there isno such impairment as “multiple chemicalsensitivity.” The scientific community hasconcluded that alleged multiple chemicalsensitivities are either highly exaggerated orpsychosomatic. Despite the overwhelmingconsensus of the scientific and medical com-munities, however, SSA ruled itself moremedically knowledgeable and awarded theprofessor full SSDI benefits.6 6

Mail Clerk Refused Numerous Job Offers. Aclerk for Neodata magazine’s mail-processingdepartment fell down and slightly injuredher right arm. The clerk’s treating physicianconcluded that the arm had only a 6 percentresultant limitation, and the physician indi-cated that the impairment would have little,if any, impact on the clerk’s ability to work.

Nevertheless, the clerk took a leave ofabsence, claiming that she could not performher customary mail-processing duties. Whileshe was on leave, her employer encouragedher to apply for other vacant company posi-tions that were even less demanding and forwhich she was medically qualified. Theemployer arranged for a company nurse totake her on a tour of the facilities and toexplain the company’s available positions.However, the clerk refused to train for anynew positions.

The employer then offered the clerkanother position for which she was qualified.The clerk declined that job offer, too, statingthat she would be on an out-of-state trip atthe time the position opened and that shecould not return by the job’s starting date.The employer then delayed the job’s startingdate to coincide with the clerk’s schedule, butshe never showed up for work. In May 1993the employer fired the clerk, who in turn filedan ADA discrimination suit and applied forSSDI benefits.

A federal judge dismissed the clerk’s ADAsuit because she was not disabled, even underthe lenient ADA standard. The judge notedthat the clerk’s own treating physician

22

SSA ignored theoverwhelming sci-

entific and legalconsensus that

multiple chemicalsensitivity is not a

valid medicaldiagnosis.

described her arm injury as only a minorimpairment that would have little effect on herability to work. The judge further noted thatthe employer had offered her numerous posi-tions and job-training opportunities for whichshe was clearly physically qualified. The clerk’sdecision not to accept the job offers had noth-ing to do with her minor arm impairment.

Nevertheless, SSA granted her full disabil-ity benefits. Notwithstanding the fact thatshe remained unemployed solely because sherefused to accept numerous job offers thatmet her physical restrictions, SSA deter-mined that the clerk was unable to performany meaningful work that exists in thenational economy.6 7

Secretary Suddenly Gets Arthritis on Day She IsFired? A secretary-receptionist for the WilliamPowell Corporation was terminated during areduction in force. Her employer decided toeliminate her position because there was notenough work to justify her job. The secretaryhad an unquestioned record of satisfactoryjob performance up until, and including, herfinal day of work. Immediately upon her ter-mination, however, the secretary claimed thatshe had arthritis that made it difficult for herto climb stairs. She filed an ADA discrimina-tion suit and applied for SSDI benefits.

Regarding her ADA claim, a federal judgenoted that the secretary’s alleged arthritis didnot at all affect her ability to work. “Sheacknowledges that her claimed disability didnot affect her work, that her doctor did notplace any restrictions on her in any way, thatshe regularly climbed stairs at home, andthat she regularly climbed stairs during workand during her lunch break.”

On January 8, 1993, 13 weeks after shelost her job, the secretary fell and broke herhip. While that injury may arguably havebeen serious enough to render her fully dis-abled (although such an injury is rarely severeand permanent enough to preclude a personfrom working again), on April 5 of that yearSSA granted her full disability benefitsretroactive to September 29, 1992, the dayshe lost her job. The clear evidence was thatshe was not disabled when her position was

eliminated. Thus, even allowing the mostgenerous interpretation of its actions, SSAjumped the gun by some 13 weeks when itclassified the secretary as unable to performany work in the national economy—a profli-gate use of Social Security dollars.6 8

Tip of the Abuse IcebergSome people may argue that these 43 doc-

umented cases of abuse are merely exceptionsto the rule and do not indicate widespreadabuse. However, there is strong evidence thatjust the opposite is true. The above-docu-mented abuses likely represent only a verysmall fraction of the abuse that occurs with-in the SSDI system.

