Identity and Narrative: Turning Oppression Into Client Empowerment in Social Security Disability Cases.

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. I. DISABLING NORMS INFUSE SOCIAL SECURITY DISABILITY CASES A. The Standard 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. …