* Ch ief District Judge of the Western District of Louisiana,

sitting by designation.

1 42 U.S.C. §12101 et seq . (1994).

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 96-11247

__________________________

CAROLYN C. CLEVELAND,

Plaintiff-Appellant,

versus

POLICY MANAGEMENT SYSTEMS CORPORATION;

GENERAL INFORMATION SERVICES, a Division of

Policy Management Systems Corporation;

CYBERTEK CORPORATION,

Defendants-Appellees.

___________________________________________________

Appeal from the United States District Court

for the Northern District of Texas

____________________________________________________

August 14, 1997

Before WIENER and PARKER, Circuit Judges, and LITTLE, * District

Judge.

WIENER, Circuit Judge:

Plaintiff-Appellant Carolyn C. Cleveland appeals the district

c ourt’s grant of summary judgment for her former employer

,

Defendant-Appellee Policy Management Systems Corporation (PMSC), on

her claim of wrongful termination und er the Americans with

Disabilities Act (ADA). 1 We affirm, concluding that Cleveland has2

failed to raise a genuine issue of material fact which, if proved,

would rebut the presumption that her sworn declar ations of

disability submitte d to the Social Security Administration (SSA)

judicially e stop her from asserting that under the ADA she is a

“qualified individual with a disability.”

I.

FACTS AND PROCEEDINGS

PMSC hired Cleveland in August 1993. The following January,

Cleveland suffe red a stroke while on the job and took a leave of

absence. She was unable to return to work immediately, however, as

the stroke caused aphasia, a condition that affects concentration,

memory, and language functions such as speaking, reading, and

spelling.

With her daughter’s assistance, Cleveland filed an application

for social security disability benefits. In support of her sworn

application, Cleveland c ertified that she had become “unable to

work because of [her] disabling condition on January 7, 1994” and

that she was “still disabled.” She acknowledged also that it is a

crime to make a false statement in an application for social

security disability benefits.

In April 1994, Cleveland’s doctor released he r to return to

work and anticipated an eventual recovery for her of nearly 100%.

Cleveland alleges that when she returned to work at PMSC she

contacted the SSA and informed them that she had returned and that

she no longer needed disability benefits. PMSC concedes that she3

informed the SSA of her return but denies that she ever withdrew

her application for disability benefits or otherwise indicated that

she was anything other than totally disabled.

Following her return, Cleveland did not perform well at PMSC.

She requested several accommodations, including computer training,

permission to take work home in the evenings, a transfer of

position, and permission for the Texas Rehabilitation Commission to

provide a counselor

—— free of charge

—— to assist her. PMSC

denied each of her requests. In July 1994, PMSC terminated

Cleveland for poor job performance.

Cleveland claims th at as a consequence of her firing she

became depressed and that her aphasia worsened. In September 1994,

she renewed her application for social security disability benefits

by filing a “Request for Reconsideration” in which she stated, “I

continue to be disabled,” and a “Work Activity Report” in which she

stated that she was terminated “because I could no lo nger do the

job because of my condition.” In January 1995, Cleveland filed

another “Request for Re consideration” and that May requested a

hearing before an Administrative Law Judge (ALJ), in both instances

representing that she was “unable to work due to my disability.”

In September 1995, the ALJ concluded that Cleveland had become

disabled on January 7, 1994 and was disabled continuously through

the date of the ALJ’s decision. Consequently, the ALJ granted her

social security disability benefits, effective retroactively to

January 7, 1994.4

One week before the ALJ’s decision, Cleveland had filed suit

against PMSC for wrongful termination in violation of the ADA and

the Texas Labor Code. PMSC moved for partial summary judgment,

asserting th at Cleveland could not establish a prima facie case

under the ADA, as her representations in her application for, and

her receipt of, s ocial security disability benefits estopped her

from claiming that she is a “qualified individual with a

disability.” The district court granted PMSC’s motion on the ADA

claim and dismissed the state law claim without prejudice.

Cleveland timely appealed, insisting that she is not estopped

from establishing as a matter of law that she is a “qualified

individual wi th a disability.” Specifically, she maintains that

her position in pursuit of social security disability benefits and

her instant position under the ADA are not inconsistent, as (1) she

was disable d for purposes of social security disability benefits

when she filed the initial application; (2) when she returned to

work, she notified the SSA and withdrew her claim for benefits; and

( 3) she became disabled a gain for purposes of social security

disability benefits only after and as a result of her termination.

Cleveland contends that, from the time she returned to work until

she was terminated, she could hav e performed the essential

functions of her job with a reasonable accommodation, i.e., during

that period she was a “qualified individual with a disability.”

II.

ANALYSIS2 Melton v. Teachers Ins. & Annuity Assn . of America , 1997 WL

285720, at *1 (5th Cir. June 16, 1997).