When SSA grants SSDI benefits, it doesnot make its awards public. Moreover, SSDIrecipients have no incentive to make theirawards public. Therefore, a substantialmajority of all SSDI awards evade publicscrutiny. In fact, just about the only timefacts surrounding SSDI awards are madepublic is when a beneficiary later files anemployment discrimination suit under theADA or similar anti-discrimination statutes.

However, only a small number of SSDIrecipients subsequently file such disabilitydiscrimination suits. And only some of thoseADA suits ultimately make it through thelegal system and are presented before a judgeor a jury. Of that smaller number of ADAsuits that reach a judge or a jury, only someare resolved through a written opinion thatmakes its way to the public. And of this evensmaller fraction of cases that result in a writ-ten decision, a still smaller fraction actuallyreferences the fact that the plaintiff drawsSSDI benefits.

In short, the facts regarding specific SSDIawards are made available to the public inonly an incredibly small percentage of cases.Therefore, the above-documented abuses donot even come close to capturing the mass ofhidden abuses that occur within the system.In fact, the above-documented abuses repre-sent only the tip of the iceberg of total abuses.To uncover even a few individual cases ofabuse in such a minute SSDI sampling

23

The judge notedthat the employerhad offered theclerk numerouspositions andjob-trainingopportunities.

would indicate a serious problem with theSSDI system. To have uncovered so manysuch abuses is downright alarming.

SSA StatisticsThe recent flood of abuse within the SSDI

program can also be inferred from SSA statis-tics. The U.S. Bureau of the Census estimatesthat the nation’s overall population grew byjust 7 percent between 1991 and 1998.6 9

Nevertheless, SSA reports that it grantedSSDI benefits to 47 percent more persons in1998 than in 1991.7 0More startling still, SSAseems to have extravagantly opened its vaultsto beneficiaries. Its own numbers show that itpaid out 77 percent more money to SSDIrecipients in 1998 than in 1991, meaning thatsubstantially more money is suddenly beingpaid to each beneficiary.7 1

Did America undergo an epidemic of severedisabilities such that 47 percent more peoplewere unable to work in 1998 than in 1991? Andeven if that somehow were the case, how canSSA logically explain the fact that it handed out77 percent more SSDI dollars over the sametime period? Was America in the 1990s secretlyand simultaneously suffering from rampantplagues and hyperinflation?

The simple fact is that in the 1990s SSAawarded more SSDI benefits to more people,and in higher dollar amounts, than could log-ically be anticipated, or can logically beexplained, by socio-economic factors. However,the fleecing of Social Security can be morereadily traced through an examination of ide-ological, bureaucratic, and political motiva-tions within the system that have continuedunchecked since the early 1990s. Withouteffective oversight from outside officials orthird-party organizations, SSA may have suc-cumbed to the most base of political instincts.

Catalysts of SSDI AbuseIt is incorrect to assume that SSA has insti-

tutional incentives to vigilantly protect itsSSDI funds from fraud and abuse. First, gov-ernment agencies, like any other businesses orquasi-business entities, are constantly seekingrevenue increases. However, government

agencies receive their funds from Congressand they rarely receive funding increaseswhile showing stagnant, controllable expen-ditures. SSA has a disincentive to vigilantlymonitor its disbursements, because stagnantexpenditures will result in stagnant funding.

Second, political ideology can motivaterunaway SSDI awards. The commissioner ofSocial Security is a presidential politicalappointee who will usually share the presi-dent’s political agenda. A president or a com-missioner who disagrees with strict statutorySSDI language will be inclined to ignore it.During such administrations, SSA self-watchdog mechanisms are ineffectual. It isno coincidence that SSDI awards have sky-rocketed during the present administration.

