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

Abstract

Current disability law and practice is disabling. In order to avail themselves of rights or benefits, individuals with disabilities embrace a universalist identity, or meta-narrative, of incompetence, powerlessness, inferiority and dependency. Despite decades of criticism of the underlying ethos of U. S. disability entitlement programs and a disability rights movement that culminated in the passage of the Americans with Disabilities Act (“ADA”) in 1990, people with disabilities in the United States are overwhelmingly poor, and poverty among people with disabilities is worse in the United States than elsewhere in the developed world. Far from the shift anticipated by some in the disability rights movement from welfare or Social Security Disability Insurance (“SSDI”) rolls to employment after the ADA was enacted, more people with disabilities now receive SSI and SSDI, and the employment rolls have not increased for the disabled. Social Security Disability Insurance and Supplemental Security Income (“SSI”) are presently the largest source of income to persons with disabilities in the United States, and more individuals rely on these federally administered benefits every day. Individuals with disabilities who seek to enforce laws ostensibly intended to benefit them are oppressed first by the laws’ utilization of a disabling master narrative and second by their own adoption of a particular, individualized narrative (often urged by their advocate) that is even more disabling. This paper will explore the varying identities foisted on individuals with disabilities in the context of the Social Security Administration, beginning with a review of the disabling meta-narrative that infuses Social Security proceedings. I argue that much of the disabling nature of this practice can be traced to the anti-discrimination, equity and civil rights rhetoric of the disability rights movement in the last century, its failure to incorporate the most vulnerable and impoverished, and its failure to create and build a constituency through identity politics.The paper will then trace how legal institutions, including courts and federal agencies, have largely rejected the civil rights construct of disability as one that “views society, rather than the individual with a disability, as defective.” This construct urges that “disability” is a result of the dynamic between an individual and “social standards created by an ableist society.” The focus, in this construct, is not on the individual or her disability, but rather on the social environment, and on changing the environment to accommodate the individual. Instead of adopting this construction of disability, legal institutions continue to utilize the medical model of disability that situates the disability in the individual, as something either to be fixed or to be the object of charity. As a result, most legal practitioners present cases that conform to these disabling legal standards without questioning the frame of those standards. They further disable and disempower their clients, particularly as they push clients to construct and present disabling self-identities, or narratives. The paper will conclude by exploring more potentially empowering alternatives for framing disability advocacy, both systemically and individually. In particular, I will discuss the promise of using human rights constructs as well as the potential benefits of embracing and using a universalist vulnerability and human frailty model. I will demonstrate how such a re-framing of both meta and individual client narratives is more consistent with principles of client autonomy, attorney-client collaboration, and empowerment.