3 River Production Co., Inc. v. Baker Hughes Production Tools,

Inc.

, 98 F.3d 857, 859 (5th Cir. 1996)(citing Fed. R. Civ. P.

56(c)).

4 42 U.S.C. §12112(a)(1994).

5 See Daigle v. Lib erty Life Ins. Co. , 70 F.3d 394, 396 (5th

Cir. 1995).

6 42 U.S.C. §12102(2)(A)(1994).

5 A. S TANDARD OF R EVIEW

We review the district court’s grant of summary judgment de

novo, applying the same standards as the district court. 2 Summary

judgment is proper when the evidence, viewed in the light most

favorable to the non-moving party, shows that there is no genuine

issue of material fact and that the moving party is entitled to

judgment as a matter of law. 3

B. A PPLICABLE L AW

The ADA prohibits an employer from discriminating against “a

qualified individual with a disability because of the disability.” 4

To assert an ADA violation successfully, in the absence of direct

evidence of discrimination, a plaintiff m ust first make a prima

facie showing that, inter alia, he is a “qualified individual with

a disability.” 5 A “disability” is “a physical or mental impairment

that substantially limits one or more of the major life activities”

of the individual. 6 A “qualified individual with a disability” is

“an individual with a disabilit y who, with or without reasonable7 42 U.S.C. §12111(8)(1994).

8 42 U.S.C. §423(d)(1)(A)(Supp. 1997). The impairment must be

expected to result in death or to last for a continuous period of

not less than twelve months.

9 42 U.S.C. §423(d)(2)(A)(Supp. 1997).

6 accommodation, can perform the essential functions” of his job. 7

The Social Security Act prescribes an individual’s eligibility

for social security disability benefits. An individual is entitled

to receive such benefits if h e is unable “to engage in any

substantial gainfu l activity by reason of any medically

determinab le physical or mental impairment” 8 and only if that

impairment is of such severity that he is unable to do his previous

work and cannot engage in any other kind of substantial gainful

work which exists in the national economy. 9

When the two statutes are read in pari materia, it seems

logically inconsistent, at first blush, for an individual to claim

that he qualifies for social security dis ability benefits while

simultaneously maintaining that he can perform the essential

functions of his position for purposes of asserting an ADA claim.

Herein lies the dilemma.

Several of our fellow circuits have held that a plaintiff who

represents that he is totally disabled for purposes of recovering

social security disability benefits cannot then assert that he is

a “qualified individual with a disability” for purposes of bringing

an ADA claim. Those circuits have barred the subsequent ADA claim10 The Third, Sixth, Seventh, and Ninth Circuits have invoked

the doctrine of judicial estoppel. See McNemar v. The Disney Store,

Inc.

, 91 F.3d 610, 617-18 (3d Cir. 1996), cert. denied

, -- U.S. --,

117 S. Ct. 958 (1997)(plaintiff estopped from arguing that he is

qualified under the ADA); Blanton v. Inco Alloys Int’l, Inc. , 108

F.3d 104, 108-09 (6th Cir. 1997)(plaintiff’s previous

representations to the SSA estop him from claiming that he can

perform the essential functions of his position, but error for the

district court to apply judicial estoppel to plaintiff’s claim that

he could have performed other jobs); De Guiseppe v. Village of

Bellwood

, 68 F.3d 187, 192 (7th Cir. 1995)(plaintiff estopped from

arguing that he was anything other tha n actually disabled); and

Risetto v. Plumber and Steamfitters Local 343

, 94 F.3d 597, 606

(9th Cir. 1996)(plaintiff estopped from claiming that she was

performing her job adequately when she had pre viously obtained a

favorable settlement based on her assertion that she could not

work). The First and Eighth Circuits have treated a plaintiff’s

prior representations to the SSA as binding admissions. S ee August

v. Offices Unlimited, Inc.

, 981 F.2d 576, 5 84 (1st Cir.

1992)(plaintiff conceded that he was totally disabl ed at all

relevant times and cannot now establish that he was a “qualified

hand icapped person” and thus cannot make the prima facie case

required to prevail under the Massachusetts discrimination statute)

and Beauford v. Father Flanagan’s Boys’ Home

, 831 F.2d 768, 771

(8th Cir. 1987), cert. denied , 485 U.S. 938, 108 S. Ct. 1116

(1988)(plaintiff admitte d that she cannot perform the essential

functions of the job in question and that she will be unable to do

so in the near future; therefore, she does not qualify for

protection under the federal Rehabilitation Act) . The Ninth

Circuit has precluded a plaintiff’s subsequent ADA claim based on

an insufficiency of evidence to overcome plaintiff’s prior sworn

state ments to the SSA. S ee Kennedy v. Applause, Inc.