Third, raw political ambition, irrespective ofpolitical ideology, can motivate an abdication ofstatutory duty. The more persons who owe theirdubious SSDI benefits to a particular person orpolitical party, the more persons can be expect-ed to politically support the distributor of thosefunds. Simply put, more SSDI recipients equalmore votes for derelict administrators.

Fourth, SSA judges are likely to be sympa-thetic to the sad stories of applicants. Thosejudges will have no real incentive not to grantrelief. The easy thing to do is grant benefitsto applicants.

One-Sided Procedural MechanismsAdded to the incentives for SSA personnel

to pass out benefits to those who do notdeserve them are SSDI procedural mecha-nisms that provide applicants with a multi-tude of avenues for pursuing, contesting, andappealing disability determinations, whileproviding no avenue for watchdog groups tomonitor fraud and abuse.

To begin with, an applicant submits hisSSDI claim for an initial entitlement determi-nation. SSA assigns those initial determina-tions to state agencies but retains control ofthe determination process. Moreover, SSAreviews individual awards and has the powerto reject state agency determinations.72 If SSAapproves an award of benefits at the initialdetermination stage, there is no entity that

24

These document-ed abuses repre-sent only the tipof the iceberg of

total abuses.

reviews or challenges the award. However, ifan applicant is denied benefits in the initialdetermination, he may request reconsidera-tion through a special reviewing official.73

In the reconsideration process, the appli-cant may present a case to a reviewing officialwho was not involved in the initial determi-nation. If the reviewing official disagrees withthe initial denial and instead grants benefits,the award is final and no entity may review orchallenge the award. If, however, the review-ing official affirms the denial of benefits, theapplicant may request review before an SSAadministrative law judge.7 4

If the SSA administrative law judge dis-agrees with each of the prior determinationsand instead decides to award benefits, theaward is final and no entity may review orchallenge it. If, however, the administrativelaw judge affirms the earlier benefits denials,the applicant may request review before anSSA Appeals Council.7 5

If the SSA Appeals Council disagrees withall of the prior determinations and insteaddecides to award benefits, the award is finaland no entity may review or challenge it. If,however, the Appeals Council affirms the ear-lier benefits denials, the applicant may chal-lenge the determination in federal court.76

If a federal court disagrees with all of theprior determinations and instead decides toaward benefits, the award is final and no enti-ty may review or challenge it. If, however, afederal court affirms the earlier benefitsdenials, the applicant may file a petition toreopen the claim and start the entire processall over again.7 7

The end result of these procedural mecha-nisms is that an SSDI applicant can be ruledfully capable of working by each of four ormore separate administrative entities andstill receive full disability benefits. If SSAwere staffed by individuals committed toupholding the strict language and purposeof the SSDI program, a few unjust awardsmight slip through the many cracks. But ifSSA is staffed by individuals who are hostileto the strict language of SSDI, a flood ofabuse predictably results. This is especially

the case because there are few internal orexternal safeguards to ensure that SSA per-sonnel are abiding by the strict language andintent of the Social Security Act.

Prescriptive Solutions

At minimum, a number of simple proce-dural changes are necessary to help stem thecurrent abuses of the SSDI system.

First, those SSA officials who make initialeligibility determinations must be subject toindependent review and accountability.Officials who consistently ignore the clearstatutory language of the SSDI programshould be identified and removed from the sys-tem. To this end, an independent watchdogentity must be created to ensure impartialadministrators. The watchdog must remainindependent of SSA and must not be subject tothe political, ideological, and bureaucraticagendas that may pervade the agency.

Second, there must be independent over-sight and independent review of individualSSDI awards. Currently, every applicant isentitled to challenge an initial benefitsdenial. An independent watchdog entityshould be given similar power to challengeunjustified initial benefits awards. Thewatchdog entity might be instructed to pre-serve the privacy of individual SSDI awards,but the entity must remain independent ofSSA and must remain unquestionably com-mitted to the eradication of fraud and abuse.

