The Social Security Apocalypse: Manipulating Zombie Factors to Deny Mentally Ill Claimants.

• Author: Goldstein, Annie

CONTENTS INTRODUCTION I. RESPONSES TO THE ZOMBIES AND THEIR FAULTS A. District and Circuit Courts' Inconsistent Reactions to Using Zombie Factors as Tools to Assess Disability B. Criticisms of Using Zombie Factors to Deny Claimants II. EXPLOITING THE ZOMBIES: ALJS USE ADLS AND OTHER MAINSTREAM ACTIVITIES TO MINIMIZE THE MAGNITUDE OF MENTAL ILLNESS A. Employing Zombie Factors to Mask Integral Symptoms of Mental Illness B. ALJs' ADL Analyses Ignore the Cyclical Nature of Mental Illness III. TAMING THE ZOMBIES: SUGGESTIONS FOR ALTERING ALJS' APPROACH TO EVALUATING MENTAL ILLNESS CONCLUSION INTRODUCTION

Mr. M hears the voices of zombies coming from the basement of his house. He lost his job because his co-workers found him hard to work with. Mr. M's schizophrenia caused him to lash out at his partners. He was always agitated on the job. Mr. M has two daughters at home and a granddaughter on the way. He worries he can no longer provide for his young family.

The more time Mr. M spends at home, the louder the zombies in the basement become. Sleep is a cyclical battle for Mr. M: he either can't sleep because he's hearing the zombies, or he can't stay awake after being sleep deprived. The Social Security Administration ("Social Security") has denied Mr. M benefits twice. It reasoned that although Mr. M could not keep a job, he could bathe and cook, so his condition is not severe enough to amount to a disability.

Ms. A suffers from bipolar disorder. On her good days, Ms. A dresses herself. She looks presentable. Her hair is brushed, and her clothes are ironed. Ms. A makes jokes and converses with acquaintances. She's very warm; she's kind to those around her. Ms. A enjoys cooking and spending time with her partner. When all her days were good days, Ms. A was a schoolteacher. She spent many years shaping young children's lives.

But then Ms. A started having bad days. They cost Ms. A her job. When she's experiencing mania, Ms. A causes disturbances severe enough to warrant police restraint. She's been charged with committing felonies. Ms. A is often confined to a hospital bed when she's manic. Her depression nearly removes her personhood. Ms. A stays in bed until the late afternoon on most of her bad days. Ms. A feels too detached and exhausted to cook for herself. In these times, she has great difficulty showering and dressing. Social Security only recognizes Ms. A's good days. It concluded that on those days, Ms. A can hold a job, so she is not disabled.

Clearly, Social Security's disability program is experiencing "growing pains." (1) Enacted in 1935 and developed throughout the 1950s, the system was bound to expire. (2) Social Security was created to "protect ... [the] disabled" (3) by replacing the income disabled persons would earn if their disability did not prevent them from working. (4) But the program began before our treatment of the disabled was reformed. Before the twentieth century, disabled people were isolated from society. (5) During the 1700s, families kept their disabled relatives confined to their homes, sometimes caring for them and other times leaving them to die. Institutionalized care emerged in the early nineteenth century, but the disabled were often abused and neglected at their institutions. (6) When Section 504 of the Rehabilitation Act (7) passed in 1973, "the exclusion and segregation of people with disabilities was [first] viewed as discrimination." (8) Section 504 of the Act prohibited discrimination of any disabled person under programs receiving federal financial assistance, programs conducted by any executive agency, or by the United States Postal Service. (9) The Rehabilitation Act was the first legal initiative centered at integrating the disabled into mainstream society. (10)

We've continued to reform disability rights through the passage of the Americans with Disabilities Act (ADA) (11) in 1990. (12) The ADA "prohibits discrimination against people with disabilities" in places of "employment, transportation, public accommodations, communications," and state and local government programs. (13) After all this progress, Social Security's lackluster disability program is forcing applicants to go back into hiding.

