The Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a), protects a qualified individual from discrimination by private employer. There are two basic parts to prove a claim for discrimination. First, you must show you are a qualified individual, which means you are someone who can, with or without accommodation, perform the essential functions of the employment position that you have held (your job) or desire to hold (a position for which you are applying). The second part of proof required is whether the accommodation needed is reasonable. The Department of Labor says, “Examples of reasonable accommodations include making existing facilities accessible; job restructuring; part-time or modified work schedules; acquiring or modifying equipment; changing tests, training materials, or policies; and providing qualified readers or interpreters.” The focus of this post, however, is on whether you can legitimately pursue an ADA claim and a Social Security disability claim at the same time. 

As to Social Security disability benefits you must prove your inability to work. The five steps in a disability determination include: (1) whether the claimant is performing substantial, gainful activity; (2) whether the claimant's impairments are severe; (3) whether the severe impairments meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) whether the claimant can return to his or her past relevant work; and (5) based on the claimant's age, education, and work experience, whether he or she could perform other work that exists in the national economy. See generally, Phillips v. Barnhart, 357 F.3d 1232, 1237 (11th Cir. 2004) (citing 20 C.F.R. § 404.1520).

So, on its face it appears the answer is no … you can't pursue Social Security and ADA at the same time. For an ADA claim you assert that you could work your job with a reasonable accommodation, yet for Social Security disability you are saying you cannot work a job you are qualified to perform. But is there any middle ground? That depends. One example is that for Social Security disability you can be disabled for a limited period of time, such as 12 months. An ADA accommodation might permit added time for medical leave while recovering from an illness or surgery such as a total of 12 months. Regardless of how you “thread the needle” here, it is incumbent on you to have such an explanation ready for the courts.

In the case, Williams-Evans v. Advance Auto Parts, No. 20-10746 (11th Cir. Jan. 7, 2021) [2021 A.D. Cases 4358, 62 NDPLR 106, the court found Ms. Williams-Evans was not a qualified individual protected by the ADA. She had made a previous form statement in her Social Security disability claim that she had been unable to work since June 22, 2012. She asserted in that proceeding that she could not lift over 6 pounds and had to lie down for every 30 minutes out of each work hour of the day. Further she said she could only sit for 25 minutes at a time. Relying on that and other information, The Administrative Law Judge awarded her disability benefits effective October 1, 2012. 

Now she was asserting in her ADA claim that she could perform the essential functions of her job with a reasonable accommodation. Her job in this auto parts store required her to install batteries (which involved lifting and carrying more than 6 pounds), clean the store (cleaning, straightening and relocating products), operate the cash register, and predominantly walk or stand while serving customers in the store. The court found she provided no explanation for this inconsistency in contending disability from any substantial gainful occupation, and contending she could perform her occupation with a reasonable accommodation. “Because the ADA protects only individuals still able to perform the essential functions of their job, a plaintiff who is totally disabled and unable to work cannot sue for discrimination under the ADA. Slomcenski v. Citibank, N.A., 432 F.3d 1271, 1280 (11th Cir. 2005).” Williams-Evans v. Advance Auto Parts, No. 20-10746, at *5 (11th Cir. Jan. 7, 2021). She was judicially estopped from claiming she was entitled to protection as a qualified individual under the ADA.

So … it is possible to thread the needle, but it will involve a unique circumstance and you must be ready to explain the inconsistencies.