Social Security disability law and practice is disabling. The common understanding is that successful claims require fitting a case and a client's story into a master narrative that embraces stereotypic victimization and helplessness, and requires disclosure of embarrassing details of disability as the individual's defining identity. (1) Subjecting oneself to the system as it is presently practiced is often at odds with disabled individuals' instincts, desires, and mental well-being, and is at odds with the goals of lawyers who seek to empower clients through their advocacy. (2) It re-victimizes and stigmatizes the clients we seek to benefit. Serious criticisms have been leveled at anti-poverty lawyers who routinize the practice of law on behalf of individuals seeking Social Security disability benefits. (3) And serious criticism of the medically-based construct of Social Security disability has grown out of the disability rights movement, so much so that many disability rights scholars reject the basic premises of the program. (4)
While this paper acknowledges the bases of those criticisms, it argues that because of the economic importance of the Social Security programs to the disabled, client-centered advocates who strive to empower communities should not abandon the practice of Social Security disability law. Rather, this paper encourages anti-poverty lawyers to focus on client narratives and to reframe their practice, thus helping, as Laura Rovner urges, the nation re-learn and re-understand disability. (5)
I begin with a review of the disabling meta-narrative that infuses Social Security proceedings. The legal standard for disability requires persons with a disability to present as the sum of their impairments and to profess that they cannot function in the workplace. (6) As practitioners struggle to present cases that conform to the legal standards without questioning the frame of those standards, they disable and disempower their clients, and push their clients to present their narratives in a disabling and disempowering manner.
I then discuss the possibilities for framing these issues differently, by referencing the disability rights movement and human rights norms. The paper concludes with suggestions for practitioners for the reframing of their practice and client narrative that is consistent with principles of client autonomy, attorney-client collaboration, and infused with more empowering client counter narratives that reject or co-opt the disabling master narratives urged by the Social Security system.
DISABLING NORMS INFUSE SOCIAL SECURITY DISABILITY CASES
Social Security Disability Insurance ("SSDI") and Supplemental Security Income ("SSI") cannot be ignored in conversations about the rights of the disabled because they are the largest source of assistance to persons with disabilities in the United States, (7) and more individuals seek and rely on disability benefits to meet their basic needs every day. (8) "People with disabilities overwhelmingly remain poor, and ... [p]overty among people with disabilities is worse in the United States than elsewhere in the developed world." (9) Far from the shift anticipated by some in the disability rights movement from welfare or Social Security Disability Insurance rolls to employment after the Americans with Disability Act ("ADA") was enacted, more people with disabilities receive SSI and SSDI and the employment rolls have not increased for the disabled. (10)
SSI and SSDI differ in their conceptualization, history, and funding source. SSDI is an entitlement funded through Federal Insurance Contribution Act ("FICA") taxes under Title II of the Social Security Act (11) that has been available since 1956. (12) SSI is a means-tested welfare benefit (13) created in 1972 as part of the Nixon Administration's attempt to standardize state disability-related welfare payments. (14) By 2012, there were approximately 8.3 million persons receiving SSI benefits--7.1 million on the basis of disability. (15) Even though the two disability benefits are paid out of different funds, the standards for disability determinations are the same and are made by the same administrative process and officials. (16) The standard to qualify as disabled for Social Security purposes is difficult to articulate, to decide, and to meet. (17) To qualify as disabled for Social Security purposes, an individual must establish that he or she is unable "to engage in any substantial gainful activity" due to a physical or mental impairment that has lasted or is expected to last for a year or more, or is expected to result in death. (18) Social Security's definition of disability relies on the medical view of disability, focusing on the impairment, and what is wrong with the individual. (19)
Individuals must show not only that they cannot perform their previous work but also that their impairment(s) are so severe that they cannot perform any job that "exists in the national economy, regardless of whether such work exists in the immediate area," or whether the individual would be hired if he applied. (20) As Spencer Rand has noted, clients seeking disability benefits are thus "constrained to describe themselves as incompetent people who cannot cope with their impairments." (21)
The administrative process for Social Security disability and SSI disability claims consists of a series of claim evaluators and appeals. (22) There are "two critical decision points" in the process for disability determinations: "the initial administrative decision and the ALJ hearing." (23) To initiate a claim, an individual files an initial application for benefits with their local Social Security office. (24) The initial disability determination is made by a state agency called the Office of Disability Determination Services ("DDS") in the claimant's respective state. (25) Most claimants are unrepresented at this stage in the proceedings and the majority of the claims are denied. (26) Although the system is ostensibly designed to be penetrable by unrepresented individuals, it works well only as a means to screen out applicants and deny benefits, often because the applicant is unable to comply with the time frames and deadlines set by the agency or to provide sufficient proof of disability. (27) After initial denial, the claimant can request reconsideration within sixty days. (28) Typically this results in a different DDS officer reaching the same result as the initial determination. (29) The reconsideration step has been criticized, and recommended for elimination, based on the fact that it is "essentially repetitive" of the initial decision. (30) If denied after reconsideration, the claimant can, again within sixty days, request a hearing before an administrative law judge ("ALJ"). (31)
At this stage, the odds change dramatically. Claimants are approved well over fifty percent of the time. (32) The reasons for this discrepancy are manifold, but I believe the most important is the availability of counsel. Counsel makes a difference to the outcome of these cases in two seminal ways. Counsel develops the evidentiary record (33) and works with the claimant to present the client's narrative regarding disability and how the client is affected by disability. (34) It is the only part of the administrative process that permits witness testimony before a decision maker. (35) It is the development and content of that narrative that I want to explore here.
The University of Miami's Health Rights Clinic
The client narratives that appear in this article are drawn from my experiences as a clinical professor and anti-poverty lawyer working in the Health Rights Clinic at the University of Miami School of Law. (36) I want to contextualize my points by providing some information about my Clinic and what we do. The Health Rights Clinic is a Medical-Legal Partnership working collaboratively with health care providers in three medical settings--the adult Ryan White funded HIV care clinics ("Miami-Dade County has the third-highest serio-prevalence rate in the nation"), (37) the county community health center which treats the uninsured population, an organization devoted to assisting homeless veterans, and the Pediatric Mobile Clinic, which treats uninsured children. (38) All of our clients are impoverished, many are far below the federal poverty standard, many are female, many are immigrants, and many are language and/ or racial minorities. (39) Our client population is more than 95 percent minority. (40) All of our clients are health-impaired or disabled, many with among the most stigmatized disabilities, such as HIV and mental health issues. Many have multiple disabilities. They often also have or presently engage in stigmatized conduct--many are homeless, many have a history of drug or alcohol dependence, and many have a criminal history. Many of our female clients struggle with a history of domestic violence.
Our representation and advocacy model tries to comprehensively address the client's legal needs and goals. Most of this work involves benefits and entitlements such as Social Security Supplemental Income and disability, immigration status adjustments affecting or related to disability or health care access, advance directives, anti-discrimination work in housing, employment and access to government services and benefits. (41) It is our goal to do this by genuinely engaging our clients in making advocacy choices and by presenting our client's narrative authentically and in a culturally sensitive and enabling way. The Clinic's signature pedagogies include holistic representation, (42) a high case volume for students, (43) and intense preparation for hearings, with mock hearings done with the client in an effort to engage the client as much as possible in the representation, and to give the client and the student helpful feedback in advance of the actual hearing.
Over and over again, as...