, 90 F.3d

1477, 1481-82 & n.3 (9th Cir. 1996)(unnecessary to apply judicial

estoppel when there was no genuine issue of material fact that

plaintiff was totally disabled; only evidence to the contrary was

plaintiff’s self-serving and uncorroborated affidavit in support of

her ADA claim). In addition, a number of district courts have

disallowed the subsequent ADA claim. S ee e.g. Hatfield v. Quantum

Chemical Corp.

, 920 F. Supp. 108, 110 (S.D. Tex. 1996)(logically

inconsistent for plaintiff to say that he is so impaired that he

cannot care for himself while simultaneously arguing that he can go

to wo rk and perform his job); H arris v. Marathon Oil Co.

, 948 F.

Supp. 27, 29 (W.D. Tex. 1996), a ff’d

, 108 F.3d 332 (5th Cir.

1997)(impossible for plaintiff to have been totally disabled under

7 under various theories of pre c lusion, including the equitable

doctrine of judicial estoppel. 10social security law and able to perform the essential functions of

his position under the ADA); Johnson v. Hines Nurseries, Inc.

, 950

F. Supp. 175, 178 (N.D. Tex. 1996)(plaintiff should be judicially

estopped from claiming that he is a qualified individual with a

disability after representing himself as totally disabl ed to the

S SA, but noting that plaintiff’s representations of tot a l

disability are at a minimum factors to consider in determining if

a fact question exists as to whether plaintiff could have performed

his job); Johnson v. City of Port Arthur

, 892 F. Supp. 835, 842 n.1

(E.D. Tex. 1995)(plaintiff’s pursuit of social security disability

benefits is a position at odds with his ADA claim); and Reigel v.

Kaiser Foundation Health Plan of North Carolina

, 859 F. Supp. 963,

970 (E.D.N.C. 1994)(plaintiff “ cannot speak out of both sides of

her mouth with equal vigor and credibility”).

11 Ergo Science, Inc. v. Martin

, 73 F.3d 595, 598 (5th Cir.

1996).

12 United States v. C.I.T. Constr. Inc. of Texas

, 944 F.2d 253,

258 (5th Cir. 1991).

13 See D’Ap rile v. Fleet Services Corp. , 92 F.3d 1, 4-5 (1st

Cir. 1996)(plaintiff’s application for disability benefits may not

have constituted a broad admission of incapacity; genuine issue of

material fact existed as to whether plaintiff could have continued

to work with a reasonable accommodation); Blanton

, 108 F.3d at 109-

10 (plaintiff’s previous representations to the SSA did not estop

him from claiming that he could have performed other jobs); Shirley

v. Westgate Fabrics, Inc.

, 1997 WL 135 605, at *3 (N.D. Tex. Mar.

17, 1997)(“There is no rigid ru le that receipt of disability

benefits precludes recovery on an ADA claim. Courts that have

considered the issue have concluded that the receipt of disability

benefits is a factor to be considered by the court.”); M or ton v.

GTE North Inc.

, 922 F. Supp. 1169, 1182 (N.D. T ex. 1996), a ff’d

,

8 Judicial estoppel prevents a party from asserting a position

in a legal proceeding that is contrary to a position previously

taken in the same or some earlier proceeding. 11 The doctrine serves

a clear purpose: to protect the integrity of the judicial process. 12

We decline, however, to adopt a per se rule that automatically

estops an applicant for or recipient of social security disability

benefits from asserting a claim of discrimination under the ADA. 13114 F.3d 1182 (5th Cir. 1997)(s trict estoppel approach has no

support in the case law); Hughes v. Reinsurance Group of America

, 957 F. Supp. 1097, 1100 (E.D. Mo. 1996)(evidence demonstrates that

plaintiff was representing that she could not perform her

particular job, not that she was totally disabled); and Smith v.

Dovenmuehle Mortgage, Inc.

, 859 F. Supp. 1138, 1142 (N.D. Ill.

1994)(“Defendant’s position would place plaintiff in the untenable

position of choosing between his right to seek disability benefits

and his right to seek redres s for an alleged violation of the

ADA.”).

14 Robinson v. Neodata Services, Inc.

, 94 F.3d 499, 502 n.2 (8th

Cir. 1996)(SSA determination of eligi bility for benefits is not

synon ymous with determination whether plaintiff is a qualified

individual for purpo ses of the ADA; at best, social security

determination is evidence for trial court to consider in making its

own independent determination); Weiler v. Household Finance Corp.

, 101 F.3d 519, 523-24 (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.”);

and Pegues v. Emerson Electric Co.

, 913 F. Supp. 976, 980 (N.D.

Miss. 1996)(a finding of disability by the SSA does not necessarily

foreclose an ADA claim).