Third, there must be balance in the subse-quent SSDI review processes. The applicantalone currently has the right to repeatedlychallenge benefits denials through a requestfor reconsideration, through an administra-tive law judge, through a special appealscouncil, and through the federal courts.Including the initial determination proce-dures, this gives each applicant five separatechallenges, plus the right to file a motion toreopen the claim and start the process all overagain. Providing applicants with such multi-ple opportunities to secure benefits is entirelyunnecessary; it increases opportunities for

25

An SSDI appli-cant can be ruledfully capable ofworking by eachof four or moreseparate adminis-trative entitiesand still receivefull disabilitybenefits.

abuse. Justice for all parties, including everyAmerican worker who is forced to contributeto the Social Security system, can be diligent-ly served by limiting the process to, at most,two steps of review. To the extent that a mul-titude of procedural steps may remain inplace, however, an independent watchdogentity should be given the same rightsretained by applicants to review and challengeeach step of the SSDI determination process.

Fourth, and finally, SSA should beaccountable for policy positions that under-mine the strict language and clear goals of theSocial Security Act. For example, SSA hasrecently instructed its determinations person-nel and its administrative law judges that per-sons who are fully capable of working shouldnevertheless be considered completely unableto work and should be awarded full disabilitybenefits if they require simple workplaceaccommodations.78 This policy position totallyignores the fact that the ADA requires allemployers to provide reasonable accommoda-tions whenever and wherever disabled personsneed them.7 9 Nevertheless, SSA has explicitlystated that it will make all benefits determina-tions in a make-believe world in which the ADAtheoretically doesn’t exist. Such a position clear-ly and completely undermines the statutory lan-guage and the compelling goals of the SSDI pro-gram.

Costs of Continued Abuse

The social and financial costs of SSDI abuseare tremendous. When SSA encourages able-bodied persons to claim SSDI benefits, it acts todefeat the interests of disabled and nondisabledpersons alike.

When persons who are fully capable of work-ing tap into SSDI, resources are drained from per-sons with truly disabling conditions. As abusescontinue to undermine the program’s solvency,politicians are forced to either raise Social Securitytaxes or slash individual benefits awards, or both.The end result is that persons who are trulyunable to work receive fewer benefits as a result offraud and abuse by others.

Moreover, SSDI benefits are disbursedfrom the same general Social Security fundsas are retirement benefits. When personswho are capable of working are encouragedto tap into SSDI, the government is forced toslash the benefits of retired Americans.

The cumulative financial results of suchwidespread abuse are that the Social Securitysystem faces bankruptcy before today’s col-lege graduates can expect to retire and thatthe solutions, if any, imposed by the federalgovernment are likely to be painful and costlyand would fail to address a core reason forSocial Security’s impending insolvency. Someor all of those painful solutions would beunnecessary if simple mechanisms were putin place to control SSDI abuse.

Notes1. U.S. General Accounting Office, “Adults withSevere Disabilities,” GAO/HEHS-99-101, May1999, p. 16.

2. “The Future of Social Security,” SocialSecurity Publication no. 05-10055, October1998, p. 3.

3. Ibid.; and U.S. General Accounting Office, p. 16.

4. Social Security Act, 42 U.S.C. § 423 (1935).

5. Ibid. § 1382c.

6. “Social Security Disability Benefits,” SocialSecurity Publication no. 05-10029, May 1996;and Social Security Act § 1382c.

7. U.S. General Accounting Office, p. 16.

8. “Social Security Disability Benefits,” p. 8.

9. Ibid., p. 10. See also “Factsheet: ProvidingMedical Evidence to the Social SecurityAdministration for Individuals with ChronicFatigue Syndrome; A Guide for Health CareProfessionals,” Social Security Publication no. 64-063, n.d. , p. 1, http://www.ssa.gov/odhome/ cfs-facts.htm.

10. “Social Security Disability Benefits,” p. 9.