To qualify for Social Security benefits, the Agency must find that the applicant is disabled. (14) An applicant has five chances to prove his disability, and he'll encounter many decision makers along the way. (15) First, an applicant submits an initial application. (16) These claims are processed at local Social Security field offices and state agencies. (17) If Social Security denies the initial application, an applicant can request a reconsideration of the Agency's initial determination. (18)

If an applicant disagrees with his reconsideration determination, he can appeal the decision and request a hearing. (19) Over 1,500 Administrative Law Judges (ALJs) hear more than 650,000 disability benefit cases each year. (20) ALJs review cases de novo, meaning they are not bound by initial and reconsideration decisions. (21) Claimants who disagree with their ALJ's decision can request review from the Appeals Council. An appeal from this level will bring the claim to federal district court. (22)

To create consistency among disability determinations, the Social Security Act defines "disability" as "the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment" for over twelve months. (23) ALJs determine disability by reviewing the interaction of anatomy, physiology, and mental status with factors including education, work exposure, social setting, psychological predispositions, and job availability. (24)

ALJs will review the claimant's testimony, medical expert testimony, and medical records to render a decision. (25) During the hearing, the ALJ questions the claimant about his disability. (26) A common practice is for ALJs to question claimants about their ability to complete activities of daily living (ADLs), or activities "necessary for human survival," like eating and bathing, and other "mainstream activities," such as reading and walking. (27) ALJs frequently deny claimants disability benefits when they testify that they are capable of performing these tasks. (28)

ALJs are criticized for confusing ADLs with duties required to hold a job. (29) Dr. Frank Griffin, a health law scholar at the University Arkansas School of Law, (30) dubbed ADLs and similar tasks the "zombie factors" because Social Security's disability criterion can only be met by zombies--claimants must be capable of "living without food, without personal hygiene or a clean home, without significant movement/exercise, without [social] interaction ... and without other semblances of human life" for ALJs to classify them as disabled. (31) The zombie factors support an outdated view of the disabled: disabled people are too incapacitated to become a part of mainstream society. (32)

Medical impairments are distinctly difficult conditions to prove disability from. (33) Mental disorders are often subject to biases due to our limited understanding of the conditions. (34) Some professionals don't believe in mental illness: mental disorders are not illnesses, so mental conditions do not qualify as disabilities. (35) They reason that not every form of "suffering" is an illness. (36) Others take the antiquated view that the invisibility of mental disease " mitigate [s] the impact of [the] disability," so mental illnesses are not as serious as physical conditions. (37) Mental illnesses are oftentimes "invisible" (38) because many sufferers can accomplish their ADLs, despite their impairments complicating the tasks. (39) Some mental illnesses are notoriously cyclical, so the ability to perform ADLs at one moment is not always indicative of the ability to perform at another. (40)

These conflicting beliefs and understandings cause ALJs to deny many who are deserving of assistance. (41) The zombie factors allow ALJs to ignore the complexities of mental illness and abandon disadvantaged applicants. Part I of this Comment details the federal courts' inconsistent responses to ALJs' use of the zombie factors and common criticisms of their application. Part II explains how ALJs manipulate the zombie factors to render unfavorable determinations for mentally ill claimants. Part III suggests alternative methods for review of mental impairments at the AL.J level.

1. RESPONSES TO THE ZOMBIES AND THEIR FAULTS

   Social Security will find a claimant "disabled," and thus qualified for benefits, if the claimant is unable to engage in "substantial gainful activity" due to a mental or physical impairment that has persisted for at least twelve months. (42) Regulations urge decisionmakers to refrain from considering ADLs or other similar tasks, like "taking care of [oneself], household tasks, hobbies, therapy, school attendance, club activities, [and] social programs," as instances of "substantial gainful activity." (43)

   Despite these regulations, district and circuit courts are faced with appealed decisions after ALJs find their claimants capable of ADLs and deny them disability benefits. Some courts will affirm the decision of the ALJ and support the denial because of the claimant's capabilities. Others differentiate ADLs from the ability to work a full-time job and refrain from using ADLs as evidence of non-disability. The zombie factors have been criticized for their failure to distinguish between employability and survivability, creating different standards for different disability types, promoting implicit disability bias, and ignoring significant differences between the home and work environments.

   1. District and Circuit Courts' Inconsistent Reactions to Using Zombie Factors as Tools to Assess Disability

      Courts inconsistently respond to AL.Js' employment of ADLs and other zombie factors to deny claimants disability benefits. There are many courts that use zombie...