9 It is at least theoretically conceivable that under some limited

and highly unusual set of circumstances the two claims would not

necessarily be mutually exclusive, as the SSA’s determination of an

applicant’s entitlement to social security disability benefits

would not be synonymous with a determination that a plaintiff is or

is not a “qualified individual with a disability” under the ADA. 14

First, while the ADA requires an individualized inquiry into

the ability of a particular person to meet the requirements of a

particular position, the SSA permits general presumptions about an

individual’s ability to work. The SSA considers some conditions to

be presumptively disabling. If a claimant has an impairment that15 20 C.F.R. §404.1520(d) (1997).

16 See “Americans with Disabilities Act of 1990

-- INFORMATION,”

Memorandum from the Associate Commissioner, Social Security

Administration 1 (June 2, 1993).

10 is medically equivalent to a listed impairment, the SSA presumes

t hat the disorder is so severe as to prevent the claimant from

doing any substantial gainful ac tivity, without considering his

age, education or past work experience. 15 Thus, an individual can

have a “disability” under the SSA definition and still be able to

work.

Second, the SSA does not consider whether the individual can

work with reasonable accommodation. An SSA interpretative guidance

addressing the SSA’s disability determination process states,

The fact that an individual may be able to return to

a past relevant job, provided that the employer makes

accommodations, is not relevant to the issues to be

resolved.

. . . [H]ypothetical inquiries about whether an

employer wo uld or could make accommodations that would

allow return to a prior job would not be appropriate. 16

Thus, a per son may be unable to do any work which exists in the

national economy even though he can work with a reasonable

accommodation. In those instances, the person is both a person

with a “disability” under the SSA and a “qualified individual with

a disability” under the ADA. Accordingly, a person claiming to be

disabled under the SSA may still be entitled to protection under

the ADA.

Third, even the SSA recognizes that an individual may be able

to qualify as SSA “disabled” and still be able to work in a17 20 C.F.R. §404.1592(a) (1997).

18 Id

.

11 particular position. For example, the SSA has a trial work period

that allows b eneficiaries to work for nine months while their

benefit entitlement and payment levels remain unchanged. 17

Similarly, t he SSA provides individuals who return to work with

benefits in any month in which earnings fall below a statutory

level. 18

We hold therefore 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 as serting that he is a “qualified

individual with a disability.” We thus leave open the possibility

that there mi ght be instances in which the nature and content of

the disability statement submitted to the SSA, in the context of

the particular facts of the case, would not absolutely bar a

plaintiff from attempting to demonstrate tha t despite his total

disability for Social Sec urity purposes he is a “qualified

individual with a disability.” Conceivably, such a plaintiff might

be able to rebut this presumption if he w ere able to present

credible, admissible eviden ce —— such as his social security

disability benefits application, other sworn documentation, and his

allegations relevant to his ADA claim —— sufficient to show that,

even though he may be disabled for purposes of social security, he19 Pegues

, 913 F. Supp. at 980-81 (ADA claim not necessarily

foreclosed, but when plaintiff previously represented in

administrative proceedings that she was unable to work, she cannot

now argue that she could have performed the essential functions of

her job with a reasonable accommodation); Morton , 922 F. Supp. at

1182-83 (under these facts, plaintiff has no standing to assert ADA

claim, as she has continuously represented that her disability

prevented her from performing her job); and G arcia-Paz v. Swift

12 is otherwise qualified to perform the essential functions of his

job with a reasonable accommodation and thus not estopped from

asserting an ADA claim.

C. I S C LEVELAND E STOPPED F ROM A SSERTING H ER ADA C LAIM ?

We conclude that, on the facts before us —— particularly her

sworn statements to the SSA that she was disabled

—— Cleveland has

not raised a genuine issue of material fact to rebut the

presumption that, while she remains disabled for purposes of Social

Security, she is estopped from asserting that she is a “qualified

individual with a disability.” Cleveland continuously and

unequivocally represented to the SSA that she is totally disabled

and completel y unable to work. As her statements are unambiguous

and previously uncontroverted, she cannot now be heard to complain

that she could perform the essential functions of her job during

the time between her return to work and her termination. To permit

Cleveland to make such an argument in the face of her prior,

consistent, and —— until now —— uncontested sworn representations

to the SSA would be tantamount to condoning her advancement of

entir ely inconsistent positions, a factual impossibility and a

legal contradiction. 19Textiles, Inc.

, 873 F. Supp. 547, 555 (D. Kan. 1995)(on this

record, plaintiff is estopped from asserting ADA claim; having

collected substantial benefits and based on these unambiguous and

seemingly informed representations, plaintiff cannot now claim that

she could perform the essential functions of her job).

13 III.

CONCLUSION

As Cleveland consistently represented to the SSA that she was

totally disabled, she has failed to raise a genuine issue of

material fact rebutting the presumption that she is judicially

estopped from now asserting that for the time in question she was

nevertheless a “qualified individual with a disability” for

purposes of her ADA claim. For the foregoing reasons, the district

court’s grant of summary judgment for PMSC is

AFFIRMED.