11. Ibid., p. 10. See also Disability Notes 1, no. 25(2000), Social Security Office of DisabilityPublication no. 64-040; and Kenneth S. Apfel,Social Security commissioner, Testimony before

26

SSA should beaccountable forpolicy positions

that undermine thestrict language and

clear goals of theSocial Security Act.

the Subcommittees on Social Security andHuman Resources of the House Committee onWays and Means, Joint Hearing on Social Security’sDI and SSI Program Caseloads, 106th Cong., 1stsess., October 21, 1999, http://www.ssa.gov/policy/congcomm/ testimony_102199.html.

12. Code of Federal Regulations for SocialSecurity, 20 C.F.R. §§ 404.1520, 416.920 (1986).

13. 20 C.F.R. § 404.1520(c).

14. See Daniel L. Skoler, associate commissionerfor hearings and appeals, Social SecurityAdministration, Memorandum to AdministrativeAppeals Judges, reprinted in Social Security PracticeGuide 2 (1998), App. § 15C[9], pp. 15-401 to 15-402.

15. 42 U.S.C. § 12112(b)(5)(A).

16. Carolyn C. Cleveland v. Policy ManagementSystems Corporation, 526 U.S. 795 (May 24, 1999).

17. 120 F.3d 513 (1997).

18. 1997 U.S. Briefs 1008. Brief for the UnitedStates and the Equal Employment OpportunityCommission as amici curiae supporting petitioner.

19. See Bowen v. Yuckert, 482 U.S. 137 (1987).

20. Ibid. Emphasis added.

21. 526 U.S. 795 (1999).

22. Feliberty v. Kemper Corp., 1998 U.S. Dist. LEXIS7119 (N.D.Ill. 1998).

23. Simon v. Safelite Glass Corp., 128 F.3d 68 (2d Cir.1997).

24. Hill v. Kansas City Transp. Auth., 181 F.3d 891(8th Cir. 1999).

25. Christou v. Hyatt Regency-O’Hare, 996 F. Supp.811 (E.D.Ill. 1998).

26. Swanks v. Washington Metro Area Transit Auth.,116 F.3d 582 (D.C. Cir. 1997).

27. Horner v. Income Producing Management ofOklahoma, Inc., 1999 U.S. App. LEXIS 7260 (10thCir. 1999).

28. Serrano v. Shield Institute of David, Inc., 1997 U.S.Dist. LEXIS 4455 (S.D.N.Y. 1997).

29. Terry v. Norfolk Southern Railway Co., 948 F.Supp. 1058 (N.D.Ga. 1996).

30. Wilson v. Freightliner Corp., 1997 U.S. Dist.

LEXIS 6187 (W.D.N.C. 1997).

31. McNemar v. The Disney Store, Inc., 91 F.3d 610(3d Cir. 1996).

32. Francis v. Chemical Banking Corp., 1999 U.S.Dist. LEXIS 12502 (E.D.N.Y. 1999).

33. Lemons v. US Air Group, Inc,. 43 F. Supp. 2d 571(M.D.N.C. 1999).

34. 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 403(1995).

