UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 97-41310

(Summary Calendar)

_________________

DAVID J PENA,

Plaintiff - Appellant,

versus

HOUSTON LIGHTING & POWER COMPANY,

Defendant - Appellee.

Appeal from the United States District Court

for the Southern District of Texas

September 21, 1998

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM:

David Pena brought suit against Houston Lighting & Power

Company (HL&P), alleging violations of the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., and the Texas

Commission on Human Rights Act (“TCHRA”), TEX. LAB. CODE ANN.

§ 21.051 et seq. The district court granted summary judgment in

favor of HL&P, holding that Pena was estopped from arguing that he

was able to perform the essential functions of his job because he

had made contrary representations in his applications for Long-Term
-2-

Disability (“LTD”) benefits and mortgage disability benefits. We

affirm.

In Cleveland v. Policy Management Systems Corporation, we held

that “the application for or the receipt of social security

disability benefits creates a rebuttable presumption that the

claimant or recipient of such benefits is judicially estopped from

asserting that he is a ‘qualified individual with a disability’

[under the ADA].” 120 F.3d 513, 518 (5th Cir. 1997) (emphasis in

original), petition for cert. filed, 66 U.S.L.W. 3435 (U.S. Dec.

15, 1997) (No. 97-1008); see also McConathy v. Dr. Pepper/Seven Up

Corp., 131 F.3d 558, 562-63 (5th Cir. 1997) (explaining that “[t]he

statements in the SSA application create a presumption that [the

plaintiff] is not a qualified person with a disability”). It is

undisputed that Pena applied for LTD and mortgage disability

benefits and that he represented in both applications that he was

“totally disabled.” Furthermore, it is undisputed that as part of

his LTD benefits application, Pena was required to fill out a

Disability Report with the United States Social Security

Administration (“SSA”) in which he claimed that his condition

“hamper[ed] all job duties.” Pena was approved for LTD benefits in

August 1995 and has continued to receive a gross monthly LTD

benefit of approximately $1,782.55. Thus, because of his multiple

representations that he was “totally disabled,” Pena must overcome

the rebuttable presumption that he is not a “qualified individual
-3-

with a disability” under the ADA. See Cleveland, 120 F.3d at 517;

McConathy, 131 F.3d at 562-63.

We must reemphasize, however, particularly in light of the

district court’s assertion that “[i]t would be hard to imagine any

set of circumstances where a claim of total disability would be

consistent with a claim of ability to perform the essential

functions of one’s job,” that we have not adopted a per se rule of

judicial estoppel precisely because the SSA’s definition of

disability differs in significant respects from the definition of

a “qualified individual” under the ADA. See Cleveland, 120 F.3d at

517 & n.14; see also Rascon v. U S West Communications, Inc., 143

F.3d 1324, 1332 (10th Cir. 1998) (“We join the majority of circuits

and hold that statements made in connection with an application for

social security disability benefits cannot be an automatic bar to

a disability discrimination claim under the ADA.”); Johnson v.

Oregon, 141 F.3d 1361, 367 (9th Cir. 1998) (“[N]either application

for nor receipt of disability benefits automatically bars a

claimant from establishing that she is a qualified person with a

disability under the ADA.”); Griffith v. Wal-Mart Stores, Inc., 135

F.3d 376, 382 (6th Cir. 1998) (“[J]udicial estoppel does not apply

because the answers given in a Social Security disability benefit

application are not necessarily inconsistent with a plaintiff’s

claim that he could have worked at his job, during the relevant

period, with a reasonable accommodation.”), petition for cert.
-4-

filed, 66 U.S.L.W. 3800 (U.S. June 9, 1998) (No. 97-1991); Talavera

v. School Board of Palm Beach County, 129 F.3d 1214, 1220 (11th

Cir. 1997) (“We agree with the majority of our sister circuits that

a certification of total disability on an SSD benefits application

is not inherently inconsistent with being a ‘qualified individual

with a disability’ under the ADA.’”); Swanks v. Washington Metro.

Area Transit Auth., 116 F.3d 582, 584 (D.C. Cir. 1997) (“[I]n

assessing eligibility for disability benefits, the Social Security

Administration gives no consideration to a claimant’s ability to

work with reasonable accommodation.”); Weiler v. Household Finance

Corp., 101 F.3d 519, 523-34 (7th Cir. 1996) (“Because the ADA’s

determination of disability and a determination under the Social

Security disability system diverge significantly in their

respective legal standards and statutory intent, determinations

made by the Social Security Administration concerning disability

are not dispositive findings for claims arising under the ADA.”);

Robinson v. Neodata Servs., Inc., 94 F.3d 499, 502 n.2 (8th Cir.

1996) (“Social Security determinations . . . are not synonymous

with a determination of whether a plaintiff is a ‘qualified person’

for purposes of the ADA.”). Nonetheless, we agree with HL&P that

Pena is unable to overcome the rebuttable presumption under the

facts of this case. The LTD plan’s definition of “totally

disabled” tracks the language of “qualified individual with a

disability” under the ADA. The LTD plan states that the claimant
-5-

is “totally disabled” if “the Participant is wholly and continually

disabled by sickness or accidental bodily injury which prevents

him/her from performing, with or without reasonable accommodations,

the essential functions of his/her normal occupation.” (emphasis

added). This definition was included in both the application that

Pena filled out in September 1994 and in the letter he received in

August 1995 awarding him benefits. Because Pena specifically

represented that he could not perform his job with or without

reasonable accommodation, he cannot demonstrate that he is a

“qualified individual with a disability” under the ADA.

Ultimately, Pena has put forth no “credible, admissible

evidence” to overcome the Cleveland presumption and his case does

not present the “limited and highly unusual set of circumstances”

necessary to rebut the presumption. See Cleveland, 120 F.3d at

517-18. Accordingly, the judgment of the district court is

AFFIRMED.