35. Olinger v. U.S. Golf Assoc., 55 F. Supp. 2d 926(N.D.Ind. 1999).

36. Steeves v. Shaw’s Supermarkets, Inc., 1998 U.S.Dist. LEXIS 14219 (D.Maine 1998).

37. Barnett v. Lockheed Martin Corp., 1997 U.S. Dist.LEXIS 20552 (M.D.Fla. 1997).

38. Simmons v. Northside Savings Bank, 1997 U.S.Dist. LEXIS 13131 (S.D.N.Y. 1997).

39. Lewis v. Zilog, Inc., 908 F. Supp. 931 (N.D.Ga.1995).

40. Quintana v. Sound Distribution Corp., 1997 U.S.Dist. LEXIS 934 (S.D.N.Y. 1997).

41. Smith v. Blue Cross Blue Shield of Kansas, Inc., 102F.3d 1075 (10th Cir. 1996).

42. Fussell v. Georgia Ports Authority, 906 F. Supp.1561 (S.D.Ga. 1995).

43. Budd v. ADT Security Sys., Inc., 1996 U.S. Dist.LEXIS 21972 (W.D.Mo. 1996).

44. EEOC v. Stowe-Pharr Mills, 1998 U.S. Dist.LEXIS 21948 (W.D.N.C. 1998).

45. Violette v. IBM Corp., 962 F. Supp. 446 (D.Vt.1996).

46. Griffith v. Wal-Mart Stores, Inc., 930 F. Supp.1167 (E.D.Kent. 1996).

47. Smith v. Midland Brake, Inc., 911 F. Supp. 1351(D.Kan. 1995).

48. Nguyen v. IBP, Inc., 905 F. Supp. 1471 (D.Kan.1995).

49. Hatfield v. Quantum Chemical Corp., 920 F.Supp. 108 (S.D.Tex. 1996).

50. Stevens v. Hy-Vee Food Stores, Inc., 1997 U.S. Dist.LEXIS 4491 (D.Kan. 1997).

27

51. Butler v. City of Prairie Village, 974 F. Supp. 1386(D.Kan. 1997).

52. Gaul v. AT&T, Inc., 955 F. Supp. 346 (D.N.J.1997).

53. Williamson v. Hartmann Luggage Co., 34 F. Supp.2d 1056 (M.D.Tenn. 1998).

54. Jones v. State Farm Mutual Ins. Co., 1997 U.S.Dist. LEXIS 6885 (E.D.Mich. 1997).

55. Baker v. Asarco, Inc., 1995 U.S. Dist. LEXIS16852 (D.Ariz. 1995).

56. Johnson v. City of Saline, 151 F.3d 564 (6th Cir.1998).

57. Beck v. Dahn Corp., 1998 U.S. App. LEXIS 9709(10th Cir. 1998).

58. Price v. Delaware Dept. of Correction, 40 F. Supp.2d 544 (D.Del. 1999).

59. Williams v. Kerr-McGee Corp., 1997 U.S. App.LEXIS 6366 (10th Cir. 1997).

60. Katzowitz v. Long Island RR., 1999 U.S. Dist.LEXIS 11989 (E.D.N.Y. 1999).

61. Pokol v. E.I. DuPont de Nemours & Co., Inc., 963F. Supp. 1361 (D.N.J. 1997).

62. Fang v. Village of Roselle, 1997 U.S. Dist. LEXIS6303 (N.D. Ill. 1997).

63. Summers v. Missouri Pac. R.R. Sys., 132 F.3d 599,603 (10th Cir. 1997).

64. Frank v. New York, 972 F. Supp. 130, 136–37(D.N.Y. 1997).

65. Coffey v. County of Hennepin, 23 F. Supp. 2d1081 (D.Minn. 1998).

66. Tobias v. Arizona Bd. of Regents, 1998 U.S. App.LEXIS 30070 (9th Cir. 1998).

67. Robinson v. Neodata Servs., Inc., 94 F.3d 499 (8thCir. 1996).

68. Richardson v. William Powell Co., 1994 U.S. Dist.LEXIS 19818 (S.D.Ohio 1994).

69. U.S. Bureau of the Census, Population EstimatesProgram, “Monthly Estimates of the United StatesPopulation,” July 30, 1999, http://www.census.gov/population/estimates/nation/intfile-1.txt.

70. Social Security Administration, “CurrentOperating Statistics,” June 30, 1999, sec. I-OASDI,Table 1.B1.

71. Ibid.

72. 42 U.S.C. § 421.

73. 20 C.F.R. § 404.905.

74. Ibid. § 404.929.

75. Ibid. § 404.967.

76. Ibid. § 404.981.

77. Ibid. § 404.989.

78. Skoler.

79. 42 U.S.C. § 12112(b)(5)(A).

28

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